Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Greenhalgh v R [2017] NSWCCA 94 Hearing dates: 8 March 2017 Decision date: 15 May 2017 Before: Basten JA at [1]; Button J at [45]; N Adams J at [46] Decision: (1) With respect to grounds 1-4 in the document entitled "Grounds of Appeal" filed on 25 October 2016, refuse leave to rely upon the grounds, pursuant to Criminal Appeal Rules (NSW), rule 4. (2) Dismiss the appeal. Catchwords: CRIMINAL PROCECURE – leave to appeal against conviction – Criminal Appeal Rules (NSW) r 4 – whether error giving rise to miscarriage of justice CRIME – directions to jury – indecent assault – mens rea – whether directions in respect of knowledge as to lack of consent erroneous CRIME – directions to jury – sexual assault – mens rea – reasonable grounds for belief in consent under Crimes Act 1900 (NSW) s 61HA – whether failure to identify evidential basis for reasonable grounds – whether failure to explain that evaluation of grounds must have regard to all circumstances of the case – whether assessment of reasonable grounds not wholly objective Legislation Cited: Crimes Act 1900 (NSW), ss 61HA, 61R Criminal Appeal Rules (NSW), r 4 Cases Cited: ARS v R [2011] NSWCCA 266 Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 Darwiche v R [2011] NSWCCA 62 FP v R [2012] NSWCCA 182; 224 A Crim R 82 Jones v Dunkel (1959) 101 CLR 298 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 O'Sullivan v R [2012] NSWCCA 45 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Picken v R [2007] NSWCCA 319 R v Abusafiah (1991) 24 NSWLR 531 R v Aziz [1982] 2 NSWLR 322 R v Melville (1956) 73 WN(NSW) 579 R v Morgan [1976] AC 182 R v O'Brien (1920) 20 SR(NSW) 486 R v Parker [1974] 1 NSWLR 14 R v Tripodina (1988) 35 A Crim R 183 The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 Wilde v The Queen (1988) 164 CLR 365 Category: Principal judgment Parties: Christopher Greenhalgh (Applicant) Regina (Respondent) Representation: Counsel: Ms A Francis (Applicant) Mr E Balodis (Respondent) Solicitors: Bannisters Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/213864 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 19 November 2015 Before: Woods DCJ File Number(s): 2014/213864 Judgment 1. BASTEN JA: The applicant sought leave to appeal against his convictions on two counts of sexual intercourse without consent and three counts of indecent assault. While the grounds related to directions given to the jury, of which one involved a question of law alone, no objection was taken to the directions at the trial and hence the applicant needs leave to rely upon the grounds pursuant to the Criminal Appeal Rules (NSW), r 4. 2. For the reasons explained below, leave should be refused to rely upon those grounds and the appeal must therefore be dismissed. Alleged offending 1. The events which gave rise to the charges occurred between about 7am and 8am on Sunday morning, 20 July 2014. The complainant had been intoxicated the night before. When she woke, having slept still clothed on her sofa, she had an exchange on Facebook with the applicant who lived nearby. They had had a prior sexual relationship. He then went to her apartment with the intention of having sex. 2. In chronological order, the first offence was digital penetration of the vagina, which constituted the first charge of sexual intercourse without consent (count 1). That was immediately followed by the applicant placing his fingers in the complainant's mouth, being the first indecent assault (count 4). The second indecent assault was kissing her breasts (count 3). The applicant then placed his penis in the complainant's mouth, being the second charge of sexual intercourse (count 2). Finally, the applicant masturbated and ejaculated over the complainant's face and neck, being the third count of indecent assault (count 5). 3. The principal issue in the proposed appeal arose from the different requirements with respect to the mental state of the offender in relation to the offence of sexual intercourse without consent and the offence of indecent assault. With respect to the counts of indecent assault, it was necessary for the prosecution to prove that the accused knew that the complainant did not consent, or was at least indifferent to the absence of consent. With respect to sexual intercourse, it was sufficient for the prosecution to prove that the complainant did not consent and that the accused knew that she did not consent, or was indifferent as to consent. However, pursuant to s 61HA of the Crimes Act 1900 (NSW), it was also sufficient if the prosecution established that the accused had no reasonable grounds for believing that the complainant consented. Grounds of appeal 1. The trial commenced on 27 July 2015, but the jury was not empanelled until the morning of 29 July. Counsel addressed for most of Friday, 7 August, addresses being completed on Monday, 10 August 2015. The summing up followed on 10 August. The four grounds of appeal sought to be raised by the applicant were directed to the summing up and were in the following terms: "1. The directions in respect of knowledge attaching to a lack of consent concerning the indecent assault allegations were erroneous. 2. The trial judge erred by failing to identify the evidential basis for reasonable grounds attaching to a belief in consent in respect of the sexual assault allegations including any honest belief in consent held out by the applicant attaching to the acts of foreplay. 3. The trial judge erred by failing to identify that in evaluating reasonable grounds for a belief in consent the jury must have regard to all the circumstances of the case including the sexual history between the applicant and the complainant. 4. The trial judge erred by failing to identify that an evaluation of whether reasonable grounds existed was not a wholly objective test." There is, accordingly, no call to provide an account of the circumstances addressed by the evidence, beyond that required to address these grounds. Application of rule 4 1. The Director submitted that in order to obtain a grant of leave under r 4, the applicant bore the burden of demonstrating that he had lost a real chance of acquittal, thereby demonstrating a miscarriage of justice. The principal authority relied on was the following reasoning of McHugh J in Papakosmas v The Queen: [1] "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 the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.... Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant." 1. Whether or not that is the correct approach is a matter about which the courts have differed. The statement in Papakosmas, provided a negative constraint on the grant of leave ("[t]here is no case for the grant of leave under r 4 unless …"); ("an appeal can only succeed if the Court of Criminal Appeal is satisfied that …"). It has been relied upon in many later cases, [2] despite the fact that the statement was undoubtedly obiter and that two other members of the Court (Gaudron and Kirby JJ) expressly disassociated themselves from it. [3] 2. As noted by Hunt J in R v Abusafiah, [4] the scope of r 4 was discussed at some length by Yeldham J in R v Tripodina. [5] The reasons given in the latter case for limiting appeals on points not taken at trial included, (i) a pragmatic consideration of the possible effect on the workload of the appellate court; [6] (ii) the obligation of lawyers to take points in a timely fashion; [7] (iii) the difficulty in judging the effect of an error in circumstances where it was not raised in the course of the trial; [8] and (iv) if no objection were taken at trial, it might be inferred that, as understood in the context of the trial, the point did not have the significance alleged on appeal and the failure to raise it was not likely to have given rise to a miscarriage of justice. [9] Yeldham J concluded: "The authorities to which I have referred emphasise that the leave required by r 4 is not to be lightly granted. Generally speaking such 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." [10] 1. The test derived in Tripodina was said to be drawn from Wilde v The Queen, though perhaps from p 373, rather than p 369. However, in Wilde, that language was said to impose a limit on the use of the proviso in circumstances where, although error had been detected in the trial, the appeal court was satisfied that there had been no substantial miscarriage of justice. [11] There are serious difficulties in adopting that language as a criterion for the exercise of r 4. 2. Returning to Abusafiah, Hunt J stated: [12] "The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial." That language was repeated in Darwiche v R; [13] nevertheless, it provides more by way of rhetorical flourish than as a standard for the application of r 4. 1. Nor is the operation of the rule elucidated by referring to this Court as "a court of error." [14] It is, potentially, more than that: it is a court required to address alleged miscarriages of justice. As Gleeson CJ noted in Nudd v The Queen: [15] "The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. … An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is failure of process which departs from the essential requirements of a fair trial." 1. To this it may be added that not all errors give rise to a miscarriage of justice, or at least not to a substantial miscarriage, that being the premise of the proviso. 2. Certain points may be made in relation to the purpose and effect of r 4. It is in terms a constraint upon the pursuit of a ground of appeal which would otherwise be available. It assumes the existence of a ground which, if upheld, could result in the quashing of a conviction. On the other hand, it does not assume that the ground will be upheld; rather, it precludes reliance upon the ground. If the ground can be seen to lack merit, leave will be refused. The converse is not necessarily correct. That is because, while lack of merit may be readily discernible, merit may not. That fact is inherent in the rationale for r 4; divorced from the understanding resulting from involvement in the trial, a claim that something should have happened which did not is hard to evaluate. If, in a clear case, a necessary element of a fair trial according to law was overlooked, leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused. 3. Generally, the conferral of a discretionary power on a court, without the prescription of criteria or standards by which the power is to operate, gives rise to a tension in the administration of justice. On the one hand, equality under the law requires that similar results should obtain in similar cases. On the other hand, a power which is not the subject of express fetters should not be restricted by glosses on the language of the instrument. 4. The importance of not limiting the scope and operation of a discretionary power, particularly in relation to the fairness of a criminal trial, was exemplified by the decision in Kentwell v The Queen. [16] Kentwell rejected an approach adopted by this Court in assessing extensions of time within which to appeal against sentence, according to a summary review of the case, leading to the conclusion that the applicant had failed to demonstrate substantial injustice. [17] 5. The discretionary power conferred by r 4 has a number of particular features which affect its application. Where, as in this case and in most serious criminal trials, there is legal representation at trial the following principle, stated by Gleeson CJ in Nudd, is applicable: [18] "A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue…. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function." 1. Inherent in that proposition is the need to assess unfairness "by reference to an objective standard, and without an investigation of the subjective reasons for that conduct." [19] Accepting that there may be unusual cases where the reason why an act or omission occurred may be relevant, the Chief Justice nevertheless reiterated: [20] "As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel." 1. An objective assessment may be inconclusive. In some cases it will be possible to infer that a step was not taken which might have been taken, for tactical reasons. However, in most cases it will be difficult to know from reading the transcript of the trial whether some tactical advantage may have been perceived, whether a step was not taken based on instructions as to how the case should be run, or whether it was omitted through inadvertence. 2. In cases where an applicant seeks to rely upon a statement from trial counsel, that will probably be to establish that the reason was inadvertence. However, the mere fact that a step was omitted through inadvertence will often not be decisive and attempts to adduce evidence from counsel to that effect should not be readily acceded to. Inadvertence may merely demonstrate that a point now seen to be important was not, in the immediacy of the trial, seen to have such significance. For this reason, in the present case, the Court indicated that an affidavit prepared by trial counsel and proffered for the first time in the course of the hearing of the appeal would not be favourably looked on; the tender was not pressed. 3. Finally, in cases where no direction was sought, it will usually be a precondition to a grant of leave under r 4 that the omitted direction should be expressly formulated. It will be difficult for the appeal court to assess the significance of the omission, being far removed from the context provided by the trial; it will be almost impossible if the terms of the proposed direction are not formulated. Addressing the grounds (a) indecent assaults – ground 1 1. At the commencement of his summing up, the trial judge, Judge Woods QC, gave the jury a written document headed "Directions of law". Those directions, which the judge took the jury through orally in the first half of his summing up, included two sections under the headings "What the Crown must prove – counts 1 & 2" and "What the Crown must prove – alleged indecent assaults". In reading the document to the jury, the judge included those headings. Under each heading, he identified separately and correctly the differing requirements as to the state of mind of the accused, in accordance with the principles set out above. 2. There was no challenge on the appeal to the express terms of the directions. Rather, the challenge focused on two factors. The first, being a matter of principle, was the fine distinction between the state of mind required for each set of offences and the omission to call attention to the point of distinction. The second challenge was as to the manner in which the judge summarised the submissions of the parties, without identifying their failure to make the appropriate distinction. 3. Counsel for the applicant accepted that the state of mind required to commit an offence of indecent assault required either a belief that the complainant did not consent or recklessness as to whether or not she did consent. The distinction is clear in principle: for sexual intercourse without consent, an accused will be guilty even if he believes that the complainant consents, or may consent, if he has no reasonable grounds for such a belief. With respect to indecent assault, it is not sufficient for the prosecutor to prove that there were no reasonable grounds on which the accused could form a belief that the complainant consented. On the other hand, in accordance with the common law, it would be sufficient for the prosecution to prove with respect to an offence of indecent assault, that the accused was reckless as to whether the complainant consented or not. That would follow from the reasoning of the High Court in Banditt v The Queen. [21] 4. The issue in Banditt was not whether recklessness was a sufficient mental element, but whether the trial judge should have given an explanation as to what might constitute recklessness, given that the term can cover a range of circumstances. The question whether recklessness was sufficient was not in issue, the offence being one of sexual intercourse, because s 61R(1), which was replaced from 1 January 2008 by s 61HA(3)(b), provided that a person "who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse." However, in considering what was intended by the term "reckless" and the nature of any direction which should be given to the jury, the Court in Banditt addressed the origin of the principle, by reference to the opinions of the House of Lords in R v Morgan. [22] It was held in Morgan that it was a sufficient mental element that the accused acted "recklessly and not caring whether the victim be a consenting party or not". [23] There was no dispute that the same principle as to recklessness applied in relation to indecent assault. 5. The point of distinction, therefore, was the sufficiency of a prosecution case in relation to sexual intercourse based on absence of reasonable grounds for a belief in consent. That would not be sufficient for the offence of indecent assault. Nevertheless, what is clear as a matter of law may be blurred in a practical sense. Thus, if the prosecution proves beyond reasonable doubt a lack of reasonable grounds to believe in consent, that will be sufficient for a conviction with respect to the offences of sexual intercourse without consent, without the jury having to form a view as to whether the accused held a belief that she consented. On the other hand, proof of the lack of reasonable grounds might provide a solid evidential basis for the jury to conclude that the accused did not hold a belief that she consented, despite his assertion that he did. The latter practical consideration is important in the present case, given the lack of complaint at trial as to the directions. 6. Ground 1, alleging erroneous directions in respect of "knowledge attaching to a lack of consent concerning the indecent assault allegations" should not be entertained. First, the directions were not erroneous. Secondly, what was relied on was a point of distinction between the necessary state of mind in relation to sexual intercourse and the necessary state of mind in relation to indecent assault. The point of distinction was valid in law, but had limited practical significance. Thirdly, given the possibility of confusion from some further direction, it is unlikely that a further direction would have been given. Fourthly, the terms of the proposed direction were not formulated. Fifthly, at least taken in isolation, it is not possible to be satisfied that any miscarriage of justice occurred through the absence of any additional direction. (b) remaining grounds 1. The remaining grounds of appeal focused upon the lack of reasonable grounds for any belief in fact held by the applicant that the complainant was consenting. The grounds identified three alleged errors, namely (i) failure to identify the evidential basis for reasonable grounds; (ii) failing to explain that an evaluation of such grounds must have regard to all the circumstances of the case, including the sexual history between the applicant and the complainant, and (iii) the failure to state that an assessment of reasonable grounds was not a wholly objective test. 2. As explained in the written directions, the judge directed the jury in principle in the following manner: [24] "There are three possible ways the Crown could prove that the accused knew that the complainant did not consent at the time of the intercourse. The Crown may prove: A. that the accused actually knew that the complainant did not consent (for example he heard her say words to this effect and understood that it meant she did not consent); or B. that even if the accused honestly believed that the complainant did consent, he had no reasonable grounds for that belief (to consider an example different from this case, assume that a man honestly believed that if a girl wore a mini skirt, this automatically meant that she gave her consent to sexual intercourse with him – it might be thought that there would be no reasonable grounds for such a belief); or C. that the accused was reckless as to whether the complainant consented …. If the Crown proves beyond reasonable doubt one of A, B or C above, this would be proof of the fact that the accused knew that the complainant was not consenting." (c) evidential basis for reasonable grounds – ground 2 1. A complaint of failure to state "the evidential basis for reasonable grounds" identifies no necessary error in respect of the directions. Further, it assumes that various aspects of the evidence could usefully be attributed to one legal element of the offence and not to other elements. That is not so and to direct the jury in such terms would be an invitation to confusion. For example, the complainant gave evidence that when the accused first approached her and tried to grab her, she pushed him away with her hands on his chest and told him "[t]o get off me and to leave me alone." [25] Shortly thereafter, she asked him "to fuck off … to get out of my house." [26] Supposing the jury accepted that evidence, it was evidence of lack of consent, and evidence from which the jury could infer that the accused knew she was not consenting, or that he did not care whether she consented or not, and that he had no reasonable grounds to think she was consenting. 2. The second element contained within ground 2 as presumably one of the things which should have been the subject of a direction ("… including …") was any belief formed by "the acts of foreplay." No direction was formulated which might have indicated what was intended by this ground. The accused had told the police that the bases for his belief that the complainant consented were (i) the invitation to come to the complainant's apartment; (ii) some cuddling which took place on the couch; (iii) her assent to him carrying her to the bedroom, and (iv) kissing in the bedroom. The real issue in the case was not the possible inference that could have been derived from such conduct, but whether or not the accused's evidence was accepted by the jury. The complainant's account was significantly different. Again, it is hard to know what precisely the jury needed to be told by the judge about how to use this evidence. (d) reference to all the circumstances – ground 3 1. Ground 3 is in similar form to ground 2, but adds a reference to the need to have regard "to all the circumstances of the case" and, as the matter noted by way of inclusion, the sexual history between the applicant and the complainant. The proposition that the judge did not give such directions at all is fallacious: the directions were given in relation to the issue of consent. They were as follows: [27] "In considering the possible knowledge by the accused that the complainant did not consent, the law requires that you must have regard to all the circumstances of the case as you find them to be, including any steps taken by the accused to ascertain whether [the complainant] consented to the sexual intercourse. One person cannot simply assume that the other consents. … Here a significant issue is how the previous consenting sexual contact relates to the issue of consent or its absence on the 20th of July. An important direction is this: previous consenting sexual intercourse between two people is something you can consider as part of the relationship between them. You are the judges of the facts. You may think the previous sexual intercourse might have made it more likely that the man would honestly believe on a later occasion that there was consent. However I direct you as a matter of law that the mere fact that two persons have consensual sex at one time does not of itself mean that there will be consent to sex on another occasion. Consent cannot simply be taken for granted as if it were permanent, ongoing permission." 1. This passage provides a further illustration of the point made above, namely that the inter-relationship between the question of consent and the belief of the accused that the complainant was consenting was inescapable. As the judge correctly noted, a prior sexual relationship will be relevant to both issues. The challenge in ground 3 illustrates the importance of formulating the appropriate direction. The only available basis of challenge must be that the judge failed to identify the previous sexual relationship as possibly constituting reasonable grounds for a belief that the complainant was consenting on the occasion in question. However, if the jury formed the view that the accused did in fact hold a belief that the complainant was consenting, it was likely the prior relationship constituted part of the reason for that conclusion. It was by no means self-evident that the case for the accused would be advanced by the jury being asked to consider in more detail the further question as to whether the relationship provided "reasonable grounds" for such a belief. If satisfied that it did not, they might not form the same view as to the existence of the belief. (e) conclusions – grounds 2 and 3 1. So far as grounds 2 and 3 are concerned, leave should be refused for the following reasons, namely (i) although a further direction might have been given, its omission demonstrated neither legal error nor a miscarriage of justice; (ii) in the absence of any formulation of the appropriate direction, it is not possible to know whether a direction satisfactory to the accused and to the judge would have been resolved upon, and (iii) there are obvious strategic reasons why such a direction would not have been sought, whatever the actual reason for not seeking it. (f) test of "reasonable grounds" not wholly objective – ground 4 1. Ground 4 alleged error in failing to direct the jury that a finding of "reasonable grounds" was not wholly an objective exercise. It was by no means clear precisely what was intended by this ground. Again there was no attempt to formulate a direction which should properly have been given in circumstances where none was sought. This is a quite different concept from "recklessness", of which the joint reasons in Banditt said: [28] "It may well be said that 'reckless' is an ordinary term and one the meaning of which is not necessarily controlled by particular legal doctrines. However, in its ordinary use, 'reckless' may indicate conduct which is negligent or careless, as well as that which is rash or incautious as to consequences; the former has an 'objective', the latter a 'subjective', hue. These considerations make it inappropriate for charges to juries to do no more than invite the application of an ordinary understanding of 'reckless' when applying s 61R(1)." 1. The grounds for a particular belief must, in a case such as this, be things known to the accused at the time of the conduct forming the basis of the charges. In dealing with consent, the judge noted the importance of the temporal element, emphasising that "[e]ven if it is later regretted, consent, once given, is still consent." [29] The jury can have been in no doubt that "reasonable grounds" could arise from any of the circumstances extensively considered in the evidence, including, for example, the prior sexual relationship. No doubt it was true that the assessment of particular matters would need to take into account other matters which were known to the accused. Whether any such element is helpfully identified by reference to "objective" and "subjective" circumstances may be doubted. 2. If what was intended was some further instruction as to what might be reasonable grounds, as opposed to grounds which did not qualify for that epithet, that was very much a matter for the jury and any proposed direction in that regard would need to be formulated with care. As with the concept of recklessness, there is good reason to avoid too much by way of directions as to such a commonplace phrase. [30] 3. In oral submissions, counsel took the Court to two passages in the summing up. One, which was contained within the written directions was in the following terms: [31] "'Possible cross-purposes': In your consideration of the case, you should consider the possibility that, at the critical time, the complainant and the accused may have been at cross-purposes. Even if [the complainant], in fact, did not consent, if the accused honestly and on reasonable grounds, though wrongly, believed the complainant was consenting to sexual intercourse, that would not be a guilty state of mind on his part." 1. Towards the end of the summing up, in summarising the submissions of counsel for the accused (Mr Stanton), the judge stated: [32] "It was not reckless or unreasonable, Mr Stanton said. What he has told the police, what he told her on Facebook, was upfront. He is frank. He tells too much of the truth, perhaps, and he has got himself into some trouble, but he is not to be punished for some retrospective interpretation of these events. The time that it took, 40 minutes or 45 minutes, was too long for the Crown version. It is much more consistent with an exercise of consensual contact as he described. There was no screaming, no physical reaction …." 1. After drawing attention to this passage, counsel for the applicant on the appeal stated: [33] "And his Honour is there picking up something that had been said by defence counsel but what content is to be given to unreasonable here [?] it seems that the unreasonableness or reasonableness of the issue is a belief as distinct from grounds giving rise to the belief …. … The question is whether the accused's belief [–] and that requires them to nominate what the accused's belief is [–] and then evaluate that by reference to grounds contended for by the accused and … the issue arises that the jury haven't had it sufficiently explained to them that the test is not an objective question of reasonableness, the test is whether the grounds are reasonable." 1. It is true, but beside the point, that the accused's state of mind is, in the lawyer's argot, a "subjective" fact and thus a "reasonable belief" can be said to have subjective and objective elements. An attempt to draw a distinction between a reasonable belief and a belief based on reasonable grounds must fail because of insufficient attention to the statutory context and to the terms of the summing up. What the prosecutor must establish is that the accused "has no reasonable grounds for believing" that the complainant consented. That is what the jury were told in the first passage set out above. 2. Further, so far as r 4 is concerned, the fact that counsel for the accused was content to express the matter in the manner summarised by the trial judge provides strong reason for thinking that he did not believe, in the context of the trial, that any such infelicity of expression affected the interests of the accused adversely. 3. Leave to rely on ground 4 should be refused. Orders 1. Given these findings, the Court should make the following orders: 1. With respect to grounds 1-4 in the document entitled "Grounds of Appeal" filed on 25 October 2016, refuse leave to rely upon the grounds, pursuant to Criminal Appeal Rules (NSW), rule 4. 2. Dismiss the appeal. 1. BUTTON J: I agree with Basten JA. 2. N ADAMS J: I have had the advantage of reading in draft the judgment of Basten JA. I respectfully agree with his Honour's reasons and the orders that his Honour proposes but I wish to add the following comment in relation to the application of r 4 of the Criminal Appeal Rules. 3. I agree with Basten JA that, as a matter of general principle, this Court should be cautious when laying down principles to be applied when exercising a broad discretionary power. I also agree with his Honour's observations regarding r 4 generally. Despite this, it is to be noted that appeals are frequently brought to this Court based on complaints not raised before the trial judge. It is appropriate that this Court provide guidance as to the circumstances in which leave to do so will be granted. In ARS v R [2011] NSWCCA 266, Bathurst CJ (at [147]) cited the observations of McHugh J in Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [72] then went on (at [148]) to refer to a number of decisions of this Court concerning the operation of r 4. The Chief Justice stated that in order to be granted leave to argue a ground of appeal when no objection was made at trial: "The applicant 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]." 1. The test formulated in Picken v R and endorsed by the Chief Justice in ARS v R is a test that is routinely cited in this Court as being applicable to any consideration of r 4. In my view that is the correct test. I am otherwise in agreement with the observations made by Basten JA regarding r 4. ********** Endnotes 1. (1999) 196 CLR 297; [1999] HCA 37 at [72]. 2. See, eg, Picken v R [2007] NSWCCA 319 at [20]-[21]; ARS v R [2011] NSWCCA 266 at [147]; O'Sullivan v R [2012] NSWCCA 45; 233 A Crim R 449 at [143]; FP v R [2012] NSWCCA 182; 224 A Crim R 82 at [73]; Flaherty v R [2016] NSWCCA 188 at [28]. 3. Papakosmas at [44]. 4. (1991) 24 NSWLR 531 at 536G (Gleeson CJ and Mahoney JA agreeing). 5. (1988) 35 A Crim R 183 at 191-195. 6. Tripodina at 191, referring to R v O'Brien (1920) 20 SR(NSW) 486 at 493 (Wade J). 7. Tripodina at 192, referring to R v Parker [1974] 1 NSWLR 14 at 18; and R v Melville (1956) 73 WN(NSW) 579 at 581. 8. Tripodina at 194, referring to Jones v Dunkel (1959) 101 CLR 298 at 314 and R v Aziz [1982] 2 NSWLR 322 at 331. 9. Tripodina at 195. 10. See Wilde v The Queen (1988) 164 CLR 365 at 369. 11. Criminal Appeal Act 1912 (NSW), s 6(1). 12. Abusafiah at 536F. 13. [2011] NSWCCA 62; 209 A Crim R 424 at [170]. 14. Darwiche at [169]. 15. [2006] HCA 9; 80 ALJR 614 at [7]. 16. (2014) 252 CLR 601; [2014] HCA 37. 17. Kentwell at [44]. 18. Nudd at [9] affirmed in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 at [48]. 19. Nudd at [9]. 20. Nudd at [10]. 21. (2005) 224 CLR 262; [2005] HCA 80. 22. [1976] AC 182. 23. Morgan at 209 (Lord Hailsham of St Marylebone); see also at 225 (Lord Edmund-Davies) and, referring to "indifference as to the woman's consent", at 203 (Lord Cross of Chelsea); Banditt at [27]. 24. Directions of law, pp 4-5 (both forms of emphasis in original). 25. Tcpt, 29/07/14, p 27. 26. Tcpt, p 30. 27. Directions of law, pp 5-6 (emphasis in original). 28. Banditt at [36]. 29. Directions of law, p 4. 30. Banditt at [36], above at [35]. 31. Summing up, pp 11-12. 32. Summing up, p 47. 33. Tcpt, 08/03/17, pp 14-15. 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 May 2017