Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Priday v R [2019] NSWCCA 272 Hearing dates: 12 August 2019 Date of orders: 13 November 2019 Decision date: 13 November 2019 Before: Macfarlan JA at [1]; Johnson J at [158]; Lonergan J at [159] Decision: (1) To the extent necessary, grant the appellant leave to appeal against his convictions of offences of assault occasioning actual bodily harm and aggravated sexual intercourse without consent. (2) Dismiss the appeal against those convictions. (3) Refuse the appellant leave to appeal against sentence. Catchwords: EVIDENCE – hearsay exceptions – criminal trial – maker of representations deceased – whether representations made in circumstances that made it unlikely that they were fabrications – s 65(2)(b) Evidence Act – representations made soon after alleged events to persons in authority, with maker exhibiting injuries consistent with representations CRIME – appeals – whether misdirection to jury as to mental element of consent in relation to sexual assault offence resulted in any substantial miscarriage of justice – misdirection in written and oral directions – whether erroneous direction could have affected jury's verdict – no substantial miscarriage of justice – Kalbasi v Western Australia (2018) 264 CLR 62 considered CRIME – appeals – whether trial miscarried because of irregularities in the Crown's address to the jury CRIME – appeals – whether trial miscarried because of incompetence of accused's trial counsel – appeal ground rejected CRIME – appeal against sentence – whether sentencing judge failed to take into account accused's deprived upbringing in relation to moral culpability – leave to appeal against sentence refused Legislation Cited: Crimes Act 1900 (NSW), ss 59, 61HA, 61J(1), 61M(1), 61R, 66C(1) Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), ss 65(2), 137 Misuse of Drugs Act 1981 (WA), s 11 Cases Cited: Avery v R [2015] NSWCCA 50 CA v The Queen [2015] NSWCCA 42 Davis v R [1997] NSWCCA 257 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 Mulato v R [2006] NSWCCA 282 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 R v Birks (1990) 19 NSWLR 677 R v Burke [2001] NSWCCA 47 R v Clarke (1997) 97 A Crim R 414 R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 Roach v R [2019] NSWCCA 160 Sio v The Queen (2015) 249 A Crim R 533; [2015] NSWCCA 42 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Warren v Combes (1979) 142 CLR 531; [1979] HCA 9 Category: Principal judgment Parties: John Thomas Priday (Appellant) Regina (Respondent) Representation: Counsel: E Ozen SC (Appellant) K Jeffreys (Respondent) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/283346 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 4 May 2018 Before: Townsden DCJ File Number(s): 2014/283346 Judgment 1. MACFARLAN JA: The appellant appeals against his convictions of the following two offences of which he was found guilty on 4 August 2017 after a trial by jury before a District Court judge: 1. Assault occasioning actual bodily harm (s 59 of the Crimes Act 1900 (NSW)). 2. Aggravated sexual intercourse without consent (s 61J(1) of the Crimes Act). 1. He also seeks leave to appeal against the sentences imposed on him on 4 May 2018 in relation to those two offences and a further offence of aggravated indecent assault under s 61M(1) of the Crimes Act to which he pleaded guilty. Each conviction related to an offence against the same complainant on 20 November 1994. The complainant was aged 13 at that time. 2. The complainant was unable to give evidence as she died in 2004 but statements that she made to a doctor (Dr Charlotte Hespe) and a police officer (Detective Sergeant John Jackovou) on the evening that the alleged offences took place were admitted at the trial as hearsay evidence. The appellant's case at trial was that he had consensual sex with the complainant on the day in question and did not, as alleged by the Crown, punch the complainant. He pleaded guilty to an alternative charge under s 66C(1) of the Crimes Act of having sexual intercourse with a child above the age of 10 years and under the age of 14 years. This plea was not accepted by the Crown in full satisfaction of the indictment. 3. The appellant's grounds of appeal against his convictions that were pressed on appeal relate to the following: 1. The admission into evidence of the complainant's hearsay representations to the doctor and the police officer (Ground 2). 2. The admission into evidence of the appellant's police interview ("the ERISP") (Ground 5). 3. The directions given or not given by the trial judge to the jury in relation to the appellant's ERISP (Ground 6). 4. The trial judge's misstatement to the jury of the mental element required to be established by the Crown in relation to Count 2 (Ground 8). 5. Alleged improprieties in the Crown prosecutor's closing address to the jury (Ground 9). 6. Alleged incompetence of the appellant's trial counsel (Ground 10). 1. Ground 1 asserted that the trial miscarried as a result of "the combination of a number of errors by the Judge and of the conduct of the Crown Prosecutor and defence counsel", as described in the grounds just referred to. THE AGREED FACTUAL CIRCUMSTANCES 1. The following facts were formally agreed between the Crown and the appellant at trial. 2. The complainant was born in early 1981 and in 1994 resided in England as a ward of the State. She was sent to Australia in an attempt to reunite her with her natural mother. She arrived in Sydney on 3 October 1994 and was given temporary accommodation at a Salvation Army house in Earlwood. 3. On 20 November 1994 she left that house and travelled by train to the Sydney CBD. Later on that day she and the appellant had sexual intercourse somewhere in the city. The Crown alleged that this occurred without the complainant's consent and that she was physically assaulted at or about the time of the intercourse. The appellant denied those allegations. 4. Later on the same day, the complainant returned to the house in Earlwood where she complained about the appellant's conduct to the person in charge. She was taken to a hospital where Dr Hespe examined her and collected specimens. Thereafter the complainant attended the Sydney City Central Police Station. Police drove her around the CBD to assist her to identify the scene of the alleged offences but she was unable to do this. 5. When the complainant returned to the police station that night, she made a statement to Detective Sergeant Jacovou which was dated 21 November 1994. 6. The complainant died in July 2004 in England. 7. Police enquiries identified the appellant as a suspect. In late 2012 he voluntarily attended the Sydney City Central Police Station where he was taken into custody and participated in a recorded interview (the ERISP). In 2013 his DNA profile was matched to the semen sample that had been taken by Dr Hespe. GROUND 2: WHETHER THE TRIAL JUDGE ERRED IN ADMITTING THE HEARSAY REPRESENTATIONS MADE BY THE COMPLAINANT 1. The appellant gave the following particulars in relation to this ground of appeal: "a. Failing to consider all of the circumstances in which the representations were made when determining, pursuant to s65(2)(b) of the Evidence Act 1995, whether they were unlikely to be fabrications; b. Adopting a 'compendious approach' to s65(2) (Sio v The Queen (2016) 259 CLR 47); c. Failing to take into account, under s137 of the Evidence Act 1995, the procedural prejudice which derived from the accused's inability properly to investigate the complainant's credibility through cross examination of the available witnesses; d. Finding, under s137, that the probative value of the evidence outweighed the danger of unfair prejudice in circumstances where [the trial judge] had found that there would be actual unfair prejudice to the accused." Dr Hespe's evidence 1. Dr Hespe is a medical practitioner who was consulting at the Royal Alexandra Hospital for Children in 1994. She gave evidence of a history that she had taken from the complainant on the evening of 20 November 1994 and recorded in a report dated 22 December 1994. Dr Hespe saw the complainant in the company of a social worker employed in the Child Protection Unit of the hospital. 2. The history that the complainant gave to Dr Hespe concerning her interactions with the appellant was as follows: "[The complainant] told us she had been up for the day and was looking at the shops around the Darling Harbour area. A man asked for directions and then offered to show her around Sydney. Firstly they went to a rock climbing shop and then to a building where he forced the doors open and went up about four flights of stairs. Tired, [the complainant] sat down in the stairwell and the man became [sic] to kiss her. [The complainant] struggled. The man punched her on the mouth. He then had intercourse with her. After this he got up, dressed and left her alone. [The complainant] then found her way to the train station and went home. She gave a description of a man no older than 30, stubble on his face, black curly shoulder length hair with an Australian accent." 1. Dr Hespe recorded the following as to her observations of the complainant: "[The complainant] is a 13 year old girl who was examined at 9.10pm on 20 November 1994. This was approximately six hours after the alleged assault. [The complainant] appeared generally dishevelled and upset. She had blood on her T shirt and denim jacket and had obvious bruising to her face. Past medical history was not significant as she was not on any current medication and had not been in hospital for a medical problem before. She had never had an accident which may have caused injury to her external genitalia. [The complainant] had gone through menarche at the age of 12." 1. Dr Hespe also recorded that the complainant had "a small graze to the upper edge of her upper lip with deep purple bruising to the upper lip and visible on the underside of the lip as well. … Examination of the genital region revealed a reddened tender vulva with a normal clitoris, urethra and vestibule". In summary, Dr Hespe said that the complainant presented "as a well developed adolescent female who shows evidence of having been acutely assaulted several hours earlier. Evidence of this is in the bruising to her face, tenderness over her sacrum and redness and tenderness in the vulval area. These were felt to be consistent with an acute sexual assault". Detective Sergeant Jackovou's evidence 1. Detective Sergeant Jackovou gave evidence that on the evening of 20 November 1994, he obtained a statement from the complainant in the presence of two community service workers. In the statement, the complainant gave a considerably more detailed description of her interactions with the man later ascertained to be the appellant. She described their meeting and his subsequent assault of her as follows: "I caught the train with Diana about 9am from Bardwell Park Railway Station and I got off at Museum Railway Station and then I waited with Diana until her bus came and she got on it. Then I walked down the street and looked at some shops. Then this guy approached me and asked for directions. I told him I did not know my way around the city very much. He told me he would show me around the city. Then he took me to a couple of shops, including a red building which I saw and also a sports shop. After that I went to the Japanese place which had Japanese writing all over it. It had lots of stairs. It was about four lots of stairs we climbed so I got tired and we sat down then he started kissing me and stuff and I started struggling and stuff and then he punched me on the lips. He had intercourse with me. I told him to stop but he would not listen and he did not say anything to me. A while later he got up and ran out and I got myself dressed and I went out of the building and then I walked around until I found a train station. When I found the train station which was Town Hall I went to the toilet and washed my lips because of the blood where he punched me." 1. On questioning of the complainant, Detective Sergeant Jackovou elicited further details as to what occurred and a description of the man alleged to have assaulted the complainant. Ms Kathryn Small's evidence 1. In 1994, Ms Small worked as a case worker for the child protection and family crisis service which was a division of the Department of Community Services ("DOCS"). She accepted that she attended the complainant's interview with police on the evening of 20 November 1994 but did not have any independent recollection of it. 2. In cross-examination, Ms Small agreed that there was a DOCS record that indicated that on 20 November 1994 the complainant "wanted reassurance that she would not have to press charges" and that when the complainant's biological mother was contacted the first thing she said was "[h]as she run away again? What's she done now?" Mr James Lightfoot's evidence 1. Mr Lightfoot was known in 1994 as Mr Terry Manns. At that time he worked for DOCS and was the complainant's case worker. He agreed that a statement he had given recorded that after the complainant was placed with her mother, their relationship became strained and the complainant ran away on a couple of occasions. He agreed that the DOCS' records from 1994 that he was shown included statements that: 1. The complainant had on one occasion said that she was going out with friends from school but had actually gone into town by herself. 2. The complainant threatened not to cooperate with the police in relation to the events of 20 November 1994. 3. Detective Jackovou told him that the complainant was reluctant to cooperate with the police. 4. A DOCS case worker had told him that she was concerned about "the lack of appropriate affect" on the part of the complainant in relation to the alleged sexual assault. Mr Lightfoot said in relation to that comment "[w]hen I'd spoken to [the complainant] before she minimised a lot of the trauma that had happened in her life and I think it was a pattern of behaviour where she did just not confront or minimise trauma which was part of why she was running away [sic]". The relevant statutory provisions 1. Part 3.2 of the Evidence Act 1995 (NSW) states the hearsay rule and exceptions to it. Section 65 relevantly provides: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. 1. Section 137 of the Evidence Act is in the following terms: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The trial judge's rulings 1. Prior to the commencement of the trial, the trial judge ruled that the Crown was entitled to adduce from Dr Hespe and Detective Sergeant Jackovou hearsay evidence of the representations made to them by the complainant on the evening of 20 November 1994. His Honour held that the evidence was admissible under s 65 and should not be excluded under s 137 of the Evidence Act. His Honour had before him inter alia statements of Dr Hespe and Detective Sergeant Jackovou and heard evidence on the voir dire from Dr Hespe. 2. Having described the hearsay evidence sought to be adduced, his Honour said that the two statements were "to a significant degree very similar", although the statement to police contained "greater detail". He thought that they were "largely consistent" but stated that in any event "[o]ne would readily expect some degree of variation" in statements taken from a complainant. He concluded that they were made "shortly after the asserted fact occurred" and that "having regard to the timing of the complaint and circumstances it is unlikely that the representations [were] a fabrication" (see s 65(2)(b)). He therefore held that an exception to the hearsay rule had been established. 3. So far as a discretionary exclusion under s 137 was concerned, his Honour referred to the appellant's submissions that he was prejudiced by (i) being unable to take statements from persons who worked at the complainant's residence, (ii) the police not having been able to identify where the incident occurred, and (iii) being unable to test the complainant's evidence in cross-examination, this last matter being particularly significant because the primary issue at the trial was to be consent. 4. His Honour concluded that there was prejudice to the appellant in not being able to cross-examine the complainant but was satisfied "that the probative value of the previous representations of the complainant [was] not outweighed by the danger of unfair prejudice to the accused". Relevant case authority 1. In R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386, Mason P (with whom Hulme and Simpson JJ agreed) concluded that the correct approach to determining whether, for the purposes of s 65(2)(c), a representation was "made in circumstances that make it highly probable that the representation is reliable", is to (at [34]): 1. focus "upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable"; and 2. exclude "evidence tending only to prove the asserted fact". 1. His Honour considered that (at [36]): "[P]rior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2)." 1. Accordingly his Honour "would not exclude reference to events outside the time and place of the making of the previous representation itself from the range of 'circumstances' capable of reflecting on the unlikelihood of it being a fabrication when made or the high probability of it being reliable when made" (at [37]). 2. In Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32, the High Court held that evidence of a representation made by an accomplice of the accused should not have been admitted. The Court considered that it was not, by reference to the circumstances in which it was made, open to the trial judge to be satisfied that the representation was likely to be reliable, for the purposes of s 65(2)(d)(ii) of the Evidence Act. 3. The Court referred with approval to Mason P's statement in Ambrosoli at [29] that while that provision focuses attention upon the circumstances of the making of the representation to determine the likelihood of its reliability (at [69]): "[E]vidence of events other than those of the making of the previous representations [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby." 1. The Court emphasised that attention is required to be given "not to the apparent truthfulness of the person making [the representation], but to the objective circumstances in which it was made" and whether they render the representation "likely to be reliable evidence of the fact asserted" (Sio at [70]). Their Honours contemplated that the circumstances in which the representation was made "may include other representations which form part of the context in which the relevant representation was made" (at [71]) but noted that the provision does not require "a general assessment of whether or not it is likely that the representor is a reliable witness" (at [72]). 2. In the present case, the trial judge admitted the hearsay evidence of Dr Hespe and Detective Sergeant Jackovou under s 65(2)(b) of the Evidence Act. This section has two elements. The first is that each representation was made "when or shortly after the asserted fact occurred". His Honour was satisfied that this was the case and that conclusion was not challenged on appeal. The second element is that each representation was made "in circumstances that make it unlikely that the representation is a fabrication". This is a less stringent test than that posed by s 65(2)(c), no doubt because compliance with the requirement under s 65(2)(b) that the representation be contemporaneous, or virtually so, with the asserted fact occurring of itself favours reliability of the representation (and therefore makes it less likely to be a fabrication). It is otherwise if the representation is made distantly in time from the asserted fact occurring. 3. Section 65(2)(d)(ii) imposes a test that is somewhere between these two in stringency ("make it likely that the representation is reliable"), no doubt because the additional requirement of s 65(d)(i) that the representation be against the interests of the person who made it is a factor in favour of reliability, although perhaps not as strong as the contemporaneity of the representation. 4. Although Sio and Ambrosoli were concerned with ss 65(2)(d) and (c) the observations in those cases are applicable to a consideration of s 65(2)(b) so long as the different language of the two provisions is borne in mind. In particular, the High Court's conclusion in Sio that, instead of a compendious approach, each material fact to be proved by a hearsay statement must be identified and the statute applied to it is of general application (at [61]). 5. In the present case, as submitted on appeal by the Crown, the material representations were the complainant's accounts of being punched by the appellant and of the non-consensual sexual intercourse that followed. The trial judge was conscious that this was so as the appellant pleaded not guilty to the charge in Count 1 of assault occasioning actual bodily harm, to which the punching evidence related, and, referring to the charge of aggravated sexual intercourse without consent in Count 2, his Honour described the "real issue" in the trial as one of consent. His reasoning and observations in his ruling on admissibility of the hearsay evidence must therefore be understood as directed to the representations as to those two matters. In those circumstances I do not consider that, as the appellant contended, his Honour erred by considering the evidence in an impermissibly compendious fashion (see [37] above). 6. On appeal, the appellant also submitted that the trial judge erroneously failed to take into account a number of identified circumstances. Most of these, although referred to in the evidence on the voir dire, were not relied on in the appellant's trial counsel's submissions to his Honour. 7. The first matter that was relied upon before his Honour was the asserted existence of some six inconsistencies between the complainant's statements to Dr Hespe and Detective Sergeant Jackovou. As his Honour pointed out, it is hardly surprising that there were some inconsistencies between the brief history given by the complainant to the doctor and the more formal statement, given in question and answer form, to the police officer, particularly considering the distressed state in which the complainant was that night. 8. Secondly, defence counsel submitted that the complainant had lied about where she was going on 20 November 1994. It is not clear that this was the effect of the evidence but even if it was, it did not bear to any significant extent on the likelihood of the critical representations to the police being fabricated. Moreover, his Honour did not overlook the evidence as he specifically referred to it. In any event, the evidence was not in my view fairly to be described as evidence of the circumstances in which the material representations were made as distinct from evidence which was relevant in a general sense to the credibility of the complainant. 9. Thirdly, trial counsel referred to evidence of the complainant's "reluctance to cooperate" and being, on one view, "emotionally distant from the event". These are not matters that point clearly in favour of, or against, fabrication. They were in my view neutral items of evidence. 10. The appellant referred to other matters on appeal but in my view none of them bore on the circumstances of the making of the representations, as distinct from being matters that were arguably relevant in a general sense to the complainant's credibility. 11. The most relevant circumstances in relation to both the representations to Dr Hespe and those to Detective Sergeant Jackovou were that the complainant made the representations very soon after the alleged events, to persons in authority when she was clearly in a distressed state and when she exhibited injuries consistent with the representations. As well, the police statement was attended with formality, it concluding with a formal acknowledgement by the complainant of its correctness and her signature on it. 12. In my view, it was well open to the trial judge to be satisfied that the circumstances in which the representations were made rendered them unlikely to be fabrications. 13. Leeming JA in the Court of Criminal Appeal in Sio v The Queen (2015) 249 A Crim R 533; [2015] NSWCCA 42 concluded that the Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 principles applied to appellate review of a trial judge's conclusion under s 65(2)(d). Leeming JA considered that the "question is binary: either the circumstances make it likely that the representation is reliable, or they do not" (at [30]). The High Court did not comment on this. If it is for this Court to form its own view about admissibility under s 65(2), I am also so satisfied. 14. The appellant also contended that the trial judge erred in failing to exercise his power under s 137 of the Evidence Act to refuse to admit the hearsay evidence of representations by the complainant on the basis that the probative value of them was "outweighed by the danger of unfair prejudice" to the appellant. 15. In this regard he first submitted on appeal that the trial judge failed to take into account "the procedural prejudice which derived from the accused's inability properly to investigate the complainant's credibility through cross-examination of the available witnesses". 16. In rejecting the application under s 137, the trial judge referred to submissions made on behalf of the appellant as follows: "The accused has submitted that he has lost the chance to explore certain avenues of inquiry noting no statements were taken from those persons who worked at the residence at the time, and police failed to identify exactly where the incident took place. Moreover, the accused is unable to test the evidence of the complainant herself on what is the primary issue in this trial, that being consent." 1. These submissions were close to, although not identical with, the contention made on appeal. In my view, the trial judge's reasoning indicates that he had in mind the two significant discretionary factors. First, that the appellant was unable to cross-examine the complainant. Secondly, due to the passage of time, persons who might have been able to give material evidence were unable to be located. As a result, the appellant has not in my view demonstrated that the trial judge failed to take into account material considerations in exercising his discretion. 2. Secondly, the appellant noted that the trial judge's reasoning included the statement that "there can be little doubt that unfair prejudice does arise where the complainant is unable to give sworn evidence". I do not consider that this statement should be considered as a finding that there would be unfairness to the accused in admitting evidence of the representations. As I read it, his Honour was saying that there would inevitably be prejudice flowing from the inability of the appellant to cross-examine the complainant. At that point in his reasoning he was not however intending to express a view about whether that prejudice would or would not be unfair. To so construe the statement otherwise would be inconsistent with his Honour's ultimate finding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant. 3. For these reasons, I reject Ground 2. GROUND 5: WHETHER THE TRIAL JUDGE ERRED IN ADMITTING THE APPELLANT'S ERISP INTO EVIDENCE The contents of the ERISP 1. On 18 December 2012 an interview of the appellant was conducted by Detective Senior Constable Caitlin Hyde in the presence of Detective Senior Constable Kench. The appellant was told at the outset of the interview that he did not have to say or do anything in response to the police questions. The appellant responded "[n]o" when asked whether he was "happy to answer a number of questions regard[ing] the allegation". He indicated, when asked, that he would like the police to "explain the circumstances of the allegation". That then occurred and when asked whether he had anything to say he said "[d]efinitely not". He was then asked again whether he wished to say anything and was reminded that he did not have to answer any of the questions that the police asked. 2. Following a portion of the ERISP that was deleted from the tender, the appellant was asked a number of questions, including as to whether he was residing in Sydney in 1994. He answered "correct" to that question but "no comment" in relation to others. He said that he did not recognise the complainant in a 1994 photograph that was shown to him. He said "[n]o comment" in answer to a question of whether he had had sexual intercourse with the person shown in the photograph although he added that "[s]he might come back in mind or something but at this stage no, I don't know". He was asked whether he smoked cigarettes and what type he smoked. He answered that he did smoke and had rolled his own. 3. The appellant agreed that when he was approached by police some days earlier he asked whether the alleged victim was male or female. He explained that question by saying: "[I]f you did say definitely that it was male I knew that you weren't in the right ball park altogether. So; and I was so floored at the time I didn't even know what was coming out of my mouth to tell the truth; but that was something that I did think of at the time." 1. When asked later whether he had anything further to say in relation to "this matter", the appellant said words including "[i]t's the worse thing in … ", "I'm horrified", "[t]o me it's the worse crime in the world" and "it's very serious". 2. At the conclusion of the interview, the appellant confirmed that he had participated in it of his "own free will" and that he did not have any complaints about the manner in which it had been conducted. The trial judge's ruling 1. Prior to the commencement of the trial, the trial judge rejected the appellant's trial counsel's objection to the tender of the ERISP and ruled it admissible. He gave his reasons after the trial had concluded. 2. The first objection taken at the trial to the ERISP's tender was that the appellant had "exercised his right to silence to arresting police during the course of the interview". The trial judge rejected that contention by referring to parts of the interview to which I have referred above, including the appellant's confirmation at the end of the interview that he participated in it voluntarily. 3. The second objection was whether the ERISP was relevant. In response to the second objection, the trial judge found that the ERISP did have some probative value saying: "The accused agrees that he resided in Sydney at the time. He is shown a photograph of the complainant and states he did not recognise that person. There is no dispute that this photo was taken at the time of the alleged assault." 1. Thirdly, the trial judge rejected the appellant's submission that the interview was conducted improperly and that the ERISP should therefore be excluded, as a matter of discretion, under s 138 of the Evidence Act. In reliance on R v Phan (2001) 53 NSWLR 480; 123 A Crim R 30 at [51], [54] and [56], his Honour held that the persistence of the police interviewer had not "crossed the line" so as to render it unfair to use the appellant's answers in evidence. His Honour added that he was in any event satisfied that, for the purposes of s 138(1), "the desirability of admitting the evidence outweigh[ed] the undesirability of admitting" what was allegedly improperly obtained evidence. The submissions on appeal 1. The appellant first submitted that the trial judge "failed to identify what fact in issue the interview, or parts of the interview, was relevant to". As indicated at [60] above, the trial judge did give some explanation of this. As well, matters such as the appellant's acknowledgement that he was a smoker (the complainant having said that the person who assaulted her smoked cigarettes) were at least of marginal relevance. If judged retrospectively, and therefore taking into account the manner in which the defence case was conducted at the trial, these matters were of very limited relevance. When considered as matters stood in advance of the trial however, it cannot be said that it was not open to the trial judge to find that the ERISP had sufficient relevance to be admitted into evidence. 2. Secondly, the appellant challenged the trial judge's conclusion that there was no impropriety in the conduct of the interview. He complained that the trial judge did not take into account additional evidence that was before him on the voir dire, namely a statement of Detective Senior Constable Hyde which indicated: "a. The appellant had first been spoken to on 5 December 2012 and, when asked whether he wished to partake in an interview, replied that he would speak with his lawyer and get back to police. b. On 18 December 2012 appellant was taken to the Rocks Police Station where he was again asked whether he wished to partake in an interview and stated that he did not wish to. c. Police then 'requested that his refusal be recorded electronically'. By implication, the appellant agreed to this request." 1. These additional matters did not in my view assist the appellant's argument to any significant extent. In my view it was open to the trial judge to conclude that there was no relevant impropriety. His answers do not suggest that he was in any way suborned by the police questioning as he responded when he thought it was in his interests to do so and declined to respond at other times. As Hunt CJ at CL observed in R v Clarke (1997) 97 A Crim R 414 at 419-20, a passage cited with approval in Phan at [54]: "It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure" (footnotes omitted). 1. Finally, the appellant criticised the inclusion in the tender of his "no comment" answers to certain questions. Whilst it would have been preferable to exclude those answers because it is difficult to see how any legitimate use could have been made of them, the appellant did not suffer any prejudice as a result of their inclusion for three reasons. First, the Crown did not seek at the trial to use them in any way. Secondly, the trial judge appropriately instructed the jury that they could not be used against the appellant in any way. Thirdly, this was not a trial at which the accused chose to exercise his or her right to silence. Instead, the appellant gave evidence in a detailed and apparently confident manner. 2. For these reason, I reject ground 5. GROUND 6: WHETHER THE TRIAL JUDGE GAVE ERRONEOUS DIRECTIONS ABOUT THE ERISP 1. In the course of his summing-up, the trial judge gave the jury the following directions concerning the ERISP: "Members of the jury, that brings me to the direction in relation to the accused's record of interview. The accused gave a version of events in the record of interview with investigating police. The accused is entitled to rely upon that account and asks you to take it into consideration with other evidence called by the crown. The accused is not required to prove that this account is true. The crown in discharging its obligation to prove the accused's guilt must satisfy you that it is a version of events that could not reasonably be true." 1. His Honour then gave the directions concerning the appellant's "no comment" answers in the interview, to which I have referred in [54] above. 2. The appellant contended on appeal that the direction in [67] constituted a mere recitation of a standard direction stated in the Criminal Trial Courts Bench Book which did not make sense in the context of the present case. In particular, the appellant said that it was confusing for the trial judge to refer to "a version of events" given by the appellant in the interview. 3. Whilst the directions could have been expressed more felicitously, it was not in my view wrong or confusing to refer to the appellant as having given a "version of events". His denial of any sexual assault and his profession of an inability to recognise the complainant from a photograph did constitute a type of "version of events", particularly when taken with the appellant's statements as to the heinous nature of the alleged assaults. 4. This ground is in any event precluded by r 4 of the Criminal Appeal Rules (NSW) as no objection to the directions was taken at trial. The appellant has not identified any circumstances which would in my view justify this Court granting leave to rely upon the ground notwithstanding the absence of objection at trial. GROUND 8: WHETHER THE TRIAL JUDGE'S MISSTATEMENT TO THE JURY OF THE MENTAL ELEMENT REQUIRED TO BE ESTABLISHED BY THE CROWN IN RELATION TO COUNT 2 RESULTED IN ANY SUBSTANTIAL MISCARRIAGE OF JUSTICE 1. On appeal, the Crown conceded that the trial judge (without objection from either party at trial) gave the jury an erroneous direction as to the elements of the aggravated sexual intercourse without consent offence charged in Count 2. His Honour directed the jury in accordance with the legislative provision in force at the time of the trial (s 61HA of the Crimes Act), not that which was in force at the time of the alleged offence in 1994 (s 61R). The error occurred in both the written and oral directions. 2. Section 61HA, as in force at the time of trial, relevantly stated: 61HA Consent in relation to sexual assault offences … (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. 1. Having referred to the possibility that the jury might be satisfied beyond reasonable doubt that the appellant knew that the complainant did not consent to the sexual intercourse, the trial judge, consistently with this section, continued: "On the other hand, you may decide on the basis of the evidence led in the trial that he might have believed the complainant was consenting to sexual intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, he had reasonable grounds for that belief. Therefore if you are not satisfied that the accused knew the complainant was not consenting, the Crown must prove one of two facts before you can find the accused guilty, either: a) that the accused did not honestly believe that the complainant was consenting, or b) that, if he did have an honest belief in consent, that he had no reasonable grounds for that belief." 1. The statutory provision that was in fact applicable was s 61R as in force in 1994. It relevantly provided: 61R Consent (1) For the purposes of sections 61I and 61J, a person who has sexual intercourse with another person without the consent of the other person and 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. 1. This section thus provided that recklessness was taken to be knowledge of a lack of consent. It did not provide for proof of mens rea by proof of the absence of reasonable grounds for believing that a complainant was consenting. Nor did it provide that the jury must take into account, when determining whether the mental element was proved, any steps taken by the accused to ascertain whether the complainant was consenting. 2. As the Crown properly conceded on appeal, the trial judge's misdirection to the jury constituted a significant departure from the legal requirements for the conduct of the trial. The appeal in relation to Count 2 must therefore be allowed unless this Court concluded in accordance with the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) that "no substantial miscarriage of justice has actually occurred". 3. The recent High Court decision in Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 is authority for the proposition that the proviso to s 6 of the Criminal Appeal Act is capable of applying even where a misdirection to a jury concerns an element of the offence charged. In that case, the majority reasoned that the matter the subject of the misdirection was not significant in light of the way in which the trial was run. 4. In Kalbasi, the appellant was convicted of attempting to possess a commercial quantity of methamphetamine with the intent to sell or supply it to another. Pursuant to s 11 of the Misuse of Drugs Act 1981 (WA), it is rebuttably presumed that a person in possession of a specified quantity of a prohibited drug has it in possession with the intent to sell or supply it to another. This section was incorrectly presumed to apply "on the prosecution of a charge of attempted possession of a prohibited drug" (Kalbasi at [1], referring to Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43). The trial judge consequently misdirected the jury that "in the event it was satisfied that the appellant was in possession of the 'drugs', his intention to sell or supply them to another was proved beyond reasonable doubt" (at [2]). 5. The majority held that where there has been a misdirection, the resolution of whether there has been a substantial miscarriage of justice "depends on the particular misdirection and the context in which it occurred" (at [57]). The majority explained that the "sole issue in the way the trial was run was proof that the appellant was in possession of … the substitute 'drugs' in the cardboard box" (at [60]). The majority agreed with the Court of Appeal that "proof beyond reasonable doubt that the appellant attempted to possess nearly 5 kg of 84% pure methylamphetamine compelled the conclusion that it was his intention to sell or supply it to another" (at [60]). The majority held that "[t]here was no basis in the evidence or in the way the appellant's case was advanced which left open that he may have been in possession of some lesser part of the substitute 'drugs' with a view to purchase for his own use" (at [60]). 6. In the present case, the "particular misdirection and the context in which it occurred" lead me to conclude that no substantial miscarriage of justice occurred. As the Crown argued, the erroneous direction could not have affected the jury's verdict in this case. The Crown case was that the appellant punched the complainant when she resisted his advances and that he then had sexual intercourse with her whilst he was holding her on the floor and she was telling him to stop. On the other hand, the appellant's case was that they started kissing each other, the complainant then undid the appellant's trousers, and they then had sexual intercourse and later went to the movies. 7. The jury was instructed that if it accepted the appellant's evidence, or was unable to reject it as a reasonably possible version of the facts, it must acquit him. As the jury unanimously found the appellant guilty of the assault occasioning actual bodily harm charged in Count 1, that immediately preceded the intercourse, it could not have convicted him of the aggravated sexual assault charged under Count 2 on the basis that he had an honest but unreasonable belief that the complainant consented to the intercourse. The jury cannot therefore have taken the course that was, although sanctioned by the trial judge, impermissible, of convicting the appellant in reliance on the alternative that was contained in the statutory provision applicable at trial but not in that applicable in 1994. In other words, the jury's verdict on Count 1 indicated that it accepted the complainant's version of the facts and did not consider that there was a reasonable possibility that the appellant's version, entirely inconsistent with him having punched the complainant, was correct. It therefore convicted him on the basis, inevitably flowing from the complainant's version of the facts, that the appellant knew that she did not consent to the sexual intercourse. 8. My conclusion is no different when the dissenting judgments of Gageler and Nettle JJ in Kalbasi are considered. Gageler J departed from the majority by concluding that the Court of Appeal was not entitled to "reason from the jury's satisfaction that Mr Kalbasi was in possession of that obviously commercial quantity of what he believed to be methylamphetamine to the conclusion that the jury acting reasonably on the evidence that had been adduced … would inevitably also have been satisfied that Mr Kalbasi intended to sell or supply it to some other person" (at [75]). Gageler J's conclusion was reached on the "content of the instructions which the jury had been given", which (at [76]): "left the jury with a pathway of reasoning in relation to one element of the offence which allowed the jury to be satisfied that Mr Kalbasi was in possession of the obviously commercial quantity of what he believed to be methylamphetamine, which pathway of reasoning was inconsistent with the inevitability of the jury, if properly instructed in relation to the omitted element of the offence, also being satisfied that Mr Kalbasi intended to sell or supply it". 1. Nettle J reasoned that "[i]t is not open to an appellate court to be satisfied that an accused was proved guilty beyond reasonable doubt if it was open to the jury to reach the contrary conclusion" when properly directed (at [144]). His Honour held that, in the circumstances, it would have been open to the jury to reach a contrary conclusion had it been properly directed (at [144]). 2. Whilst Gageler and Nettle JJ were each able to identify a pathway of reasoning inconsistent with the inevitability of the jury being satisfied of guilt beyond reasonable doubt, no such reasoning is available on the present facts. 3. I add that the reasoning at [82] above is dependent upon the ability of this Court to rely upon the jury verdict on Count 1 as a verdict delivered at a properly conducted trial. If I had taken the view that any of the appellant's other grounds of appeal should succeed, with the effect of impugning the jury verdict on Count 1, this would not have been the case. As I have not done so, the verdict may be relied upon and Ground 8 should be rejected for the reasons that I have given. GROUND 9: WHETHER THE TRIAL MISCARRIED BECAUSE OF IRREGULARITIES IN THE CROWN PROSECUTOR'S CLOSING ADDRESS 1. The particulars of this ground given in the Notice of Appeal are as follows: "a. Undermining the Judge's directions concerning the disadvantages to the accused because of delay by submitting that delay affected both the Crown case and the accused's case; b. Inviting the jury to engage in an impermissible line of reasoning by submitting that, if the jury accepted the Crown's submission that the accused was concocting his story, the accused had suffered no forensic disadvantage; c. Misrepresenting the accused's evidence on a material matter; d. Submitting on matters that were not in evidence and inviting the jury to speculate." Particulars (a) and (b): forensic disadvantage 1. In his summing-up the trial judge gave a direction of substantial force and length concerning the forensic disadvantages to the appellant arising from delay. His Honour gave a number of specific examples of prejudice to the appellant and concluded as follows: "Because the accused has been put into this situation of significant disadvantage he has been prejudiced in the conduct of his defence. As a result I warn you that before you convict the accused you must give the prosecution case the most careful scrutiny. In carrying out that scrutiny you must bear in mind the matters which I have just been speaking about. The fact that the complainant's evidence has not been tested to the extent that it otherwise could have been, and the inability of the accused to bring forward evidence to challenge it or to support his defence." 1. In closing address, the Crown Prosecutor had referred to the forensic disadvantage to the appellant resulting from delay and gave examples of how that may have occurred. At two points however he suggested that the delay affected both sides, although he did not elaborate on how it affected the Crown. In light of the forceful direction subsequently given by the trial judge in his summing-up as to the disadvantages to the appellant, I do not consider that the brief references made by the Crown to disadvantage to both sides could reasonably have distracted the jury from following the trial judge's directions to give "the most careful scrutiny" to the Crown case because of the significant disadvantage and prejudice to the appellant arising from delay. 2. The Crown's suggestion in closing address that the appellant would not have suffered any forensic disadvantage through delay if he had been "making up" his defence to the prosecution was inappropriate but again I do not consider that it can be regarded as having had any significance bearing in mind the clear directions which the trial judge subsequently gave to the jury. 3. In any event, no objection to these aspects of the Crown's closing address was taken at the trial on behalf of the appellant. Rule 4 of the Criminal Appeal Rules therefore precludes the objections being taken on appeal unless leave is granted. To the extent that there was any error on the part of the Crown leading to some possible prejudice to the appellant, it was not of such a serious kind that would warrant the Court granting leave under r 4. Particulars (c) and (d): Crown comments on the appellant's evidence 1. On appeal the appellant submitted that in his closing address the Crown Prosecutor made a misleading reference to the appellant's evidence by suggesting that he had said that when the complainant had come to the door of his unit, he had not asked the complainant who she was looking for. The appellant submitted that his evidence was in fact that he could not recall whether he had done so or not. 2. When the appellant was first asked in cross-examination about the person that the complainant was looking for in his building, the following exchange occurred: "Q. Who was that person? A. I never went into that with her. Q. Wait a minute – are you saying you remember you never went into that with her? A. Not that I can remember at the moment, no. No – I haven't been able to. I know that-- Q. No, no – is it the case you did not go into with her, or you don't remember going into with her? A. I don't remember. Q. But why did you say a moment ago 'I did not go into that with her? Why did you say that? Why didn't you say to me-- A. Because it doesn't come into my head that there's something there. Q. Wait until I finish the question please? Why didn't you say to me, 'Look, I can't remember now whether I asked her or not who she was looking for'? Why did you say to me instead, 'I did not go into that with her'? Why? A. I can't say." 1. The appellant thereafter repeated on several occasions that he could not recall whether he had asked the complainant who she was looking for. He also gave the following answer: "Q. Wait a minute: you let in a complete stranger and you don't even ask, 'Who are you looking for'? A. Correct." 1. The Crown Prosecutor's reference to this topic in his closing address was as follows: "You might remember in cross-examination, I went to some trouble to invite him to explain or recall whether or not he had done such a simple, straight-forward and you might think, elementary, act as simply ask this stranger to his block of flats, this stranger who came seeking someone who lived upstairs, … Did he do the reasonable thing, and say, well, who is it that you're looking for, maybe I can help you. No" (emphasis added). 1. The Crown Prosecutor did not therefore, as the appellant submitted on appeal, simply assert that the appellant "failed to ask who the complainant was looking for". Rather, the Crown relied on the appellant's inability to "explain or recall" whether he asked the complainant about that matter. What the Crown Prosecutor said was not therefore misleading. 2. The other aspect of the Crown Prosecutor's address complained of on appeal was the following: "What about when [the complainant] had gone to the office? He even said, although he didn't overhear the conversation, he presumed, and you might think because of what he wanted you to believe was the way that they were getting on that day, she went to the office for the purpose of finding out about this person, whom she sought. No. Still no question, who is it, by the way, you're looking for? In fact, after that first inquiry, they made tea and then they had sex, these two strangers. Very interesting if the person she might have been looking for, on his version, might have been a 25-stone boyfriend who lived upstairs. Didn't seem to occur to him that whoever it was she was looking for, maybe would get upset about this man having consensual sex with his girlfriend, or whatever, or his friend, in the room right near the entrance. It's a matter for you, ladies and gentlemen, but you would think there are a number of reasons that can come to your mind why it would be a very reasonable thing to do, to simply ask her, well, look who is you're after? Maybe I can help you. Who is it you're after? But no, and remember, when they left the building in order to set off to go to the cinema, she asked again, or at least she had some conversation and he gave his evidence, he presumed she was asking yet again, about where this person was, whom she sought. Still, no inquiry from the accused. Look, who is it? Maybe I can help you." 1. The appellant submitted that the reference to the 25-stone boyfriend involved speculation about a matter not in evidence, which was not put to the appellant in cross-examination. However, seen in its context, the Crown Prosecutor simply gave a hypothetical example of who the complainant might have been looking for to assist the jury to consider the credibility of the appellant's evidence. This was not appropriate as, on the appellant's account, the complainant came to the appellant's door looking for someone but the appellant could not explain or recall when giving evidence who that was. 2. For these reasons, I do not consider that there was any irregularity in the respects alleged in Particulars (c) and (d). Even if there were, objection to the Crown Prosecutor's address was not taken at the trial and I would refuse leave to rely on these matters on appeal. GROUND 10: WHETHER THE TRIAL MISCARRIED BECAUSE OF THE APPELLANT'S TRIAL COUNSEL'S INCOMPETENCE 1. The general principles relevant to this ground were stated by Gleeson CJ (with whom McInerney J agreed) in R v Birks (1990) 19 NSWLR 677 at 685 as follows: "2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 1. In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [25], Gummow and Hayne JJ emphasised as follows that it is insufficient for an appellant to demonstrate that his or her counsel was incompetent without demonstrating that a miscarriage of justice occurred: "Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent. Showing all three of these errors would reveal very serious incompetence. But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused's counsel. Was what happened, or did not happen, at trial a miscarriage of justice?" 1. To the same effect were the following observations of Price J (with whom Hoeben CJ at CL and Schmidt J concurred) in Davis v R [2017] NSWCCA 257 at [59]: "In order to establish a miscarriage of justice, the applicant must do more than 'simply point to some failing, even a gross failing, of the legal representative who appeared…': John Wayne Tsiakas v R [2015] NSWCCA 187 at [44]; Younan v R [2016] NSWCCA 248 at [96]. The applicant must demonstrate that there is a significant possibility that the acts of which she complains affected the outcome of the trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 ("TKWJ"); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614." These observations were cited with approval by this Court in Roach v R [2019] NSWCCA 160 at [155]. 1. Whilst it is for an appellant to establish that there has been a miscarriage of justice, the nature of the conduct at trial of counsel for the accused may be such as to indicate that the accused has not received a fair trial and that a miscarriage of justice has therefore occurred. In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [76], McHugh J instanced counsel's failure to cross-examine material witnesses or address the jury. In less extreme cases, such as the present, it will remain for the appellant to establish that an irregularity may have affected the outcome of the trial and has therefore resulted in a miscarriage of justice (TKWJ at [76]-[79]). 2. The particulars that the appellant gave concerning Ground 10 and my conclusions concerning them are as follows: a. Failing to understand all of the elements of the sexual offences with which the accused was charged, namely whether or not a "defence" of honest and reasonable mistake about the complainant's age was available; 1. It is apparent from the transcript that defence counsel laboured under the misapprehension that the appellant had a defence to the s 61J offence charged in Count 2 if he had an honest and reasonable belief that the complainant was over 16 years of age (cf Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28). Whilst counsel's mistake in this respect is to be deprecated, there is no basis for concluding that the mistake affected the outcome of the trial, or may have done so. b. Failing to make any opening address in circumstances where the accused had pleaded guilty, before the jury, to having had sexual intercourse with a 13 year old girl; c. Failing to explain to the jury, or ask the Judge for a direction about, the elements of the offence to which the offender had pleaded guilty so as to ensure that the jury understood what the accused had, and had not, admitted by the plea; 1. As noted above, the appellant pleaded guilty to an offence under s 66C of the Crimes Act of having sexual intercourse on 20 November 1994 with the complainant who was then above the age of 10 but under the age of 16 years, namely 13 years. The plea was entered in front of the jury panel but was not accepted by the Crown in discharge of the indictment. The plea reflected the fact, as indicated by the Crown Prosecutor in his outline of the case to the jury panel and in his opening address to the jury, that the appellant accepted that he had sexual intercourse with the complainant on the relevant date. 2. On appeal the appellant submitted that his counsel should, at least by a short opening address, have made it clear that the guilty plea did not involve any concession that he was aware that the complainant was under 16 years of age. 3. Whilst it might be thought that that would have been a beneficial step to take, the failure of his counsel to take it in my view fell well short of the type of "flagrant incompetence" to which Gleeson CJ referred in Birks. As the Crown submitted on appeal any prejudice occasioned by the appellant's plea of guilty to having sexual intercourse with a girl who was in fact 13 years old would be mitigated only to a minor degree by the jury being informed that it did not constitute an admission that he was aware of her age. In any event, in circumstances where the appellant's belief as to the complainant's age was irrelevant to his guilt of the offences charged, I do not consider that he has established that the alleged incompetence may have affected the outcome of the trial. 4. This conclusion applies equally to the complaint made in Particular (c). d. – f. [not pressed]; g. Failing to ask the two medical experts [Dr Chan and Dr Hespe] about any possible alternative causes for, or timeframes for the occurrence of, the injuries to the complainant's face said to amount to the actual bodily harm the subject of Count 1 (see also (m) and (n) below); 1. As submitted by the Crown on appeal it was not possible for defence counsel to ask the defence expert, Dr Norman Chan, about these matters because Dr Chan was an obstetrician/gynaecologist and indicated on the voir dire that he was "not an expert in facial injury". 2. Defence counsel cross-examined Dr Hespe, and adduced evidence from Dr Chan, about possible alternative explanations for the complainant's genital injuries. It would seem unlikely in these circumstances that counsel did not advert to the possibility of conducting similar cross-examination of Dr Hespe concerning the complainant's facial injuries. It is conceivable therefore that counsel took the view that the less said about them the better. Counsel may have considered that it would have been within the experience of the jury to know that facial injuries such as those exhibited by the complainant could have been caused in a variety of ways and that little, if anything, would be achieved by drawing attention to them. It must be borne in mind that counsel was faced with the difficulty that, on the appellant's case, there were no facial injuries when he last saw the complainant at about 3.00pm on 20 November 1994 but the injuries were evident when the complaint was made to DOCS personnel about three hours later. 3. For these reasons I do not consider that the matters referred to in these particulars demonstrate clear incompetence by the appellant's trial counsel. h. Failing to adduce from the accused, when he was giving his evidence, why he was able to recall the incident; 1. In the ERISP, the appellant stated that he did not recognise the complainant in a 1994 photograph that was shown to him but that the young woman it depicted might come back into his mind. No doubt conscious of this, defence counsel raised with the Court, in the absence of the jury, an issue as to how the appellant could, without undue prejudice to his case, give his explanation of how he came to be able to give in his evidence a detailed description of what occurred on 20 November 1994. The explanation was said to be that the appellant remembered the night in question because he was imprisoned three days later and had asked his brother to move his belongings out of the unit in which he had been living. A means of this explanation being given without disclosing the imprisonment was agreed. 2. Defence counsel did not however in fact lead evidence of the explanation from the appellant. Clearly the availability of the explanation was not overlooked, as it was raised with the judge, but counsel may have concluded that, on reflection, it was too weak to warrant drawing attention to the apparent inconsistency between the appellant's deficiency of recollection in the ERISP and his detailed recollection when giving evidence. Such a view may be regarded as to some extent vindicated by the absence of any reference by the Crown in address, or otherwise, to that inconsistency. 3. Again, this particular does not in my view assist the appellant. i. Failing to ask for a correction of, or a direction about, improper aspects of the Crown's closing address; 1. For the reasons given in [88] to [99] above, there was no impropriety in the Crown's closing address. j. Failing to submit to the jury that the accused's sworn evidence ought to be accepted but, instead, implying that it was not worthy of acceptance; 1. Defence counsel's address commenced as follows: "I am [name]. I appear for the defendant. … [T]he defendant's name is John Priday. You have heard from Mr Priday. He gave evidence yesterday. You may or may not like him. You may or may not believe him. There may be parts of his evidence that sound a little bit true, and there may be parts that just don't sound true." 1. It would be going too far to suggest, as the appellant submitted on appeal, that the appellant's account in evidence was "at best, only partly true". Whilst it is not the type of opening to an address that many defence counsel would make, perhaps counsel thought that a brutally frank reference to some parts of the appellant's evidence might garner the jury's confidence in the description that followed of the gravamen of the appellant's case, namely, that he had consensual sex with the complainant and had made a mistake as to her age. Understandably defence counsel then proceeded to emphasise the presumption of innocence and the burden of proof that rested upon the Crown, spending most of the address on explaining to the jury why it would have a reasonable doubt as to the appellant's guilt. 2. The question to be addressed is not whether the address could have been better but whether it exhibited "flagrant incompetence" and, for that or any other reason, caused a substantial miscarriage of justice. The matters relied upon in relation to Particular (j) do not in my view establish either of these elements. k. Failing to address the jury in relation to any of the criticisms by the Crown prosecutor of the accused's sworn evidence; l. Failing to address the jury in relation to the "four main points" relied upon in the Crown's closing address; 1. In his "four main points", the Crown Prosecutor emphasised the complainant's prompt complaints, her injuries, her distressed state and the clear and accurate description that she gave of the appellant. 2. The fact that some other, if not most, counsel would have responded in some fashion to some or all of these points does not make good this ground of appeal. At best, the particular establishes arguable incompetence on the part of defence counsel. m. Failing to address the jury, at all, in relation to Count 1; n. As a necessary consequence of the failure to address the jury in relation to Count 1, failing to address the jury, at all, in relation to the physical assault alleged to have been committed in the course of the alleged sexual assault which was Count 2; 1. On appeal, the appellant submitted that "the failure of counsel to address, at all, in relation to a particular count is so fundamental that it amounts to a substantial miscarriage of justice". The appellant relied on references by McHugh J in TKWJ at [76] to the failure of counsel to cross-examine material witnesses or to address the jury giving rise to an unfair trial. As Gleeson CJ however pointed out in Nudd at [19], it is only in extreme cases that counsel's incompetence leads to an unfair trial and that McHugh J's references in TKWJ to counsel's failure to cross-examine material witnesses or address the jury were to situations in which there was "no rational explanation" for counsel's decision and "not to cases where an appellate court simply thinks it was unwise to fail to cross-examine". 2. The significance of a failure to cross-examine or to address the jury must therefore be considered by reference to the circumstances of the particular case in question. In the present case, the essential dispute was between the competing accounts of the complainant and the appellant. On the complainant's version, admitted as hearsay evidence, the assault occasioning actual bodily harm occurred immediately before the aggravated sexual assault and was part of the same encounter. The appellant's evidence that the sexual intercourse was consensual necessarily carried with it a denial (which was also expressly stated in his evidence) that he had punched the complainant as charged in Count 1. In these circumstances, it was never likely that the jury would deliver different verdicts on the two charges. It was thus not completely irrational for defence counsel not to deal specifically with Count 1 but to address on the counts in a global fashion. Defence counsel's approach was therefore not without any possible rational explanation and the criticism of it, at best for the appellant, established its lack of wisdom. 3. The appellant sought to draw an analogy in this context with what occurred in Birks. In that case, the defence case was that the complainant suffered facial injuries when the accused warded off blows from a torch with which the complainant struck him. The accused's counsel failed to cross-examine the complainant to this effect and subsequently admitted that this had been due to oversight. 4. The present case is different as the appellant's case was that the complainant was uninjured when they parted company. Defence counsel's examination-in-chief of the appellant was accordingly to the effect that what occurred was consensual, and did not involve any punching of the complainant by the appellant. There was no oversight comparable to that of counsel in Birks. 5. Again I do not consider that the matters referred to in these particulars support this ground of appeal. o. Failing to object to erroneous directions to the jury or to ask for re-directions 1. The erroneous directions that the appellant refers to in relation to this particular are those covering the elements of the s 61J offence charged in Count 2 (see [72] above). As indicated above, those directions were erroneous. It follows that defence counsel was in error in not seeking to have them corrected. For the reasons I have given in [81] to [82] there was however no substantial miscarriage of justice that flowed from the erroneous directions. Accordingly, no such substantial miscarriage of justice flowed from defence counsel's failure to seek correction of them. GROUND 1: WHETHER THE TRIAL MISCARRIED AS A RESULT OF A COMBINATION OF ERRORS OF THE JUDGE AND OF THE CONDUCT OF THE CROWN PROSECUTOR AND DEFENCE COUNSEL 1. It is appropriate not only to consider the grounds of appeal individually as I have done above but also to have regard to the appellant's contentions as a whole and to consider whether the matters to which he draws attention, in combination, resulted in the appellant not receiving a fair trial. 2. Having undertaken this consideration, I have not concluded that the appellant was denied a fair trial. Thus, the matters relied upon by the appellant do not, in my view either individually or in combination, indicate that his trial was not fair. THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE 1. The sentencing judge (who had also been the trial judge) imposed an aggregate sentence of 8 years 6 months imprisonment to date from 4 August 2017 (the date of the jury's verdict), with a non-parole period of 5 years and 6 months. This sentence related to the offence of aggravated indecent assault to which the appellant pleaded guilty and to the two offences with which he was convicted after trial. His Honour indicated the following sentences in respect of the offences (using the Count numbers appearing in the indictment as it stood prior to the plea of guilty to Count 1): Counts Offence Maximum Discount Sentence (per ROS) penalty indicated 1 Aggravated indecent assault 7 years 10% 1 year 10 months 2 Assault occasioning actual bodily harm 5 years None 2 years Aggravated sexual 3 intercourse without 20 years None 7 years 6 months consent 1. As indicated by the table, the appellant received a discount of 10% in respect of the aggravated indecent assault offence by reason of his plea of guilty at the commencement of the trial. The non-parole period specified in respect of the aggregate sentence was 65% of the head sentence, reflecting a finding of special circumstances. 2. His Honour noted that the appellant was to be sentenced "in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time" (R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 at 511) and noted that "the sentences imposed at the time of the present offences were somewhat less than they are now". 3. At the sentencing hearing, the Crown tendered without objection a bundle of documents including a statement of "Facts on Sentence after Trial". The appellant tendered a psychological report by Ms Anne-Marie De Santa Brigida, counselling psychologist, and a psychiatric report by Dr Tanveer Ahmed, consultant psychologist. The appellant gave evidence on sentence, as did his ex-partner and his cousin. Objective seriousness 1. Based on the Crown's summary of the evidence adduced at trial, the sentencing judge made the following factual findings that he considered were consistent with the jury's verdicts: "The victim in this matter … was born in … February 1981. In 1994 she resided in England as a Ward of the State. She was sent to Australia in an attempt to reunite her with her natural mother, arriving in Australia on 3 October 1994. On 12 October 1994 she entered Temporary Care residing at a Salvation Army house in Earlwood. On 20 November 1994 the victim left the group home and travelled to the city by train with a friend Diane. The victim stayed with Diane until Diane got on a bus, leaving the victim alone in the city. While the victim was in the city she was approached by the Offender John Thomas Priday. He asked the victim for directions, however after she informed him that she was unfamiliar with the city, he offered to show her around. The victim remembers the Offender: [a detailed description then appeared]. It is not known where the Offender took the victim, however they ended up at the front of a building with Japanese writing on it. Upon entering the building, the Offender took the victim up several flights of stairs causing her to feel tired and sit down. When seated, the Offender commenced kissing the victim. She told him to 'stop' and struggled to get away, however he did not stop. While the victim was struggling the Offender punched her to the mouth causing the skin on her upper lip to split and bleed. After punching the victim the Offender removed his trousers down to his knees. He then removed the victim's jeans, T-shirt and left shoe. The Offender then inserted his erect penis into the victim's vagina, had sexual intercourse, ejaculating inside her vagina. The positioning of the Offender's penis in her vagina caused her to feel considerable pain. While the Offender had his penis inside her vagina, the victim was calling, yelling out, begging him to stop, telling him that what he was doing was wrong, however he did not stop. At the time the Offender was holding the victim down against the floor. After sometime, between 15 to 30 minutes, the Offender ejaculated. He then got off the victim, got dressed and left her alone in the stairwell. The victim got up, put her clothes on and went back to the street. She walked around in an attempt to locate a train station, eventually locating Town Hall Station. The victim caught the train back to the group home where she disclosed what had happened to a female named Jill Short. The victim was then taken to the Royal Alexandra Hospital for Children where she underwent a SAIK examination with swabs being taken from her vagina. She was examined by Dr Charlotte Hespe who confirmed the injuries were consistent with the history given to her by the complainant." 1. His Honour made the following assessments of the objective seriousness of the offences: ● Count 1 (aggravated indecent assault): "below the mid-range for this type of offence but not towards the lower end", noting the complainant's age and the isolated location. ● Count 2 (assault occasioning actual bodily harm): "slightly above the mid-range for offences of this type", giving weight to the complainant's age. ● Count 3 (sexual intercourse with consent): "above the mid-range for offences of this type but not towards the highest end". It was noted that the applicant took the complainant to an isolated location and had assaulted her first. The act involved full penile penetration, the complainant called out to the applicant to stop, and the complainant's age was towards the upper end of the range but not at the highest end. Subjective factors 1. As the appellant maintained his innocence in relation to Counts 2 and 3, there was no evidence of remorse or contrition. 2. At the time of the offences the appellant was subject to conditional liberty in the form of a good behaviour bond for five years for a stealing offence. 3. His Honour found the appellant to have reasonable prospects of rehabilitation, which would be greatly enhanced by access to appropriate counselling. 4. His Honour found that the appellant suffered chronic pain as a result of a motor vehicle accident some years earlier and had some mental health issues which would make his time in custody somewhat more onerous than for other inmates. 5. His Honour made a finding of special circumstances based on the appellant's age (52 at the date of sentence), rehabilitation (noting his lack of criminal history in recent years), his difficulties in custody and the need for an extended period of supervision. Ground 1: The Judge erred in considering the question of totality and the extent of notional accumulation 1. As his Honour indicated that he proceeded upon the basis that the Count 1 offence should be served concurrently with the sentences applicable to the other two offences, it is possible to calculate, as 12 months, the extent of accumulation for which his Honour's indicative sentences provided as between Counts 2 and 3. The appellant contended that accumulation to this extent was excessive bearing in mind that his Honour took the assault occasioning actual bodily harm into account not only in assessing the extent of accumulation but as part of the surrounding circumstances of the s 61J offence. 2. It should be noted first that the Count 2 offence was serious because it involved the applicant punching the 13 year old complainant to her face, causing bleeding and deep purple bruising to her lip. The purpose of the punch was to overcome her resistance to the appellant's sexual advances. 3. In these circumstances it was in my view open to the sentencing judge to find that the indicative sentence for Count 2 would not be wholly comprehended and reflected within the sentence for Count 3 (and Count 1), and that partial accumulation was therefore appropriate. His Honour had a wide discretion to exercise in this respect and there is no basis for a conclusion that his Honour's discretion miscarried, particularly as his Honour's reasons made clear that he was astute to avoid double counting and that he moderated the degree of notional accumulation to reflect some factual overlay between the two offences. 4. This ground of appeal should accordingly be rejected. Ground 2: The Judge erred in assessing the objective seriousness of the offence of assault occasioning actual bodily harm 1. The statement of "Facts on Sentence after Trial" tendered by the Crown, without objection by the appellant, referred to the appellant punching the complainant "to her mouth, causing the skin on her upper lip to split and to bleed". This was not significantly different from the evidence at the trial and was in any event a proper basis for his Honour to sentence the appellant in the absence of any suggestion to him by the appellant that there was any significant discrepancy. 2. On appeal the appellant submitted that the complainant's injury was "a minor injury to the lips" but it was by no means trivial as the bruising and grazing to her upper lip were clearly visible in the photographs which were taken on 20 November 1994 and which were in evidence at the trial. As well, there was evidence of bleeding as, in her statement to the police, the complainant said that she went to the toilets at the railway station to wash the blood from her lips and photographs in evidence showed blood on her denim jacket and T-shirt. 3. Whilst the nature of her injury was an important factor in assessing the objective gravity of the offence, it was not the only relevant consideration. As R v Burke [2001] NSWCCA 47 at [17] illustrates, an offence may be objectively serious due to the nature of the assault notwithstanding that the injuries are minor. In particular, the degree of violence and the intention with which the offender inflicts harm are also important considerations. In this case, the appellant was a 28 year old man who took a 13 year old stranger to a secluded place and punched her, clearly with some force, in order to facilitate his sexual assault of her. As it was not an element of the offence, her vulnerability due to her age was also relevant. 4. The sentencing judge's finding of objective seriousness was therefore in my view well open to him (see Mulato v R [2006] NSWCCA 282 at [37] and [46]-[47]). Ground 3: The Judge failed to take into account the appellant's deprived upbringing in relation to his moral culpability, or at all 1. On appeal, the appellant submitted that the sentencing judge failed to take into account the following matters established by the reports of the psychologist and psychiatrist that he tendered. "The reports, adopted as evidence by the appellant and unchallenged, told of a childhood characterised by the following: a. An absent father; b. Being raised by a single mother with three children in a two bedroom unit; c. Learning difficulties at school resulting in him having to leave school and remaining illiterate for the rest of his life; d. Being sexually abused at the age of 13 on a number of occasions by [a] much older associate of his older brother; e. Significant success in sport until he ceased following the sexual abuse. … The reports further told of an early adulthood, leading up to the offences, characterised by: a. Heroin addiction from the age of 20 or 21; b. An inability to maintain employment; c. An inability to maintain relationships. The psychologist found that the appellant had a composite IQ of 74, which is in the 'lower extreme' range (report p7) and had a long history of neuro-developmental problems (p 14). The psychiatrist diagnosed the appellant with ADHD and opined that it was highly likely that he suffered a social anxiety disorder." 1. The appellant then made the following further submission: "Despite the unchallenged evidence about the appellant's deprived childhood, the Judge made no mention of it in his judgment. The Judge's consideration of subjective factors was largely limited to some learning difficulties, past problems with heroin as an adult, current back problems and the various risk assessments. It is apparent that he did not take into account the appellant's deprived childhood. This was a matter of some significance on sentence, for the reasons explained by Simpson J (Bathurst CJ and Adamson J agreeing) in R v Millwood [2012] NSWCCA 2 at [69]". 1. As the Crown indicated on appeal, those submissions about the appellant's childhood were however not made by defence counsel at first instance. As a result, the following observations of Bellew J (with whom R A Hulme J and Davies J agreed) in Avery v R [2015] NSWCCA 50 at [72] are applicable to preclude the appellant relying upon this ground: "It is not open for a party to come to this Court and assert error on the part of a sentencing judge based upon a failure to take a particular course which the judge was never asked to take. Generally speaking, a party is bound by the manner in which the case is conducted at first instance: Zreika v R [2012] NSWCCA 44 at [80] and [82] per Johnson J." 1. In any event, for the following reasons the appellant did not establish error on the part of the sentencing judge. 2. The sworn evidence given by the appellant at the sentencing hearing did not refer to his childhood. The only evidence as to that was contained in the tendered psychological, psychiatric and pre-sentence reports. In summarising those reports, his Honour referred to the appellant's account of having had some form of learning disability at school, being illiterate and to a 20 year history of opiate dependency, which was then in remission. While his Honour did not recite the entirety of these reports, his reliance on parts of them indicates that he gave them careful consideration. 3. Further, as the Crown submitted on appeal, whilst the appellant's upbringing was not in some respects an advantaged one, there was a significant degree of stability in his home environment deriving from his close relationships with his mother and siblings, the absence of any Children's Court entries on his criminal record and his early involvement with sport. Other than when he "experimented with cannabis at age 13 for one year" (with his use being described as "sporadic in nature"), it was not suggested in the reports that the appellant grew up in a home environment of alcohol, drug abuse or violence. 4. The psychologist's report recorded that the appellant stated that on approximately six occasions when he was about 13, he had been sexually molested by a male in his forties. The report did not however suggest that the appellant suffered from post-traumatic stress disorder as a result of this or any other circumstance. 5. For these reasons, this ground of appeal should also be rejected. ORDERS 1. For the reasons I have given, I propose the following orders: 1. To the extent necessary, grant the appellant leave to appeal against his convictions of offences of assault occasioning actual bodily harm and aggravated sexual intercourse without consent. 2. Dismiss the appeal against those convictions. 3. Refuse the appellant leave to appeal against sentence. 1. JOHNSON J: I agree with Macfarlan JA. 2. LONERGAN J: I agree with Macfarlan JA. ********** 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: 13 November 2019