Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Donohoe v R [2017] NSWCCA 174 Hearing dates: 30 June 2017 Decision date: 21 July 2017 Before: Hoeben CJ at CL at [1] Fullerton J at [2] Garling J at [108] Decision: 1. Leave to appeal against the conviction on all grounds except Ground 1 (in part) granted. 2. The appeal is dismissed. Catchwords: CRIMINAL LAW – appeal against conviction – sexual offences against three cognitively impaired complainants – thirteen counts – whether evidence of complainants was unreliable - whether conduct of trial was unfair – tendency evidence – implied admission - no error in trial judge's analysis of the evidence, findings of fact or application of the law – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Bryant v R [2011] NSWCCA 26 CR v R [2017] NSWCCA 29 DJW v R [2015] NSWCCA 164 Hughes v R [2017] HCA 20 Kelly v R (2004) 218 CLR 216; [2004] HCA 12 Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35 Mcintosh v R [2015] NSWCCA 184 Nguyen V R [2017] NSWCCA 145 Category: Principal judgment Parties: Robert Donohoe (Applicant) The Crown (Respondent) Representation: Counsel: S Hughes (Crown) Solicitors: In person (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2014/273144 Decision under appeal Court or tribunal: District Court Date of Decision: 23 November 2015 Before: Williams ADCJ File Number(s): 2014/273144 Judgment 1. HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes. 2. FULLERTON J: On 9 November 2015 the applicant pleaded not guilty to an indictment containing thirteen counts variously laid contrary to s 66F(3) and s 61J(1) of the Crimes Act 1900 (NSW). Twelve of the thirteen counts concerned two male complainants, referred to hereinafter as Complainant B and Complainant C. The thirteenth count concerned another male complainant, hereinafter referred to as Complainant A. 3. Five of the thirteen counts alleged that the applicant took advantage of Complainant B by reason of his cognitive impairment, intending to have sexual intercourse with him contrary to ss 66F(3) of the Crimes Act. A further five counts alleged sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) of the Crimes Act, the circumstance of aggravation being Complainant B's cognitive impairment. The charges under s 61J(1) were laid in the alternative to the charges under s 66F(3). 4. One of the thirteen counts on the indictment, also laid contrary to ss 66F(3) of the Crimes Act, alleged sexual intercourse where advantage was taken of Complainant C by reason of his cognitive impairment, with an alternative count laid contrary to s 61J(1) alleging sexual intercourse without his consent in circumstances of aggravation. 5. The last of the thirteen counts concerned Complainant A. It was laid contrary to s 66F(3) of the Crimes Act. No alternative count was laid in respect of that complainant. 6. The jury returned verdicts of not guilty on each of the two counts which involved Complainant C. The trial judge directed verdicts of not guilty in respect of two of the ten counts involving Complainant B. He was satisfied that there was no evidence capable of satisfying a jury beyond reasonable doubt that the offending occurred on the dates particularised in those two counts (laid in the alternative). 7. The applicant was convicted of the remaining four counts involving Complainant B, consisting of one count of sexual intercourse contrary to s 66F(3) and three counts of sexual intercourse contrary to s 61J(1). He was also convicted of the single count involving Complainant A laid contrary to s 66F(3) of the Crimes Act. 8. The applicant appeals those convictions. 9. An aggregate sentence of 5 years and 6 months with a non-parole period of 3 years was imposed. There is no appeal against sentence. 10. It was an element of both categories of offence that attracted verdicts of guilty that Complainants A and B were cognitively impaired. The impairment in each case was said by the Crown to be the complainant's intellectual disability. 11. Although the Crown was obliged to prove for each of the counts contrary to s 61J(1) that the particular complainant was cognitively impaired (the fact of the complainant's cognitive impairment being particularised as the feature of aggravation), the Crown did not have to prove that the applicant was aware of that fact. The jury were directed, however, that in order to return verdicts of guilty the Crown did have to prove that the applicant had sexual intercourse with the particular complainant on the dates specified in the charge; that the complainant did not consent to sexual intercourse; and that the applicant knew the complainant was not consenting or was reckless as to that fact. 12. For the offences laid contrary to s 66F(3), the jury were directed that the Crown was not only obliged to prove the fact that the complainant was cognitively impaired but also that the applicant knew the complainant was cognitively impaired and that he intended to take advantage of that impairment to have sexual intercourse. The Crown was not obliged to prove the sexual intercourse was without consent. 13. Although the fact of impairment was not in issue at the trial (the Crown called expert evidence to establish that all three complainants were cognitively impaired), it was the applicant's case that he was not aware of the cognitive impairment of any of the complainants and, further, that he had not had sexual intercourse with any of them. 14. The applicant was represented by counsel at trial. He appeared on his own behalf on the appeal. The evidence in the Crown case at trial 1. Complainants A, B and C were three cognitively impaired young men in their early twenties living in the Taree area. The three complainants were friends. They each developed a friendship with the applicant at different times. Complainant A met the applicant through their membership of the State Emergency Service in Taree ("the SES") in 2011. Complainant B was introduced to the applicant by Complainant A. Complainant C first met the applicant at the SES when he was considering joining the organisation. He was later introduced to the applicant by Complainant A. 2. The police became aware of an allegation of sexual assault following a report that a woman with Down Syndrome had been sexually assaulted by Complainant B. The woman was interviewed by police in September 2013. No charges were laid due to concerns about her competence to give evidence. In the course of the police speaking to Complainant B, with a support person, about that complaint he disclosed that he had been sexually assaulted by the applicant. He also nominated Complainant A as a friend of his who had also been sexually assaulted by the applicant. No charges were laid at that time. 3. A further interview with Complainant B was deferred until he had received sexual assault counselling, a process which took several months. 4. In September 2013 police approached the applicant and informed him of the allegations and that they would be the subject of further investigation. At that time the applicant told police that he knew Complainant B but denied any sexual interaction with him. 5. In January 2014 police were notified that in the course of making a triple-0 call Complainant C had made an allegation of sexual assault against the applicant. When he was approached by police he was not willing to speak about the matter. Police arranged for him to have sexual assault counselling. 6. In February 2014 Complainant C was formally interviewed by police in the course of which he also nominated Complainant A as a person who had been sexually assaulted by the applicant. Later that month police formally interviewed Complainant B. Complainant A was also interviewed. 7. The applicant enquired after the progress of the police investigation on several occasions and on 5 November 2013 he voluntarily gave a sample of his DNA. 8. He was arrested and charged on 16 September 2014. He declined to participate in an electronically recorded interview. Detective Deas, in the company of Senior Constable Crowe, gave evidence of a conversation he had with the applicant whilst he was in police cells after his arrest. 9. Detective Deas said, "Do you understand what you are being charged with?". The applicant said, "No, not really". Detective Deas said: I'm charging you with aggravated sexual assault and sexual assault take advantage of impairment, of [Complainant B and Complainant C], and sexual assault take advantage of impairment on [Complainant A]. The aggravated charges are for where the boys did not give you permission to do sexual acts to them, and the take advantage of impairment charges are for when you had sexual acts with these boys regardless of whether … they gave you permission. Basically…, you are not allowed to take advantage of intellectually impaired people and have sex with them. 1. The applicant said: Well how was I supposed to know that. I didn't know there was a law against that. 1. That evidence was the subject of challenge at trial and admitted over objection. On the appeal, the applicant submitted that the evidence was admitted in error (see consideration of Ground 11 below). 2. Each of the three complainants gave evidence and was cross-examined. 3. Although the applicant was acquitted by the jury of the two counts on the indictment that related to Complainant C, because one of the grounds of appeal asserts that the guilty verdict in respect of Complainant A and the guilty verdicts in respect of Complainant B are inconsistent with that acquittal, it will be necessary to consider the evidence as it relates to Complainant C. Offences relating to Complainant A 1. Complainant A's evidence in chief was by way of the playing of an ERISP conducted with police on 25 February 2014 when he was 24. 2. He told police that he met the applicant through the SES. (Complainant A joined the Taree SES on 22 August 2006 and resigned on 29 May 2012. The applicant transferred to the Taree SES on 24 February 2011). Complainant A told police that while he wanted to be friends with the applicant he did not mean "in a sexual way [but] he wanted to be friends with me in a sexual way". 3. Complainant A told police that the applicant: … done a lot of bad things to me …. took me over to his place a couple of times, gave me really nice, like, um, gave me massages, um, pretty much sucked my cock and stuff and, um, pulled me off and stuff like that. He had baths with me, he had showers with me. Um, pretty much this went on for a while until I quit the SES. 1. Complainant A said that there were probably about five or six occasions when sexual activity occurred. He said the first occasion was within about two weeks of him joining the SES and that "it happened mainly at [the applicant's] place" and that he thought that it continued for three months. When he was asked if the applicant asked for permission to fellate him Complainant A said he could not really remember. He went on to say, "I think he did ask me but if I said yes would I be in trouble?", and then "Yeah, I did say yes but I should have said no". 2. The Crown led evidence of complaint from Ms Fisher, the Local Controller of the SES, when Complainant A approached her and asked to speak with her privately. 3. It was the last occasion in time that the Crown relied upon to establish the first count on the indictment. 4. In cross-examination, Complainant A accepted that the first sexual encounter could not have been one week after he joined the SES because he joined the SES in 2006, before he met the applicant. He also agreed in cross-examination that sometimes when his legs were sore from playing cricket the applicant would invite him to use his bath, an offer which he accepted several times. 5. Complainant A agreed in cross-examination that he was friends with Complainants B and C and that Complainant C wanted him to tell police what had happened to him. He also agreed that he had met with Complainants B and C and that they discussed their feelings about the applicant, including that they wanted him to go to gaol because they he was "a creep" and "not a nice guy". 6. Complainant A's brother gave evidence that on 27 June 2012 he looked at his brother's Facebook account and saw a number of messages passing between his brother and the applicant. He said some were of concern to him. He pasted the messages into an email totalling 156 pages that he then sent to his wife's address. With Complainant A's permission these were later provided to police. One message read as follows: Complainant A: i only want to be mates not in the way you want it but i don't no what that way is because you have not tolled me Applicant: Whats wrong with that way it between u and me that a reason why i don't trust u if something happens u tell your family Complainant A: because you keep touching me in the wrong places thats why [sic] Offences relating to Complainant B 1. Complainant B's evidence in chief at the trial was also by the playing of an ERISP with police on 20 February 2014 when he was 28. 2. Complainant B said he first met the applicant at the home of Complainant A, "a long time ago". With reference to a diagram of a male person he was asked if anyone had touched his bottom and his penis who should not have. He told police that the applicant had touched his bottom with his penis "heaps of times". 3. The first occasion (said by Complainant B to have occurred at the applicant's home just before Easter 2013) was relied upon by the Crown in proof of the charges laid, in the alterative, as Counts 3 and 4 on the indictment. The sexual assault, consisting of anal intercourse, was described by the complainant in graphic detail, albeit in language consistent with his intellectual disability (as to which see by Dr Fox's evidence outlined in [51-[64]] below). 4. A further two instances of non-consensual anal intercourse were alleged to have occurred in about August 2013 and just before Melbourne Cup Day In November 2013. They were also described in detail. An instance of fellatio just after Melbourne Cup Day, which allegedly occurred at Complainant B's unit or at a friend's house, was also described in the same graphic detail. This conduct was relied upon by the Crown in proof of the charges laid in the alterative as Counts 6 and 7, 8 and 9, and 10 and 11. 5. In cross-examination Complainant B denied that the applicant had never had any sexual contact with him of any kind either at the applicant's house or his house or at a friend's house. He agreed that he was physically stronger than the applicant and that he could have told police about the incidents in November 2013 when he knew there was an AVO in place to protect him. He also agreed that he had made no complaint to anyone about the applicant's sexual conduct until he was interviewed about a complaint about his sexual mistreatment of a disabled woman but denied he told police lies to get himself out of trouble. Offences relating to Complainant C 1. Complainant C's evidence in chief at the trial was by way of playing an ERISP with police on 6 February 2014 when he was 20 years old. 2. He told police that he first met the applicant at the SES when he was considering joining the organisation. He said they became friends after they met again at an event involving pushbike rules and that Complainant A introduced them. 3. Complainant C told police that the applicant had "put his penis up my bum" "more than six times"; "a lot of times"; "probably more than two times". He said the applicant had also touched his penis with his hand "probably more than two times", put his mouth on his penis "probably two, three times maybe" and that he "tried to kiss me one time and I just pulled away from him". 4. Complainant C said there was one occasion when he was sleeping alone in the applicant's bed when the applicant came into the room and "was playing with my penis" as well as playing with his own penis. When Complainant C got out of bed he said he saw "white stuff" all over his bed. 5. Complainant C told police that nothing happened between himself and the applicant the day before when Detective Deas arrived at the applicant's house to collect him for an interview. He did however tell police that the applicant told him to tell the police officer that "it's all wrong and I didn't sexually assault you". 6. The conduct relied upon by the Crown in support of Counts 12 and 13 on the indictment (each of which attracted verdicts of not guilty) was the first occasion that Complainant C said the applicant "put his penis up my bum". He said that occurred during an overnight stay at the applicant's house following an argument with his mother and stepfather. Complainant C accepted that the date of the argument was 25 October 2013. On that night he said he and the applicant watched some TV before he went to bed in the spare room. He said he woke to find the applicant beside him. He said he thought he had his pants on and that he was half asleep when the applicant took them off "without my consent". He said nothing was said and that he could not say how long after his pants were removed that the applicant put his penis in his bottom. He said when that happened he got up and left and went to his unit. It was conceded by the Crown that the complainant did not live in that particular unit in October 2013. 7. Complainant C told police that the first person he told about the assault was his grandmother, over the phone. The statement of Complainant C's grandmother was read onto the record. She received a phone call from Complainant C at about 9.40pm on 21 January 2014 in which he complained that he had been sexually assaulted by the applicant "a few months ago". 8. Complainant C agreed in cross-examination that he did not immediately complain to the police, his mother, the caseworkers from Dundaloo Support Services who were trying to find him suitable accommodation, or anyone else until after he discussed the matter with Complainant B on 19 January 2014. 9. Complainant C acknowledged in cross-examination that in the triple-0 call he made on 19 January 2014 he said to the operator, "My friend sexually assaulted me tonight and a couple of days in a row". Dr Fox's evidence and the evidence of Detective Deas 1. Dr Fox, a retired clinical psychologist, attested to the fact and degree of the cognitive impairment of each of the three complainants. 2. As concerns Complainant A, Dr Fox gave evidence that he was significantly impaired in intellectual terms and in psychological terms, performing tasks administered in the course of assessment at a level more typical of a child within the range of 7 to 9 years. 3. As concerns Complainant B, Dr Fox gave evidence that he was also significantly impaired in intellectual terms and in psychological terms, performing tasks administered in the course of assessment at a level more typical of a child in the age range of 6 to 8 years. 4. As concerns Complainant C, Dr Fox found him to be a severely handicapped man. In psychological terms he performed tasks administered at a level more typical of a child in the range of 7 to 8 years of age. 5. Dr Fox's report concerning each of the three complainants was tendered at trial without objection. 6. In relation to each of the complainants, Dr Fox gave evidence that although they could interact with companions and socialise more generally with reasonable ease, their behaviour was at times unpredictable and they could become easily distressed. He said he would not expect any of the complainants to always understand the social behaviour appropriate to particular circumstances or contexts. He said that while none of the young men understood the nuances of legal liability or criminal responsibility, they could readily distinguish between right and wrong. 7. Dr Fox agreed in cross-examination that a young adult with the psychological functioning of a 7 to 9 year old child would not necessarily present as a child because as the person ages chronologically adaptive social skills are learnt or acquired. Dr Fox also agreed that although prior to administering any tests he formed the clinical impression that Complainants B and C would be shown to be intellectually disabled, Complainant A's intellectual impairment was "not clinically apparent". He agreed that a person untrained in psychology would not necessarily immediately identify the clinical indicators of intellectual disability. 8. Dr Fox also agreed that a person who has a learning disability might be less able to detect the social indicators of a person who has an intellectual disability. It was the applicant's case at trial that he had a learning disability. 9. When Dr Fox was informed in cross-examination that Complainant A had lived alone in 2011, 2012 and 2013, he expressed some surprise that he would be capable of independent living. He did accept that Complainant A could master a training course, such as that offered by the SES, provided that it was simple and involved routine, and that he could use a computer and access Facebook. Insofar as trips taken by Complainant A independently, Dr Fox said, "so long as there were no unexpected events along the way, unexpected demands placed upon him … I'll accept he could do it if he's had experience but not if he's doing it for the first time". 10. Dr Fox said in cross-examination that it was Complainant B's "slow and deliberate" responses, combined with his limitations in responding to general questions and being less able to anticipate appropriate answers or reason logically, that underpinned his initial impression that Complainant B was intellectually impaired. He agreed that Complainant B's slow speech would be apparent to anyone he met although he agreed it would not necessarily or immediately compel the conclusion that he was intellectually impaired. 11. Dr Fox also said in cross-examination that he was not surprised to learn that Complainant B could play cricket and understand the rules because he was able to follow strict routines. Dr Fox also agreed that, given his opinion that Complainant B would be dependent on his carers when called upon to adapt to new challenges in his day to day functioning, he was surprised that he was living alone. However, he went on to say that did not influence his ultimate conclusion as to the fact and extent of Complainant B's disability. 12. Dr Fox said in cross-examination that although Complainant B could appear to cope in various situations, there would be some situations where it would become obvious that he could not cope. He agreed with the proposition that Complainant B's disability would be more obvious in the context of being asked questions in a courtroom environment. 13. Dr Fox agreed in cross-examination that prior to administering any tests he observed Complainant C to be "remote and limited in interactive discussion". He judged that Complainant C would likely prove to have significant intellectual limitations and be dependent on carers for adapting to the more challenging demands of life. Dr Fox agreed that he unaware that Complainant C lived independently, or that he worked in a boating, camping and fishing retail outlet but agreed that by developing routines Complainant C could meet the demands of work. He considered, however, that if there were a sudden exposure to something unexpected, his reactions would be unpredictable. 14. In re-examination Dr Fox said that the longer a person without a cognitive disability spends with a person who has an intellectual disability, the more likely it would be that the intellectual disability would become obvious. Grounds of appeal 1. The applicant relies upon thirteen grounds of appeal as follows (with some necessary typographical changes): 1. The jury did not know I was cognitive impaired (not fit to plea). The jury verdicts are inconsistent. 2. Contamination of evidence. 3. [Complainant B's] evidence was flawed and [he] is uncredible witness. 4. Need for separate trials as the jury took evidence from [Complainant A] and applied to [Complainant B]. 5. Tendency evidence. The jury was not aware the facebook [w]as non grooming as implied, prejudicial effect. 6. No physical evidence. 7. An irrational attempt to campaign to get the accused in trouble. 8. Misleading effect of an alleged admission to the OIC, unfairness under s 90 and s 137 prejudicial effect. 9. The lack of complete Facebook messages. This should not have been used. 10. Jury engaged in impermissible coincidence reasoning. 11. The OIC intended to elicit responses from me walking past the cell gloating etc. The OIC summarised the charges incorrectly. 12. The complicated nature of the charges. 13. Unfair trial as witness Donny Clarke was not called to say that Count 11 and 12 did not occur. 1. The applicant filed extensive handwritten submissions which he was invited to supplement with oral submissions on the hearing of the appeal. The written submissions do not direct argument to any particular ground of appeal but were discursive, in the sense that they complain about the quality of the evidence of the complainants and their reliability generally; the conduct of police; the trial judge's admission of tendency evidence over objection and an alleged verbal admission to police admitted over objection; and, more generally, that there was unfairness in the conduct of the trial because of what the applicant asserts is his own cognitive impairment. 2. It is of significance to note that although in his evidence at trial the applicant denied having sexual intercourse with any of the three complainants, in both his written and oral submissions on the appeal he conceded he did have consensual intercourse with Complainant A, while maintaining the position taken at trial that he did not know that he was cognitively impaired. His case on the appeal was that he should not have been convicted of the first count on the indictment for that reason. 3. So far as concerns Complainants B and C, the applicant maintained the position taken at trial that he had no sexual interaction with either of them and had no knowledge or awareness of their intellectual disability. The applicant's mental functioning 1. The question of the applicant's mental functioning is an issue he raises on the appeal. It permeates much of what he claims as unfairness in the conduct of the trial. It also has a direct bearing on the first ground of appeal in which he asserts that he was unfit to stand trial. I propose to deal with that issue first. 2. There was no question raised as to the applicant's fitness to stand trial with the trial judge at the commencement of the trial or, it must be assumed, with the Crown at any time prior to or on arraignment. In the absence of compelling and fresh evidence tendered on the appeal and relied upon by the applicant as bearing upon the question of his fitness to stand trial on or before the trial in November 2015 (of which there is none), the application of Rule 4 of the Criminal Appeal Rules (NSW) is fatal to raising the issue of fitness on his appeal against conviction. I would refuse leave to raise the issue of fitness for that reason. 3. It bears noting, however, that the evidence adduced from the applicant at his trial was that he completed Year 12 and passed all subjects except for General Studies. Thereafter he undertook studies for and obtained a Diploma of Community Studies from the Canberra Institute of Technology, including some subjects specifically directed to working with clients with disabilities, including clients with mental illness. The applicant agreed in cross-examination that in order to achieve the Diploma he was required to attain certain competencies, including "Preparing for the care and protection of clients in specific need" and "Assessing and delivering services to clients with complex needs". A copy of the applicant's record of results was tendered. The applicant also attained a "Certificate 3" in Community Services Mental Health Studies. 4. After finishing his tertiary studies, the applicant worked in a number of casual jobs such as service station attendant, bar tendering and as a traffic controller. Although he gave evidence that work did not require advanced literacy skills, there was no evidence that this reflected a compromised capacity for ordered cognitive thought. To the contrary. An assessment report by a psychologist from the Canberra Institute of Technology dated 10 February 2000 (a report the applicant provided to police prior to his arrest) assessed him as having an overall intelligence level at the upper end of the average range. A learning disability in the areas of visual memory and abstract thinking was identified. This report was also tendered at the trial. Ground 1: Unreasonable verdicts 1. Although there was no ground of appeal contending, in terms, that the verdicts were unreasonable and unsupported by the evidence as provided for in s 6(1) of the Criminal Appeal Act 1912 (NSW), the Crown submissions usefully grouped Grounds 1, 2, 3 ,6, 7, 9, 12 and 13 under that rubric since each ground contends that the verdicts cannot stand because of what is said to be the lack of probative weight (or other deficiencies) in the evidence relied upon by the Crown to prove the elements of the offences which attracted verdicts of guilty. 2. In CR v R [2017] NSWCCA 29, this Court summarised the principles that apply when considering whether a verdict is said to be unreasonable. Hoeben CJ at CL (Schmidt and Wilson JJ agreeing) said as follows: [77] When considering whether a verdict is unreasonable, the Court is to make its own independent assessment of the sufficiency and quality of the evidence. The question for this Court is whether notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to let the verdict of guilty stand (M v The Queen [1994] HCA 63; 181 CLR 487 at 492; SKA v The Queen [2011] HCA 13; 243 CLR 400). [78] The principles which inform the review of evidence to be undertaken by an appellate court where it is contended that a verdict is against the weight of evidence were explained by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen [2007] HCA 30; 230 CLR 559. Hayne J after noting that the evidence adduced at the trial in that case did not all point to the applicant's guilt said: "113 … But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. …" [Footnotes omitted] [79] In answering the question whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount either the consideration that the jury was the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses. As McHugh, Gummow and Kirby JJ observed in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [59]: "59 … involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials." [80] More recently in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 the court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said: "65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."" [Footnotes omitted] 1. Established principle dictates that when this Court is invited to review the evidence at trial for its sufficiency and cogency, and when issues relating to the credibility and reliability of Crown witnesses are raised by an applicant in support of the conclusion that the verdicts are unreasonable, the primacy afforded to the jury as the judges of the facts must be given full weight. That is of particular significance in this trial. Upon my review of the transcript it is clear that the intellectual disability of each of the complainants is discernible in the answers to the questions asked of them by police in the ERISPs and under cross-examination, albeit in differing degrees and manifest in different ways. 2. The trial judge in the present case directed the jury, in terms that were both comprehensive and emphatic, that questions of credibility and reliability were for them and that they should be astute to those considerations when examining the evidence of each of the complainants for the ultimate purpose of determining whether their evidence was of sufficient cogency to support proof of the elements of the offences in which they were named as the person sexually assaulted. His Honour also directed the jury that they should take the evidence of the applicant into account in determining whether the Crown had proved his guilt beyond reasonable doubt. The applicant does not submit that his Honour's directions in this regard were deficient. 3. Having reviewed the transcript of the evidence of each of Complainants A and B and the applicant's evidence at trial (evidence which was strengthened by admission of the tendency evidence), and affording to the jury the primacy they are to be afforded as the judges of the facts, I am not persuaded that the verdicts are unreasonable as being unsupported by the evidence. 4. Furthermore, the fact that the jury acquitted the applicant of the counts that relate to Complainant C, but convicted him of a number of the counts relating to Complainant B and the single count that related to Complainant A, does not admit of any relevant inconsistency. 5. In Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35, Gaudron, Gummow and Kirby JJ said that the test for whether there is an inconsistency between jury verdicts upon different counts is one "of logic and reasonableness" and: …if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. 1. That principle has been most recently restated in Nguyen V R [2017] NSWCCA 145 where at [34]-[50] Adamson J reviewed a number of cases in which the principal has been applied. 2. Unlike many cases where a trial involves multiple sexual offences of one kind or another against the one complainant and where there is an allegation of inconsistency in the jury's verdicts (some of which were reviewed by Adamson J in Nguyen), in this case there were multiple counts involving three separate complainants. Consistently with the trial judge's obligations, the jury were directed that it was essential that they give careful consideration to the evidence from each complainant when considering whether the Crown had proved the applicant's guilt beyond reasonable doubt in respect of each of the counts left to the jury after his Honour directed verdicts of not guilty on two of the counts involving Complainant B. 3. I am well satisfied that the compelling inference in this case is that the jury returned different verdicts (that is, they convicted the applicant of some counts and acquitted him of others) as a result of their careful attention to the evidence and in compliance with the trial judge's directions. I am not of the view that the different verdicts are in any way suggestive of some inappropriate compromise in the jury's consideration of the evidence relied upon in support of proof of the counts specific to each complainant, or the result of a failure to comply with their obligations under direction from the trial judge. 4. The applicant has not made good his complaint about inconsistent verdicts. 5. To the extent that the complaints the subject of Grounds 2,3,6,7 9, 12 and 13 are particulars of what the Crown (and the Court) assumes is the applicant's contention that the verdicts should be quashed as unreasonable and unsupported by the evidence, I note the following: 1. As to the issue of contact and communication between the complainants said to amount to "contamination" (Ground 2), this was an issue raised by the applicant's counsel as undermining the weight of the evidence relied upon by the Crown as tendency evidence and will be dealt with when I deal with Ground 5 which contends that the evidence of tendency was wrongly admitted. 2. The absence of any physical evidence of the assaults (Ground 6), as to which I assume the applicant is referring to trace DNA, does nothing to undermine the sufficiency of the evidence in the Crown case which was heavily dependent on the jury accepting the evidence of the complainants as truthful and reliable and not on the immediacy of complaint or the collection of forensic data. 3. Ground 9 complains that the Crown only led a selection of the Facebook entries obtained in the course of the investigation in the Crown case. There is no substance to this ground. The Facebook material in its entirety was apparently quite voluminous and was served as part of the brief of evidence. The applicant has not established that other entries would place those entries that were tendered in another light, or that those that were tendered were not fairly representative of the dialogue passing between the applicant and the complainant. The trial judge admitted this evidence as relevant to proof of the applicant intending, in his sexual dealings with Complainant B, to take advantage of his cognitive impairment (an essential element of the charges under s 66F(3)). His Honour was satisfied that his directions to the jury would guard against the risk of the jury misusing the evidence. The applicant does not complain about his Honour's directions to the jury in this regard. 4. Ground 12 contends that the trial was complicated and that this has undermined the integrity of the jury's verdicts. There is no substance to this ground of appeal. After consulting with counsel, the trial judge prepared written directions for the jury setting out the constituent elements of the charges. There is no complaint (and I would venture to observe neither there could be) as to the succinctness, clarity or sufficiency of the summing up on the facts and his Honour's directions of law. While there was a deal of evidence for the jury to consider, the addresses of both counsel highlighted the evidence the jury were invited to consider and both counsel addressed its relative strengths and weaknesses for the jury's consideration. 5. Complainant A agreed in cross-examination he had a friend called Donny Clarke (a man in his 60s) and that the applicant believed he was in a sexual relationship with him. Detective Deas gave evidence that he interviewed Mr Clarke who agreed he had had a sexual relationship with Complainant A. He was not charged because it was Detective Deas' view that Mr Clarke was also cognitively impaired, and likely to a greater degree than Complainant A. I am unable to see how this evidence went to any issue in the Crown case (whether in proof of Grounds 10 or 11 or otherwise) and I am not persuaded the Crown was obliged to call him in discharge of its duty of fairness. Ground 5: Error in admitting the tendency evidence (because of its prejudicial effect) Ground 10: The jury engaged in impermissible coincidence reasoning Ground 4: The judge was in error in refusing separate trials 1. Counsel for the applicant at trial sought an order for separate trials. The Crown submitted that the evidence of each complainant was admissible as tendency evidence in accordance with s 97 of the Evidence Act 1995 (NSW) in proof of each count on the indictment and that a joint trial on all counts was justified for that reason. 2. The asserted tendency for the applicant to have a particular state of mind or to act in a particular way in the tendency notice served by the Crown was summarised in the trial judge's reasons for refusing the separate trials as a tendency to befriend males with intellectual/cognitive disabilities; to invite them to his premises and make them comfortable in his company, as well as visiting them at their homes and (in that way) to take advantage of their intellectual/cognitive disabilities with a view to obtaining sexual gratification by engaging them in sexual activities, including sexual intercourse. 3. The trial judge correctly identified the evidence relied upon by the Crown as tendency evidence as comprised in the ERISPs of each of the complainants, together with a number of Facebook messages, and that the facts in issue, proof of which was the subject of tendency evidence, was whether the applicant has sexual intercourse with any of the complainants and whether he committed any of the offences charged in the indictment. 4. The applicant's counsel submitted that the evidence of the three complainants had been corrupted because of the contact between them and that contact had the effect of contaminating their individual accounts and motivating them to ensure the applicant was (falsely) accused. The trial judge accepted that the three complainants, being friends and sharing a common social world, had the opportunity to discuss the applicant and their knowledge of him both before and after they were interviewed by police. However, his Honour went on to say that in circumstances where, independently of each other, they denied discussing the details of what the applicant had done to them in their evidence on the voir dire, it was a matter of pure speculation that their contact raised any risk of contamination. 5. His Honour also considered that the fact that each of the complainants was cognitively impaired would limit the extent to which they could engage in sustained conduct that might admit of contamination or deliberate concoction. For those reasons, he did not consider that their contact with each other impacted on the probative value of the evidence on the question whether the evidence was admissible as tendency evidence under s 97 of the Evidence Act or, if s 137 was invoked, in seeking the rejection of evidence otherwise admissible as tendency evidence because its probative value is outweighed by unfair prejudice (see DJW v R [2015] NSWCCA 164 at [41] and [42]. 6. In Mcintosh v R [2015] NSWCCA 184, Basten JA (with whom Hidden and Wilson JJ agreed) stated: [46] The concept of "concoction" suggests a deliberate fabrication of the evidence. By contrast, the term "contamination" may involve an unconscious process of suggestion being adopted. [47] Whilst, in determining probative value as a question of capability to affect the assessment of a fact in issue, the court is not required to disregard inherent implausibility, on the other hand, contestable questions of credibility and reliability are not for the trial judge, but for the jury. Accordingly, the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted. 1. The applicant does not claim that his Honour misunderstood the principles that applied to the admissibility of the tendency evidence. That being the case, it is unnecessary to restate them. Suffice to note that in Hughes v R [2017] HCA 20 the High Court has pronounced upon the admission of tendency evidence and that his Honour's reasons for admitting the evidence accord with the approach of the High Court. 2. The trial judge did not embark on an assessment of the complainants' credibility and reliability, and was not required to. The evidence of each complainant was strongly probative of the accused's tendency to behave consistently with the element common to each count – namely to solicit sexual contact with cognitively impaired males. His Honour was correct in concluding that any danger of unfair prejudice could be appropriately ameliorated by judicial direction. The applicant does not submit that his Honour's directions were deficient. 3. Upon being satisfied that the tendency evidence relied upon by the Crown was admissible, the application for separate trials was refused and properly so. It follows that these grounds have not been made out. Ground 11: Detective Deas intended in his conversation with the applicant to elicit a response from him and in doing so he summarised the charges incorrectly 1. Objection was taken by the defence at trial to an implied admission made by the applicant to Detective Deas in the presence of Senior Constable Crowe. The applicant was at that time in a cell and had declined to be interviewed. The admission was not electronically recorded. 2. The issue was whether the admission was made "in the course of official questioning", thereby invoking s 281 of the Criminal Procedure Act 1986 (NSW) and whether the conversation and the Detective's commentary was "gratuitous" such as likely to elicit a response such that it should be excluded under s 137 for that reason. Relevant legislation and principles 1. Section 281 of the Criminal Procedure Act provides: 281 Admissions by suspects (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. 1. In Bryant v R [2011] NSWCCA 26, the Court dealt with the application of s 281 in circumstances which have some similarity to the present case. 2. Having been formally interviewed, the appellant in that case was placed in the dock area of the police station to be charged. The Court set out the conversation between the police custody manager and the appellant as follows: [133] "Do you understand that you are going to be charged with several armed robbery offences?" The appellant responded, "Yes, I don't know about the others but I admitted to three. The two here and one in Canberra". The Sergeant said, "As these are serious offences that involved violence that happened over a period of time I will be refusing bail. That means that I will try to get you before a magistrate this afternoon. What happens from there is the decision of the magistrate, do you understand that?" The appellant said, "Yes, I don't know why I did it" 1. Howie AJ (with whom McClellan CJ at CL and Simpson J, as she then was, agreed) observed at [139]: I am prepared to accept for the present ground of appeal that the Sergeant was "questioning" the appellant but I have grave doubts that she was. "Questioning" seems to me to be more than simply asking a person whether he understands information that has been conveyed to him. In reality the Sergeant was merely seeking to ensure that the appellant understood what was going to happen: that is that he was going to be charged "with several armed robbery offences". She was not seeking information but supplying him with information. What followed next was again providing the appellant with information: that she was going to refuse him bail and take him before a magistrate. Again the only question she asked was to ensure that he understood what he was being told. I do not believe that this is "questioning" in common parlance. It certainly does not appear to me to be "questioning" in terms of an investigation of an offence. I am prepared to accept that the section is protective legislation … and should not be read down so as to diminish its obvious beneficial effect on the rights of persons in custody. But nor should it be given an effect that was never intended by the legislature. 1. The terms of s 281 are similar to those that were considered by the High Court in Kelly v R (2004) 218 CLR 216; [2004] HCA 12. 2. After setting the evidence and the arguments bearing upon admissibility of the verbal exchange the trial judge in this case concluded as follows: I am not satisfied that the conversation I am concerned with could be considered official questioning within s 281(1)(b) as it did not form part of, nor was it in connection with, the relevant investigation. Nor do I see that what was said was designed to elicit a compromising response, as per some of the questions in Hunter (No 6) [2014] NSWSC 1149, that might somehow impinge on the investigation. As far as everyone was concerned, the matter had passed from the investigative stage to the charging and or prosecution stage. As far as I am aware, the investigation has not significantly progressed beyond that particular point. While no doubt, it is beneficial to obtain admissions of any sort from an accused person, I do not see that what occurred here as an attempt to elicit some sort of inculpatory response. What Detective Senior Constable Deas said in the last sentence, was in my view a reasonable summary of the effect of s 66F(3) of the legislation and did not require any particular response from the accused. In my view, the statement is admissible, as not being part of official questioning. 1. Whilst (unlike the custody manager in Bryant) Detective Deas was the investigating officer, he was performing precisely the same role in speaking to the applicant as was the custody manager in Bryant. His conversation with the applicant was advisory in purpose, not investigatory. The applicant, having declined to be interviewed, had indicated an understanding of his right to silence, which was not impugned by the conduct of the detective. 2. That being the case, there was nothing unfair in admitting the evidence of the admission. Section 90 does not operate to warrant the exclusion of the evidence. 3. His Honour was addressed by both counsel on s 137 of the Evidence Act and accepted the Crown Prosecutor's submission that the probative value of the admission was "very high" and that there was no unfair prejudice to the applicant in its admission. 4. There is no error in his Honour's analysis of the evidence, his findings of fact or his application of the law. 5. This ground of appeal is not made out. Orders 1. The orders I would propose are: 1. Leave to appeal against the conviction on all grounds except Ground 1 (in part) granted. 2. The appeal is dismissed. 1. GARLING J: I agree with the orders proposed by Fullerton J and with the reasons which she gives. ********** 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: 21 July 2017