Mura v R

1. [1]

   MACFARLAN JA: Following a 12-day trial before Robison DCJ sitting as a judge alone, his Honour convicted Mr Rino Mura, the applicant, of three counts of participating as a client in an act of child prostitution contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW). Count 1 was alleged to have occurred between 15 March 2010 and 15 March 2011 with CL who was a child aged 15 years. Counts 2 and 3 were alleged to have occurred between 1 May 2011 and 1 January 2012 with TB who was a child aged 15 or 16 years. A child for the purposes of s 91D(1)(b) is a person under the age of 18 years (s 91C Crimes Act).

2. [2]

   His Honour acquitted the applicant on two counts of possession of child abuse material (Counts 4 and 5).

3. [3]

   The applicant’s sole ground of appeal is that the trial judge ought to have entertained a reasonable doubt as to the applicant’s guilt in respect of each of the offences of which he was convicted. This ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW) which, subject to a proviso which is not suggested to be applicable in the present case, requires this Court to quash a conviction if it concludes that it is “unreasonable, or cannot be supported, having regard to the evidence”. The principles to be applied in respect of such a ground are well known and need not be repeated. They were summarised by me in Hamilton v The Queen [2020] NSWCCA 80 at [66]-[68]. They are applicable to judge alone trials (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12]). As the applicant’s ground does not raise a question of law alone, he requires leave to appeal (Criminal Appeal Act s 5(1)).

4. [4]

   For the reasons appearing below, I consider that leave to appeal should be granted but that the appeal should be dismissed.

THE ISSUES AT THE TRIAL

1. [5]

   At the trial before Robison DCJ the applicant did not dispute that on separate occasions he had engaged the services of both complainants (neither of whom knew each other) for the purposes of prostitution, that the relevant acts of prostitution had occurred, that both the complainants were children at the time and that he had paid them for the acts.

2. [6]

   The only issue at the applicant’s trial was whether he knew at the times of the alleged offences that the complainants were under 18 years of age. The Crown accepted that it bore the onus of proving beyond reasonable doubt that the applicant had the requisite knowledge at those times.

3. [7]

   Prior to the acts of prostitution occurring a young woman referred to at the trial as AG had established a criminal enterprise involving the provision of child prostitutes by her to others. AG gave evidence at the trial that she had known the applicant since 2008 or 2009 and had met him through his girlfriend Karen. She agreed in evidence that she had previously pleaded guilty to child prostitution offences and robbery of the applicant, that she had been convicted and sentenced to imprisonment and that she had received a 40% discount on her sentence for her pleas of guilty and providing assistance to the police.

4. [8]

   AG arranged for the applicant to engage in the child prostitution that was the subject of the applicant’s convictions.

THE EVIDENCE AT THE TRIAL

1. [9]

   To prove the applicant’s knowledge of the complainants’ ages, the Crown relied at the trial, and on appeal, principally on evidence of conversations that CL and TB said that they had with the applicant in which their ages were referred to. It also relied on evidence of AG that was asserted to corroborate the alleged conversation between the applicant and CL about CL’s age. In addition, on appeal the Crown identified the following circumstantial evidence that was before the trial judge:

2. [10]

   The Crown also relied on the evidence of each complainant as cross-admissible tendency evidence in relation to the count or counts concerning the other complainant.

CL’s evidence of telling the applicant her age

1. [11]

   CL did not give evidence in person at the trial before Robison DCJ in October 2020. Her evidence in chief given at an aborted trial before Toner SC DCJ in July 2017 was played to Robison DCJ, as was cross-examination and re-examination of CL that occurred at an intervening trial before Wass SC DCJ in November 2017. Convictions resulting from the Wass DCJ trial were quashed on appeal.

2. [12]

   Before Toner DCJ, CL gave the following evidence in chief relevant to the issue of whether the applicant knew how old she was:

3. [13]

   CL was also cross-examined before Toner DCJ but the transcript of the cross-examination was not tendered at the trial before Robison DCJ.

4. [14]

   CL was cross-examined before Wass DCJ about the evidence that she gave before Toner DCJ:

5. [15]

   CL gave the following evidence in re-examination before Wass DCJ:

AG’s evidence of the applicant being told of CL’s age

1. [16]

   AG gave evidence before Wass DCJ as follows:

2. [17]

   AG was then cross-examined on her evidence as follows:

TB’s evidence of a conversation with applicant about her age

1. [18]

   TB gave evidence that “[w]ithin a couple of days” of the Count 2 offence occurring, she had a second meeting with the applicant at which an act of prostitution occurred (Count 3). She was asked as follows about whether anything happened on the way back from the hotel where the act occurred to AG’s house:

2. [19]

   Their car was not pulled over by the police and they continued back to AG’s home.

3. [20]

   TB was asked as follows about an interview she had with police:

4. [21]

   Attention was then drawn to the evidence she had given concerning the conversation with the applicant in the car as they drove past an RBT unit:

5. [22]

   The cross-examiner challenged TB’s evidence of the conversation in the car, including in the following exchange:

6. [23]

   Police gave evidence that the RBT unit was set up where described by TB in October 2011. In light of this it was able to be calculated that TB was in fact aged 16 years and 5 months at the time of the alleged conversation with the applicant.

THE PRIMARY JUDGMENT

1. [24]

   In his 68 page judgment the trial judge described at length the evidence and submissions at the trial. On the issues of present relevance, the significant parts of the judgment are as follows.

CL’s evidence regarding her age (Count 1)

1. [25]

   The trial judge said in relation to CL that he was “impressed with her evidence” and noted that he had taken into account the fact that she had a drug addiction “when it comes to the extent to which she could recall certain things”.

2. [26]

   His Honour referred to asserted inconsistences in CL’s evidence as follows:

3. [27]

   His Honour referred to CL’s cross-examination and said: “it's clear to me that there was an extent to which her age was communicated to the accused at the times indicated in this and other evidence”.

4. [28]

   The trial judge then referred expressly to CL’s previous cross-examination before Toner DCJ where she was asked, “What about Mr Mura, did he say anything to you”, and she responded “No”; and then later said (before Wass DCJ) that that was not a truthful answer. The trial judge said about this: “I would have to say that is a matter that touches upon the credibility of the witness and indeed the reliability of certain evidence of this witness”.

5. [29]

   The trial judge went on to say that: “it would seem to me that when it comes to certain essential and critical matters, her memory appeared to be relatively intact”. His Honour’s acceptance of CL’s evidence was confirmed by his ultimate finding that the applicant was aware that CL was under the age of 18 years and his Honour’s conviction of the applicant on Count 1.

6. [30]

   His Honour referred also to the evidence concerning text messages (see the final dot point of [9] above) and that of AG (see [16]-[17] above). His Honour did not make any express finding about AG’s evidence.

TB’s evidence regarding her age (Counts 2 and 3)

1. [31]

   The trial judge accepted TB’s evidence, stating:

2. [32]

   In relation to the conversation in the car when it was in the vicinity of an RBT unit, his Honour said:

3. [33]

   His Honour also said that the applicant “in my view would have left an indelible impression upon [TB’s] mind”, despite her drug addiction; and said “I was somewhat impressed with her demeanour and her evidence overall”. He observed that: “Yes, it has to be said, there have been inconsistencies in her evidence, and that gives rise for a close focus on the witness' reliability and credibility and to some extent her honesty”.

4. [34]

   The trial judge concluded his discussion on this issue:

Conclusions

1. [35]

   The trial judge rejected the applicant’s evidence that he believed that the complainants were at least 18 years of age, stating: “I find the evidence of the accused in relation to the first three counts on the indictment, particularly when it comes to the critical issue about the age, difficult to accept.”

2. [36]

   In relation to the counts of present relevance, the trial judge concluded as follows:

Count 1 – CL’s evidence

1. [37]

   On appeal the applicant submitted that the trial judge should not have relied on CL’s evidence in convicting the applicant on Count 1 because CL’s evidence that she informed the applicant of her age was not credible, in particular because in cross-examination she retracted the evidence she had given in chief. He submitted that her repetition in re-examination of the evidence she gave in chief did not repair the damage done to her credit by the cross-examination.

2. [38]

   This submission should be rejected because, when taken as a whole, CL’s evidence was consistently to the same effect and to the extent that a degree of confusion arose in her cross-examination, it resulted from a lack of precision in questions put by the cross-examiner.

3. [39]

   CL’s evidence was as follows. She said that she first met the applicant when the applicant came to AG’s house with his girlfriend Karen. The questions put to CL in cross-examination before Toner DCJ (and referred to in the cross-examination before Wass DCJ) assumed, without any basis in the evidence, that on this occasion all four persons (CL, AG, the applicant and his girlfriend) were in each other’s presence at all times and that there was a seamless single meeting between them. In fact, CL’s evidence in re-examination indicated that this assumption was unwarranted because, whilst initially all four were outside the house together, Karen went inside the house, leaving the others outside. The conversation that CL deposed to in chief then occurred in Karen’s absence, which is not surprising in light of its terms (it being suggestive of the applicant’s attraction to CL). There was then a conversation inside the house during which the four (together with CL’s cousin) were present but CL was not involved in the conversation: she listened to the others talking but they did not talk to her.

4. [40]

   CL’s answers in cross-examination to the effect that the “meeting” at AG’s house on that day took about half an hour, that none of the participants said anything to CL and that she did not say anything to the applicant (see [14] above at Q[5A] to Q[5K]) are readily explicable as a reference to the gathering inside the house that she described in re-examination.

5. [41]

   Towards the end of the cross-examination before Wass DCJ the following exchange however occurred (as also set out above in [14] at Q[20] to Q[21]):

6. [42]

   The answer of “nothing” was correct according to CL’s evidence, if the question were understood to relate to the half hour meeting inside the house during which nothing was said to or by CL. When CL was asked in cross-examination before Wass DCJ whether the answer above was correct it was however in a context in which it could well have been understood (and judging by her answers in re-examination, was understood) as relating to the occasion at AG’s house generally, that is, whether the people concerned were outside or inside the house. Apparently understanding it in this way, CL said the answer was incorrect because she had told the applicant her age when they were outside the house. This was confirmed by CL in re-examination before Wass DCJ.

7. [43]

   The confusion commenced when the cross-examiner before Toner DCJ asked how long did “this meeting” take without explaining to the witness (at least not in the cross-examination that was put in evidence before Robison DCJ) what part of the occasion he was referring to (see [14] above at Q[5A]). Thereafter he and the witness were to a significant extent at cross-purposes with the witness stating that she did not say anything to the applicant because the witness was referring to the gathering inside the house. The cross-examiner before Wass DCJ was then upbraiding her for giving evidence which was inconsistent with the evidence she gave in chief. The evidence in chief was not however inconsistent because the witness had been referring in chief to the gathering (which did not include Karen) outside the house. The witness made her understandable confusion clear when she said at one point in the cross-examination before Wass DCJ (see [14] above at the answer to Q[25]):

8. [44]

   In these circumstances CL could not fairly be regarded as in cross-examination having retracted her evidence in chief. As a result, her evidence did not suffer from the defect alleged by the applicant.

9. [45]

   Similarly, neither of two other matters referred to by the applicant indicates that it was unsafe for the trial judge to accept CL’s evidence. First, the applicant refers to CL’s “significant drug taking” but the primary judgment demonstrates that his Honour was well aware of this and took it into account in assessing CL’s credibility and reliability (see [25] above). Secondly, an assertion by the applicant that it was significant that CL professed no recollection of an event involving the applicant, AG, CL and CL’s aunt at a police station is at its highest simply a matter going to CL’s credit which could not, standing alone, require his Honour to reject her evidence as to the fact in issue, when his Honour had concluded after consideration of her evidence as a whole (including that concerning the police station incident) that it was reliable.

10. [46]

    The applicant further contends that AG’s evidence did not afford any satisfactory corroboration of CL’s evidence. It may be accepted that there were unsatisfactory aspects of AG’s evidence but it does not appear that the trial judge relied on it in any significant way. His acceptance of CL’s evidence on an uncorroborated basis was sufficient to justify his conviction of the applicant on Count 1.

Counts 2 and 3 – TB’s evidence

1. [47]

   On appeal the applicant asserted first that it was unreasonable for the trial judge to rely upon TB’s evidence to find that the applicant had the requisite knowledge that TB was under 18 years of age. The applicant relied in this respect on an asserted inconsistency between TB’s evidence of the relevant conversation and answers she gave to police in a formal interview.

2. [48]

   As noted above in [18], TB said that the applicant told her to tell the police, if his car was pulled over at the RBT unit that they were driving near, that she was 17 and was his niece. She said that she replied “why, I’m only 16?”. On the other hand, in an interview with police in April 2012 TB was asked how old she was at the time of the incident giving rise to Count 3 (and therefore on the day that she and the applicant drove near to the RBT unit) and she responded “nearly 16, I was turning 16… I was 15 turning 16”.

3. [49]

   As noted earlier, because the date on which the RBT unit was in place at the relevant location was proved at the trial, it was able to be calculated that TB was in fact 16 years and 5 months old on the day in question.

4. [50]

   I do not accept the applicant’s submission that these matters revealed a fundamental flaw in TB’s evidence. First, there is nothing surprising about a witness such as TB, when describing to police an event that occurred several months before, being mistaken as to her age when the event occurred. TB would not have been mistaken as to when her birthday was but she could well have been uncertain as to when precisely the event occurred. Such a mistake does not of itself give rise to a serious doubt as to the witness’ recollection of the event.

5. [51]

   Secondly, there was an apparent inconsistency between TB telling the police that she was 15 at the time of the incident and telling police at the same time that at the time of the incident she had told the applicant that she was 16. She however provided in re-examination a reasonable explanation for this apparent inconsistency, that is, that she “told everyone I was 16 back then”, presumably not including the police in her reference to “everyone”. That a young person would do that is not surprising. The trial judge was conscious of the apparent inconsistency but was not troubled by it, particularly in light of the re-examination.

6. [52]

   A further matter relied upon by the applicant on appeal concerns the timing of the conversation TB says that she had with the applicant concerning her age. The applicant refers in this regard to the fact that the conversation in the car to which TB deposed occurred after the act of prostitution which gave rise to Count 3 (albeit that it occurred on the same day) and in particular occurred after the act the subject of Count 2, which was even earlier in time. The applicant thus contends that TB provided no evidence that at the time of the alleged offences the applicant was aware of her age.

7. [53]

   In response, the Crown points to the evidence that the Count 2 act occurred only shortly before the Count 3 act – TB’s uncontested evidence was that there were a “few days” between them.

8. [54]

   The applicant’s submission should in my view be rejected as it pays no regard to the fact that, depending on the circumstances, “retrospectant evidence” may prove a fact in issue. As stated in J D Heydon, Cross on Evidence (LexisNexis, online ed at 14 September 2021) at [1170]:

9. [55]

   The principle is illustrated by the decision in R & B Customs Brokers Co Ltd v United Dominions Trust Ltd [1988] 1 All ER 847; [1988] 1 WLR 321 at 327 where there was an issue as to whether the buyer of a motor vehicle relied at the date of the sale upon the skill and judgment of the seller as to the condition of the vehicle. The Court held that evidence of reliance by the buyer two days after the contract was evidence of its state of mind at the date of the contract.

10. [56]

    The principle has been accepted in a number of recent cases including R v Biber [2018] NSWCCA 271 at [27], R v Musleh (No 5) [2018] NSWSC 1927 at [41] and Wright v Lemon (No 2) [2021] WASC 159 at [587].

11. [57]

    It was clear at the trial that the Crown’s case was that TB’s evidence of her conversation with the applicant concerning her age was evidence from which it could be concluded that the applicant was aware of her age three days earlier when the Count 2 act occurred (and, it followed, in respect of the Count 3 act which occurred very shortly prior to the conversation). The Crown expressly put that to the applicant in cross-examination and put it by way of submission to the trial judge (at tcpt, 22 October 2020, p 20; tcpt, 23 October 2020, p 67).

12. [58]

    The trial judge did not need to refer expressly to the point in his judgment because defence counsel did not submit to the contrary. Bearing in mind the availability of TB’s evidence of the conversation to support the convictions on both Counts 2 and 3, the circumstantial evidence referred to in [9] above and the availability of the evidence concerning Count 1 to be used on a tendency basis (being to have a sexual interest in young girls and to act on that state of mind), there was ample evidence to found his Honour’s conviction of the applicant on Counts 2 and 3 and to require the applicant’s contention on appeal that the verdicts and consequent convictions were unreasonable to be rejected.

CONCLUSIONS

1. [59]

   Having conducted an independent assessment of the evidence at the trial, both as to its sufficiency and quality, in accordance with the principles referred to in [3] above, I have concluded that it was well open to the trial judge to be satisfied beyond reasonable doubt that the applicant committed the offences charged in Counts 1, 2 and 3. In these circumstances, leave to appeal should be granted but the appeal should be dismissed.

2. [60]

   DAVIES J: From my own examination of the evidence, I consider that it was well open to the trial judge to be satisfied beyond reasonable doubt of the guilt of the applicant in relation to each of counts 1, 2 and 3.

3. [61]

   BEECH-JONES J: Subject to what follows I agree with Macfarlan JA’s reasons and proposed orders. I have reviewed the record of the trial and am satisfied that, upon a consideration of the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt of the accused’s guilt (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63; “M”). In addressing that question I have not disregarded or discounted the circumstance that the trial judge had the benefit of having seen and heard the witnesses (M at 493). To the contrary, in this case that benefit was considerable. Leaving aside the primary complaint about CL’s evidence which Macfarlan JA has demonstrated is based on a fallacy, even if the rest of the complaints about inconsistences in her evidence and that of TB were capable of raising a doubt in my mind, which they do not, they would nevertheless be matters that would be resolved by the advantage enjoyed by the trial in seeing and hearing the evidence given (M at 494).