Masri v R

1. [1]

   JOHNSON J: I agree with Davies J.

2. [2]

   PRICE J: I agree with Davies J and the order that he proposes.

3. [3]

   DAVIES J: The appellant was charged with four counts of indecent assault contrary to s 61L Crimes Act 1900 (NSW), seven counts of sexual intercourse without consent contrary to s 61I of the Crimes Act, and one count of attempted sexual intercourse without consent. The complainant in relation to all of the charges was a woman the appellant met through Facebook. All of the offences were said to have taken place on the same date within a timespan of approximately an hour.

4. [4]

   The appellant was tried before Judge North and a jury. The jury returned verdicts of guilty in relation to two of the counts of sexual intercourse without consent and one count of indecent assault. The jury returned not guilty verdicts in relation to the other nine counts. The counts were charged in chronological order and the counts in respect of which the appellant was convicted were the last three counts charged.

5. [5]

   On 29 March 2019 the appellant was sentenced to an aggregate sentence of four years imprisonment commencing 4 March 2019 and expiring 3 March 2023 with a non-parole period of two years and six months expiring 3 September 2021.

6. [6]

   The appellant appeals against his conviction. Although the notice of appeal relied on two grounds, counsel for the appellant abandoned the second ground at the outset of the hearing of the appeal. Accordingly, the only ground of appeal relied upon was as follows:

7. [7]

   Since the ground of appeal is confined, it is not necessary to set out in any detail the facts which gave rise to the charges. The following summary is sufficient for the purpose of understanding the appeal.

8. [8]

   At about 3:15pm on 3 October 2017 the complainant was at home alone studying. At about that time she received a friend request on Facebook from the appellant. The complainant and the appellant exchanged a number of messages up to approximately 6:00pm, at which time the complainant provided the appellant with her address, he having indicated a desire to come over to meet her.

9. [9]

   The appellant met her outside McDonalds at Bondi Beach. They subsequently entered the appellant’s car where the appellant tried to kiss the complainant. It was alleged that the first of the indecent assaults took place at that time when the appellant pulled the complainant’s t-shirt and bra down and put his mouth on her breast.

10. [10]

    The appellant then drove to a residential street in Bondi Beach where the remainder of the offences charged took place.

11. [11]

    The complainant gave evidence that she attempted to resist the appellant’s advances. She also gave evidence that she asked him to stop on a number of occasions and pushed him away on a number of occasions.

12. [12]

    At the conclusion of the events in the car the complainant said that she wanted to go home. The appellant drove her towards her address but at the ANZ Bank in Bondi Beach she asked him to stop the car where she alighted.

13. [13]

    Later that evening, the complainant messaged a colleague from work and said she wanted to talk to her. They spoke briefly on the phone where the complainant told her that a boy tried to kiss her in his car, but she did not relate anything else that had happened. The complainant messaged a friend who lived in France and told her what had happened. The French friend said that she should go to the police.

14. [14]

    The following morning the appellant sent the complainant a message to which the complainant replied saying that she did not want to talk to him. About three hours later she went to the police and reported the events to them.

15. [15]

    Some eight days later the complainant rang the appellant. The telephone conversation was lawfully recorded by the police. The phone call was interrupted and there was a second phone call when the appellant rang the complainant back.

16. [16]

    During the first phone call the following was said (inter alia), where V.1 is the appellant and V.2 is the complainant:

17. [17]

    In the second conversation the following was said, where V.1 is the complainant and V.2 is the appellant:

18. [18]

    Both parties appear to accept that the explanation for the different verdicts is that, at least in the last extract set out, and possibly earlier in the phone calls, the appellant’s statements suggested that he was reckless as to whether the complainant was consenting to the events that took place in the back of the car. Those events pertain to Counts 10 to 12.

19. [19]

    The issue at the trial concerned matters regarding consent by the complainant to the undisputed acts which occurred.

Ground of appeal

1. [20]

   On the afternoon of Friday, 22 February 2019 the trial judge said to counsel:

2. [21]

   On the morning of Monday, 25 February, the solicitor advocate for the Crown mentioned that he had sent through a document in answer to his Honour’s request. The following exchange then occurred:

3. [22]

   Counsel for the appellant then asked some further questions in chief of the appellant. Thereafter the following exchange occurred:

4. [23]

   Later, during an interruption to the cross-examination of the accused, the following exchange occurred:

5. [24]

   The parties accept that “the other question that was raised this morning” concerned the character evidence.

6. [25]

   At the conclusion of the appellant’s evidence the following exchanges occurred concerning the character evidence:

7. [26]

   After defence counsel closed his case, the following exchanges occurred:

8. [27]

   The following morning, Mr Brezniak raised two matters, neither of which concerned a character direction. His Honour then commenced his summing-up. There were three breaks during the summing-up. On each occasion, and at the end his Honour asked counsel if they wished to raise any matter. At no point did defence counsel say anything about a character direction.

Submissions

1. [28]

   The appellant submitted that his good character was relevant, not simply as to the likelihood of whether he committed the offences, but also as to his credibility. The appellant submitted that the case against him could be properly described as a "word on word" case, particularly insofar as the issue of consent was concerned. In that way, his character was capable of playing a significant role in the assessment of him and his account of the events. The absence of a direction or mention of the fact that he had no prior criminal history, were matters, which occasioned a miscarriage of justice.

2. [29]

   The appellant submitted that it was important for the jury to have evidence of good character and be given instructions on how to use it, because he gave evidence to explain the apparent admissions in the telephone intercept with the complainant. In that way his credibility was in issue. One limb of the character direction concerned credibility. The appellant also submitted that, because the jury had to be satisfied beyond reasonable doubt of the veracity of the complainant’s allegations, the direction was important for the second limb, namely, the likelihood of his having committed the offences.

3. [30]

   The appellant accepted that no direction had been sought from the trial judge and, therefore, that r 4 of the Criminal Appeal Rules applied. However, the appellant submitted that the circumstances disclosed a miscarriage of justice.

4. [31]

   The Crown submitted that it was clear from the way the character evidence issue developed and was dealt with, and by reference to defence counsel’s closing address, that not only was a tactical decision made not to ask for a character evidence direction, but that the decision was made on the instructions of the appellant.

Determination

1. [32]

   In Simic v The Queen (1980) 144 CLR 319 the Court said (at 333):

2. [33]

   That decision was affirmed in Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32. Justice McHugh said at [30]:

3. [34]

   Justice Hayne said:

4. [35]

   The debate on the present appeal concerned whether the omission of the defence counsel to ask for a direction arose from a forensic or tactical decision or was a matter of inadvertence. If this Court can reasonably infer that a forensic decision was taken, it will be difficult for the appellant to establish a miscarriage of justice. Counsel for the appellant submitted that a reading of the transcript demonstrated the omission being one of inadvertence, and submitted that nothing was disclosed in the transcript suggesting a forensic decision had been taken. The Crown submitted that the transcript disclosed that the omission to seek the direction was done on the basis of instructions received from the appellant and not simply on the basis of a forensic decision taken by defence counsel.

5. [36]

   Nevertheless, because no direction was sought by defence counsel, rule 4 applies. The appellant must demonstrate that the absence of a direction led to a miscarriage of justice. This Court must be satisfied that the appellant has lost a real chance of acquittal.

6. [37]

   In ARS v R [2011] NSWCCA 266 Bathurst CJ (James and Johnson JJ agreeing) said:

7. [38]

   In Brown v R [2019] NSWCCA 269, Payne JA (Davies J and Hidden AJ agreeing) said of that passage in ARS at [40]:

8. [39]

   In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 the appellant complained that evidence of good character was not led and that this failure constituted a miscarriage of justice. Gleeson CJ said:

9. [40]

   Similarly, Gaudron J said:

10. [41]

    Justice Hayne said:

11. [42]

    In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 the appellant alleged that a miscarriage of justice occurred by reason of the incompetence of counsel. Having made reference to TKWJ, Gleeson CJ discussed the problems arising from a failure of counsel to take some action in respect of which Rule 4 might apply. His Honour then went on to say at [10]:

12. [43]

    Viewed objectively, an examination of what took place at the trial relevant to the matter of the appellant’s character leads to the firm conclusion that the decision of defence counsel not to seek a direction concerning character evidence was a forensic decision, and probably made on express instructions from the appellant. The following matters are relevant.

13. [44]

    Defence counsel said that his starting position that he would be seeking a full character direction given the availability of evidence of good character. That was followed by discussions both in open court and between counsel concerning that evidence and the evidence that might be led in rebuttal of it. What was said in open court (see at [21] above) is that there was a second complaint that the Crown was originally going to proceed in a joint trial with the trial involving the present complainant. There also appeared to be matters involving students at the school where the applicant taught.

14. [45]

    At the end of the appellant’s evidence in chief, the Crown conceded that the appellant had no previous recorded criminal convictions.

15. [46]

    The subsequent discussions, particularly concerning what was said by this Court in R v Stalder [1981] 2 NSWLR 9, pointed to the likelihood of the Crown responding to any evidence of good character led by the appellant, with evidence likely to rebut that evidence. Defence counsel indicated that he needed to consider and obtain instructions about whether the character evidence should be called by him. After an adjournment, defence counsel indicated that he would close the defence case with calling that evidence.

16. [47]

    The appellant did not perform well in cross-examination. There were plain inconsistencies between his evidence and what he said in the telephone intercept. In defence counsel’s closing address, in making a brief reference to the appellant’s evidence, he said:

17. [48]

    Despite the solicitor advocate at the trial addressing for approximately one page of the transcript about the appellant’s evidence and drawing the jury’s attention to its shortcomings, all that defence counsel said about the appellant’s evidence at the very end of his address was this:

18. [49]

    Defence counsel concentrated most of his final address on attacking the evidence and credibility of the complainant. That approach in the final address certainly contributed to the acquittal of the appellant on the first nine counts in the indictment. Defence counsel’s decision not to focus on his own client is entirely understandable following the cross-examination.

19. [50]

    In the way that matters developed at the trial, particularly during the appellant’s cross-examination, it is tolerably clear that the omission of defence counsel to seek any form of character direction was not one of inadvertence but was a tactical decision seemingly taken on express instructions. When there had previously been extensive debate about the character evidence, it is difficult to conclude that defence counsel simply overlooked the need to seek such a direction. That is the more so when, at the request of the trial judge, he identified a number of matters about which he said directions should be given. The likelihood is that the issue of good character had retreated into the background of the trial by that point.

20. [51]

    Nor do I consider that the appellant establishes that he has lost a real chance, or a chance fairly open, of being acquitted. Contrary to the submission of counsel for the appellant, this was not simply a word on word case. The significance of what was in the telephone intercept was confirmed by the distinction the jury made between counts 1-9 on the one hand and counts 10, 11 and 12 on the other. There was more than sufficient material in the conversations in those phone calls to justify the verdicts on counts 10, 11 and 12 on the basis that the appellant was reckless as to whether the complainant consented to the sexual intercourse and the indecent assault, the subject of those counts.

21. [52]

    The only character direction that could have been given by the trial judge was that the appellant had no prior convictions and that the jury could use that when assessing his credibility and the likelihood of his having committed the offences. In the face of the appellant’s evidence under cross-examination, the way his evidence was dealt with by defence counsel in closing address and the material amounting to admissions in the telephone intercept, such a direction is likely to have made no difference to the outcome.

22. [53]

    In my opinion, rule 4 operates to preclude the appellant from relying on this ground of appeal. Since this is the only ground relied upon, leave to appeal should be refused.

Conclusion

1. [54]

   I propose the following order: