Brockie v R

1. [1]

   JOHNSON J: I agree with R A Hulme J.

2. [2]

   R A HULME J: Glen John Brockie (the applicant) was tried before Ellis DCJ and a jury in the District Court at Port Macquarie after pleading not guilty to two offences of having sexual intercourse without consent. It was a short trial with the jury returning verdicts of guilty on the second day, 19 September 2017.

3. [3]

   On 2 March 2018, his Honour imposed sentences of imprisonment of 4 years on the first count and 6 years on the second count. The second sentence was partially accumulated on the first so that the overall sentence was one of 7 years with a non-parole component of 4 years.

4. [4]

   The offences were contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 14 years and there is a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years.

5. [5]

   Mr Brockie applies for leave to appeal against both his conviction and sentence on the following grounds:

6. [6]

   The applicant accepts that r 4 of the Criminal Appeal Rules apply to the two proposed grounds relating to conviction in that they rely upon complaints that were not raised at trial.

7. [7]

   The offences were alleged to have occurred at a house at Port Macquarie on the weekend of 3-4 April 2016. The complainant was visiting a friend and had dyed her hair. She went into the shower to wash the dye out. While she was in the shower the applicant, who was the partner of the complainant's friend, entered the shower and sexually assaulted her by digital and then penile penetration.

8. [8]

   It was put to the complainant in cross-examination that the applicant entered the bathroom while she was in the shower and that he helped her wash the dye out of her hair, but that no sexual acts occurred. She disagreed. [1]

9. [9]

   Written submissions for the applicant provided the following overview of the contentions sought to be raised on appeal:

The meaning of "intellectual disability"

1. [10]

   There was no evidence before the jury as to the technical meaning of the term "intellectual disability". Counsel for the applicant took the Court to a passage in the judgment of the High Court of Australia in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [50]-[51], where there is a discussion about the "mild intellectual disability" of the offender in that case. [2] It was observed that this should not obscure the fact that he was mentally retarded and that there was a classification of the condition of mental retardation as mild, moderate, severe or profound in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed (text rev) (2000) (DSM-IV-TR), p 42. "Significantly subaverage intellectual functioning" was defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below (plus or minus 5 points for measurement error).

2. [11]

   In the subsequent edition of that publication, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed (2013) (DSM-5), the term "mental retardation" was replaced with "intellectual disability". A diagnosis is said to be dependent upon three criteria being met: (A) deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience; (B) deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility; and (C) onset of intellectual and adaptive deficits during the development period. [3] In relation to criterion A, the publication includes reference to an IQ score below 70 (+/- 5) but counsels that clinical training and judgment are required to interpret test results and assess intellectual performance. [4]

The course of the trial

1. [12]

   The applicant's contentions under Grounds 1 and 2 of the proposed appeal against conviction must be assessed in the context of relevant events before and during the trial.

2. [13]

   Affidavits were read by both parties at the outset of the hearing of the application for leave to appeal. The Crown did not object to an affidavit from the applicant's trial counsel, but submitted the Court would find that it was irrelevant. There was no objection to two affidavits by the solicitor instructing the Crown Prosecutor. The material in those affidavits is useful in supplementing the narrative of the course of the trial.

3. [14]

   Mr Neild, an experienced Public Defender who acted as counsel for the applicant at trial, deposed that the applicant was committed to the District Court for trial for two offences contrary to s 61J of the Crimes Act of sexual intercourse without consent in circumstances of aggravation, namely that the complainant had a "serious physical disability". That term was not defined in the Act.

4. [15]

   Reports by the complainant's treating general practitioner, Dr Brenton Schuetz, and a psychologist, Mr John Nolan, were within the prosecution brief of evidence.

5. [16]

   Dr Schuetz's report included that he had been treating the complainant for 17 years and it was his opinion that she suffered from:

6. [17]

   Mr Nolan's report arose from a referral by police for him to consider whether the complainant had "an intellectual disability for the purpose of section 61H(1A)(a) of the NSW Crimes Act". I note that s 61H(1A) at the relevant time (since repealed and replaced by provisions set out in s 61HD) defined "cognitive impairment", another circumstance of aggravation for the offence in s 61J. It provided:

7. [18]

   Mr Nolan administered two tests of intelligence. One was the Wechsler Test of Adult Reading which yielded a result "with 90% confidence that [the complainant's intellectual capacity] would be found in the range from 59 to 93 IQ points where average is 100". Mr Nolan said that he did not take this to be a reliable test of intelligence because of the complainant's history of deafness and her lack of experience with the expression of words. The other, the Test of Non-verbal Intelligence, fourth edition, gave a score indicating the complainant was "in the below average range of intellectual capacity". Mr Nolan explained: [5]

8. [19]

   Mr Nolan concluded that the complainant did not fit into a category of intellectual disability for the purpose of s 61H(1A) of the Crimes Act. He did not say that she did not have an intellectual disability per se.

9. [20]

   The Crown Prosecutor's instructing solicitor wrote to the applicant's solicitor on 21 August 2017, about a month before the trial was listed, advising that the indictment would allege the basic sexual intercourse without consent offence in s 61I of the Crimes Act, and that it was not intended to call either Dr Schuetz or Mr Nolan unless required by the defence. Mr Neild indicated in his affidavit that the Crown was informed that the defence did not require either of those witnesses to be called. [6]

10. [21]

    Annexed to an affidavit by the solicitor instructing the Crown Prosecutor in this Court was a copy of the Crown's pre-trial disclosure documents. The first paragraph of the Crown Case Statement included a description of the complainant as a "woman who is profoundly deaf, has Cerebral Palsy and intellectual disabilities". It also included (in par 12) that although the complainant attended a police station on 7 April 2016 to report that she had been sexually assaulted, "due to the special circumstances surrounding the complainant's disability a formal statement was not obtained from her until 11 July 2016".

11. [22]

    The defence response (as required by s 143 of the Criminal Procedure Act 1986 (NSW)) stated that "the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution's notice under section 142) and with which the accused person intends to take issue" were:

12. [23]

    Accordingly, it was communicated by the defence to the Crown and the Court that there was no dispute about the description of the complainant as set out in the Crown Case Statement.

13. [24]

    When the trial came before Ellis DCJ on Monday 18 September 2017, the Crown Prosecutor told his Honour that the complainant "is deaf … has cerebral palsy since birth and she has a moderate intellectual delay". He added, "On that basis, Mr Neild is not opposing the playing of her recorded interview with the police as her evidence in chief". [7] He also informed the judge that the complainant was able to speak but "it's not very clear". There followed a discussion about the availability of Auslan interpreters. Significantly, in the course of the ensuing discussion, there was nothing said by the applicant's counsel to indicate there was any issue with the Crown Prosecutor's assertion that the complainant had a "moderate intellectual delay".

14. [25]

    Pausing at this point with the narrative, it should be noted that Ch 6, Pt 5 of the Criminal Procedure Act 1986 (NSW) makes provision for the giving of evidence by "vulnerable persons" in criminal proceedings. There are provisions in Div 3 for a "vulnerable person" to give evidence by way of previous representations made in the course of a recorded interview with an investigating official. There are provisions in Div 4 for a "vulnerable person" to give oral evidence from a remote location via closed-circuit television. That is what occurred in the present case; the complainant's evidence-in-chief was given by way of playing the recording of her interview with police, and the balance of her evidence was given by way of CCTV from a room elsewhere in the court building.

15. [26]

    A "vulnerable person" is defined as "a child or a cognitively impaired person". [8] (The complainant in this case was not a child.) A "cognitive impairment" is defined to include, relevantly, "an intellectual disability". [9]

16. [27]

    It is a matter of significance that counsel for the applicant raised no issue at any time before or during the trial about the complainant being entitled to give evidence pursuant to the means provided for in Divs 3 and 4 of Ch 6, Pt 5.

17. [28]

    Returning to the course of the trial, the jury panel were brought into the court room immediately following the exchange between bench and bar described above. The applicant was arraigned and pleaded not guilty. The Crown Prosecutor provided the panel with some information about the case and the identity of witnesses. The judge then invited applications by members of the panel to be excused and in the course of this he said: [10]

18. [29]

    The judge made some opening remarks to the jury following the empanelment which included: [11]

19. [30]

    The Crown Prosecutor said the following about the complainant in the course of his opening address to the jury: [12]

20. [31]

    The prosecutor also referred to the anticipated evidence of the complainant's friend who was in a relationship with the accused at the time. He said: [13]

21. [32]

    The prosecutor's opening address was immediately followed by an address by the applicant's counsel. He said nothing to indicate there was any issue about the manner in which the complainant's intellectual or cognitive ability had been described.

22. [33]

    The trial proceeded with the complainant's recorded interview being played and she was then cross-examined.

23. [34]

    Exhibited with one of the affidavits read by the Crown was the recording of the complainant's evidence (the pre-recorded evidence-in-chief as well as the cross-examination). Counsel for the applicant had no objection to the members of this Court viewing the recording in its entirety, or at least so much of it that would be necessary to confirm his submission that it was not possible to discern from the complainant's demeanour that she had an intellectual disability. [14]

24. [35]

    I have viewed the recording of the complainant's evidence in its entirety. As counsel for the applicant submitted, it is obviously necessary to be careful not to conflate the impediment the complainant experiences with her speech with an assessment of her intellectual capacity. It is necessary to make allowance for the fact that she has suffered from congenital deafness and is only partially assisted by a Cochlear implant. Her manner of speech is such that she was often indistinct. The Auslan interpreters relayed everything that she said (even on the occasions when her speech was clear).

25. [36]

    It is apparent from the recording (and from the transcript) that both judge and counsel tried to use very simple language when speaking to the complainant and tried to avoid abstract or complex concepts. The complainant sometimes exhibited difficulty with fairly straightforward questions as well as a degree of concrete thinking. A few extracts from the transcript of the cross-examination will illustrate.

26. [37]

    The following was said at the beginning of the cross-examination: [15]

27. [38]

    After the complainant answered some questions about her arrival at the home of her friend, and before she was asked anything about "what happened", the following exchange occurred: [16]

28. [39]

    An indication of her difficulty in understanding that she was being challenged about an asserted prior inconsistent statement is evident in the following: [17]

29. [40]

    A striking feature of the recording of the complainant's evidence is that the judge and both counsel spoke very slowly. This was necessary to some degree to enable the Auslan interpreters to carry out their task. But the rate and tone of speech of both judge and counsel was similar to what might be expected if they were talking to a child witness. This clearly conveyed their appreciation that they were speaking with a witness with a degree of intellectual impairment.

30. [41]

    Following the complainant's evidence the Crown called her friend and when her evidence concluded the judge adjourned the trial to the next day.

31. [42]

    The following morning the Crown adduced brief evidence (6 pages of transcript in total) from two civilian witnesses and the police officer in charge of the investigation before closing the Crown case. There was no defence case. The closing addresses of counsel immediately followed.

32. [43]

    During the course of his closing address, the Crown said the following: [18]

33. [44]

    Counsel for the applicant commenced his closing address only moments later. He did not take issue with the Crown Prosecutor having likened the complainant to a child witness, except to say that there was no evidence other than what the jury had seen and heard in the court room to suggest this. He acknowledged that the complainant had difficulty in understanding some concepts that an adult would not have difficulty understanding. Rather than disputing that the complainant presented as a person of reduced intellectual capacity, his main thesis was the suggestion that the jury should be wary about making much out of a witness's demeanour in assessing truthfulness and reliability. What he said included the following: [19]

34. [45]

    At the conclusion of addresses, the judge sought clarification as to matters he needed to deal with in his summing up. The first was whether a direction about recklessness as to consent should be given. At the end of the brief discussion of this topic the judge said: [20]

35. [46]

    Apart from a courteous acknowledgement ("Please your Honour"), counsel for the applicant said nothing about the allusion to the complainant's "intellectual capacity".

36. [47]

    At an early stage of the summing up, the judge was dealing with the jury's task in making an assessment of witness testimony. He said the following in that context: [21]

37. [48]

    He continued on the subject of the jury's assessment of witnesses, and then a little later said: [22]

38. [49]

    A little later, his Honour came to deal with evidence of complaint and criticism by the defence of the fact that there was no immediate complaint on the evening the offences were alleged to have occurred. In this context, his Honour said: [23]

39. [50]

    The judge sent the jury out for a break and a discussion with counsel ensued. Counsel for the applicant raised with his Honour that he had referred to the complainant having an "intellectual disability". He said: [24]

40. [51]

    In the course of the discussion that followed, his Honour said that he thought with the complainant, the complainant's friend, as well as one of the complaint witnesses, that "it was pretty clear that there were issues". The Crown Prosecutor interjected his agreement. The discussion continued: [25]

41. [52]

    A discussion about delay in complaint followed. Counsel for the applicant took issue with whether he had criticised the complainant for not complaining until when she did; his criticism was more directed to her remaining at the house after the sexual assault had supposedly occurred there. The judge concluded the discussion with his view about how obvious it was to him that the complainant had a cognitive impairment: [27]

42. [53]

    Immediately upon the jury's return to the court room the judge directed them as follows: [28]

43. [54]

    Counsel for the applicant did not seek any further direction or redirection.

Ground 2 – the judge erred in fact (a) in finding that the complainant and two other witnesses had some form of cognitive impairment when there was no evidence and (b) in directing the jury it could form conclusions about those witnesses' intellectual capacity without expert evidence on the subject

1. [55]

   The two grounds upon which the applicant seeks leave to appeal against conviction are concerned with different aspects of the same issue and so can be conveniently dealt with together.

2. [56]

   In relation to Ground 1, the written submissions for the applicant referred to the features of the Crown Prosecutor's closing address to the jury that have been highlighted in the extracts quoted above (at [43]). It was submitted that these extracts invited the jury to be less critical of the complainant's evidence because of an intellectual impairment about which there was no evidence. It was submitted that there was no known authority permitting use of a witness' demeanour to assess intellectual capacity. This was said to be particularly so in the present case because the manner in which the complainant gave evidence was also impacted by her being deaf, causing a speech impediment. [29]

3. [57]

   In relation to Ground 2, the written submissions for the applicant contended that the judge should not have formed an opinion about the witnesses' intellectual functioning and their capacity to give evidence based on his own observations and experience in the absence of evidence. The effect of the judge's directions was to "lower the bar in terms of how critical the jury needed to be when assessing the complainant's evidence" and provided a basis to dismiss any inconsistency on the basis that she could not be expected to be precise with her recollections or explanations. [30]

4. [58]

   It was submitted that his Honour's "observations and conclusions, and his invitation to the jury regarding what conclusions they could draw from observing the complainant and the witnesses" went beyond what could be discerned from demeanour. It was not a matter of common knowledge under s 144 of the Evidence Act 1995 (NSW). The witnesses' intellectual functioning was a matter for expert evidence. [31]

5. [59]

   It was submitted that the judge did not cure the problem in his redirection. This only served to invite the jury to reach their own baseless conclusions, albeit influenced by the judge's expressed opinions. [32]

6. [60]

   It was noted that after defence counsel raised his concerns, the Crown Prosecutor stated that if the matter was in issue he "would have called the doctor". It was submitted that Dr Schuetz's opinion was contrary to that of Mr Nolan. [33] (This submission ignores the fact that Mr Nolan was not simply assessing "intellectual disability"; he was assessing whether there was such a disability "that results in the person requiring supervision or social habilitation in connection with daily life activities". [34] His testing indicated that the complainant was "in the below average range of intellectual capacity".)

7. [61]

   Finally, it was submitted that r 4 of the Criminal Appeal Rules should not stand in the way of the applicant relying upon Grounds 1 and 2 because they concerned a critical aspect of the Crown case, and the omission to object or seek direction, or a discharge of the jury, was not done for tactical reasons. [35]

8. [62]

   In oral submissions, counsel for the applicant (who was not counsel who prepared the written submissions) raised a number of matters which were more matters of speculation or surmise than matters that arose from the evidence and the record of the trial. For example, that there may have been a good reason for trial counsel not to object to the complainant giving evidence-in-chief by way of her pre-recorded police interview, other than by conceding an entitlement arising under the provisions of Ch 6, Pt 5, Div 3 of the Criminal Procedure Act. [36] I do not, with respect, propose to deal with such matters.

9. [63]

   Counsel generally maintained the theme set out in the written submissions; that the Crown Prosecutor and the trial judge were in error in speaking to the jury about the complainant having an intellectual disability in the absence of expert evidence to that effect, and that this caused the trial to miscarry. The miscarriage was asserted to arise from the encouragement of the jury to be less critical about the complainant's evidence in its own right, her account of the alleged offending being inherently incredible, and because of asserted inconsistencies between her evidence and that of other witnesses. [37]

10. [64]

    The entire trial was run on the acceptance by both parties that the complainant was less intellectually skilled than many adult members of the community. That the applicant accepted that this was so from the outset is evident from the narrative I have set out above, commencing with his pre-trial disclosure of what was (and what was not) in issue. The complainant was given all of the protections afforded to vulnerable witnesses and the applicant did not demur. His counsel cross-examined with sensitivity to her vulnerability.

11. [65]

    The applicant's counsel raised no complaint about anything said by the Crown Prosecutor about the complainant's intellectual capacity. He simply sought to meet his opponent's argument by suggesting to the jury that they might take a more cautious approach in the assessment of her evidence, because they did not have any expert evidence and had only their own observations of her.

12. [66]

    The applicant did raise an issue concerning the references in the judge’s summing up to the jury to the complainant being intellectually disabled when there was no evidence on the subject. The fact that up until that point the judge had understood there was no issue about it is evident from his, and the prosecutor's, seemingly astonished responses (see above at [50]-[51]). But counsel must have been content with the judge's response by directing the jury to the effect that it was a matter for them what they thought of the complainant's intellectual capacity. No further direction was requested. No application to discharge the jury was made.

13. [67]

    It is true that there was no expert evidence as to the complainant's intellectual capacity. There was no evidence that she was "intellectually disabled" in the technical medical sense. In the absence of any evidence as to the medical definition of that term (as to which see above at [10]-[11]), the complaint about its use loses much of its force. The jury would not have reasoned that because the complainant was referred to as being "intellectually disabled", she met each of the criteria for such a diagnosis. The jury would undoubtedly have reasoned that she had an intellectual capacity that was less than typical and assessed her evidence in that context. How that impacted upon their assessment was a matter that was debated by opposing counsel in their closing addresses. That was a quintessential jury issue. The judge directed the jury in fairly standard terms that as representatives of a cross-section of the community, they should use their worldly experience, their individual qualities of reasoning, and their understanding of people and human affairs. [38]

14. [68]

    Rule 4 of the Criminal Appeal Rules provides:

15. [69]

    In Lyndon v R [2014] NSWCCA 112, one of the grounds of appeal was critical of certain content in the Crown Prosecutor's closing address to the jury. Basten JA noted that defence counsel took no objection and did not seek either a discharge of the jury or directions from the judge to ameliorate the supposed prejudicial effect. He then referred to a general principle which is independent of r 4 (at [28]):

16. [70]

    His Honour then referred to the appellant's contention that r 4 did not operate, inter alia, because it does not in terms deal with a discharge of the jury. He said (at [29]):

17. [71]

    The judgment of Bathurst CJ in ARS v R [2011] NSWCCA 266 (James and Johnson JJ agreeing) is often cited in relation to r 4. At [148], his Honour referred to a number of propositions in relation to the rule:

18. [72]

    Counsel for the applicant at the trial deposed that he had been asked why he did not seek a further re-direction or a discharge of the jury. His response was, "I do not really recall what my thinking was at the time". [39] It seems to me that counsel’s "thinking" is readily apparent from what he said, and did not say, to the judge during the exchange in the middle of the summing up. Counsel also deposed that he believed his failure to do so was not for any tactical reason. This evidence is of no assistance to the applicant.

19. [73]

    It is apparent from the record of the trial that there are very good reasons for concluding that the applicant's counsel at trial perceived no injustice arising from the content of the Crown Prosecutor's address to the jury or from the manner in which the trial judge directed the jury. Those reasons include the fact that there were various references both before and during the trial to the complainant having an intellectual disability and counsel raised no issue about it until mid-way through the judge's summing up. Even then, counsel accepted that "there is some delay" and was more concerned with how the jury were to assess her evidence in the absence of evidence, presumably from an expert, that the label "intellectual disability" applied to her. Moreover, the very fact that there was no dispute that the complainant could give evidence by the alternative means provided for in Ch 6, Pt 5, Divs 3 and 4 of the Criminal Procedure Act is indicative of there being an acceptance that she was a "vulnerable witness" because of her "intellectual disability".

20. [74]

    This Court was provided with the opportunity to view the recording of the complainant’s evidence. Having taken advantage of that opportunity, I more readily appreciate why no objection or request for redirection or discharge of the jury was made.

21. [75]

    Both of the proposed grounds of appeal require leave under r 4 and, if leave be granted, they involve questions of fact requiring leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Leave should not be granted under either basis.

Ground 4 – Denial of procedural fairness by taking into account without notice that the complainant was cognitively impaired

1. [76]

   It is convenient to deal with these grounds together in that they are concerned with the same subject matter.

2. [77]

   The sentencing judge expressed his determination of the objective seriousness of the offences as follows:

3. [78]

   In written submissions, the applicant contended that the reference to "cognitive impairment" was not based in evidence and contradicted the conclusions of the psychologist, Mr Nolan.

4. [79]

   Trial counsel for the applicant provided the judge with a copy of the Crown Case Statement with some handwritten amendments, presumably to indicate the facts he asserted should be found on sentence. They included striking through the words indicating that the complainant had "intellectual disabilities". [40] It was submitted that despite this, the judge made "no comment during the sentencing submissions to the effect that he was considering making such a finding, denying the applicant procedural fairness". [41]

5. [80]

   The written submissions to this Court confirmed that the applicant did not take issue with any other aspect of the sentencing.

6. [81]

   Ground 3 has no merit. The written submissions for the applicant in the court below had included that the judge should find that the objective seriousness of the offences fell "between low and mid-range". As the passage from the sentencing remarks extracted above indicates, that is precisely the finding that the judge made. The fact that in arriving at the conclusion for which the applicant contended, he took into account something that the applicant now disputes is really of no moment. In any event, for the reasons discussed in relation to the conviction grounds, it was well open to the judge to describe the complainant as having an intellectual disability.

7. [82]

   In relation to the procedural fairness ground, the reference by the applicant to something not being indicated during the "sentencing submissions" is a little misleading. Written submissions were provided by both parties, but there were next to no oral submissions.

8. [83]

   The hearing commenced with discussion and clarification of what material was being relied upon and the formal marking of exhibits. There was no oral evidence. The complainant read her victim impact statement. Nothing was said about that in the hearing (or in the judgment). The transcript records that the judge immediately turned to a discussion with counsel about the length of the sentence: "It's a question of how long. Are we very far apart, gentlemen?" [42] The judge indicated he was thinking of individual sentences of 4 years with a non-parole period of 2½ years for "the digital" and 6 years for count 2, "so it's an effective 7 years with a non-parole period of 4 years 6 months". [43]

9. [84]

   The Crown Prosecutor indicated his assent to such a sentence. The judge and the applicant's counsel then said: [44]

10. [85]

    Counsel's express agreement with the sentence the judge proposed, and in fact imposed, denies this application for leave to appeal any merit.

Orders

1. [86]

   I propose the following orders:

2. [87]

   WRIGHT J: I agree with R A Hulme J.