Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ibrahim v R [2014] NSWCCA 160 Hearing dates: 19 May 2014 Decision date: 15 August 2014 Before: Simpson J at [1]; Hidden J at [72]; Hamill J at [73] Decision: Appeal against conviction dismissed. Catchwords: CRIMINAL LAW - appeal - conviction - accused convicted of offence against s 86(3) of Crimes Act 1900 (NSW) - specially aggravated kidnapping - whether trial miscarried by reason of prejudice occasioned by Crown prosecutor in closing address - address by Crown prosecutor - reversal of onus of proof - whether impossible for trial judge to give directions to rectify possible harm occasioned by Crown prosecutor's inappropriate remarks - whether directions given ineffective to cure prejudice from remarks - impropriety fully mitigated by summing up - whether defence of honest and reasonable but mistaken belief raised by accused - Proudman v Dayman [1941] HCA 28; 67 CLR 536 - evidentiary onus on accused - evidentiary onus not discharged - no error in manner in which trial judge directed jury with regard to defence of honest and reasonable mistake - verdict not unsafe and unsatisfactory - appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), s 86 Cases Cited: Anderson v R [2010] NSWCCA 130; 202 A Crim R 68 Armstrong v R [2013] NSWCCA 113 Causevic v R [2008] NSWCCA 238 CTM v The Queen [2008] HCA 25; 236 CLR 440 Gilham v R [2012] NSWCCA 131; 224 A Crim R 22 Jiminez v The Queen [1992] HCA 14; 173 CLR 572 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kennedy v R (1997) 94 A Crim R 341 KNP v R [2006] NSWCCA 213; 67 NSWLR 227 Livermore v R [2006] NSWCCA 334; 67 NSWLR 659 Lyndon v R [2014] NSWCCA 112 Proudman v Dayman [1941] HCA 28; 67 CLR 536 R v Attallah [2005] NSWCCA 277 R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 R v Rugari [2001] NSWCCA 64; 122 A Crim R 1 R v Teasdale [2004] NSWCCA 91; 145 A Crim R 345 Wood v R [2012] NSWCCA 21; 84 NSWLR 581 Category: Principal judgment Parties: Hassan Ibrahim (Appellant) Regina (Respondent) Representation: Counsel: J Hickleton (Appellant) N Adams SC/G Namey (Respondent) Solicitors: Galloways Solicitors (Appellant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/64904 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-12-07 00:00:00 Before: Charteris DCJ File Number(s): 2009/64904 Judgment 1SIMPSON J: On 14 September 2011 the appellant was convicted after jury trial in the District Court of a charge shortly known as "specially aggravated kidnapping" committed on 1 April 2009. "Specially aggravated kidnapping" is an offence against s 86(3) of the Crimes Act 1900 (NSW) (see below). On 7 December 2011 the appellant was sentenced to imprisonment for 15 months, with a non-parole period of 5 months. Both the head sentence and the non-parole period have expired. The appellant appeals against the conviction. He has not sought leave to appeal against the sentence. 2At the time of the offence, s 86 of the Crimes Act was relevantly in the following terms: "86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person's consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly. (5) A person who takes or detains a child is to be treated as acting without the consent of the child. (6) ... (7) In this section: child means a child under the age of 16 years. detaining a person includes causing the person to remain where he or she is. parent ... taking a person includes causing the person to accompany a person and causing the person to be taken." (italics added) 3Having regard to the allegations in the Crown case, the jury was directed on the alternative verdicts of aggravated kidnapping (sub-s (2)) and the primary offence of kidnapping (sub-s (1)). 4It will be observed that the aggravated form of the offence is committed where one or other of the circumstances of aggravation (that the offence was committed in company, or that actual bodily harm was occasioned to the victim) are present; the specially aggravated form of the offence is committed where both circumstances of aggravation are present. The verdict of the jury (guilty of the specially aggravated offence) demonstrates that the jury was satisfied that both circumstances were proved beyond reasonable doubt. The Crown case 5It was the Crown case that the offence was committed a little after 7.30 in the evening of 1 April 2009. The victim (to whom I will refer as the complainant) was a teenage boy, 15 years and 10 months of age. He lived in a youth hostel in Greystanes. At about 7.30pm he alighted from a bus opposite the youth hostel and began to walk across the road. He was accosted by an adult male who punched him in the face, and forced him into a dark red Holden Commodore and drove him to a nearby park. The punch in the face was sufficient to dislodge a tooth, and to cause haemorrhage of the left eye. During the drive the appellant asked the complainant if he had robbed the driver's house. The complainant replied that he had not. On arrival at the park, the driver told the complainant to get out of the car. As the complainant did so, two other men came on the scene, and took the complainant by the shirt. The men walked the complainant to a nearby house, also in Greystanes. The man who had been the driver of the Commodore entered the house and emerged with a woman who the complainant took to be his wife. He asked the woman if the complainant was the person who had robbed the house. She said he was not. The men released the complainant. One of them gave him $100. 6It was the Crown's primary case that the appellant was the driver of the car, and was the man who punched the complainant in the face. However, it put an alternative case, that the appellant was party to a joint criminal enterprise, pursuant to which one or more of the three men assaulted and kidnapped the complainant. 7The complainant returned to the youth hostel where he lived. He told two caseworkers what had happened. The caseworkers contacted police. The complainant was taken to Westmead Hospital and treated. Subsequently, he made a statement to police. (That statement was not in evidence. However, it appears that he gave a description of the vehicle used in the offence, as a dark red or maroon Commodore.) On 3 April police took possession of a dark red Commodore from an address in Hoxton Park. The vehicle was subjected to finger print investigation. The appellant's fingerprints were identified in the vicinity of the front passenger seat. The Commodore was registered to Mr Phillip Kandarakis. At the time Mr Kandarakis was living at Merrylands with the appellant, who was temporarily living apart from his wife. 8It was not disputed in the trial that the Commodore was the vehicle used in the offence. 9Mr Kandarakis was questioned by the police officer in charge of the investigation, Detective Senior Constable Kanes (who gave evidence under her married name, Prince). Mr Kandarakis told Detective Prince that, at about 5.00pm on 1 April, the vehicle was taken (with his consent) by a man called Nim Ngata, and was not returned until 8.00pm. Detective Prince attempted to question Mr Ngata. He declined to co-operate. 10Between late April and early May Detective Prince spoke to the appellant on a number of occasions. Although he declined to take part in a recorded interview, he at all times maintained that he had not driven the motor vehicle and had not assaulted the complainant. He acknowledged that he was present when the complainant was taken to the house at Greystanes (which was the home of his wife), but said that he believed that the complainant voluntarily accompanied the men to the house. There is no evidence that he disclosed the identities of the other persons with him at the time. He said that he had no reason to believe that the complainant was under the age of 16. 11At some point, authorisation was given to police to intercept the appellant's telephone calls. On 30 April 2009 he was recorded having a conversation with a friend, Jilbert Murr. The recording of the conversation was before the jury. Although a transcript of the conversation was prepared, there was dispute about one significant passage, and the transcript was not before the jury. Included in the transcript is the following: "[Appellant]: Fuckin', remember a fuckin' while ago this prick's trying to break into the house wearing black? [Ms Murr]: Yeah, yeah. Yep. [Appellant]: And Karen rang the boys. [Ms Murr]: Yep. [Appellant]: Well the fuckin', I saw this cunt on Merrylands Road wearing black clothing you know what I mean? [Ms Murr]: Yeah. [Appellant]: So I thought, I thought it was him. So I grabbed him, I grabbed him and took him back to the house to see if it was him or not, you know what I mean? [Ms Murr]: Yeah. [Appellant]: And, and (unintelligible) go 'No it's not him, the wrong bloke'. I give him a couple of hundred. [Ms Murr]: Yeah. [Appellant]: I was 'No look sorry but, I've had problems, here, and you fit the description fucken of the guys who was trying to break into the house. And I'm sorry about the misunderstanding.' He said 'No worries mate, I can understand all that.' Blah, blah, blah. Everything was sweet, you know what I mean? [Ms Murr]: Yeah. [Appellant]: Now, now they're fuckin', they come and chasing us. They want to know, they, they reckon I'm a suspect for an assault. Assault? I fuckin' didn't touch the fuckin' cunt. I give him fuckin' money and I said sorry. I explained to him what happened. And he was sweet with it. What do you mean assault? Fuckin' ..." It was the Crown case that this accurately records what was contained in the conversation. (On behalf of the appellant, issue was taken with that part of the conversation where the appellant is recorded as saying "I grabbed him ...".) 12The appellant was arrested on 7 May at the home he was then sharing with Phillip Kandarakis. He again declined to take part in a formal interview. He agreed to participate in various forensic procedures. A DNA sample was taken. 13On 8 May the complainant was formally interviewed by Detective Prince. The interview was video recorded. It began with Detective Prince showing the complainant a number of photographs from which he was invited to select any that represented a person who had assaulted him on 1 April. A photograph of the appellant was included in the array. The complainant selected a photograph. The photograph was not that of the appellant, and was accepted as not being the perpetrator. 14The complainant then gave an account of the events of 1 April. 15On 9 July the complainant was again interviewed. This time he was shown a series of photographs that included a photograph of Nim Ngata. He was again asked to identify any that represented his attacker. He again selected a photograph. It was not a photograph of Ngata. The trial 16The complainant's evidence was given, in the first instance, by the jury being showed the video recording of his interview of 8 May. He was then cross-examined. Evidence was also given by the two caseworkers to whom the complainant had reported the attack, by Detective Prince, and by other police officers. Tendered in evidence were photographs of the complainant taken immediately after the events in question, and a medical report of his injuries. 17On 6 September, the second day of the trial, the solicitor appearing for the appellant said that he had attempted to contact Phillip Kandarakis but was unable to do so. He said that he had asked for police assistance but had not received any co-operation. The subject of Mr Kandarakis arose again on the sixth day of the trial, 13 September. By this time, it appears that some assistance had been provided by police, but the solicitor was still unable to contact Mr Kandarakis. There followed a lengthy discussion in which the solicitor said that the Crown prosecutor had agreed not to make any reference to the absence of Mr Kandarakis. The Crown prosecutor himself said: "So in short he's a defence witness they are trying to contact and they have tried to contact him, yes, that is so, but the Crown is not making any Jones v Dunkel submission here." 18The reference to "Jones v Dunkel" was a reference to the decision of the High Court in Jones v Dunkel [1959] HCA 8; 101 CLR 298. After a good deal of discussion it was agreed that the appellant's solicitor could state to the jury that he had made attempts to contact Mr Kandarakis and that those attempts had been unsuccessful. 19Ultimately, at the close of the defence case, a statement was made in the following terms: "... I understand that the Crown concedes that the accused's legal representatives have endeavoured to contact Mr Kandarakis with a view to asking him to give evidence at the trial. The accused's representatives have been unable to contact him notwithstanding assistance provided by the police to endeavour to contact him as well. So we are unable to call him to give evidence in our case." The defence case 20The appellant gave evidence. He said that, on 1 April 2009, his wife telephoned him, and told him that there was a suspicious looking man lurking around the house. The man was dressed in black. Ms Ibrahim sounded panicked. The appellant told her to stay inside with the children. He was nearby but did not have a motor vehicle. He asked another friend, a neighbour (Ray Awkar) to drive him to his wife's address. They arrived between 7pm and 8pm. He spoke to his wife and children; his wife pointed in the direction she said the man had gone. The appellant walked in that direction, accompanied by Mr Awkar. Mr Kandarakis was also present, but may have taken another path. He saw a car that he recognised as Mr Kandarakis' car. He opened the passenger door and saw a person sitting in the passenger seat who he did not recognise. The driver of the car (who the appellant did not, in his evidence in chief, identify) said: "I saw him running down Merrylands Road and he fitted the description." 21The appellant said that he turned to the passenger (who, it was accepted, was the complainant), told him he had had a bit of trouble at his house, and asked him if he had been around the house or around the corner trying to break in "or anything like that". He said that the complainant said that he had not, to which he replied: "Well mate look, I don't know if it's you or not. I haven't looked at the footage ... My wife has got it on camera. Do you mind coming back with me just to see if it's you or not to confirm it's you or not." He said that the complainant agreed, and they walked towards the house which was very close. 22The appellant said that because it was dark he could not see the complainant's face properly, but when he alighted from the car he could see that the complainant was taller than he and looked at least 17 or 18 years old. When asked if he had given any thought to the complainant's age he said: "No not really, I never asked for ID or nothing no." 23He said the complainant was "talking nice and calm" and that everybody was "talking like gentlemen". He said the complainant got out of the car of his own free will and accompanied them. He saw no problem. 24In cross-examination by the Crown prosecutor the appellant said that the driver of the car was Nim Ngata, who was the son of a friend of his, Hussein Ngata. 25The appellant's wife also gave evidence, as did Raymond Awkar and Ms Jilbert Murr. Mr Awkar said that, on the evening of 1 April, the appellant had asked him to drive him to the appellant's wife's home. He did this in a blue Ford Laser. He said that, at the house, the appellant spoke to his wife, and then he and the appellant walked along the path but could find nothing. On the way back they saw the Commodore. The appellant went to the car, opened the door, and talked to the gentleman in the car (the complainant). The appellant asked if the complainant would walk back to the house with them, to which the complainant agreed. They walked together. The appellant's wife said that the complainant was not the person who had been lurking around the house; the appellant apologised for the inconvenience and gave the complainant some money. The complainant declined a lift home. 26Ms Murr's evidence went to the recorded conversation. The disputed part of the transcript was that part in which the appellant is recorded as saying: "So I grabbed him, I grabbed him" and "I give him a couple of hundred." 27Ms Murr, who said she was very familiar with the appellant's voice and diction, recalled the appellant saying that "they", being "the boys" or "other people" had done those things. 28Neither the Crown nor the defence called Nim Ngata. As is apparent from the above, Mr Kandarakis also was not called. 29In his final address to the jury, the Crown prosecutor made reference to the absence of both Phillip Kandarakis and Nim Ngata. With respect to Mr Ngata, he said: "... the next question that clearly arises is did he [the appellant] know that Nim or the driver whoever it might be and Mr Nim Ngata hasn't come and given evidence in this Court and you haven't heard any admission coming from him through anyone in this matter but he has been named. Whether or not it was him or someone else, the big issue is did the accused send him out perhaps on his behalf and/or if he hadn't sent him out on his behalf when the driver turned up clearly the issue is how did the driver know to take the young boy, [the complainant], to the park. The evidence is completely silent on it. The Crown can't prove one way or the other. Telephone intercepts and all that sort of thing are all very well after the event but this is a crime that's investigated, on the Crown case, after it happens but you may very well think it is a very big hole in the defence case." (italics added) 30With respect to Mr Kandarakis, the Crown prosecutor said: "Now, that's what he told the police when his car was taken on 3 April him being approached by the defence doesn't say his absence really adds anything at all to this case and doesn't ask you to draw any inferences from his absence but if he had been called you would expect on the defence case he would have been saying something about how he went with the accused and Ray to the house of [the appellant's wife]. He would have to do some explaining, you might think, about what he told the police that the car went at five, the last he saw of it, and came back to him at eight so where Phillip Kandarakis' evidence would have taken you or not is really just open to speculation. You're not greatly assisted. What you do have is at least what he told the police about the events two days afterwards which was really introduced not by the Crown but by the defence. The Crown put the content in but the fact that he'd said something about Ngata really came from the defence so where that leaves it, who knows." 31These passages drew a protest from the solicitor representing the appellant. However, the trial judge was unpersuaded that any re-direction was called for. He pointed out that the appellant's legal representative had the benefit of the last address. The solicitor took advantage of that benefit, and said to the jury: "Now, I don't know why we can't find Phil [Kandarakis] but we can't because if we did we would have him here. He might put some light on how this other person, Ngata got called because we didn't call him ..." 32In his summing up (so far as is relevant to the grounds of the appeal), the trial judge gave clear directions about the onus of proof in respect of Mr Ngata, he said: "You have heard submissions I think from the Crown as to why Mr Ngata had not been called in the accused's case. It is not for the accused to prove anything in this trial; it is for the prosecution to prove it. There is nothing to prevent the prosecution calling certain witnesses. You must understand that it is the prosecution that bears the burden of proving the guilt of the accused. There is no burden upon Mr Ibrahim at all." 33During the next adjournment, the Crown prosecutor contended that he had been, to an extent, misrepresented in that he had not made any submission that Mr Ngata should have been called in the appellant's case but had merely stated that the jury had not heard from him. 34On resumption, the trial judge said: "I think I might have also overstated in my remarks to you what the Crown had said to you. I did touch upon a remark of the Crown Prosecutor about Mr Nim Ngata. The Crown had not put that the accused had not called Mr Ngata in his case but it merely said that Mr Ngata had not been called and Mr Kandarakis had not been called. As I have said to you there is no onus upon the accused to call any witnesses. The Crown was submitting to you that not that the accused ought to have called the witnesses but that because you have not heard from them, you do not have the benefit of knowing what they would say and therefore you would not speculate." 35He also gave the following direction: "The third element is the accused knew the complainant was not consenting to the taking. That concerns itself with the accused's state of mind, and to achieve that the Crown can do either of two things; the prosecution can prove beyond reasonable doubt that the accused knew that [the complainant] was under the age of sixteen years at the time of taking. If you find that [the complainant] was under the age of sixteen at the time of the taking and that the accused knew that fact, then if you are satisfied beyond reasonable doubt of those matters, that satisfies the element of the accused's knowledge that the complainant was not consenting. If you are not satisfied that the accused knew [the complainant] was under the age of sixteen at the time of the taking, but you are otherwise satisfied that the accused knew in fact at the time of the taking that [the complainant] was not consenting, then that satisfies that element that the accused knew. So there are two ways that the prosecution can approach that essential element 3. Either of those must be proven beyond reasonable doubt." 36Later, with reference to the submissions made on behalf of the appellant, he said: "[The legal representative of the appellant] also submits to you you would not be satisfied for one moment when you deal with the element of the accused's knowledge that he knew the complainant was under sixteen years of age and he submits to you that you could not be satisfied beyond reasonable doubt that the accused knew [the complainant] was not consenting to come back to the house." 37In other respects, the summing up was conventional and has not attracted criticism. The grounds of appeal 38The grounds of appeal are pleaded as follows: "1. That the trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor in his closing address. 2. That in the circumstances of the trial, it was impossible for the learned trial judge to give any directions that could have rectified the possible harm occasioned by the Crown Prosecutor's inappropriate remarks to the jury. 3. In the alternative, the directions given to the jury by the learned trial judge in the course of his summing up were ineffective to cure the prejudice that flowed to the Appellant from the Crown Prosecutor's inappropriate remarks to the jury. 4. The defence of honest and reasonable but mistaken belief having been raised by the Appellant, the learned trial judge erred in not properly directing the jury as to the elements of the defence and the burden of proof. 5. By reason of each of the above grounds and by a combination of all of the above grounds, there was a miscarriage of justice and the verdict of the jury is unsafe and unsatisfactory." Grounds 1-3: the Crown prosecutor's address 39There are two aspects to the complaint concerning the Crown prosecutor's address. The first is the reference to the absence of Nim Ngata from the trial. The submission was made that the address invited the jury to speculate about why Mr Ngata had not been called in the defence case, and that any evidence that he might have given would have been unfavourable to the appellant. This, it was submitted, was exacerbated because specific reference had been made to why Mr Kandarakis was not called, and therefore that highlighted the unexplained absence of Mr Ngata. 40Reliance was placed upon the decision of this Court in Wood v R [2012] NSWCCA 21; 84 NSWLR 581. In that case, a series of 50 questions had been put to the jury by the Crown prosecutor in his final address. The Court considered that the manner in which this was done had the effect of reversing the onus of proof. There is no comparison for present purposes with that case (and nor is any suggested). What is relied upon is the manner in which the Court dealt with the alternative left open to defence counsel. Defence counsel had attempted to deal with the questions. That, however, the Court said: "... gave prominence to them and left the jury to ponder whether the Crown's challenge had been met." The Court concluded that the appropriate course for counsel to take was to seek discharge of the jury. 41It was argued that that course was not reasonably open to the appellant. That was because the appellant's solicitor had already raised the matter with the trial judge, who had indicated clearly that he saw no difficulty in the submissions made by the Crown prosecutor. For my part, I would accept that the failure of the solicitor for the appellant to seek discharge of the jury should not operate against these grounds of appeal, if they are otherwise meritorious. 42Moreover, I accept that the comments made about the absence of Mr Ngata, particularly "... it is a very big hole in the defence case" ought not to have been made. The submission was a clear invitation to the jury to conclude that there was some obligation on the appellant to call Mr Ngata. "A very big hole in the defence case" clearly implied an obligation on the appellant to fill the "very big hole". It is a very small step from that to suggest that there is some onus on the appellant. 43However, I am equally satisfied that, following the trial judge's directions, the jury could have been in no doubt that the onus of proving the appellant's guilt lay squarely on the Crown, and there was no onus on the appellant. Further, the entire issue must be looked at in the light of reality. One clear inference that could be drawn from the appellant's evidence was that the perpetrator of the offence was Mr Ngata. The jury could hardly have thought that he would call Mr Ngata either to admit his culpability, or to deny it. Although the Crown prosecutor's submission ought not to have been made, I am satisfied that it did not cause any damage to the appellant's case, or cause any miscarriage of justice. 44The second aspect of these grounds is the submission put to the jury about the absence of Mr Kandarakis. This has to be seen, in the first place, in the light of the agreed statement to the jury that Mr Kandarakis could not be located. 45The submission put to the jury by the Crown prosecutor is barely (if at all) comprehensible. Ultimately, however, it was that Mr Kandarakis' evidence, if available, would not have added anything to the case. Again, it is a submission that ought not to have been made, particularly in the light of what amounted to an agreement as to what would be said to the jury about the absence of Mr Kandarakis. However, in my opinion, the remarks did no injustice or damage to the appellant's case. 46I am satisfied that, although there was impropriety in the Crown prosecutor's address, it was fully mitigated by the summing up. 47I would reject grounds 1 to 3 of the appeal. Ground 4: honest and reasonable but mistaken belief 48It will be convenient for the reader if the ground, as formulated, is repeated. It is: "4. The defence of honest and reasonable but mistaken belief having been raised by the Appellant, the learned trial judge erred in not properly directing the jury as to the elements of the defence and the burden of proof." 49The ground is therefore based upon an important factual premise. The premise is that "the defence of honest and reasonable but mistaken belief" was raised by the appellant during the trial. The "honest and reasonable but mistaken belief" was as to the age of the complainant. 50Any such belief is relevant to the present circumstances only by reason of sub-s (5) of s 86. Sub-section (5) creates a presumption that, where the alleged victim of a s 86 offence is under the age of 16, any "taking or detaining" is without consent (subject to a further statutory exception, presently irrelevant, in sub-s (6)). 51It is necessary, for the Crown to prove an offence against sub-s (1), or its aggravated or specially aggravated forms, that the "taking" or "detaining" was without consent. It is not so where the alleged victim is under the age of 16. In that circumstance, by reason of sub-s (5), the Crown is relieved of the obligation of specifically proving the absence of consent. Absence of consent is presumed. 52The "defence" of "honest and reasonable but mistaken belief" stems from the decision of the High Court in Proudman v Dayman [1941] HCA 28; 67 CLR 536. It was restated in Jiminez v The Queen [1992] HCA 14; 173 CLR 572. In the joint judgment (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) the Court said that, in Proudman v Dayman: "Dixon J drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant's act innocent. If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute." 53In CTM v The Queen [2008] HCA 25; 236 CLR 440, the High Court applied that reasoning to offences were the age of alleged victim is an element. In that case, the High Court had under consideration an offence against s 66C(3) of the Crimes Act. Section 66C(3) created an offence of having sexual intercourse with another person of or above the age of 14 years, and under the age of 16 years. The age of the alleged victim was therefore an essential element in proof of the offence. The High Court determined that, in relation to such offences: "35 ... An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3). The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of 16 years." 54There are two important aspects to this ruling. The first is that an evidential burden is cast upon the accused person to establish such a belief. The second is that, once that evidential burden is satisfied, the onus is on the Crown to prove beyond reasonable doubt that the accused person did not honestly, on reasonable grounds, hold the requisite belief as to the alleged victim's age. 55In the present case, the appellant's legal representative sought a direction in accordance with CTM. He argued that the appellant had satisfied the evidential burden of establishing the relevant belief, and that, therefore, the onus of disproving that belief fell upon the Crown. After some discussion, it appears that the Crown prosecutor accepted that that evidential burden had been discharged. 56The trial judge did not give any express direction that the obligation was on the Crown to prove that the appellant did not have an honest and reasonable belief that the complainant was over the age of 16. Whether an accused person has discharged the evidential burden will be a matter for judgment in each case. For my part, I have doubts that the Crown concession was properly made. First, it must be noted that there is a distinction between not knowing a person's age, and having an erroneous (but positive and honestly held) belief as to that age. It is also necessary that the belief be reasonable. It is necessary to look to the evidence given by the appellant. For completeness, I will extract the relevant evidence given in chief. It was: "Q. Now, when you saw this person in the car, had you ever seen this person before? A. No. Q. Did you give any consideration as to how old they might be? A. When I opened the car door the lights never went on and it was pretty dark so really couldn't see, I couldn't see his face properly when he was sitting in the car no. Q. What about when he got out? A. When he got out he was taller than me, looked like 17, 18 at least. Q. How tall are you: A. 170 - 155 I think. Q. 1.55 metres or? A. Metres yeah. Q. Do you know what that is the old terms? A. I don't know. Q. So did you give any thought to his age? A. No not really. I never asked him for ID or nothing no. HIS HONOUR: The witness said he thought he was 17 or 18. [SOLICITOR FOR THE APPELLANT]: Yes. [APPELLANT]: He looked like 17 or 18." 57There was some cross-examination of the appellant, although it was not directly concerned with any opinion he held about the complainant's age. Throughout the cross-examination, the appellant repeatedly referred to the complainant as "the kid". It is true that it may be that this appellation was first used by police when they initially questioned the appellant. 58In my opinion the evidence fell short of asserting any belief by the appellant. When the trial judge misquoted him by saying "the witness said he thought he was 17 or 18", the appellant corrected him to say "He looked like 17 or 18". In his initial answers to police (evidence of which was elicited by his solicitor) the appellant said that he had no reason to believe that the complainant was under 16. That is very different to asserting a positive belief that he is over 16. He gave no evidence to support either the honesty or the reasonableness of any such belief. 59In CTM the High Court referred to Jiminez, in which the question concerned a driver of a motor vehicle who had gone to sleep at the wheel, causing a collision that in turn caused the death of a passenger. In the circumstances, it was necessary for the prosecution to prove that the manner of driving was objectively dangerous. Relevant to that was a question whether the driver had had any real warning of the onset of sleep - that is, whether he honestly believed on reasonable grounds that it was safe for him to drive. No such direction had been given to the jury, and, accordingly, the High Court quashed the conviction. The Court declined to order a new trial, although that was not because it found that the accused person had the requisite belief. What is important about the reference to Jiminez in CTM is that the High Court (in Jiminez) tested the question of honest and reasonable belief against other facts and circumstances proved in evidence, giving rise to the conclusion that there was a serious issue to be tried. 60On the facts of CTM, the High Court reached a different conclusion. The appellant in that case had not given evidence, but relied upon an out of court statement that the complainant had lied to him about her age. The High Court noted that there was nothing to support either the honesty or the reasonableness of any belief that he held. The Court concluded that the evidential burden had not been satisfied in that case. 61In my opinion, similar considerations apply in the present case. Despite saying that the complainant "looked like 17, 18", the appellant also said that he did not "really" give any thought to his age. Even on his own version of events, it is an irresistible inference that that is the true position. Initially, he said that he had no reason to believe that the complainant was under 16 years of age. This evidence is, in my opinion, insufficient to discharge the evidential burden of establishing an actual belief, as distinct from a mere observation of the complainant's appearance. 62The trial judge gave the directions set out above (at [35]). He made it clear that the onus was on the Crown to prove that the appellant knew that the complainant was under the age of 16. But he made no reference to the appellant's evidence on the subject. 63In my opinion, ground 4 is based on a false premise. It was not necessary for the judge to give any direction in accordance with CTM. 64However, as I have said, at trial the Crown prosecutor ultimately appeared to accept otherwise. He accepted that CTM applied, and he accepted that the appellant had discharged the evidential burden. 65It is also worth considering what factual directions the trial judge could have given had he directed with respect to the honest and reasonable but mistaken belief. He would have referred to the evidence set out above ([22]) - including the evidence that the appellant gave no thought to the complainant's age (as well as the evidence that he looked about 17 or 18). He would have been obliged to direct that there was no evidence by which to test the honesty of any such belief. He would have been obliged to direct the jury to examine the photographs of the complainant taken at the hospital. 66Examination of the reasonableness of any belief includes consideration of the thought - if any - which was given to the question. 67In my opinion, there was no error in the manner in which the trial judge directed the jury. 68I would reject ground 4 of the appeal. Ground 5: 69As is apparent from its terms, ground 5 is dependent upon the outcome of grounds 1-4. Ground 5 should, accordingly, be rejected. 70I would dismiss the appeal against conviction. 71The order I propose is: (1) Appeal against conviction dismissed. 72HIDDEN J: I agree with Simpson J. 73HAMILL J: I have had the opportunity of reading the judgment of Simpson J. I agree with her Honour's conclusion that the appeal should be dismissed and I agree with her Honour's reasons for that decision. 74I wish to add some observations in relation to grounds 1-3 and ground 4. 75As to grounds 1-3, I agree with Simpson J that the prosecutor's comments were inappropriate and apt to encourage the jury to reason from the basis that there was an onus on the appellant to fill "the very big hole" which arose as the result of neither party calling the witness Ngata. 76I also agree with Simpson J that the clear and unambiguous directions of the trial Judge removed any possibility that the jury was left in doubt as to the onus of proof. 77There are an unfortunate number of appeals brought to this Court in which the conduct of Crown prosecutors, in adducing evidence, cross examining and in their addresses to juries are said to give rise to miscarriages of justice: see, for example, R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34, R v Rugari [2001] NSWCCA 64; 122 A Crim R 1, R v Teasdale [2004] NSWCCA 91; 145 A Crim R 345, R v Attallah [2005] NSWCCA 277, KNP v R [2006] NSWCCA 213; 67 NSWLR 227, Livermore v R [2006] NSWCCA 334; 67 NSWLR 659, Causevic v R [2008] NSWCCA 238, Anderson v R [2010] NSWCCA 130; 202 A Crim R 68, Wood v R [2012] NSWCCA 21; 84 NSWLR 581, Gilham v R [2012] NSWCCA 131; 224 A Crim R 22, Armstrong v R [2013] NSWCCA 113, Lyndon v R [2014] NSWCCA 112. 78The cases referred to in the last paragraph are but a selection of cases in which this Court has found that the conduct of a Crown prosecutor, particularly in their closing addresses, was inappropriate, improper or calculated to create unfairness for the accused. It needs hardly be said that such conduct is inconsistent with the role and duty properly entrusted to Crown prosecutors in the criminal justice system in Australia. 79Of course, this is a relatively small number of cases compared to the vast number of trials that are conducted in this state. Overwhelmingly, prosecutors conduct themselves within the ethical boundaries and with appropriate deference to their role and duties. 80In terms of closing addresses, the following are examples of the kinds of comments that have been held to be improper or inappropriate: (i)Comments inserting the personal opinions of the prosecutor into the proceedings. (ii)Intemperate or inflammatory comments tending to arouse prejudice and emotion. (iii)Submissions based upon material not established by the evidence. (iv)Comments which belittle or ridicule the defence case. (v)Attempts to impugn a witness in circumstances where the witness was not afforded the opportunity of responding to an attack upon their credit. (vi)Comments which have a tendency to invert the onus of proof or water down the standard of proof. The first five of those categories were referred to in the judgment of the Court (McClellan CJ at CL, Johnson and Latham JJ) in Livermore v R at [31]. The sixth was discussed in Wood v R and is the kind of inappropriate comment that was made in this case. Inappropriate comments are not limited to those six categories. 81Addressing the jury in these ways is inconsistent with the ethical obligations arising under the Rules of the New South Wales Bar Association and the advocacy rules of the New South Wales Law Society. There are specific rules directed to the conduct of prosecutors. Those rules have been emphasised in a number of the cases. 82There is no doubt that the responsibility cast upon prosecutors is a heavy one and the criminal justice system and the community expects prosecutors to conduct themselves firmly and fearlessly by providing a robust presentation of the case. The successful prosecution of offenders depends on such conduct. But as Hunt CJ at CL said in a different context: "Crown prosecutors should not let their understandable distaste for the factual situations of the individual case become zealotry in a misguided belief that convictions must be obtained at any cost. They have a duty to ensure that trials will be fair to the accused ..." (Kennedy v R (1997) 94 A Crim R 341 at 353.) 83Prosecutors should be aware that each time they exceed the legitimate boundaries of robust advocacy they create the real risk that the trials in which they appear may be subject to scrutiny and the convictions recorded may be quashed. This results in great distress for the alleged victims of the offences and significant cost to community in the conduct of re-trials. 84Prosecutors should also be aware that such conduct may result in disciplinary action. I do not mean to suggest that the present case is one in which there should be, or is likely to be, disciplinary action. The transgression was not, relatively speaking, egregious and appeared to be the result of inadvertence or clumsiness rather than design. 85Having made those observations, I repeat that I am in complete agreement with the conclusion of Simpson J that the directions of the trial judge in this case, including the directions and re-directions given specifically in relation to the prosecutor's address, were ample to ensure that the jury did not proceed on an erroneous understanding of the onus of proof. 86In relation to the fourth ground of appeal, I agree with Simpson J that the evidence of the appellant fell short of positively asserting an honest and reasonably held belief that the complainant was under the age of 16 years. 87In the critical passage of the evidence the appellant said that the complainant "looked like 17, 18 at least' but he did not assert that he had any particular belief as to the complainant's age. On the contrary, when asked whether he gave any thought to his age he said "no, not really". The solicitor appearing for the appellant at the trial did not lead evidence as to the appellant's belief as to the complainant's age. 88Further, as Senior Counsel for the respondent pointed out, the solicitor appearing at the trial agreed to the directions on the issue of consent before they were given and made no complaint after they were given. The lengthy discussion on this issue was not so much concerned with honest and reasonable belief as it was with the question of whether the prosecution needed to prove, not only that the complainant was under the age of 16, but also that the appellant knew that he was under the age of 16. The concession made by the Crown was that the prosecution had to prove both of those things. 89On 8 September 2011 the following exchange is recorded: "HIS HONOUR: But the Crown is putting this proposition that he says as regards consent he has - there's two limbs that he has to prove on consent. One that the child did not consent but two that Mr Ibrahim knew the child wasn't consenting. The Crown says subsection 5 allows him to establish that by operation of the section once he establishes the age but the second limb to prove in the absence of knowledge, he has to satisfy the jury that Mr Ibrahim knew. No shifting of the onus to you at all. [DEFENCE]: I am happy with that." 90On 13 September 2011 the trial Judge told counsel what he proposed to say to the jury on this issue: "HIS HONOUR: ... But the next provision is the area where I've had time to reflect upon what was urged upon me and I'm not certain that this is in agreement and that is the mental element of the accused. The accused knew that the complainant was not consenting to the taking. The prosecution must prove beyond reasonable doubt, 1. The accused knew that the complainant was under the age of 16 years at the time of taking, or if not satisfied the accused knew the complainant was under the age of 16 years at the time of the taking the accused knew in fact at the time of the taking that the complainant was not consenting to the taking." 91The Crown said that he was "content with that formulation". No complaint was made by the appellant's representative. Shortly thereafter the following exchange occurred: "HIS HONOUR: There's two ways the prosecution can prove the accused's mental element, one when he's taking he knows the child, for example that example that I gave is 10, he knows it's under 16-- [DEFENCE]: Yes. Sure. HIS HONOUR: Then he can't say that I thought the 10 year old was consenting. There's plenty of evidence here that says he had no idea this person was under 16-- [DEFENCE]: Yes. HIS HONOUR: --indeed others seem to support that. But if the Crown can't prove that, if the Crown can prove your client knew, actually knew, that there was no consent then that's sufficient to prove the element. DEFENCE: Yes." 92The solicitor appearing did not at this point ask the Judge to direct the jury that the Crown had to disprove that his client was mistaken as to the age of the complainant. Given the state of the evidence, that is not surprising. The appellant's evidence was that he did not really think about the age of the complainant. 93I agree with Simpson J that ground 4 should be rejected. ********** 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: 15 August 2014