Mulholland v R

1. [1]

   PAYNE JA: On 28 September 2017, the applicant was convicted, following a trial, of two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). On 29 September 2017, the trial judge sentenced the applicant to an aggregate sentence of 4 years and 9 months with a non-parole period of 3 years and 6 months, commencing that day.

Relevant facts

1. [2]

   The complainant and her partner, Mr McLaughlin, shared a three bedroom apartment in Bondi Junction with the applicant and a Ms Rodgers. The applicant and Ms Rodgers each had separate bedrooms. The complainant and Mr McLaughlin shared a bedroom. The applicant had shared the apartment with the other flatmates for approximately two years before February 2016.

2. [3]

   On the evening of 20 February 2016, Mr McLaughlin and the applicant went out socialising. The complainant went out separately with Ms Rodgers.

3. [4]

   By 3am on 21 February, all four had returned to the apartment. Ms Rodgers fell asleep on the sofa. The applicant was also on the sofa. Other visitors who had been at the apartment left. The complainant cleaned up some drinks and cups. At one stage the applicant asked the complainant to give him a hug, which she did. The applicant thanked the complainant for a bottle of champagne that she and Ms Rodgers had given him earlier that day.

4. [5]

   The complainant went into her bedroom and changed into her pyjamas and lay in bed checking her phone. Internet service provider records showed that she was on the internet at 3.40am. Mr McLaughlin was on the balcony looking at his phone and came to bed at about 4am. Mr McLaughlin lay on the right side of the bed next to the complainant.

5. [6]

   The complainant’s evidence at the trial was that:

   1. (1)

      she remembered being half asleep and that someone had their head between her legs;

   2. (2)

      she woke up a short time later and the applicant was on top of her having penile-vaginal intercourse with her. This is the subject matter of count one in the indictment;

   3. (3)

      the applicant withdrew his penis after a period of time and then stood at the end of the bed. She pretended to be asleep;

   4. (4)

      the applicant then moved back towards the bed and moved Mr McLaughlin’s arm from beside her. The applicant then began another act of penile-vaginal intercourse with her. This is the subject matter of count two in the indictment;

   5. (5)

      during this time the applicant’s head rested on her shoulder. The complainant pushed the applicant off her. She left her bedroom and saw a light under the bathroom door. She banged on the door and asked to be let in. Ms Rodgers, who was inside the bathroom, opened the door and let the complainant in.

6. [7]

   Ms Rodgers gave evidence that the complainant joined her in the bathroom. According to Ms Rodgers, the complainant was “really panicky”. The complainant said to Ms Rodgers “[The applicant] was in my room…he was having sex with me”. Ms Rodgers replied “What are you talking about? Nobody was there”. The complainant said to Ms Rodgers, “Please, tell me I’m going mad. I’m going mad, aren’t I?”. During her evidence at trial, the complainant said that she had no doubt the applicant placed his penis into her vagina, and stated that “…what had just happened was so bizarre that I would have rather be mad than it to be true”.

7. [8]

   The applicant knocked on the bathroom door and said “[The complainant’s name], what’s wrong? Are you okay?”. The complainant opened the door and shouted “You know what’s wrong”. The applicant did not respond. Ms Rodgers said to the applicant “I don’t know what’s happened, but you need to leave us alone” and closed the door again. The complainant said to Ms Rodgers “Look, he’s taken off my pyjama bottoms”.

8. [9]

   Shortly thereafter, the complainant and Ms Rodgers left the bathroom and went to the complainant’s bedroom. Mr McLaughlin was still in bed, asleep. The complainant turned on the bedroom light and noticed the applicant’s clothes next to her side of the bed, next to her pyjama shorts. Ms Rodgers gave the same evidence. At the suggestion of Ms Rodgers, the complainant took two photographs on her phone of the clothes lying on the floor. The photographs were time-stamped 5.34am and 5.49am.

9. [10]

   The applicant told Ms Rodgers that she wanted to leave the apartment. Both made a series of phone calls. The complainant called her sister in London. Arrangements were made for one of Ms Rodgers’ friends to pick up the complainant.

10. [11]

    Ms Rodgers and the complainant then woke up Mr McLaughlin. The complainant told him that she had awoken to find the applicant having sex with her. Mr McLaughlin gave evidence that both the complainant and Ms Rodgers were crying. He saw the applicant’s clothes next to the bed and was shocked. He spent some time on the balcony. At some point, Mr McLaughlin went to the doorway of the applicant’s room. The applicant was asleep in his bed. Mr McLaughlin woke the applicant up and told him to get up and get out.

11. [12]

    The applicant, Mr McLaughlin and Ms Rodgers spoke in the living room. The applicant said to Mr McLaughlin, “Tell me what I’ve done wrong”. Ms Rodgers said, “Explain why your clothes were in her room”. The applicant did not respond. The complainant got very angry and shouted, “You know what you’ve done wrong” and pulled the applicant from the lounge area and pointed at the clothes in her bedroom. The complainant picked up one of the applicant’s shoes and threw it in his direction. Mr McLaughlin did not see any of this as he was out on the balcony.

12. [13]

    The applicant left the complainant’s bedroom. The complainant remained in the bedroom and called her sister again. She heard the front door close and believed that the applicant had left.

13. [14]

    Ms Rodgers’ friend picked up the complainant and Ms Rodgers and took them back to her place in Gladesville. The complainant called 000 from the Gladesville apartment at 7.11am. Police came to meet her in Gladesville and she told them that she had awoken to her flatmate having sex with her. She was taken to Royal North Shore Hospital for a sexual assault examination. Meanwhile, other police officers went to the Bondi Junction apartment where they spoke to Mr McLaughlin. They searched the apartment and found the applicant’s pants, one black sock and one brown shoe at the foot of the applicant’s bed in his room. The other brown shoe was subsequently located by a friend of the applicant’s, Mr O’Murchu, under the applicant’s bed. The only item next to the complainant’s side of the bed in her bedroom was her pyjama shorts.

14. [15]

    The applicant’s evidence at the trial was that:

    1. (1)

       he got home with Mr McLaughlin shortly after 3am on 21 February;

    2. (2)

       the complainant, Ms Rodgers and two other friends were in the apartment. He thanked the complainant for the champagne gift by giving her a “jovial hug” in the kitchen. He then went on to the balcony and had a cigarette;

    3. (3)

       he went back to the living room, sat on the couch, and fell asleep. He woke up to find a blanket on top of him and Ms Rodgers also sleeping in the lounge room;

    4. (4)

       he walked into his bedroom and emptied his pockets, placing his phone, wallet and keys on his bedside table. He took off his shirt then sat on the bed and took off his shoes and trousers. He placed his clothing next to the bed;

    5. (5)

       he did not go into the complainant and Mr McLaughlin’s bedroom. He stated that he did not undress in their bedroom;

    6. (6)

       he did not remove any of the complainant’s clothing, he did not perform oral sex on the complainant and did not place his penis into her vagina;

    7. (7)

       he did not see anyone take his clothes from his bedroom; and

    8. (8)

       he was woken up in his bedroom by Mr McLaughlin. He asked “What’s going on?” and Mr McLaughlin replied, “You need to get out”. The applicant asked, “Why?” and Mr McLaughlin said, “You were in our room…your clothes are in our bedroom”. The applicant looked on the ground next to his bed for his clothes.

15. [16]

    The applicant then approached Mr McLaughlin, who was on the balcony off the living area having a cigarette and a bottle of beer. The applicant asked him what was going on. Mr McLaughlin replied, “Just get out” and said he did not want to talk to the applicant. The applicant said, “Can you please explain what’s going on? I’ve lived here for over two years and you’re now trying to tell me to leave the house. Can you please explain what has happened?”. Mr McLaughlin replied, “Just get out”.

16. [17]

    Ms Rodgers shouted “follow me, I’ll show you where your clothes are”. The applicant turned and walked down the hallway. The complainant appeared in the hallway, grabbed the applicant’s arm and said, “Look, your clothes are in our bedroom”.

17. [18]

    The applicant put some clothes on and took his phone, wallet and keys. Before leaving the apartment the applicant asked Mr McLaughlin “could you just explain what’s going on?”. Mr McLaughlin responded, “John, just get out”. The applicant left the apartment.

18. [19]

    The applicant returned to the apartment later that afternoon and met with police in the foyer, who gave him some documents relating to an apprehended violence order. Another police officer told the applicant that there was an allegation that he had sexually assaulted someone. The applicant went to Waverley Police Station on 28 April 2016 where he was arrested and charged. He voluntarily gave a DNA sample.

19. [20]

    There was evidence at the trial that some of the applicant’s DNA was located in the complainant’s low vaginal area. The issue at the trial between the Crown and the applicant was whether that DNA result was possibly consistent with an indirect transfer of DNA.

Grounds of appeal

1. [21]

   The applicant sought leave to appeal on two grounds:

   1. (1)

      the trial judge impermissibly expressed his own views on the evidence and matters of fact in the trial; and

   2. (2)

      the trial judge’s summing up was unbalanced, as the trial judge impermissibly expressed his own views about, and responded to, submissions made in the applicant’s closing address.

Ground 1

1. [22]

   The applicant accepted that the trial judge directed the jury at the outset of the summing up that the facts of the case were matters for the jury alone. He said, “I am the judge of the law, but you are quite correctly called the judges of the facts. I have nothing to do with those facts, or your decisions in relation to them”.

2. [23]

   Before summarising the cases put by both the Crown and the applicant, the trial judge made the only other reference in the summing up to the role of the jury in finding facts, in stating, “It is a matter for you to consider everything that was said, rather than simply what I might refer to, and I am not going to remind you about legal-type directions such as [the] presumption of innocence or the fact that you are the judges of the facts, which have been referred to by counsel, because I have just referred to those myself in the earlier parts of this summing up.”

3. [24]

   The applicant submitted that this statement was made well before the trial judge commenced his references to photographs taken by the complainant and subsequently by the police, which were exhibits in the trial. When the trial judge referred to the photographs he did not remind the jury, as he should have, that the jury was the judge of the facts and that they could find facts irrespective of what the trial judge said about them.

4. [25]

   The applicant submitted that the trial judge needed to remind the jury, at that later point, that what he said about the facts in the summing up was not intended to bind the jury, that the jury may or may not agree with him, and that the jurors were the sole judges of all factual issues bearing upon the ultimate verdict.

5. [26]

   The trial judge, in the summing up, went on specifically to refer to certain parts of the evidence. The applicant submitted that what the trial judge impermissibly did was to tell the jury what the evidence was, when there was either no evidence of those facts in the trial, or the evidence was unclear or had been disputed. The applicant submitted that the trial judge did not refer to disputes about the evidence; he referred to the evidence as fact.

6. [27]

   The Crown submitted that the trial judge in fact said multiple times during the summing up that matters of fact were for the jury. After directing the jury about the evidence of complaint, the trial judge reinforced that fact-finding was for the jury: “It is a matter for you whether you draw that conclusion in this particular case…if you do use it as some evidence of either of the assaults…then what weight you give it is again a matter for you”. The trial judge also said, “It is for you to decide whether this complaint was made…”.

7. [28]

   The Crown submitted that the jury could have been left in no doubt that factual findings were exclusively for them to determine.

8. [29]

   The Crown submitted that Rule 4 of the Criminal Appeal Rules (NSW) applied and that leave should be refused.

Ground 2

1. [30]

   In order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial. It is the fairness, balance and impartiality of the summing up which the appellate court must review or safeguard: R v Courtney-Smith (No 2) (1990) 48 A Crim R 49.

2. [31]

   The applicant accepted that any attempt to measure the balance by reference to a mere numerical comparison of the pages devoted to the Crown and to the defence, respectively, is valueless. In this case the applicant submitted that the attention the trial judge gave to the defence case and arguments was notable. The trial judge spent a short time explaining the elements of the charges. He detailed the three elements of the charge, explaining that the Crown must prove each element beyond reasonable doubt. The trial judge then spent a long period summarising the complaint evidence. The trial judge described in detail the evidence of the complaint made by the complainant to Ms Rodgers, Ms Aitchenson (a friend) and Mr McLaughlin. The trial judge stated that it was up to the jury to decide whether they would draw the conclusion that the complainant was reliable.

3. [32]

   The trial judge then spent almost the entire remaining summing up commenting on the six critical points raised by the defence in its closing. The trial judge stated that the Crown only had to prove the elements of the offence and did not have to resolve every issue that arose such as the question of how the clothes were moved. However, the applicant submitted, the trial judge’s comments to the jury addressed this very fact at length.

4. [33]

   The applicant submitted that the trial judge went beyond commenting on the evidence. The trial judge presented arguments to the jury which responded to the applicant’s closing submissions, rather than summarising them in a fair and meaningful way.

5. [34]

   The Crown submitted that the transcript of the summing up reveals that the trial judge faithfully covered almost all of the eighteen points made by senior counsel for the applicant. The trial judge correctly identified that the principal argument made by the defence was that, “There was an inherent improbability in respect of the complainant’s account”.

6. [35]

   The Crown submitted that, given it is being asserted that the summing up was unbalanced in that the defence case was not fairly put, it is necessary to canvass the way in which the trial judge dealt with the eighteen points made by senior counsel.

7. [36]

   The obligation of the trial judge was to accurately summarise the case of both parties: Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13; Majok v R [2015] NSWCCA 160. This obligation extended to commenting on a matter “which had not been dealt with by the Crown, where that is necessary to restore a balance to the trial, and where the Crown Prosecutor had no reason to foresee it, or any opportunity to deal with it”: R v Meher [2004] NSWCCA 355 at [91]. The Crown submitted that the movement of the clothes (addressed in detail below) was a matter that warranted such intervention. The jury could have been actively misled into thinking that the applicant could not possibly have moved the clothes. The trial judge’s remarks about moving the clothes simply had the effect of restoring balance.

8. [37]

   Senior counsel for the applicant did not make any complaint about the way in which the trial judge acceded to his request for a redirection about moving the clothes.

9. [38]

   In R v Dookheea [2017] HCA 36; (2017) 91 ALJR 960, the High Court said that where an accused is represented by competent counsel, “the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration”. In this case, the applicant was represented by senior counsel whose reaction to this particular impugned portion of the summing up was to seek a redirection in relation to an issue (reversing the onus of proof) not the subject of this appeal. The redirection which was given was to his satisfaction.

10. [39]

    The Crown submitted that the ultimate question in relation to ground 1 and ground 2 is whether or not the applicant has shown that a miscarriage of justice has arisen as a result of an unbalanced summing up (s 6 of the Criminal Appeal Act 1912 (NSW)).

11. [40]

    The Crown submitted that the ultimate test, as far as the fairness of a summing up is concerned, is “whether the trial judge put the case for the appellant in such a way as to allow the jury to properly consider the issues raised on his behalf”: Odisho v R [2018] NSWCCA 19 at [104].

12. [41]

    In undertaking this analysis, the summing up must be taken as a whole and with reference both to how it would have been understood by the jury: R v Dookheea; and to what issues were fought at trial: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [170].

13. [42]

    The Crown relied on Rule 4 of the Criminal Appeal Rules (NSW). A persuasive consideration in undertaking this assessment is whether or not there was any complaint by defence counsel at the trial about a lack of balance: R v Dookheea; Castle v R (2016) 92 NSWLR 17; [2016] NSWCCA 148; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373; Tekely v R; Nagle v R [2007] NSWCCA 75; ARS v R [2011] NSWCCA 266; Odisho v R; AP v R [2017] NSWCCA 270.

14. [43]

    The Crown submitted that it has demonstrated that the trial judge faithfully and accurately put the defence case to the jury in such a way as to enable the jury properly to understand the applicant’s case. The Crown submitted that the complaints raised are without substance and in any event relate to relatively insignificant matters.

Legal principles

1. [44]

   It is convenient to deal with the legal principles relating to both grounds together. Section 6(1) of the Criminal Appeal Act provides:

2. [45]

   The overarching principle is that "the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury": Domican v The Queen at 560-561. It is not part of the function of a trial judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 at 682.

3. [46]

   There is no necessary structure required for a summing up. It is the “responsibility of the trial judge to structure the summing-up in a way that he assessed would most effectively distil the issues for determination in each case and, to the extent that it was necessary to do so, to remind the jury of the evidence bearing on the determination of those issues”: Huynh v The Queen [2013] HCA 6; (2013) 228 A Crim R 306 at 319. The summing up should involve “…no more and no less than a clear and manageable explanation of the issues which are left to the jurors in the particular case before them. There is no need to venture beyond a clear statement of the relevant legal principles as they affect the particular case and against which they are to apply their decisions on the factual questions which arise”: R v Williams (1990) 50 A Crim R 213 at 214. Regarding directions to the jury, it is not necessary that directions “be given in a particular form…it is always the case that the directions which a trial judge gives to the jury must be related to the particular facts and circumstances disclosed by the evidence and to the way in which the case has been conducted”: R v Williams at 217-218.

4. [47]

   In RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, Gaudron ACJ, Gummow, Kirby and Hayne JJ stated:

5. [48]

   A trial judge is entitled to express his or her view about the facts, provided that he or she does so with moderation and provided always that he or she makes it clear that it is the jury's function to decide the facts and that it is the jurors’ duty to disregard the view which the trial judge has expressed or may appear to hold if it does not agree with their own independent assessment of the facts: R v Zorad (1990) 19 NSWLR 91.

6. [49]

   As to the permissible limits of a trial judge commenting on the facts, Brennan J in B v The Queen (1992) 175 CLR 599; [1992] HCA 68 at 605 said:

7. [50]

   The judge's role in a criminal trial is to hold the balance between the contending parties without themselves taking part in their disputations; the judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case on either side: Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 per Johnson J (Spigelman CJ and Simpson J agreeing).

8. [51]

   Whether the trial judge went too far in deprecating the defence case depends on the impression gained by reading the summing up as a whole: Green v The Queen (1971) 126 CLR 28; [1971] HCA 55 at 34.

9. [52]

   Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case. First, it is inconsistent with judicial impartiality. Secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at [87]-[93].

10. [53]

    In R v RTB [2002] NSWCCA 104 per Spigelman CJ, Wood CJ at CL and Kirby J, the Court stated:

11. [54]

    The permissible area within which a trial judge may draw to the jury's attention an argument that was not put by counsel, was conveniently noted by Hunt CJ at CL in R v Heuston (1995) 81 A Crim R 387:

12. [55]

    In order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial: R v Sukkar [2005] NSWCCA 54 at [90] (per Wood CJ at CL, Hidden J agreeing).

Consideration

1. [56]

   It is desirable to first address ground 2 because I have formed the view that the summing up as a whole was unbalanced and unfair to the applicant. In order to explain why I have come to that view it is necessary to consider the essential elements of the defence case and consider the way in which the trial judge summed up on those essential integers to the jury.

2. [57]

   Six major themes of the defence case were identified. It is perhaps correct, as the Crown submitted, that those six major themes could be broken down into 18 sub-themes. It is not profitable, however, in surveying the fairness of the summing up as a whole, to parse and analyse each of those 18 sub-themes in the way suggested by the Crown.

3. [58]

   What the trial judge did with each of the six major themes of the defence case was to state the defence proposition and to then offer a counterpoint to that proposition. As will become apparent, in a number of respects those suggestions by the trial judge were not based on the Crown case or the evidence.

4. [59]

   In relation to the evidence about the complaint to the police, during the cross-examination the complainant was shown MFI 2, a document which contained notes by Constable Murray of the complainant’s conversation with police at the hospital. The topic was the complainant’s statement to the police at the time of the events, “I don’t remember why I didn’t react. I didn’t know what was going on”. That document recorded that the complainant said, “I don’t remember saying that but, yeah, I don’t specifically remember saying that but that is something that I believed that night, that if I thought I did pretend to sleep because I was so scared and I wanted it to be over”. Senior counsel for the applicant asked whether it was true that the complainant did not know why she did not do anything, to which the complainant responded that it was not true. The complainant was not re-examined on this matter.

5. [60]

   At trial the Crown relied on the evidence of complaint and what the complainant did when she made her numerous reports of having been sexually assaulted, submitting that when she made comments about “I thought what’s going on, I’m not sure what’s going on”, she was not expressing any uncertainty as to what the applicant was actually doing. The Crown told the jury that the complainant’s evidence was clear that when she was talking about the oral sex incident, she was not sure about that. The Crown emphasised that the complainant was wide awake when she saw the tattoo on the applicant’s upper arm and felt his penis in her vagina. The Crown case was that when the complainant later made those comments, she was reporting her attempts to process what she was experiencing and her reactions to what was going on, particularly her disbelief that the accused would do something like that to her.

6. [61]

   The starting point for the defence case was the fact that the complainant stated in her evidence that she may have said to police, “I don’t remember why I didn’t react [to the applicant having sexual intercourse with her]. I didn’t know what was going on”. This was described by senior counsel for the applicant as one of the “stand out improbabilities” in the complainant’s account.

7. [62]

   The trial judge stated about this topic during his summing up:

8. [63]

   The essence of the applicant’s complaint is that the suggestion by the trial judge to the jury about what they “might think” on this issue was impermissible speculation by the trial judge in offering a possible explanation to the jury which was not the subject of evidence.

9. [64]

   The response of the Crown on this issue was essentially two-fold:

   1. (1)

      first, the Crown relied on evidence given in re-examination of Senior Constable Stout who gave evidence about the conversation between the complainant and Constable Murray, which she observed. Senior Constable Stout was asked in re-examination:

   2. (2)

      secondly, the Crown characterised the trial judge’s comment not as speculation but as a summary of other evidence to the effect that the complainant was shocked and confused and unable to understand why the sexual assault was happening.

10. [65]

    The difficulty with the explanation offered by the Crown for his Honour’s remarks is that his Honour did not purport to summarise any of the evidence given by the complainant (or any other witness) that the Crown now draws attention to. Nor in addressing “the statements that [defence counsel] had cross-examined [the complainant] about” was his Honour purporting to summarise the evidence of Senior Constable Stout.

11. [66]

    To suggest to the jury an explanation for the complainant’s evidence which was not an explanation given by the Crown, or a summary of evidence in the case, was speculation by the trial judge. The significance of this intervention by the trial judge is not limited to this topic.

12. [67]

    This is because, in the structure of the summing up, each of the major themes of the defence case was stated and an explanation offered by the trial judge which was inconsistent with that defence theme. Read as a whole, this gave rise to unfairness.

13. [68]

    While it was not the subject of a charge the complainant stated that while she was half asleep she thought someone was performing oral sex on her. In examination in chief the complainant said:

14. [69]

    In cross-examination the complainant was asked:

15. [70]

    The Crown submission about this issue was that the way the complainant gave evidence on this issue reflected favourably on her credit: “she was clear at that time she did not have a full memory of that incident. There was nothing to distinguish that it was [the applicant]. She was half-asleep and she couldn’t be a hundred percent sure of the oral sex incident. That matter goes to her honesty and credit.”

16. [71]

    The applicant’s case was that the evidence about oral sex cast doubt upon the reliability of the complainant’s account more generally. It was submitted that the trial judge impermissibly offered the jury a possible explanation for why she was not sure whether someone was performing oral sex on her.

17. [72]

    The defence submission, after reading to the jury the second of the passages from the complainant’s evidence above, was:

18. [73]

    The trial judge said the following in the summing up:

19. [74]

    Of itself, his Honour’s characterisation of the complainant’s evidence on this matter to the jury does not disclose error. It is, however, in the structure of the summing up, another example of the trial judge addressing a major theme of the defence case and immediately offering an explanation inconsistent with that defence theme.

20. [75]

    The direction to the jury that this evidence “is simply part of the surrounding circumstances as to her memory of the events” does not summarise either the Crown or the defence submission about this evidence. The Crown submitted that the matter bolstered the complainant’s credit. The applicant’s case was that the evidence cast doubt on the whole of the complainant’s account.

21. [76]

    His Honour’s direction to the jury did not summarise the cases put by the parties. The direction materially understated the importance of the evidence to the defence case and the submission which had been made to the jury.

22. [77]

    The complainant, during cross-examination, made the following statements:

23. [78]

    What the Crown said in closing address on this topic was clear, precise and appropriately moderate: “I suggest that the exact body position is not a matter of precise mathematical precision. The fact they were different body heights is not something that would cause you to have a doubt about her evidence”.

24. [79]

    The defence submission was that the complainant’s evidence that the applicant’s head was positioned either on her shoulder or beside her head at the time of the alleged sexual assault was inherently improbable. This was because of the difference in their relative heights. Senior counsel for the accused stated in closing:

25. [80]

    The trial judge, in his summing up, stated that:

26. [81]

    The applicant submitted that the trial judge giving this lengthy explanation was another indication of the unfairness as a whole of the summing up.

27. [82]

    The Crown submitted that this point was substantively unconvincing for reasons of common sense, pointed out by his Honour. The Crown submitted that what his Honour said amounted to no more than pointing out what common sense dictated, and that after pointing out such matters, the trial judge reminded the jury that “whether you reach the conclusion that [senior counsel for the accused] seeks that you reach in respect of that is of course a matter for you…”.

28. [83]

    It may well be true, as the Crown submitted, that much of the trial judge’s direction on this issue was an appeal to common sense. The difficulty I have with what the trial judge did is, however, that his Honour was not purporting to summarise the two cases. Rather his Honour here entered the arena and belittled the defence submission.

29. [84]

    What his Honour said in summing up went much further than the Crown submission. This is another example of his Honour stating a major theme of the defence case and immediately thereafter offering an explanation inconsistent with the defence case. On this occasion his Honour’s explanation went some distance beyond a summary of the relevant Crown submission.

30. [85]

    The applicant’s evidence was that he undressed himself in his own bedroom before going to bed. When confronted by the complainant’s boyfriend about why his clothes were in their bedroom, his evidence was that he looked on the floor next to his bed as that was where he last saw his clothes.

31. [86]

    The photographs in evidence showed that the applicant’s clothes were in the complainant’s bedroom at 5.34am and 5.49am. When the police arrived, those clothes were found in the applicant’s bedroom. There was no evidence about who had moved the clothes.

32. [87]

    What the Crown said in closing address on this topic was clear, precise and appropriately moderate: “One possibility is that after [the complainant] threw the shoe, the accused then picked up his clothing and took it back to his room. None of the witnesses saw that happen, although they say they weren’t focussed or [paying] particular attention to the clothing at that time. There was clearly a lot going on in the apartment at that stage.”

33. [88]

    In closing, senior counsel for the applicant said:

34. [89]

    The trial judge, in his summing up, said about this issue:

35. [90]

    After dealing at some length with the photographs and making various suggestions to the jury based on those photographs which are the subject of complaints in ground 1, the trial judge returned to the subject of the movement of the clothes:

36. [91]

    The applicant submitted that all four tenants gave evidence that they had not removed the clothes from the bedroom, nor had they seen anyone move them. The applicant submitted that two phrases used by the trial judge above, “you would have to wonder why [the complainant’s boyfriend] or Ms Rodgers or [the complainant] would have any reason to move part of the clothing from the bedroom to Mr Mulholland’s room” and “so you might consider whether [the complainant’s boyfriend] at any time after the accused had left would have any interest in moving any of the clothes, and consider who of the four tenants may have had the opportunity to do anything in relation to moving them, or any interest in moving them?” were suggestions by the trial judge to the jury that the applicant had reason to move the clothing and that no one else did.

37. [92]

    The applicant submitted that by this part of the summing up there was a real risk that the jury reasoned the applicant had removed the clothes and that he had done so in consciousness of his guilt.

38. [93]

    The Crown submitted that the impugned sentences cannot be taken in isolation, and that the trial judge’s comments raised the possibility that any one of the four flatmates might have moved the clothes and that the trial judge was not singling out the applicant. The Crown submitted that the trial judge’s use of the word “odd” reflected the theme of senior counsel for the accused’s submissions.

39. [94]

    The Crown further submitted that the failure by senior counsel to take up these points with the trial judge at the time may have been a deliberate forensic decision. The Crown submitted that where there is a tactical advantage discernible it is difficult to maintain there was a miscarriage of justice: Tekely v R per Howie J at [131].

40. [95]

    What the trial judge said on this issue ranged far beyond the Crown submission. It was an invitation, in terms, to the jury to reason that the applicant was the person who had moved the clothes as “who might have had any interest in moving them?”. The rhetorical questions posed by his Honour - “Was there something in the pants that someone wanted, and so took them in order to recover it? Was someone in need of a belt?” – could only have been understood by the jury to be a reference by the trial judge to the applicant.

41. [96]

    I reject the Crown submission that a possible tactical advantage could have been perceived by the applicant by reason of this part of the summing up. This was made clear by the complaint, in the absence of the jury, by senior counsel for the applicant about the trial judge’s statement rhetorically asking the jury “who would have an interest or opportunity to move the clothing?”. In response, his Honour reminded the jury of the complainant’s evidence that she heard the applicant leave the flat at a time when his clothes were still in the complainant’s bedroom. That reminder partially ameliorated the damage cause by the rhetorical questions posed earlier by the trial judge.

42. [97]

    This part of the summing up demonstrates his Honour stating a major theme of the defence case and immediately thereafter directing the jury in terms starkly inconsistent with the defence case and in a way that travelled well outside any fair summary of the Crown submissions about the issues. The trial judge speculated outside the evidence and put matters to the jury which were not part of the Crown case.

43. [98]

    The evidence about the applicant’s shoes had a significance at the trial. It will be recalled that immediately prior to the applicant leaving the flat the complainant threw one of his shoes at him. The evidence of Ms Rodgers was that the applicant left the apartment after the shoe throwing. This was also the evidence of the complainant’s boyfriend.

44. [99]

    When the police arrived later that morning they found one of the applicant’s shoes in the applicant’s bedroom. The complainant’s boyfriend said that he found the applicant’s other shoe some time later and threw it out. There was no challenge to the evidence of Mr O’Murchu that when he went back some time later to pick up the applicant’s possessions from the flat he found the other shoe under the applicant’s bed. Both shoes were in evidence at the trial.

45. [100]

    The Crown case on this issue was as follows:

46. [101]

    The applicant’s case was that the evidence about this shoe, and the cross-examination of the complainant’s boyfriend on this issue, cast doubt on the evidence of the complainant’s boyfriend. It was suggested to the jury that they would find his evidence to be “untruthful”.

47. [102]

    What the trial judge said about this was as follows:

48. [103]

    This is another matter of real significance. The trial judge speculated outside the evidence and put matters to the jury which were not part of the Crown case. He told them what the photographs meant, expressing his own views about the evidence. In and of itself this part of the summing up was unfair. It was a devastating attack on the defence case by the trial judge not based on a fair summary of the Crown submission. The trial judge all but suggested to the jury that the applicant had deliberately placed the shoe under his bed for some forensic purpose in the trial by the question “why anyone would do that”.

49. [104]

    It was no part of the Crown case that the shoe had been deliberately placed under the applicant’s bed by anyone, much less for any forensic purpose in the trial. The suggestion made by his Honour to the jury was unfair and should not have been made.

50. [105]

    The re-direction ultimately given, that the photographs may show a gap under the bed sufficient for a shoe to go under it, does not address the central issue. That is; his Honour identified a major theme of the defence case and immediately thereafter directed the jury in terms starkly inconsistent with the defence case and in a way that travelled well outside any fair summary of the Crown submissions about the issue.

51. [106]

    It was common ground that there was DNA from the applicant found in the complainant’s lower vagina. The subject of a possible indirect transfer of DNA was critical to the defence case. The applicant’s case was that the Crown failed to exclude indirect transfer of DNA as an explanation for the DNA results.

52. [107]

    The Crown case at trial was straightforward and appropriately clear. This was not the case summarised by the trial judge. The Crown told the jury:

53. [108]

    The applicant submitted the trial judge stated to the jury that the hug between the applicant and the complainant could not have led to the applicant’s DNA being present in the forensic examination of the complainant’s vagina, and that the trial judge did not refer to other ways by which DNA could have been transferred.

54. [109]

    The trial judge stated:

55. [110]

    The Crown submitted that the trial judge did refer to other ways in which the DNA evidence could have been transferred, including indirect transfer. The Crown further submitted that the trial judge’s summation was an entirely accurate statement of the evidence on this matter.

56. [111]

    I reject the Crown’s submission.

57. [112]

    In the trial judge’s summing up, the entire passage about whether the applicant and the complainant were wearing clothes and whether there was a possibility of picking up DNA from a person’s clothes was outside the Crown case and involved impermissible speculation by the trial judge.

58. [113]

    In relation to this sixth and central part of the defence case, the trial judge identified the defence case and immediately thereafter directed the jury in terms inconsistent with that case and in a way that travelled beyond a fair summary of the Crown submissions.

59. [114]

    In the present case the trial judge’s summing up did not exhibit a “judicial balance”. It deprived the jury of an adequate opportunity of understanding and giving effect to the applicant’s defence and the matters relied upon in support of the defence. As the above passage from B v The Queen makes clear, a recognition that the jury were the trier of facts does not address a complaint about an unbalanced summing up.

60. [115]

    This is not a case where by reason of the defence address there was any matter which needed to be corrected by referring to matters not part of the Crown’s address. There was no compelling reason for the trial judge to put an argument not advanced by counsel. The trial judge put arguments to the jury drawn from outside the Crown case in a number of respects which I have identified above.

61. [116]

    The directions to the jury as a whole were lacking in the appropriate balance. Many of the directions about the defence case were not based on evidence but speculation, particularly in relation to issues concerning the clothes, the applicant’s shoes and the indirect transfer of DNA.

62. [117]

    The Crown, in responding to the appeal, submitted that an acceptable explanation for aspects of his Honour’s summing up was that it was “a thesis only”. The Crown’s written submissions indicated, in relation to things the trial judge told the jury about photographs of the applicant’s sock which went beyond the Crown case, that the trial judge saying that “perhaps” the second sock was still in the complainant’s room, made it clear that this was “a thesis only”. However, it is clear on the basis of the authorities I have cited above that it was not appropriate for the trial judge to present his “thesis” to the jury as to how the exhibits could be both interpreted and explained separate from a summary of the submissions of the Crown and the defence.

63. [118]

    The summing up, read as a whole, urged upon the jury a particular mode of thought. His Honour took each of the six major themes of the defence case and suggested to the jury answers or an explanation for each of those defence submissions based upon a mixture of Crown submissions and separate explanations developed by his Honour. Explanations for gaps, deficiencies and inconsistencies in the evidence were offered which, to a legal mind, would appear to be in each case a logical possibility. As Spigelman CJ, Wood CJ at CL and Kirby J said of such an approach in RTB, however, “[j]uries are not required to think like that.”

64. [119]

    The fact that a number of “possibilities” were put to the jury by the trial judge, rather than by the Crown, may have directed the jury's collective mind in a particular way. Speculation, whilst perhaps appropriate for counsel, should not receive the added weight of the intervention of the trial judge. The jury could have understood the trial judge to be suggesting that, because there may have been an explanation as a matter of logic, they should reason in a particular way and reject each submission made by defence counsel.

65. [120]

    The summing up as a whole was unbalanced and unfair to the applicant. I would uphold ground 2 of the appeal. Given this conclusion it is unnecessary separately to address ground 1.

66. [121]

    The restriction on appeals imposed by Rule 4 of the Criminal Appeal Rules relied on by the Crown must be addressed. Rule 4 states:

67. [122]

    In Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, McHugh J explained that:

68. [123]

    Leave under Rule 4 should only be granted if the applicant can demonstrate that there has been a miscarriage of justice. By miscarriage of justice I mean that the applicant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: ARS v R at [148].

69. [124]

    I have formed the view that the lack of balance demonstrated in the summing up caused a miscarriage of justice. The conclusion I have reached, that the summing up as a whole was unbalanced and unfair to the accused, gave rise to a miscarriage of justice in that it has been established that the applicant lost a chance fairly open to him of being acquitted. It is fundamental to our system of justice that the trial judge should not descend into the forensic arena. Regrettably, that is what happened here. Despite the strength of the Crown case, I have concluded that the unfair summing up gave rise to a miscarriage of justice.

Conclusion and proposed orders

1. [125]

   I propose the following orders:

   1. (1)

      Leave to appeal against conviction granted;

   2. (2)

      Appeal allowed;

   3. (3)

      Set aside the appellant’s conviction;

   4. (4)

      Remitted to the District Court for re-trial.

2. [126]

   SCHMIDT J: I have had the advantage of reading the judgments of both Payne JA and Fagan J. I agree with Payne JA, for the reasons which his Honour gives, both that the appeal must be upheld and the orders which he proposes must be made.

3. [127]

   While there is no question that the Crown case was a strong one, I have reached these conclusions also being satisfied that in his summing up, the trial judge impermissibly entered the arena, in order to advance a case to meet that put for the applicant. What his Honour so advanced was not confined to an explanation of the Crown’s case. It is not for a trial judge either so to have, or to advance to the jury any thesis of his or her own, as to how what lies in issue between the parties should be resolved.

4. [128]

   Here an important aspect of the defence case was the implausibility of the account which the complainant had given to police, about what she remembered the applicant having done to her and how she had reacted. On the cases which the parties each advanced, the jury was thus obliged to come to conclusions about the reliability of her evidence, as well as of her credibility. The credibility of her boyfriend and the accused were also in issue. The defence also advanced submissions about the various other themes Payne JA has discussed, in order to persuade the jury that on all of the evidence, the Crown had not met the onus falling upon it, to prove the applicant’s guilt beyond reasonable doubt.

5. [129]

   The trial judge’s directions as to how the jury should approach the evidence, in order to resolve these issues, went far beyond an explanation of how the jury should undertake its task, by application of the legal principles which they were bound to apply, to the point that it involved an impermissible departure from his proper role.

6. [130]

   The result was that the applicant was denied a chance of acquittal, which may have flown from a consideration of the evidence in light of the respective cases which the parties had advanced, uninfluenced by his Honour’s impermissible intervention in the trial, to advance his own views about how the jury might resolve what lay in issue between the parties. In the result, it follows that the appeal must be upheld.

7. [131]

   FAGAN J: I am not able to agree with Payne JA and Schmidt J that the learned trial judge impermissibly expressed his own views on the evidence, or on the facts which the jury might find, or on the defence closing arguments. I do not consider that the summing up was unbalanced or that the trial miscarried as a result of the terms in which his Honour referred to the facts and counsel’s arguments.

8. [132]

   I gratefully adopt Payne JA’s summary of the principles which define limits within which a trial judge may legitimately comment on the facts and arguments in a summing up. I also adopt his Honour’s identification of the terms in which the Crown and defence joined issue concerning the six subjects on which the trial judge commented in a manner which is now complained of.

9. [133]

   The first subject was the complainant’s statement to police officers at Royal North Shore Hospital on the morning of the alleged incident, in these terms:

10. [134]

    At trial the complainant gave evidence that she thought her sleep had been disturbed by someone with his head between her legs but she was unsure whether she really experienced this or whether it was a reliable memory. She said that after this she became fully awake to find the accused on top of her, penetrating her. She said she was “really shocked and scared” and remained still, pretending to be asleep. He withdrew, got off the bed and stood up. The complainant did not try to wake her boyfriend beside her because he slept very heavily after drinking and she doubted she could raise him. Also she was “probably scared if he did wake up of how he might react to everything”.

11. [135]

    The complainant’s evidence continued that the accused then got back on the bed and resumed intercourse. She “just remained really still”. She said:

12. [136]

    Evidence providing context to her statements about confusion included that she had drunk a considerable amount of alcohol during the preceding evening and early hours of the morning and that she and her boyfriend had shared the flat with the appellant for two years and she regarded him as a friend. In cross-examination she stated that she did not provide police with a formal statement until three weeks after the incident:

13. [137]

    In the passage of summing up quoted by Payne JA at [62] the part complained of is this:

14. [138]

    I see nothing impermissible in the trial judge having invited the jury, in those terms, to consider what the complainant might have meant by the statement “I didn’t know what was going on”. Defence counsel did not directly put to the jury that this should be understood as an admission, shortly after the alleged incident, that she had been at the relevant time unable to comprehend what events were occurring. Any such submission would have been far-fetched. It was quite clear that the complainant had only gone to the Hospital and was only talking to police there because she claimed that she well understood what had occurred, namely two instances of sexual intercourse without consent. Her answer quoted at [135] was a basis in the evidence upon which the jury could properly consider the possible interpretation of the statement to which his Honour invited their attention, that is, that she was confused as to why this was occurring rather than as to what was occurring.

15. [139]

    The second subject was the defence submission in closing that the jury might consider the complainant’s entire account, including the two alleged instances of full intercourse, may be an unreliable half waking, half dreaming false memory. She accepted that her recollection of being first disturbed from sleep by a person’s head between her legs might be of that unreliable nature. I do not see that the learned trial judge’s warning to the jury, quoted by Payne JA at [73], in any way negated or debunked the defence argument. It was appropriate to remind the jury that there was no charge based upon any allegation that the accused had his head between the complainant’s legs before she fully woke. It was appropriate to point out to them that in any event the complainant was uncertain whether this had occurred and that the only relevance of the evidence was that it was “part of the surrounding circumstances as to her memory of the events”.

16. [140]

    On a fair reading of his Honour’s observations I do not see that they conveyed any view for or against the defence argument that the complainant’s admitted uncertainty with respect to this matter infected her reliability concerning the two acts of penetration. What his Honour said simply left the respective Crown and defence arguments matched against each other undisturbed. It would have been very clear to the jury that the Crown was saying the complainant’s acknowledgement of uncertainty about anything being done to her when she was first aroused from sleep showed honesty and willingness to identify things she could not clearly recall. It would have been equally clear the defence was saying that if she was uncertain about this she was unreliable about everything. Nothing in the judge’s words obscured the clarity with which these alternatives were left for the jury’s consideration or tilted the choice.

17. [141]

    The third subject was the physical improbability, as the defence put it, of the appellant’s head being at the level of the complainant’s shoulder whilst he was having intercourse with her. In the part of the summing up quoted by Payne JA at [80], in my view all his Honour did was to point out that the jury should take into account not only the overall height of the appellant relevant to that of the complainant but also the proportions of their bodies. That is, if their hips were in proximity, were the dimensions from hip to shoulder or from hip to head so different between the two of them that what the complainant described was impossible or improbable?

18. [142]

    I do not consider that it was unfair to either party, or in particular that it was unbalanced towards the defence, to point out that in this respect the jury “need[ed] to take into account all the circumstances”. What his Honour said was, in my respectful view, an aspect of the common sense and common experience which a jury is required to bring to bear upon such an issue. His Honour did not invite the jury, by taking this question of bodily proportions into account, to reach a particular conclusion. Nor did he hint to them what he thought the answer ought to be. The fact that the Crown had limited itself to stating “the exact body position is not a matter of precise mathematical precision” and that the defence had confined its argument to a simplistic comparison of overall heights did not have the result that his Honour’s invitation to consider all aspects of the matter undermined a defence argument.

19. [143]

    The fourth subject was the movement of the appellant’s clothes from where they were photographed beside the complainant’s bed to his own room. The Crown and defence submissions about who might have moved the clothes and what if anything could be inferred from that, as quoted by Payne JA at [87] and [88], could in my view fairly be characterised as tentative and inconclusive. Neither party urged the jury to any conclusion upon this feature of the case. I respectfully consider that the learned trial judge’s summing up, extracted by Payne JA at [89] and [90], did not alter this position.

20. [144]

    The passage quoted at [89] reiterated the defence argument that the presence of the appellant’s clothes in the complainant’s bedroom was inconsistent with him having done what was alleged, because surely if that had occurred he would have removed them when the complainant pushed him off the bed. The net effect of his Honour’s observations at [90] was that (a) consideration of who might have had any interest in subsequently moving the clothes was relevant to any inference the jury might draw as to who might have been responsible for moving them; (b) the opportunity of any of the occupants of the flat to move the clothes was also relevant to who might have done this and (c) it was a matter for the jury to decide whether there was “any particular significance in relation to the movement of the clothes, or who moved them”. I fail to see that these observations could have undermined the defence arguments or unbalanced the summing up in any other way.

21. [145]

    The fifth subject was the location of the appellant’s right shoe under the bed in his own bedroom. In the passage extracted by Payne JA at [102] the learned trial judge certainly advanced a proposition that the Crown had not put forward, namely, that the shoe could not have found its way to that location accidentally because of the lack of clearance between the underside of the bed and the floor. That possibility was initially left to the jury upon a misinterpretation of the photographs but it was in my view adequately corrected by a redirection at the request of the appellant’s counsel.

22. [146]

    Defence counsel had argued that the evidence of the complainant’s boyfriend could be treated as unreliable because he said he had found a shoe in the wardrobe of the bedroom occupied by himself and the complainant, which he believed to be the appellant’s shoe. That ground of attack on the credibility of the boyfriend, for such favour as it might have found with the jury, was not in my opinion affected by controversy as to whether the actual right shoe of the appellant found its way under the bed in his own room by accident or by placement. On any view the boyfriend was in error so far has he thought he had found the appellant’s right shoe and thrown it out, because the right shoe was recovered by the appellant’s friend, Mr O’Murchu, and was produced to the jury.

23. [147]

    The sixth subject concerned reasonable possibilities about how the appellant’s DNA might have found its way into the complainant’s lower vagina. The part of the summing up extracted by Payne JA at [109] invited the jury to consider the full range of possible contacts with any part of the appellant or his clothing which might have transferred his DNA to her hands. His Honour also suggested they consider any possible contact of her hands with other items on which his DNA might have been present and any possibility of the plaintiff having touched herself, after direct or indirect contact with the appellant’s DNA, in such a manner that his DNA would be transferred to her low vaginal area. I do not read this part of the summing up as suggesting to the jury what their conclusion might be or indicating any conclusion of his Honour’s. Having regard to the evidence of the experts who gave evidence about DNA transfer, the possibilities to which his Honour adverted were not speculative, in my opinion.

24. [148]

    Taken together and in the context of the whole of the summing up I do not consider that his Honour’s observations to the jury on the six subjects that the appellant has agitated in the appeal gave rise to an imbalance or exceeded the bounds of legitimate comment as fixed by the authorities. I would dismiss the appeal.