GIOTAS v. REGINA

McCLELLAN, CJ. at CL : I agree with Hall, J.

HIDDEN, J : I agree with Hall, J.

HALL, J : On 5 April 2006, the appellant filed a notice of appeal against a conviction by a jury on 29 July 2005, of two counts of sexual intercourse without consent pursuant to s.61I of the Crimes Act 1900 (NSW) . Leave to appeal was sought to rely upon the first and third grounds of appeal, as no application was made to the trial judge for a direction in relation to those grounds. The trial was heard in the District Court of New South Wales at Sydney.

The four grounds of appeal sought to be relied upon were as follows:- (a) His Honour erred in not giving a direction about the failure to give evidence. (b) The closing address by the Crown constituted a miscarriage of justice in that it contained submissions that were unduly emotional and mis-stated the evidence. (c) His Honour erred in not giving a Longman direction. (d) The trial miscarried because of the absence of new evidence.

Following submissions made on behalf of the appellant and on behalf of the Crown, the Court adjourned and subsequently the presiding judge, his Honour McClellan, CJ. at CL. announced that the Court had determined that leave to appeal should be granted to the appellant, that the appeal should be upheld, that the conviction be quashed and that a new trial be ordered. Orders were made accordingly on 21 July 2006. McClellan, CJ. at CL. stated that the reasons for the Court’s orders would be published in due course. These are those reasons.

Mr. M. Thangaraj of counsel, who appeared with Mr. R. O’Gorman-Hughes on behalf of the appellant, but who did not represent the appellant at the trial, submitted that fundamental errors of law had occurred in the summing up such that the convictions ought to be quashed, notwithstanding that leave was required pursuant to rule 4 of the Criminal Appeal Rules made pursuant to the Criminal Appeal Act 1912 .

The Court concluded, following submissions made on behalf of the appellant and the Crown, that the learned trial judge had erred in failing to give a direction in relation to the accused’s failure to give evidence. In the unusual circumstances that arose at trial, we consider that the error led to a miscarriage of justice such that the orders of this Court made on 21 July 2006 to which we have referred were the appropriate orders to be made.

By reason of the Court’s conclusions in respect of the first ground of appeal, it is unnecessary for the disposition of the proceedings that consideration be given to Grounds 2, 3 and 4 of the Grounds of Appeal set out in paragraph [4] above.

Before setting out the facts relevant to the two counts with which the appellant was charged, it is as well to state, by way of overview, that there were three matters which were central to the first ground of appeal as follows:- (a) The trial judge indicated that he did not propose to give any direction concerning the appellant’s failure to give evidence. Counsel for the appellant acquiesced in the course pursued by the trial judge. (b) The trial judge’s failure to give the direction assumed enhanced significance given that the Crown, in its closing address, emphasised that, in certain respects, the “only” evidence before them was that of the complainant and in the course of the summing up, the trial judge drew to the jury’s attention that there was only evidence of two acts and no actual evidence that there was only one act of intercourse other than a note by the examining doctor, Dr. Larsen. (c) The weight of the evidence at trial on a number of issues referred to below was such that it was important that a direction be given to the jury concerning the accused’s failure to give evidence. Facts

The appellant is 36 years of age and was, at the material time, a principal of a real estate agency. The complainant was employed at the agency as a receptionist. The complainant gave evidence that she had started working full-time at the agency in February 2001. She was 21 years of age at the date of the alleged offences.

The complainant gave evidence that she had limited contact with the appellant in the workplace and that they did not socialise outside work.

The defence was that there was only one act of sexual intercourse and that it was consensual. At the time of the relevant events the complainant had been living with her boyfriend.

On the morning of 2 August 2001, the appellant telephoned the complainant and requested her to come to premises, referred to in some of the evidence as rented residential premises, and collect a contract from him to be delivered to a solicitor. The evidence was that she had undertaken a task of this kind on a few previous occasions.

The complainant asserted that she saw the appellant at an upstairs window of the premises fronting Marrickville Road. The premises were above a caf� at that location.

At the trial there was an issue as to whether the appellant could have been upstairs as claimed, for it was asserted that the upstairs floor of the premises had been occupied by the Salvation Army. In addition, there was an office at that location with up to 12 people present. It was contended that this made the evidence given by the complainant highly unlikely to be truthful and also told against a violent sexual assault taking place.

There was also evidence adduced at trial that the windows only opened to a degree which would make it difficult for the appellant to have been in the room leaning out of the window. Hospital notes were said to be contradictory in that there was reference to the fact that the appellant “met her outside and asked her to come around the back” . The complainant denied having said this to the doctor. Additionally, in a compensation claim, the complainant is said to have told a counsellor that she saw the appellant “… standing outside the caf� at the back near the door” .

Whilst sitting in the room the appellant opened a packet of cigarettes and offered the complainant one which she took. He told the complainant to sit with him and to tell him what was happening at the office. The complainant smoked some of the cigarette and then sat with the appellant on the edge of the bed.

The evidence led in the Crown case was that as the complainant reached for an ashtray, the appellant grabbed her hair and pulled her down. She protested and kicked out at him. The appellant, according to the evidence, then got on top of her.

According to the complainant’s evidence, he held her hair tightly and engaged in an act of sexual intercourse (Count 1). The complainant struggled and it is said that the appellant ejaculated and then rolled the complainant onto her stomach. The evidence was that whilst behind her, a second act of sexual intercourse took place (Count 2). The complainant’s evidence was that when the appellant climbed off her, he told her to get dressed and not to tell anyone.

The appellant’s case at trial, as put to the complainant, was that she had sex with him, that it was enthusiastic and passionate and that it lasted over a 40 minute period, that the complainant was keen for it to come about for reasons best known to her and that she had made a false claim concerning the matter.

It was put by the trial judge to the jury in his summing up (p.2):- “In this case it is common ground that acceptance beyond reasonable doubt of the thrust of what (the complainant) says is fundamental to the Crown case.”

The trial judge also accurately summed up to the jury that (p.4):- “The matter which has been centrally in dispute in this case is Count 1, whether intercourse was not consensual, and in Count 2, whether sexual intercourse occurred at all.”

The trial judge added (p.5):- “The accused says that the first act occurred, but with consent and that the second act did not occur at all.”

In summary, the appellant’s case was that he and the complainant had engaged in a single act of consensual intercourse and that she had fabricated her complaint to obtain a substantial payment for damages from him.

The complainant gave evidence that upon leaving the premises she walked to a nearby hotel. When she was in a toilet cubicle she noticed blood on her underwear, legs and stomach. She said she washed herself and then left and walked towards work feeling dizzy and light headed. At the office, she saw a work colleague, who need only be referred to as “DT”. He asked her what was the matter and told her that she looked like she had been “roughed up” . She told him that she was alright. She worked for two and a half hours and then left for home.

The complainant’s evidence was that on the way home she stopped at a phone booth and called the number for the Rape Crisis Centre. She heard a recorded message asking her to leave details and then hung up.

The complainant went home and went to bed. Later, her boyfriend came and asked her what was wrong. She told him that she was “stressed out” .

The next morning, after her boyfriend left, she called the Rape Crisis Centre again and she was this time advised to see the Sexual Assault Team at the Royal Prince Alfred Hospital. She saw a counsellor there at approximately 6.00 pm and told the counsellor what had happened. She was told that she would need to be checked by a doctor and that she may have to wait for up to six hours to see the doctor. The complainant explained that she needed to see her boyfriend who was not aware of the sexual assaults and she left stating that she would return later.

The complainant returned home where her boyfriend was waiting for her. She told him that she had been at the hospital and needed to return. She intimated that she had been there because someone had done something to her. He drove her back where she saw the counsellor at 10.00 pm. The complainant then saw a doctor at about 1.00 am the next morning.

The account given by the complainant to the doctor was a central matter at the trial. The complainant agreed that she was aware of the fact that she had to give as much detail as possible to the examining doctor and that the results were important and could be used for police action.

Dr. Larsen’s notes indicated that there had been only one act of intercourse about which complaint had been made. The complainant described in detail what had allegedly happened on 2 August 2001. The Crown, in its address, suggested that the reason for having only mentioned the one incident to Dr. Larsen was perhaps by reason of the fact that the complainant was embarrassed by the presence of her boyfriend. Counsel for the appellant contended that an analysis of the evidence given by the complainant hardly made such an explanation a credible one.

The evidence given by her was challenged insofar as it asserted that there were two ejaculations in quick succession, the complainant saying there had been a few minutes between each. In the defence closing address it was emphasised that this evidence was highly unlikely. It was on this matter that the appellant sought to rely on new evidence to rebut the suggestion made in this respect. In the written submissions on his behalf, it is acknowledged that this was very important evidence that could have been called at the trial.

The complainant had told police that she had felt a sharp pain in her vagina and stomach when she stepped on the left foot. However, she told Dr. Larsen that the pain came from walking on the right leg. Whichever leg it was, she had asserted that she had sharp pain. Another counsellor at the Royal Prince Alfred Hospital had recorded a history that after the assault the complainant was too scared to walk outside.

The complainant denied being at the office all day on the day of the alleged offences. When questioned as to what she did the day after, she said that she was “walking around all day” , notwithstanding the evidence given as to her condition at that time.

A further matter emphasised in the submissions on behalf of the appellant was that she had complained that she had received red welts on her leg and that these had turned to bruises. However, the doctor did not note any such marks. It was also observed in the written submissions for the appellant that the workers compensation claim form filled out made no mention of bruises or welts to the thighs or legs.

The complainant claimed that on returning to the office following the alleged assaults, a male work colleague commented “you look like you’ve just been roughed up” . The colleague first stated in evidence that the complainant must have been distressed because she did not answer his question. It is said that this aspect of his evidence had an element of speculation within it. More importantly, the work colleague in question denied that he had said anything about her looking “roughed up” . In the submissions of the appellant, it was asserted that one could understand the complainant looking flustered, red in the cheeks and not very talkative if she regretted being unfaithful to her boyfriend or regretted having intercourse with her boss. This, however, is stated to have been very different to being “roughed up” .

The fact that the complainant did not tell her boyfriend what had happened on the day of the alleged sexual assaults was also relied upon as inconsistent evidence. It is said that the complainant’s contention that she had rung the Rape Crisis Centre on the day of the alleged incidents had not been recorded in her statement.

The question as to whether the complainant had returned to work but only for a short time, as she claimed, was said to be doubtful, having regard to the evidence of a witness who worked in the agency at the time to the effect that had she been absent for a prolonged period, then that would have been noticed but was not. (a) Credibility issues

The complainant’s credibility was challenged on two other matters relating to past history. The first related to the statement of claim that had been issued seeking damages in relation to the incidents said to have occurred on 2 August 2001. The complainant agreed that all the factual allegations contained within the document were related to her solicitor by herself. The complainant sought money for methadone as a result of an addiction “to drugs following the assault” . The complainant was alleging that she had become a heroin addict after the alleged assaults and compensation was sought for the resulting need for methadone.

The complainant asserted that her solicitor had been aware of the fact that “I’d already been on methadone previous to (the assault)” . The complainant was also cross-examined about pleading guilty to being knowingly concerned in the possession of a traffickable quantity of heroin for sale or supply. In short, the complainant had been addicted to heroin prior to the alleged assaults.

The complainant was also cross-examined about a particular incident in which she had given a false name to police and to a security guard after some shoplifting. She agreed that she intended to deceive and hoped to get out of trouble. It was noted that the actual theft was not denied and there was a plea entered to a charge of misleading police. (b) The medical evidence

At the trial, the appellant sought to rely, not only upon inconsistencies said to have existed within the complainant’s evidence, but also between her evidence and that of Dr. Larsen to argue that there was a single act of intercourse.

Dr. Larsen was an expert in sexual assault medical work and had seen many patients over the years. In evidence in chief, she said that the findings were consistent with sexual assault, however, in cross-examination she agreed that the findings were also consistent with vigorous consensual sex.

In the written submissions on behalf of the appellant, it was observed that, in cross-examination, Dr. Larsen agreed to the following matters, three aspects of which were given particular emphasis. “In cross-examination, the doctor agreed to the following: (emphasis added) - She had no independent recollection apart from the notes: (T135.7) - She knew that the history she was taking would be brought up in court (T135.25) - She was specifically looking for the number of sexual acts (T135.37) - The notes were being taken down as close to verbatim as possible (T136.54) - She was only ever told of one act of penetration and that was what she recorded (T137.25) - She was trained to look for and record bruises and redness but she did not record any such injury or red welts (T138) - the findings were also consistent with vigorous consensual sex (T141.21).” Ground 1: His Honour erred in not giving a direction about the failure to give evidence

Counsel appearing for the appellant at trial (who, as earlier stated, was not counsel appearing before this Court) made a decision not to call the appellant to give evidence. This was referred to in Mr. Thangaraj’s written submissions (paragraph 41) as being “a bold decision” .

The trial judge had drafted proposed directions. Counsel for the appellant on this appeal observed that counsel for the defence at trial had made it clear that he did not know what the law was in relation to directions to the jury concerning the failure of an accused to give evidence. The following passages in the transcript at p.144.20 were the subject of specific attention in the submissions for the appellant:- “HIS HONOUR: Just read them overnight if you would because there’s always some (COUNSEL): I will, your Honour. There’s one thing to give some consideration to, I don’t know what they do anymore here. Practising between two countries and the law changing so quickly in New South Wales, you never quite know. But my client, as I’m present (sic) instructed, won’t be giving evidence tomorrow. I don’t know these days if there’s any direction that’s regularly given or not. HIS HONOUR: All I say is the burden of proof on the prosecution. COUNSEL: I am happy with the way it is your Honour. I’ve always thought it’s better not to highlight these things. HIS HONOUR: I don’t intend to say anything about it .” (emphasis added)

It was submitted on this appeal for the appellant that one may conclude from the trial judge’s comments that he never held any intention of giving the direction notwithstanding what has been said as to the importance of the right to silence by the High Court: Glennon v. The Queen (1993-1994) 179 CLR 1 at 8 and the fact that the direction concerning an accused’s failure to give evidence is one that is “almost always desirable” to give: Azzopardi v. The Queen (2001) 205 CLR 50 at [51]. The directions which the trial judge had prepared did not include any direction concerning the appellant’s failure to give evidence.

In Azzopardi (supra) Gaudron, Gummow, Kirby and Hayne, JJ. stated:- “In the course of argument of the present matters, it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused’s silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial, it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt …”

A number of propositions may be derived from Azzopardi and other relevant authorities. They include the following:- (a) The High Court did not state in Azzopardi that it was mandatory or compulsory to give the suggested direction in every case, or even in almost every case: Regina v. Wilson [2005] NSWCCA 20 at [15] per Hunt, AJA. with whom and Grove and James, JJ. agreed. See also Regina v. Richards [2002] NSWCCA 38 at [29] and Regina v. Park [2003] NSWCCA 203 at [94]. (b) There is, accordingly, an element of discretion that resides in the trial judge as to whether a warning or direction of the kind in question is given: Regina v. SMR [2002] NSWCCA 258 at [105]. The failure by counsel for the defence to seek a direction may, in light of particular matters as, for example, where an ERISP that is in evidence contains consistent denials (as in SMR ), permit a trial judge to exercise the discretion against giving such a direction. See also Regina v. Graham [2005] NSWCCA 127 at [25] and Wilson (supra) at [32]. In this respect, however, each case will very much turn on its own factual circumstances. (c) In determining whether there was error in the omission by a trial judge to give an Azzopardi direction, it is necessary to determine whether it was “desirable” for such a direction to be given (or any ingredient of it) on the facts of the particular case: Wilson (supra) per Hunt, AJA. at [19]. (d) An Azzopardi direction cannot be shown to have been “desirable” merely by demonstrating that there was nothing in the facts of the case which would make such a direction inappropriate: Wilson (supra) per Hunt, AJA. at [19]. (e) In order to establish that such a direction was “desirable” , it is necessary to explain why that is so. Accordingly, the basis or bases for so concluding should be identified. This will assist in determining whether the absence of the direction led to a loss of a chance fairly open to an appellant of acquittal: Regina v. Burns [2003] NSWCCA 30 at [50] and Regina v. Le [2003] SASC 2 at [30] and Wilson (supra) at [21] and [25]. (f) In the application of rule 4 of the Criminal Appeal Rules , the failure to give an Azzopardi direction must be considered in the context of the trial’s course, the absence of any request by defence counsel for a direction and the weight of the evidence against the accused: see by way of example Richards (supra) at [31] per Levine, J. with whom Hodgson, JA. and Howie, J. agreed.

I am of the opinion that it was both desirable and in the particular circumstances of this case, necessary that an Azzopardi direction be given. I accept the submission made by Mr. Thangaraj of counsel that this was a case, involving alleged sexual assault where the dispute in large measure involved the acceptance of the complainant over the denials of the appellant. Furthermore, I accept the submission that this was a case in which a full Azzopardi direction was warranted.

In this respect, I also take into account the evidence given by Mr. Ford who gave evidence in the Crown case that he spoke to the appellant after he had heard that the complainant was alleging that the appellant had sexually assaulted her. During that meeting, the appellant, according to Mr. Ford, told him that, “I knew this would happen, it’s a set-up” and that the appellant had maintained that he had had consensual sex with the complainant at the flat above the caf�. According to Mr. Ford’s evidence, the appellant had also stated that he was consoling the complainant about her relationship problems before the sexual activity took place.

This is not a case in which an accused, not having given evidence, had the benefit of the admission into evidence of any exculpatory account given by him during the course of a police interview unlike, for example, occurred in SMR (supra); Graham (supra) and Wilson (supra) as discussed in paragraph [49] of this judgment. In the circumstances of these proceedings, the strong challenge made to the credibility of the complainant, the failure by the appellant to give evidence, and the absence of a full Azzopardi warning, were all factors which support the proposition that the jury may well have impermissibly used the silence of the appellant to his detriment, in particular, with respect to his failure to effectively verify his claimed version of events as related to Mr. Ford.

It is apparent that neither defence counsel nor the trial judge gave any or adequate consideration to the question as to whether or not an Azzopardi direction was desirable in the circumstances of the case. I am of the opinion that this Court should accept the submission made on behalf of the appellant that the statement that was made by defence counsel that it was better not to highlight matters was, in the circumstances, wrong and inconsistent with the principles stated by the High Court in Azzopardi . I further accept that he should not be penalised for that “flawed view” , as it was expressed in the appellant’s written submissions.

I should also observe that, not only would it have been evident to the jury that the appellant could have, but did not, give evidence, but that his failure to give evidence could well, in this case, have been taken by the jury as a matter of significance. In this respect, the Crown in its address at trial stated:- “Now, (defence counsel) also put to her that it was consensual sex and only one sex act, not the two. She denied it. She said, ‘no, there were two’. It was exactly what she said. But just because (defence counsel) puts a question, doesn’t make it evidence. The answer is the evidence or what (sic) witness says is the evidence. So there’s no evidence before you that it was anything but the two sexual acts that’s what she said . So the only evidence, and you have to decide, you are the judges of the facts, on the evidence, the only evidence you have before you is that they had sexual intercourse twice, not once, but twice and she didn’t consent.” (emphasis added)

Although this was not strictly a correct statement insofar as Mr. Ford had related the appellant’s account in which he claimed that the sexual activity was consensual, it nonetheless does emphasise that the complainant and not the appellant had given evidence and that the jury could proceed to analyse the evidence with that in mind.

In the written submissions for the appellant, it was also observed that the summing up contained statements about there only being certain evidence. The trial judge stated, in this respect:- “As to the question of how many acts of sexual intercourse were concerned, there is only evidence before you that there were two acts of sexual intercourse. There is no actual evidence that there was only one act of intercourse other than the note taken by Dr. Larsen. That is the evidence before you . But in the version that the accused gave to Mr. Ford, he does not go into details.” (emphasis added)

I consider that there is some force to the submission made that this observation did reinforce the fact that the appellant presented a certain defence, namely, that only one act occurred, but that he did not give evidence.

I, accordingly, am of the view that the first ground of appeal should be upheld and for reasons earlier stated it is accordingly unnecessary to consider the additional grounds raised as identified in paragraph [4] above.

In the circumstances, accordingly, I am of the opinion that the error made by the failure to give an Azzopardi direction was, in all the circumstances, an error that led to a miscarriage of justice.

The orders of the Court are, accordingly, as stated on 21 July 2006 and as referred to in paragraph [5] above.