Allen v R

BELL P: Michael Francis Allen (the Applicant) was convicted by a jury in the District Court of New South Wales on 30 November 2018 on 30 of the 36 counts with which he had been charged on indictment.

The first 25 of these counts were child sex offender register offences pursuant to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (the reporting offences). Section 19 of that Act provides for the establishment of a Child Protection Register (the Register) and the Act provides for entry of names of “registrable persons” on that Register and imposes reporting obligations on persons whose names are placed on the Register. The Applicant’s reporting offences were alleged to have been committed between 1 July 2012 and 26 February 2017.

The remaining counts consisted of allegations of aggravated indecent assault, aggravated acts of indecency, accessing child pornography and grooming in relation to two complainants, ZD and CL, between 24 February 2017 and 26 February 2017 during a car trip and visit to Coffs Harbour (the sexual offence charges). ZD was 16 years and 5 months old and CL was just shy of 16 years old at the time of these alleged offences.

Prior to commencement of the trial, an application was made to sever the sexual offence charges from the reporting offences because of a concern that the hearing of the latter concurrently with the former would necessarily convey to the jury that the Applicant had previously been convicted of an offence or offences which had led to his name being entered on the Register. That application was refused. As shall be seen, this decision was central to the appeal.

ZD and CL both gave evidence in the course of the proceedings, together with a Mr Greg Beckingham (Mr Beckingham) who had accompanied them and the Applicant on the car trip and visit to Coffs Harbour. The evidence of each of these witnesses was accepted both at the trial and on appeal as cross admissible and the Crown was given leave to rely on it as evidence of tendency. CL, ZD and Mr Beckingham were each cross-examined and subjected to attacks on their credit in the course of the trial.

The Applicant was found not guilty on counts 1, 29, 31-33, and was found not guilty by direction on count 3. Counts 1 and 3 concerned reporting offences.

The Applicant was sentenced under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to an aggregate term of imprisonment consisting of a total term of 5 years and 6 months and a non-parole period of 3 years and 6 months, each of which were to commence on 15 March 2017.

The indicative sentences for all counts, other than counts 26 and 36, was imprisonment for 12 months. The indicative sentence for count 26 was 18 months with a non-parole period of 12 months. The indicative sentence for count 36 was imprisonment for 3 years with a non-parole period of 2 years.

The Applicant will be eligible for release on parole on 14 September 2020 and his sentence will expire on 14 September 2022.

The Applicant sought leave to appeal from his conviction on the following two grounds:

In the course of the hearing of the appeal, and in light of written submissions that she had filed, counsel for the Applicant refined ground 1, contending that the miscarriage of which she complained arose from the trial judge’s failure to give a specific direction to the jury that the fact that the Applicant’s name had been placed on the Register could not be used by the jury as evidence from which to infer a tendency to interfere with young boys, and that to the extent it evidenced bad character on the part of the Applicant in the past, use could not be made of that fact in considering the charges against the Applicant in the present proceedings.

As the argument evolved orally, Button J’s statement of his understanding of the argument was adopted by counsel for the Applicant, as follows:

Counsel for the Applicant was asked to formulate in writing the direction which she contended should have been given to avert any prejudice to the Applicant. In supplementary written submissions, she put that no such direction could in fact be formulated, and that the prejudice that arose from the failure to sever the reporting offences from the sexual offence charges was in fact incurable. In those submissions, the first ground of appeal was reformulated as follows:

The Crown properly did not oppose this amendment, but responded that the directions given by the trial judge to the jury were sufficient to ensure that there was no unfair prejudice to the Applicant occasioned by the admission of the evidence that the Applicant was a registrable person. In this regard, as shall be seen, the directions given were of a general character and did not refer specifically to what was an admitted fact, namely that the Applicant was a registrable person.

Before considering the two grounds of appeal, it is first necessary to provide more detail in relation to the structure and content of the charges on the indictment.

The 25 reporting offences comprising counts 1 – 25 had their origin in the uncontroversial fact that the Applicant was a “registrable person” pursuant to the Child Protection (Offenders Registration) Act. His name had been entered on the Register on 15 October 2001 following his conviction for various child sex offences. The nature and detail of these offences was not put before the jury. This resulted from:

One consequence of the Applicant’s name being placed on the Register was that he became obliged to complete, on an annual basis, a child protection acknowledgment form which required him to report relevant personal information including the names, dates of birth and address of any children with whom he had contact, where that contact involved supervising or caring for the child or visiting or staying at a household where the child was present, or exchanging contact details with the child or attempting to befriend the child. In this context, s 17(1) of the Child Protection (Offenders Registration) Act provides:

The 25 reporting offences with which the Applicant was charged can be subdivided into two broad categories. Counts 1 – 7 related to the attendance by the Applicant at a particular school to perform as a DJ at school events between July 2012 and December 2016 which he did not report, as required by virtue of the conditions of his registration.

The remaining 18 reporting offences related to some 9 events or occasions in 2016 and 2017 which the Applicant failed to but, it was alleged, was obliged to have reported. On some of these occasions, more than one child was present, and the Applicant was charged with separate offences in relation to the failure to report the presence of each particular child. Thus, for example, counts 17 – 21 related to the attendance of the Applicant at the “Summernats” (an annual car festival held in Canberra) where it was alleged he was in contact with ZD, CL and three other children.

Counts 8, 11, 12, 14, 17 and 25 all involved the failure to report contact with the complainant ZD.

Counts 19, 22, 23 and 24 all involved the failure to report contact with the complainant CL.

Counts 26 – 36 related to offences which it was alleged were committed by the Applicant during a car trip to, and a stay over, at Coffs Harbour in February 2017, with counts 26 – 35 relating to ZD, and count 36 relating to CL. It was the Applicant’s contact with ZD on this trip which also provided the context for the count 25 reporting offence.

Prior to the trial, a notice of motion was filed on behalf of the Applicant seeking to sever the reporting offences from the other offences charged. The grounds for severance as set out in the notice of motion were as follows:

Argument on the notice of motion occurred after the Applicant had been arraigned on 8 November 2018.

Severance was opposed by the Crown essentially on the basis that ZD and CL who, by the time of the trial, were both over 16 years, would be required to give evidence twice in the event that the reporting offences were severed, as 10 of the 25 reporting offences involved the Applicant’s unreported contact with them. It may also be observed that, to the extent that other reporting offences were in relation to the Applicant’s failure to report on his contact with other children on particular occasions, these were occasions when ZD and/or CL were also present, and thus were capable of giving evidence which placed the Applicant in the presence of these other children.

Mr Brassil, who appeared for the Applicant at the trial, countered this opposition by submitting that, whilst the complainants would have to give evidence twice, it would be “[e]ssentially about different things” and “[o]verwhelmingly about different events”.

Part of the rationale advanced in support of severance was a concern that the Crown would be given leave to admit tendency evidence in the form of the evidence of a person (LB) who had been sexually assaulted by the Applicant approximately 20 years earlier and whose sexual assault was what had led to the Applicant’s name being initially placed on the Register. As has already been noted at [16] above, the Crown’s application to lead the LB evidence was rejected. It is in that context that the following passage of argument should be noted:

In a judgment delivered on 12 November 2018, the trial judge ruled that the LB evidence could not be relied upon as evidence of tendency in the course of the trial. In his judgment, the trial judge noted that “[i]t was agreed by the parties that the resolution of the tendency issue would have a significant impact on whether or not the severance application ought be granted”. This was, in part at least, a reference to the exchange in the transcript that I have extracted at [27] above.

The trial judge’s substantive ruling on the severance question was as follows:

The “risk” to which the trial judge referred in the penultimate paragraph of this ruling and which underpinned the Applicant’s argument in this Court was a risk of the kind to which Sir Owen Dixon referred in Bugg v Day (1949) 79 CLR 442 at 467; [1949] HCA 59 (Bugg), where his Honour said:

Interestingly, Dixon J went on to observe, also at 467, that Owen J in the proceedings below, in the Full Court of the Supreme Court of New South Wales, considered that the trial judge should have given a specific direction warning the jury that they must not use the evidence for any purpose except as it affected the general credibility of the defendant as a witness. Dixon J expressed the view that such a warning “would no doubt have been proper”, although he did not regard the failure to give it “particularly as it was not expressly sought by the defendant” as a ground for a new trial: Bugg at 467.

In closing submissions, the Crown, quite properly, did not make any submissions to the effect that the fact that the Applicant had admitted to being a registrable person for the purpose of the reporting offence charges was either a mark against his character or disclosed a tendency to act in a way that supported the likelihood that he had committed any of the sexual offence charges.

The Crown did, however, make submissions in respect of separate tendency evidence that had been permitted, as well as in relation to the fact that, if the jury considered that one or more of the sexual offence charges had been made out, the jury could use that fact as tendency evidence against the Applicant in relation to the other sexual offence charges. No complaint was made on appeal in relation to this aspect of the Crown address.

The Crown also made it clear that the jury could not use any such tendency evidence in relation to its consideration of the reporting offence charges.

In relation to the reporting offence charges, the jury did have before it as exhibits various apparently partially redacted prescribed reporting forms, which the Applicant had completed in the relevant years (the Register documents). These forms were in evidence essentially to prove a negative, namely that the forms did not contain any reference to the Applicant’s contact with various children in particular contexts on particular occasions, these being the incidents the subject of counts 1-25. The Register documents variously carried headings which included “Child Protection (Offenders Registration) Act 2000” and “New South Wales Police Force CHILD PROTECTION REGISTER ACKNOWLEDGEMENT FORM”. A number of these documents were countersigned by a police officer designated on the form as “CRIME MANAGER”.

In his summing up to the jury, the trial judge said:

Later in his summing up, the trial judge made reference to the evidence of CL, ZD and Mr Beckingham and indicated how and to what extent it could be used as tendency evidence in relation to each of the sexual offence charges against the Applicant. This direction was clear and accurate and no criticism was made of it, either immediately after it was given or on appeal. There was no suggestion that the fact that the Applicant’s name was on the Register could be used as tendency evidence or as evidence of bad character.

This aspect of the summing up was followed by the following direction:

Later still, his Honour observed:

No application was made to the trial judge to make a particular direction with regard to the fact that the Applicant was on the Register and to the effect that the jury was not entitled to have any regard to that fact or the bad character which that fact might suggest in the jury’s consideration of the sexual offence charges. Nor was any application made pursuant to s 136 of the Evidence Act 1995 (NSW) to limit the use that could be made by the jury of the Applicant’s admission to being a “registrable person” or of the Register documents, on the basis that their admission carried a “danger that a particular use of the evidence might be unfairly prejudicial to” the Applicant.

If the refusal to accede to the Applicant’s pre-trial application to sever the reporting offences from the sexual offence charges was properly made or open to the trial judge, the omission to:

The leading authorities on r 4 of the Criminal Appeal Rules were collected and set out in the following paragraphs from this Court’s decision in Roach v R [2019] NSWCCA 160 at [40]-[42] (Roach):

The question raised by ground 1 is whether or not there was a miscarriage of justice as a result of the trial judge’s refusal to sever the reporting offences from the sexual offence charges, it being submitted that the prejudice which would accrue from disclosure of the fact that the Applicant was on the Register was incurable by a direction to the jury, or that the directions given were inadequate to negative any unfair prejudice.

In Nudd v R (2006) 225 ALR 161 at 164; [2006] HCA 9, Gleeson CJ observed that:

It is ultimately for the court “on its own review of the evidence to be satisfied that a miscarriage has occurred”: Driscoll v R (1977) 137 CLR 517 at 526; [1977] HCA 43. In addition to a review of the evidence, a review of directions given to the jury and the trial judge’s summing up to the jury may also be relevant.

The ultimate focus must be on the question of miscarriage. The fact that the severance decision was a discretionary one which, in the context of an appeal under s 5F of the Criminal Appeal Act 1912 (NSW), would attract a House v R (1936) 55 CLR 499; [1936] HCA 40 measure of review (see, for example, DAO v R (2011) 81 NSWLR 568 at 584-585; [2011] NSWCCA 63; DSJ v R; NS v R [2014] NSWCCA 77 at [61]; and Trotter v R [2016] NSWCCA 57 at [20]) with the concomitant need for intermediate appellate restraint, does not relieve the Court on a conviction appeal from considering the larger question of miscarriage cf. the case of an appeal against conviction in the context of multiple refusals to discharge a jury (see, for example, Hamide v R [2019] NSWCCA 219 at [121]-[128] (Hamide)). That having been said, if there were an error in the exercise of the discretion with regard to the refusal to sever, that may make it more likely that a miscarriage of justice had eventuated.

Whether or not there was a miscarriage of justice in the present case falls to be considered in the context of the following matters:

On the reformulated ground 1 (see [13] above), the first question is whether or not the trial judge’s refusal to sever the trial miscarried. An important aspect of this question is whether or not the prejudice which the trial judge acknowledged may arise from the jury knowing that the Applicant was a registrable person and was subject to the operation of the Child Protection (Offenders Registration) Act was curable by an appropriate direction to the jury.

The statutory context in which the application to sever is important to appreciate. Section 29(1) of the Criminal Procedure Act provides that:

Section 21(2)(a) of the Criminal Procedure Act provides:

The first point to be noted is that no challenge was made at trial to the joinder of the charges or groups of charges with other charges. There was an implicit acceptance that the charges were properly joined and arose out of the same set of circumstances, or formed part of or were part of a series of offences of the same or a similar character. In Roach at [80], this Court observed that:

Unlike questions of joinder, the focus in a severance application is not on whether particular charges are related or bear a sufficient relationship to justify their joinder but, rather, on the consequences of joinder for the accused, and the impact which joinder would be likely to have on his or her ability to obtain a fair trial.

The second point to be noted is that s 21(2)(a) of the Criminal Procedure Act confers a discretion on a trial judge upon a view being formed as to the possibility (“may”) of the accused person being “prejudiced” or “embarrassed” is his or her defence. In Castagna v R [2012] NSWCCA 181, Latham J (with whom McClellan CJ at CL and Harrison J agreed) noted (at [67]) that:

In Hamide at [101], I noted that:

Once an opinion has been reached that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, whether or not the Court should exercise its discretion in favour of or against severance will be affected by a variety of considerations, including:

The terms of the trial judge’s ruling on severance have been set out at [29] above.

The decision the trial judge had to make on severance was a difficult and finely balanced one.

In my opinion, it cannot be concluded that the trial judge erred in the exercise of his discretion not to sever the reporting offences from the sexual offence charges. The cross-admissibility of evidence, and the fact that central evidence relating to many of the charges falling into both the reporting offence and sexual offence charge categories was to be given by two children, ZD and CL, who would have needed to give evidence twice on the same topic if severance were ordered, namely the visit to Coffs Harbour in February 2017, was highly relevant to the exercise of that discretion. This was especially so given that, in respect of their evidence relating to both categories of charge, they were to be (and were in fact) strongly cross-examined on credit.

CL and ZD’s evidence as to the visit to Coffs Harbour in February 2017 was directly relevant to the reporting charge constituted by count 25, and all of the sexual offence changes. But in addition to this, as the trial judge pointed out, the various occasions prior to February 2017 on which the Applicant had had contact with ZD and CL and other children related to the reporting offences constituted by counts 8-24, and evidence in relation to these matters was relevant and admissible background evidence to the sexual offence charges.

Also relevant was that a large part of the potential prejudice which had originally animated the application for severance, namely details of the facts which had led to the Applicant’s name being placed on the Register, was at the very least substantially “mollified”, to use defence counsel’s term, by the rejection of the LB evidence going to the detail or circumstances of the earlier offences. So much was accepted by then counsel for the Applicant in argument: see [27] above.

Further, one of the most powerful antidotes to the potential prejudice that may arise from the joinder and/or failure to sever charges is the ability of the trial judge to give clear directions to the jury, in particular on questions of the need separately to consider each charge and the limits on use of tendency and character evidence. This was a matter to which the trial judge expressly referred in his severance judgment and was identified as a reason for concluding in the exercise of his Honour’s discretion that any prejudice that remained after his rejection of the LB tendency evidence could be satisfactorily dealt with by directions to the jury.

In KRM v R (2001) 206 CLR 221; [2001] HCA 11 at [36], McHugh J said:

The ability of a trial judge to give a clear direction to the jury is to be considered in conjunction with the well-established expectation that a jury will follow a judge’s instructions. In Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [41] (Hamilton), Macfarlan JA said:

Earlier, in R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329 at [82], Mason P and Barr J said that it is the experience of courts “that reliance on the integrity and sense of duty of jurors is not misplaced”: see also R v Glennon (1992) 173 CLR 592 at 614-615; [1992] HCA 16 per Dawson J; and Samadi and Djait v R [2008] NSWCCA 330 at [136]. In Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (Darwiche), Johnson J, with whom McClellan CJ at CL and James J agreed, said at [269] that:

Accepting the fundamental assumption to which Macfarlan JA referred in Hamilton, as indicated at [63] above, the trial judge did not, in my opinion, err in refusing to sever the counts. There were strong reasons to refuse the application, and any prejudice was capable of being addressed through clear or, to use the trial judge’s word, “powerful” directions to the jury in relation to not allowing evidence of bad character or tendency derived from the fact that the Applicant was a registrable person to be used in a manner adverse to the Applicant: see [27] above.

That conclusion is not the end of the inquiry, however, for as has been explained above, this Court needs to make an assessment by reference to the whole of the trial, as to whether or not a miscarriage of justice occurred. That requires close attention to be paid to the course of the trial after the severance decision had been made and, in particular, the directions given by the trial judge to the jury in the summing up, especially given that this was the way which his Honour indicated in his reasons for refusing severance that any prejudice could be cured. Consideration also needs to be given to the r 4 considerations and, in particular, whether the failure to seek a further or different direction to the jury dealing expressly with the fact that the Applicant was a registrable person should stand in the way of a grant of leave to complain about the inadequacy of the directions in fact given (see [42] above).

In the current case, relevant portions of the trial judge’s directions to the jury have been extracted at [36]-[39] above. In relation to those directions, the following observations may be made.

First, the trial judge, in directing the jury that it “must not be prejudiced against the accused because he is facing a number of charges” (see [36] above), did not extend this admonition to the question of past charges which had been established in earlier proceedings, a matter that was implicit (and obviously so) from the fact that the Applicant was on the Register and, even if not obvious, made obvious by the language on Register documents to which reference has been made at [35] above, and which were before the jury.

Secondly, the same point may be made in relation to the trial judge’s direction (at [36] above) that:

Thirdly, the trial judge’s direction (see [38] above) that:

Fourthly, there was no specific direction made about the Register and the fact that the Applicant was a registrable person, and as to the fact that the jury was required to put that fact and any inferences that may be drawn from that fact as to the Applicant’s character or tendencies entirely out of their mind.

None of the directions that I have referred to at [36]-[39] above and upon which the Crown relied were the “powerful direction” that the trial judge had indicated would need to be given to ameliorate any residual but specific prejudice to the Applicant that would accrue from the fact that he was a registrable person: see [27] above. Although I have reached the conclusion that the trial judge was justified in refusing to sever the counts in the particular circumstances of the case, that conclusion was not to gainsay that the prejudice that had been identified was real and potentially powerful, hence the trial judge’s recognition of the need for a “powerful” specific direction (see [27] above).

That such a specific and powerful direction was not given led, in my opinion, to a miscarriage of justice, with the consequence that, subject to the Crown’s argument in reliance on the proviso, leave under r 4 of the Criminal Appeal Rules should be given and the first amended ground of appeal should be upheld.

In reaching this conclusion, I have not overlooked the fact that the jury acquitted the Applicant on five of the ten sexual offence charges. In this regard, it is sometimes said, and was here submitted by the Crown, that this fact permitted the Court to have confidence that, as directed, the jury carefully considered each charge separately, and any prejudice arising from the fact that the Applicant was a registrable person and all that that admitted fact entailed did not operate to prejudice the jury in its deliberations.

This is an argument that may sometimes have force. In R v El-Azzi [2004] NSWCCA 455, the applicant had been indicted before Armitage DCJ on three charges, namely, that he knowingly took part in the manufacture of a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity (count 1); that he conspired with others to manufacture a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity (count 2); and that he conspired with others to manufacture a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity (count 3). The jury entered convictions for counts 2 and 3, but there was an acquittal on count 1. At [116] of her judgment, Simpson J (as her Honour then was, and with whom Santow JA and Sperling J agreed), noted that:

Most recently, in WG v R; KG v R [2020] NSWCCA 155 at [1144] (WG), Fullerton J, with whom Bathurst CJ (at [1104] and Fagan J (at [1589]) relevantly agreed, said that:

On the facts of the present case, however, I do not think that it can be said with the requisite confidence that the acquittal of the Applicant on some of the charges meant that a failure to give an appropriately worded and powerful direction about the fact that the Applicant was a registrable person did not affect the jury’s decision to convict on the sexual offences that it did.

This is for two reasons.

First, as counsel for the Applicant submitted, there were rational explanations as to why the jury acquitted the Applicant on five of the sexual offence charges which were sufficiently capable of outweighing any residual prejudice accruing from the Applicant’s status as one who had been convicted of child sexual offences in the past. It is not necessary for present purposes to explore those explanations or to seek to weigh or assess their potency because of the more general and second point – that the failure to give a bespoke and powerful direction gave rise to a real possibility that the jury’s reasoning process with regard to the charges on which convictions were entered may have been infected by prejudice arising from the Applicant’s status as a convicted child sex offender.

In short, the possibility cannot be fairly excluded that the jury, relevantly uninstructed by an appropriately worded and strong direction, may have been influenced by the fact that the Applicant was a registrable person, and what that fact was capable of conveying about his character and tendency in reaching its guilty verdicts in respect of the five sexual offence charges in respect of which the Applicant was convicted. To borrow the language of Button J in his separate reasons, the absence of a strong and clear direction may have “tipped the balance” on the counts upon which a guilty verdict was returned.

It is for the same reason that, in my opinion, the Crown’s argument under the proviso must be rejected. The miscarriage occasioned by the failure to give an appropriately strong direction was one which resulted in the loss by the Applicant of a chance of acquittal, in all the circumstances, and a situation where it could not be concluded with the requisite degree of satisfaction that a conviction on the five counts upon which the Applicant was convicted was inevitable. It is, in other words, a situation of the kind contemplated in Kalabasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [15] and [57] (Kalabasi). In this context, although the majority instanced a “misdirection” or “wrong direction” to the jury on a question of law as an example of a case in which it may not be possible for the proviso to be invoked, in my view a prejudicial failure to give a direction (as opposed to a misdirection or wrong direction) may have the same consequences. The examples instanced by the majority in [15] of Kalabasi were not exhaustive (“may include, but are not limited to”) and I see no reason in principle to differentiate a failure to give a necessary direction to an actual misdirection. Indeed, on one view, an omission to give a necessary direction makes the proviso exercise more and not less difficult.

It remains necessary to deal with this ground, notwithstanding the conclusion which I have reached in relation to the first ground of appeal, as the fact that the Applicant was a registrable person necessarily formed part of the reporting offences. If the second ground were to succeed, that would necessarily affect the convictions on those counts, especially since the principal aspect of ground 2 related to the failure to address the jury on counts 8-25.

The full terms of ground two have been set out at [10] above. This ground was faintly pressed on appeal and not the subject of any oral submissions. It can be dealt with relatively briefly.

The principles relating to the circumstances where the lack of competence of counsel will justify appellate intervention are well known. They are closely associated with Gleeson CJ’s classic analysis in R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385. They were also rehearsed in Roach at [154]-[158]:

Counsel for the defence’s closing address to the jury occurred over the space of two days. That address involved an extremely robust attack on the credibility of the complainant, ZD. To some extent that attack may be seen to have succeeded insofar as the jury found the Applicant not guilty on certain sexual offence counts which depended heavily on the acceptance of ZD’s evidence. That attack, yielding those results, was the antithesis of incompetence.

Although it is, of course, possible and conceivable, one would not usually expect a challenge to a verdict on the grounds of incompetence to succeed where aspects of counsel’s performance demonstrated the very opposite. Nor should a failure to take a particular step be necessarily attributed to incompetent oversight. Advocacy, and perhaps criminal advocacy more than civil advocacy, is all about making difficult and informed forensic choices as to:

In the present case, the principal attack on counsel was on his decision not to address on counts 8-25 which all concerned reporting offences.

Before moving directly to the question raised by this ground and whether or not defence counsel’s alleged failures gave rise to a miscarriage of justice, it is desirable to identify the elements of these offences, what evidence the Crown adduced to make good the counts, and how counsel for the Crown addressed these matters in her address to the jury.

As extracted at [17] above, s 17(1) of the Child Protection (Offenders Registration) provides that “[a] registrable person must not fail to comply with any of the person’s reporting obligations without reasonable excuse”.

This required the Crown to prove:

Any defence of “reasonable excuse” was for the Applicant to establish.

As has been noted at length in the context of considering the first ground of appeal, it was common ground, and indeed an admitted fact, that the Applicant was a registrable person and fell under statutory reporting obligations. Secondly, there was and could have been no issue that the prescribed forms or Register documents lacked the information that it was said should have been disclosed. The documents relevantly spoke for themselves.

That left the factual question as to whether or not the Applicant was relevantly in the presence of children at times or in circumstances that called for report and any issue of “reasonable excuse” as to failure to report. As to that last matter, no evidence was adduced, as the Applicant did not go into evidence and there was nothing (and it was not submitted that there was anything) that could have been submitted in that regard. In this context, it may also be noted that the Applicant did not waive privilege over his instructions to his trial counsel notwithstanding his attack on trial counsel’s competence under the second ground of appeal.

As to whether or not the Applicant was in the presence of children in such circumstances, there was an abundance of evidence led. So much was reflected in the Crown’s submissions to the jury:

From this extract, it can be seen that the Crown elicited evidence from multiple witnesses, supplemented by documentary evidence, which made good the fact of the Applicant’s presence with children in what can be described as “reportable situations”.

In this respect, it is of note that, although those witnesses were cross-examined, it was not put to any of them that either they or the Applicant were not present on particular occasions. This was presumably because the Applicant’s then counsel was not instructed or had no basis for putting this to the witnesses. In this context, it was relevant that the Applicant did not waive privilege as to his instructions to counsel. There is no basis, therefore, for assuming that an otherwise competent counsel overlooked such basic matters.

All of this is reinforced by the existence of a transcript of a taped discussion which was in evidence and which not only corroborated much of the viva voce evidence referred to in the lengthy extract of the Crown’s address, but also exposed a clear consciousness on the Applicant's part that he should not have been in the unauthorised presence of children in the context in which he was.

Turning then to the question of whether or not it can fairly be said that the Applicant’s trial counsel failed to address the jury on certain of the reporting offences and, if so, whether or not this was incompetent and gave rise to a miscarriage of justice, the short point is that, general attacks on credibility of witnesses aside, there was precious little if anything that counsel for the Applicant could have said in respect of these counts. Certainly, nothing was put in written submissions by the Applicant’s counsel on appeal in relation to the reporting offences which it was suggested could have been, but was not, said.

As to the balance of the matters sought to be raised by the second ground of appeal, trial counsel could not be criticised for accepting that the rejection of the LB evidence “mollified” the prejudice that had underpinned the severance application in the first place. Indeed, trial counsel’s candour was appropriate. Most notably, however, counsel held the line by refusing to concede that the prejudice on which he relied had been eliminated: see [27] above.

The matters referred to in sub-paragraph (ii), (iv) and (v) of the second ground of appeal do not need to be considered in light of my conclusion as to the first ground as they relate to the sexual offence charges.

The matter referred to in subparagraph (iii) of the second ground of appeal is not of a character that comes within the principles referred to at [84] above.

It follows that I would dismiss the second ground of appeal.

As noted at [7] above, the Applicant was sentenced under s 53A of the Crimes (Sentencing Procedure) Act to an aggregate term of imprisonment consisting of a total term of 5 years and 6 months and a non-parole period of 3 years and 6 months, each of which were to commence on 15 March 2017.

The result of the Applicant succeeding on ground 1 but failing on ground 2 is that the convictions in respect of counts 26, 28, 30 and 34-36 should be set aside and the Applicant re-sentenced in respect of the reporting offences.

In this regard, counsel for the Applicant submitted that:

Whilst the Crown submitted that the re-sentencing should be the subject of a separate hearing or remitter to the District Court, and otherwise submitted that the 12 month period indicated in respect of the reporting offences was manifestly inadequate, on any re-sentencing the Court would need to take into account that the Applicant has now been incarcerated for almost three years.

In all of the circumstances, I think it appropriate to re-sentence the Applicant to an aggregate sentence of 18 months with an aggregate non-parole period of 12 months in respect of the reporting offences. All indicative sentences with regard to those offences provided by the sentencing judge are maintained. There were a large number of such offences and the obligation to report is a very important aspect of monitoring the behaviour and conduct of historic sex offenders on their return to the community. Reporting is not a matter of mere bureaucratic formality but an aspect of the response to and protection of the public and innocent children in particular against the scourge of child sex offending.

This leaves for consideration whether or not the Court should order a new trial in respect of the sexual offence charges, the Applicant’s conviction for which should be set aside because of his success on the first ground of appeal. In this regard, it was submitted on behalf of the Applicant that the Court’s discretion should be exercised against the ordering of a new trial having regard to the interests of justice informed by the considerations enunciated by McClellan CJ at CL in Gilham v R [2012] NSWCCA 131 at [649], namely:

Even though the Applicant has almost completed the non-parole period of his imprisonment in relation to the charges upon which he was convicted, on balance in my opinion, it is appropriate for the Court to order a re-trial of the sexual offence charges upon which the Applicant was convicted although any decision to proceed with such a trial will ultimately be for the Director of Public Prosecutions who will no doubt balance the need for sexual offences of the kind charged to be determined, especially in circumstances where the Applicant had previously been convicted of such offences and has also breached his reporting obligations in relation to his contact with children in reportable contexts against the fact that the Applicant has already spent a substantial period of time in custody serving sentences for the offences which have now been quashed.

Since drafting these reasons, I have had the very great benefit of reviewing Button J’s separate reasons for judgment. As his Honour says, he sources the miscarriage of justice in the present case on an anterior basis to that articulated in my reasons, namely in the presence of the reporting offences on the indictment, and considers that “[n]either the directions given nor any other directions could have overcome the prejudice arising from their presence“.

It will be evident from my reasons that I share his Honour’s view that the directions in fact given by the trial judge were inadequate to overcome the prejudice arising from the co-existence of the reporting charges with the sexual offence charges on the indictment. Because the trial judge did not formulate and give the strong direction to the jury that he contemplated when ruling on the severance application, I am content to rest my conclusion as to miscarriage on that basis. I do, however, acknowledge the considerable force in the observations of Button J and the wisdom of his Honour’s reflection that “judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice.”

The efficacy of such directions will generally fall to be assessed on a case by case basis and will be particularly affected by the degree of prejudice that is perceived to arise in the circumstances of the particular case, and a consideration of the terms of the directions in fact given to the jury: see, for example, WG at [1138]. This latter task may also involve a consideration as to whether, in the circumstances of the particular case, any ameliorating direction was in fact counter-productive, paradoxically drawing attention to a prejudicial matter whilst seeking to marginalise or exclude its significance for the jury’s particular task.

The principal difference between Button J’s reasoning and my own is that I am not prepared to exclude the possibility that an appropriate direction may have been able to be given in the circumstances of the present case. As none was attempted and a suggested form of direction was not volunteered either at trial or on appeal, it is not productive to engage in a hypothetical exercise as to what form such a direction might have taken.

It follows that I would make the following orders:

DAVIES J: I have had the considerable advantage of reading the draft judgments of both Bell P and Button J. I acknowledge the strength of the matters set out by Button J in his judgment which led him to the view that the counts should have been severed. I also accept the limitations he instances of the effect and benefit of directions and warnings which are given to juries.

Nevertheless, I agree with the President’s reasons for determining that there was a miscarriage of justice. In my opinion, the miscarriage was occasioned not at the time of the refusal to sever the counts but by the failure of the trial judge to give the particular warning that he had foreshadowed. Like the President, I do not consider that it can be said that no direction could have cured the danger from the counts being tried together.

In the result, I agree with the orders proposed by the President.

BUTTON J:

I have had the significant benefit of reading the judgment of the learned President in draft form.

I agree with the orders proposed, and with the great majority of the reasons given for those orders.

Because the divergence in analysis between the two of us is narrow, I can be brief. In the following paragraphs I adopt the nomenclature used in the judgment of Bell P.

Working backwards, I agree, for the reasons given by his Honour, that a retrial should be ordered of the counts with regard to which the convictions are to be quashed.

I also agree with the proposed re-sentence on the undisturbed convictions for the reporting offences. This Court is entitled to undertake that exercise pursuant to s 7(1A) of the Criminal Appeal Act 1912 (NSW).

I also agree that ground 2 should not be upheld, again for the reasons given.

I agree that the proviso cannot be applied to maintain the convictions for the sexual offences. As well as for the reasons given by Bell P, that is because I am unable to be satisfied of the (necessary but insufficient) precondition for application of the proviso of proof beyond reasonable doubt of those offences. It is also because my reasons for upholding ground 1 undermine any use that could be made of the verdicts of guilty returned by the jury in support of the application of the proviso.

As for ground 1, it is not a matter now of analysing the correctness at the time it was made of the interlocutory decision of the learned trial judge to permit an indictment containing both the reporting offences and the sexual offences to be placed before the one jury. Rather, it is a matter of considering whether that outcome, combined with the subsequent conduct of the trial and in particular the directions given to the jury in the summing-up, constituted a miscarriage of justice. In my opinion, it did.

To recap: 26 reporting offences were placed before the jury. There were also on the same indictment 9 counts of committing sexual offences against ZD (who at the time was 16 years of age, and therefore over the age of consent, but nevertheless not thought of as an adult for other purposes of the criminal law). There was a single count alleging that the appellant had “groomed” a separate complainant, CL, who was at the time a 15-year-old boy. Also on the indictment was a count of accessing child pornography, in the form of a photograph of the genitals of ZD.

The terms of the reporting counts themselves spoke of the appellant as being a registrable person who had allegedly failed to comply with obligations under a statute that dealt with “Offenders” who were the subject of “Registration” with regard to “Child Protection”.

As part of proving those counts, documents were placed into evidence that repeatedly emphasised the connection between the appellant and that statute. They included a document containing admissions as to facts that was signed by the appellant and became Exhibit 14, and the many forms generated pursuant to the statute that became Exhibits 17 to 25.

The latter documents included or referred to (amongst other things) the requirement of the appellant to attend a police station, and to give police information about various aspects of his life; the requirement that he provide a photo of his face and other identification documents; the role of the “Crime Manager” at a police station; the fact that non-compliance with the orders would constitute a criminal offence, possibly leading to arrest and charge; the signature of a “Detective S/C Campbelltown”; an “acknowledgement form” that provided a great deal of detail about the life of the appellant, including clubs with which he was affiliated, the make and model and registration of his motor vehicles, and the name and address of his employer; the names, dates of birth, and addresses of any children with whom the appellant had had certain kinds of contact; and the question of whether the appellant had “been found guilty in any foreign jurisdiction of a registrable offence”.

Quite apart from the indictment itself and those documentary exhibits that went into the jury room, there was also, of course, a deal of evidence about the reporting offences, and the parts of the addresses of both counsel that referred to them.

In my opinion, the jury inevitably came to infer correctly that the appellant had previously committed at least one sexual offence against a child; that he had been convicted of it; that the conviction was sufficiently serious to require registration; and that the appellant had as a result been subject to a statutory regime of registration that constituted a significant intrusion into his privacy and autonomy, in the interests of the protection of children. It is unrealistic to posit otherwise. That presented an obvious issue about whether any trial by jury on that indictment could be one that was fair to the appellant.

I turn now to analyse the relationship and degree of “overlap” between the two sets of offences, and whether that could constitute a countervailing factor as to all counts proceeding together.

As Bell P has recounted, evidence about the child sexual assault offences that led to the previous conviction and registration of the appellant were rejected by the trial judge when the Crown attempted to rely upon them as tendency evidence. Once that occurred, the fact that the appellant was on the Register, and had allegedly breached his obligations pursuant to it, was irrelevant to proof of the sexual offences. Having said that, I accept that some of the contact between the appellant and the two complainants that was part of proving breach of those obligations would have been admissible in proof of the subsequent sexual offences.

Analysing questions of overlap and cross-admissibility from the other starting point: the fact that the appellant was in the company of the two complainants when he allegedly committed sexual offences against them was certainly relevant to the reporting offences; with regard to some of the latter, they pertained to the trip to Coffs Harbour during which the sexual offences had been allegedly committed.

But the alleged commission of the sexual offences themselves was not the gravamen of the reporting offences; rather, it was the simple contextual fact that the appellant had been in the company of the two complainants without informing the police about it.

Before this Court, the Crown sought to suggest that the failure to comply with the reporting requirements pertaining to the Coffs Harbour trip could demonstrate a consciousness of guilt with regard to the commission of the sexual offences. But that basis for cross-admissibility as between the offences themselves was not relied upon by the Crown at trial, and I therefore put it to one side.

In other words, the one jury had placed before it a multitude of reporting offences that were irrelevant to proof of the numerous sexual offences, and vice versa. To be clear about my proposition: although the context in which each set of offences had allegedly occurred was admissible as to the other offences, the offences themselves were not.

In short, it is true that there was an evidentiary overlap between the two sets of offences, but it was not an overly compelling one. In particular, if the two sets of counts had been severed, and the trial of the sexual offences had proceeded first, at a putative second trial of the reporting offences (and even assuming that there was no way to avoid the complainants being called as witnesses again), in my opinion neither they nor any other witness would have been called upon to recount explicitly the sexual offending again, in order to establish the reporting offences.

And in any event, bearing in mind that the reporting offences were “Table 2” offences pursuant to the Criminal Procedure Act 1986 (NSW), there were other ways to solve the problem of repetition of evidence. One of them that comes to mind is not electing to have those offences dealt with on indictment; placing them on a certificate pursuant to Division 7 of Part 3 of the Criminal Procedure Act; and asking the trial judge to determine them exercising Local Court jurisdiction at the conclusion of the trial by jury of the sexual offences. After all, the jurisdictional limit in terms of cumulative sentences that would have been reposed in the trial judge would have been significant, pursuant to s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW). There are in all likelihood other satisfactory alternatives as well.

In short, in my opinion the state of the indictment presented a real risk that the trial of the appellant would not be a fair one, and any overlap of evidence was no great justification for the indictment remaining as it was.

Separately, speaking generally of course it is not uncommon that a jury has placed before it evidence that reflects negatively upon the past actions of an accused person. Leaving aside cases in which tendency evidence, context evidence, bad character evidence and other categories of evidence are admissible with regard to a count on the indictment, very often the necessary context of the commission of the alleged offence itself will inevitably have that effect.

The quintessential example is a murder alleged to have been committed in a maximum security prison. Establishment of the physical setting of the alleged offence, the calling of evidence from prison officers and perhaps prisoners, the tender of maps and photographs of the relevant part of the gaol, all mean that it is inevitable that the jury will infer that the accused has previously been convicted of a serious offence that has been punished by a lengthy term of imprisonment. The drawing of that inference can only be dealt with by way of directions by the trial judge, no doubt with significant input from defence counsel as to the best way forward.

Even so, there were specific aspects of this matter that made the prejudice arising from the single indictment extreme. They were as follows.

First, child sexual assault is a crime about which the public is continuously and severely concerned. In recent years, the damage that it does to its victims has become more deeply understood and more widely publicised. And it is a crime from which members of the community recoil.

Secondly, the offence that the jury would have correctly inferred that the appellant had previously committed was, in a practical sense, identical with the sexual offences alleged in the trial, even accepting the fact that the complainant ZD was over the age of consent, in that he was in his 17th year. The understanding of the members of the jury about the connection between the prior offending of the appellant and the sexual offences was surely specific, not some impression of prior criminality generally.

Thirdly, as I have said, the way the trial was run, a plethora of documents was placed before the jury that highlighted the nature and gravity of the previous offending.

Fourthly, as Bell P has explained, the directions given about the way in which the jury was to approach the multiplicity of counts on the indictment were, whilst free from error, standard ones, rather than directions that powerfully drew attention to the inevitable inference and thereafter asking the jury to disregard it completely (as can be seen from my explanation below, in contrast to his Honour, I regard that characteristic of the directions as being merely a significant factor, and not the nub of the success of ground 1).

To develop then the analogue based upon the trial by jury of a murder alleged to have been committed in a maximum security prison: here, it is as if the jury not only must have inferred that the putative accused had already been imprisoned for the specific offence of murder (as opposed to, for example, multiple armed robberies), but also had that conclusion repeatedly reinforced by numerous documents that went into the jury room and were there during deliberation.

The Crown before this Court sought to resist the effect of all of that by relying upon the proposition that juries are to be understood to obey the directions that they are given. It was also said that it was a sound tactical decision for defence counsel not to seek precluding directions of greater specificity.

The former proposition is certainly generally correct. As McHugh J said two decades ago in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [31], if it is not to be accepted to be correct, the criminal justice system should find some alternative procedure for determining guilt or otherwise of serious criminal charges. (I hasten to add that I do not suggest for a moment that it should do so.)

But acceptance of the proposition that juries generally follow directions given to them by trial judges, and that that obedience will often solve problems of prejudice against an accused person, has its limits. The following well-known aspects of the practical operation of the criminal justice system demonstrate the existence of those limits.

First, the rule of exclusion to be found in s 137 of the Evidence Act 1995 (NSW) is applied by judges in trials by jury every day throughout New South Wales. Its existence inherently demonstrates that Parliament and the criminal justice system proceed upon the proposition that juries will not always obey all directions that they are given about any and all evidence. The effect of the provision is that, sometimes, evidence that is relevant and probative - perhaps highly probative - is nevertheless excluded. Nor is the proposition a new one - the discretionary progenitor of that rule of exclusion first appeared in the Anglo-Australian rules of evidence well over 100 years ago: see R v Christie [1914] AC 545.

Secondly, the test for the admission of tendency or coincidence evidence to be found in sections 97, 98, and 101 of the Evidence Act, and which is, after all, merely a stricter variant of the rule of exclusion discussed above, is of central importance to the criminal justice system. Its application can determine the outcome of criminal trials, and whether or not an accused person is to serve many years in prison. And it proceeds on the same assumption: there are indeed circumstances in which prejudice arises that prohibits the placing of tendency or coincidence evidence before the jury, no matter how forceful the directions that may be able to be given about that evidence. Indeed, the rejection of the proffered tendency evidence in this trial provides a good example of that very determination.

Thirdly, speaking more generally about the conduct of criminal trials, a trial judge would never knowingly permit a juror to be empanelled who is a friend or family member of the accused, or the complainant, or the deceased, whatever powerful directions might be able to be given. Nor would a trial judge permit such a state of affairs to remain until verdict if it was discovered after empanelment. It would simply be assumed without argument that the juror would be incapable of deciding the matter impartially, no matter what directions were able to be given to the juror. It would be implicitly assumed by everyone in the courtroom that justice would neither be done, nor seen to be done, in such circumstances.

Fourthly, criminal trials are sometimes transferred away from regional centres to Sydney or elsewhere because of the possibility of very firm public opinion for or against the accused in the area in which the offence was alleged to have occurred, and from which the jury will be drawn. Such orders are rare, but by no means unheard of. Two recent examples of which I am aware are referred to in R v Turnbull (No 1) [2016] NSWSC 189, and R v Jacobs (No 4) [2013] NSWSC 945. Again, the order for transfer is made on the presupposition that there will sometimes be circumstances in which the most forceful directions are inadequate to overcome the possibility of prejudice denying either the Crown or the accused a fair trial.

Fifthly, practical steps are very often taken in criminal trials not to let the jury understand that the accused is in custody; if that is inevitable, at the least, steps are taken not to emphasise repeatedly that fact.

Sixthly, even when two or more accused persons are alleged to have committed a crime together, and despite the undoubted advantages in there being a single trial, circumstances sometimes arise in which two separate trials are necessary in order to do justice: for a recent example see Decision Restricted [2019] NSWCCA 276.

Seventhly and finally, it is not uncommon for juries to be discharged because of irremediable prejudice having arisen in the course of the trial. That can arise in any number of ways: very negative publicity during the trial, something having been blurted out in the witness box that is inadmissible but harmful, a juror having brought into the jury room adverse material about the accused that is no part of the evidence, and so forth. It is true that the test for the discharge of a jury during a criminal trial is that of a high degree of necessity: see Crofts v R (1996) 186 CLR 427; [1996] HCA 22. Even so, the test is commonly met on the simple basis that no direction will solve the problem. I daresay that every counsel and judge experienced in trial by jury has “lost a jury” for some such reason. Yet again, the presupposition is that, in some circumstances, directions of the greatest firmness are insufficient to do justice, and the trial simply must start again in front of a different jury.

No doubt there are many other circumstances in which the criminal justice system implicitly evaluates directions to be inadequate to cure prejudice. I have recounted seven of them, not to cavil with the general proposition that jurors are understood to obey judicial directions. Rather, I do so simply to show that the practical reality of human nature, and the way in which the criminal justice system reflects it in its actual operation, readily demonstrate that judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice. They are not.

Here, as Bell P has written, the directions given were, with respect, clear, correct, and repeated. They were also generic, in that they did not specifically direct the jury not to use any inference arising from the presence of the reporting offences on the indictment directly or indirectly in proof of the sexual offences. The point at which I respectfully diverge from the analysis of his Honour is that I consider that ground 1 should be upheld not on the basis of the inadequacy of the directions, but rather on the anterior basis of the presence of the reporting offences on the indictment. In my opinion, the ultimate submission of counsel for the appellant is correct: any specific direction would have run the very real risk of simply exacerbating the problem, rather than ameliorating it.

Finally, in my opinion the submission made by the Crown in this Court that it is important that, despite the presence of the reporting counts, the jury nevertheless acquitted the appellant of some of the sexual offences, has force. But, for the reasons given by his Honour, it is not a complete answer to the ground: the inference inevitably to be drawn from the presence of the reporting counts could well have unconsciously “tipped the balance” on the counts upon which a verdict of guilty was returned.

In short, I consider that the presence of the reporting offences on the indictment denied the appellant a fair trial of the sexual offences. Neither the directions given nor any other directions could have overcome the prejudice arising from their presence. There was a wrong decision of a question of law when the trial judge refused to accede to the application to sever the counts. In my opinion, that wrong decision has led to a miscarriage of justice. I cannot be satisfied that no substantial miscarriage of justice has actually occurred.

It is for those reasons that I agree with the orders proposed by Bell P.