Paulley v R

1. [1]

   THE COURT: The applicant, Jayden Paulley, faced trial by jury in the District Court together with his co-accused, Caleb Galey-Newbury. He was charged with six principal counts of a sexual nature (four of which were in company with Mr Galey-Newbury) and one principal count of choking, together with five alternative counts. The charges all involved events relating to one complainant, HM, occurring on the morning of 21 November 2021 at a home on the Central Coast of New South Wales, where the applicant lived with his mother.

2. [2]

   In October 2023 the jury returned a verdict of guilty on all of the principal counts. It was thus not necessary to take verdicts on the alternative counts. The trial judge, Bright DCJ, sentenced the applicant to an aggregate sentence of 17 years imprisonment commencing on 30 August 2023 with a non-parole period of 8 years 6 months.

3. [3]

   The applicant seeks leave to appeal his convictions on the following two grounds:

4. [4]

   The applicant needs an extension of time. His solicitor has provided an affidavit explaining that the delay related to issues of funding and obtaining the evidence in the trial. As shall be seen, the appeal has merit and therefore an extension of time should be granted.

5. [5]

   The applicant accepts that leave to appeal is required because the grounds of appeal involve questions of mixed law and fact pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). With respect to Ground 1, and perhaps also Ground 2, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) also means that the applicant requires leave in circumstances where no objection was taken by counsel for the applicant at trial to the matters now the subject of complaint. Given that there is merit in both grounds, leave to appeal on both should be granted.

6. [6]

   Ground 1 is made out. As for Ground 2, a number of the matters raised by the applicant give cause for concern. Taken as a whole, however, we do not consider that a miscarriage of justice has been established in relation to that ground.

7. [7]

   The respondent did not seek to rely upon the proviso with respect to either ground of appeal. The appeal must be upheld, the applicant’s convictions overturned, and the matter remitted to the District Court for a retrial.

8. [8]

   In what follows we first summarise the factual context (at [9]-[38]), then address Ground 1 (at [39]-[70]) before considering Ground 2 (at [71]-[198]).

Background

1. [9]

   The charges of which the applicant was found guilty were, in summary, as follows (noting that the first four of these charges were against both accused, proceeding based on an allegation of joint criminal enterprise):

2. [10]

   A first trial commenced on 19 September 2023. The jury was discharged on the fourth day due to potential jury misconduct. At that time the complainant was still giving her evidence in chief, which had been recorded. A second trial commenced the following week. The recording of HM’s evidence was replayed and supplemented by further oral evidence, followed by cross-examination. The applicant and Mr Galey-Newbury each gave evidence.

3. [11]

   The applicant and HM first met via Tinder. The complainant was 18 years old at the time. The applicant was aged 25 at the time of the trial so presumably was 23 at the time of the events in question. On 11 November 2021 HM went to the applicant’s home, being his mother’s house, and they had consensual sexual intercourse. They spoke about meeting again in the future.

4. [12]

   In the early morning of 21 November 2021, at about 5am, the applicant asked the complainant to come to his house. The complainant agreed and the applicant ordered her a taxi. At some point the applicant informed her that he had a friend over. Whether this was before or after HM entered the taxi, and HM’s reaction to this news, was the subject of competing evidence.

5. [13]

   When HM arrived at the house Mr Galey-Newbury was there with the applicant. In the applicant’s bedroom, both he and Mr Galey-Newbury snorted cocaine off HM’s unclothed backside. Subsequently, various acts of a sexual nature occurred which constituted the alleged offending conduct and which were the subject of competing evidence on the part of the complainant, the applicant and Mr Galey-Newbury.

6. [14]

   The Crown case was that the complainant was informed that the applicant had a friend over during communications she had with him during her taxi ride. The complainant said something like “Why is your friend there? You’re not – he’s not to touch me. I was coming to see you”. HM arrived at the applicant’s house at 6:06am. When the complainant entered the applicant’s bedroom, the co-accused was lying down on a mattress on the floor in the bedroom.

7. [15]

   The applicant produced a bag of cocaine and he told HM that they wanted to do cocaine off her backside. She bent over and the applicant lifted up her Oodie (a long warm top). The applicant and co-accused then snorted cocaine off her bottom. The complainant said to them “you’re both not fucking me” and “don’t put me on the spit”. Around this time the complainant consumed some cocaine as well.

8. [16]

   The applicant removed his shorts and said to the complainant, “Give me head”. The applicant knelt on the bed and put his penis into the complainant’s mouth for a few minutes. During this the co-accused was masturbating. The applicant ejaculated and continued touching the complainant. This conduct was not the subject of a charge.

9. [17]

   Mr Galey-Newbury then got a beer bottle from the wardrobe, opened it and passed it to the applicant. The applicant had a sip and then inserted the neck of the bottle into the complainant’s vagina (this being the subject of count 3). The applicant had his hand over the complainant’s mouth and told her to “be quiet” and “shut up”. The complainant said “get it out of me” and then put her hand down and removed the bottle.

10. [18]

    The applicant then put the complainant in a headlock while the co-accused touched her vagina and stroked his penis. She could not move and it was painful to her throat and neck. The applicant told Mr Galey-Newbury to place his penis in the complainant’s mouth. Mr Galey-Newbury did so and forced the complainant to give him oral sex (count 1). She said “stop, get it out” but he continued. He eventually pulled it out, masturbated and ejaculated on her face.

11. [19]

    Mr Galey-Newbury lay down on the bed. The applicant guided the complainant towards the co-accused so that she was sitting on him and leaning forwards. The applicant put his penis into her anus “a little bit” (count 6). The complainant told the applicant “get it out” and he removed it. Around the same time, the co-accused was touching her vagina while he masturbated (count 8). After the complainant had told the applicant “get it out”, the co-accused grabbed the complainant’s face and said “look at me” and the complainant took his hand off her face and said “get off me”. She immediately got off the co-accused.

12. [20]

    The co-accused abruptly got dressed and left the room. The complainant did not see him again. The applicant took the spare mattress outside the bedroom.

13. [21]

    The complainant’s vagina was hurting and she noticed that she was bleeding. The complainant told the applicant that she had to leave, but he responded “you’re not leaving”. He lay down on the bed and the complainant did too. The applicant went to sleep. Around this time the complainant texted a friend.

14. [22]

    When the applicant woke up he put the complainant’s hand onto his penis and had her perform a “hand job”. The complainant and the applicant then had penile-vaginal intercourse (count 10), during which the applicant said “do you like it when I rape you?”. She replied “yes” and he said “Tell me you like it when I rape you”. She was in “auto mode”. The applicant was behaving quite aggressively towards the complainant during this intercourse. He put his hand around the bottom of the complainant’s throat and choked her (count 11). She said “stop” and “it’s hurting me” and he removed his hand.

15. [23]

    The applicant then started filming their intercourse without the complainant’s consent (this part of the intercourse being the subject of count 12). The filming occurred twice.

16. [24]

    At 8:17am the complainant again texted her friend and left the applicant’s house shortly afterwards. Over the course of the day the complainant told a number of people at least parts of what had occurred, one of whom called an ambulance which took the complainant to Gosford Hospital. At the hospital a sexual assault investigation kit was performed, photographs of HM’s injuries were taken, and she spoke with police. She suffered a laceration to her cervix and experienced bleeding over “a couple days” and needed to return to the hospital to have the injury checked.

17. [25]

    HM did not consent to any of the charged sexual activities with the two accused.

18. [26]

    After their first consensual encounter, the applicant considered that he and HM had “unfinished business” as she had not had an orgasm on that occasion. On the night of 20 November 2021 the applicant went out for dinner and drinks with the co-accused and another friend. He and the co-accused took a taxi home soon after 5am on 21 November 2021. During the taxi ride the applicant called the complainant (via Snapchat) to come over to his home. He told her “I’ve got a mate staying over as well on the mattress. Is that okay?” to which she said “Yes that’s fine”. The applicant ordered the complainant a taxi.

19. [27]

    While the complainant was in her taxi, the applicant asked her “Can we snort coke off your ass?” and she said “Yes”. The complainant messaged saying “Oh, Youse aren’t put me on the spit” and “Well, your mate’s not touching me”. The applicant considered “that was just out of nowhere”. He told her: “Yeah, all good. I never said he was going to touch you. I said he was going to sleep on the mattress”.

20. [28]

    The applicant and co-accused grabbed the spare mattress and set it up in the applicant’s bedroom. The applicant also obtained some beers, which the two accused started drinking in the bedroom. When the complainant arrived at the house, the applicant took her to his bedroom and introduced her to the co-accused. They had a general chat about what they had been up to that night. The applicant then produced a bag of cocaine and asked the complainant: “Oh, are we still good to rack it off your ass”. The complainant agreed and positioned herself on her hands and knees. The applicant lifted the complainant’s Oodie and he and the co-accused consumed the cocaine off her bottom. The applicant also poured some cocaine on his phone which was consumed by the complainant.

21. [29]

    The applicant and complainant started kissing and he started putting his fingers in her vagina. At the time the co-accused was on the mattress. The complainant tried to reach over to get him involved, trying to grab around his crotch, but he said “No, I’ve got a missus” (referring to his partner, Jacinta). The applicant then grabbed the mattress and pulled it out into the loungeroom, next to the bedroom, and the co-accused left the bedroom.

22. [30]

    The applicant returned to the bedroom and he and the complainant started having penile-vaginal sex. At one point he was on top of her and had his hand on her throat. He gave evidence that there was “nothing malicious in the choke or anything. It was just because, obviously, we spoke about rough sex and that was just rough sex”. He explained that they had spoken about rough sex over Snapchat.

23. [31]

    During the intercourse the applicant’s penis began going “soft” so he started “fingering [the complainant] and tried to put my penis in again, but it just – it just wasn’t working”. He then reached down on the floor and grabbed a beer bottle and asked “Can I use this?” and the complainant said “Yeah”. The applicant put the bottle into the complainant’s vagina four times. She said “Oh my god, oh my god” and he asked her to be quiet as he was concerned about his mother hearing. He started fingering her again to try to get his penis erect, but that did not work.

24. [32]

    The applicant and complainant then lay down in bed.

25. [33]

    There is no dispute that the applicant and the co-accused exchanged the following text messages on the morning of 21 November 2021 (a transcript of these was admitted as Ex JP3):

26. [34]

    The applicant said that when he was telling his co-accused he did nothing, he meant “I wasn't going to tell his missus that he was in the room when he snorted coke off her arse”.

27. [35]

    At some stage the co-accused came to get his shoes and shirt from the applicant’s bedroom. The applicant said Mr Galey-Newbury was quite distressed at that time.

28. [36]

    The applicant then fell asleep. When he woke up, he asked the complainant if she would like to have sex again, and she said yes. She then performed oral sex on him after which they had further penile/vaginal sexual intercourse, parts of which he filmed. At one stage it can be seen that she tried to block him filming with the camera; he told her to “Shut the fuck up”. He said this “was just dirty talk”, and added: “Like, I never hit her or anything. Never did any of that. Straight after that, like, we stopped having sex. She told me she had to go to work and, like, that was just out of - out of nowhere.” She then “jumped up, just in, like, a hurry”, got dressed, and left.

29. [37]

    The applicant believed that HM was consenting to the activity he described. On his account there had been no sexual activity involving the co-accused, leaving aside the sniffing of the cocaine off her bottom.

30. [38]

    It is not necessary to go through the detail of the evidence given by Mr Galey-Newbury, who testified after the applicant. His version of events was to much the same effect as the applicant’s. One relevant detail is that he had texted his girlfriend Jacinta earlier in the night, before going to the applicant’s house, telling her that he had taken some cocaine.

Ground 1: consciousness of guilt lies

1. [39]

   Under this ground, the applicant complains that “a miscarriage of justice was occasioned because the Crown case was left to the jury on the basis that the accused’s version was a consciousness of guilt lie”. It is clear from the context of the argument that “the accused’s version” refers here to the entirety of the evidence that the applicant gave at his trial.

2. [40]

   The applicant submits that the Crown case invited the jury to engage in consciousness of guilt reasoning in three ways. First, to conclude that the text message conversation on the morning of the alleged offence (Exhibit JP3, set out at [33] above), in which the applicant suggested to his co-accused that they would say “nothing happened”, was a false account suggested or agreed to by the applicant because he was conscious of his guilt in relation to the charged offences. Second, to accept that the applicant and co-accused had colluded to come up with mutually false accounts in their evidence at trial, because they were each conscious of their guilt in relation to charged offences; and third, to reason that the accounts of both the applicant and his co-accused given in evidence were lies told because they were conscious of their guilt in respect of the charged offences. The applicant accepted that the first of those submissions was open to the Crown but submitted that the second and third were not. The applicant contended that the Crown Prosecutor’s erroneous invitation to the jury was not corrected in the trial judge’s summing up, with the result that the case was left to the jury on an erroneous basis.

3. [41]

   The respondent submits that, as a matter of principle, it is permissible for the Crown to rely upon particular aspects of the applicant’s evidence at trial as being lies evidencing a consciousness of guilt, without invoking impermissible circular reasoning. The respondent further submitted that the present is a case in which such an argument was available, whilst accepting that the argument was not put at trial in the same way or with the same precision that it was advanced in this Court. The respondent ultimately submitted that the way in which the trial judge left the case to the jury effectively limited the use of the lies to the text message conversation, and the applicant’s explanation for it. Accordingly, there was no error or irregularity which could realistically have affected the reasoning of the jury in the trial that was had: MDP v The King (2025) 99 ALJR 969; [2025] HCA 24.

4. [42]

   The respondent relied upon the absence of objection taken by trial counsel to the Crown Prosecutor’s address or to the summing up. Despite the proposed directions being discussed in advance with the parties, the trial judge was not asked by trial counsel to give any direction correcting the now impugned portion of the Crown Prosecutor’s closing address. In order to assess the significance of the absence of objection, and indeed the alleged error or irregularity itself, it will be necessary to review in some detail the way in which this issue developed at trial.

5. [43]

   In Dawson v R [2024] NSWCCA 98 Adamson JA (with whom Ward P and Payne JA agreed) summarised the common law position in relation to the use of lies as consciousness of guilt and the decision of the High Court in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 at [134]–[138]:

6. [44]

   Difficulties arise when proof that the accused’s statement is a lie can only be achieved by proof of the offence. Whilst the issue in Edwards arose in the context of the now obsolete legal requirement for corroboration in sexual offences, the reasoning remains apt when the lie is relied upon as an admission. In Edwards at 198 Brennan J held:

7. [45]

   Similarly, Deane, Dawson and Gaudron JJ held at 208:

8. [46]

   The Crown is not precluded from relying upon a particular representation as what has become known as an “Edwards lie” only on the basis that it is a lie told by the accused in their evidence (as compared with a statement made out of court). However, where it is only possible to conclude that an accused has lied, whether in his evidence or otherwise, by first being satisfied of his guilt of the offence charged, then the reasoning will be circular and the lie cannot be used as evidence of guilt: R v Zheng (1995) 83 A Crim R 572 at 576-577; R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309 at [14].

9. [47]

   There was no dispute that the applicant and his co-accused Mr Galey-Newbury exchanged the text messages that became Exhibit JP3 at trial. In cross-examination, the Crown Prosecutor put to the applicant that the purpose of the text exchanges amounted to “coming up with” a version of events and “an agreement” between the co-accused that they would not tell anyone the truth about what happened in the bedroom. The applicant’s evidence was that the conversation was concerned only with ensuring that Mr Galey-Newbury’s girlfriend did not discover (from either the applicant or Mr Galey-Newbury) that he had snorted cocaine from the naked body of another woman. It was the applicant’s case that only to that limited extent did the exchange contain an agreement to give a false account of events. Whilst the Crown Prosecutor cross-examined in quite some detail with respect to the message exchange, the portions of the cross-examination in which the competing positions are most directly exposed are as follows:

10. [48]

    In his closing address, the Crown Prosecutor made the submission that the text messages demonstrated an agreement reached between the two accused to give a false account about what happened in the bedroom. He urged the jury to reject as unbelievable the applicant’s contention that his (or Mr Galey-Newbury’s) concern was solely with the cocaine. He referred to the evidence of Mr Galey-Newbury that he was “pretty frightened” at the time he asked the applicant not to tell his girlfriend what happened. He submitted that the jury should find that the extent and nature of the messages revealed a concern about something “far more serious”, namely, a violent sexual assault. It may be observed at this stage that such a submission was an orthodox way for the Crown to rely upon a lie or lies told by an accused as revealing a consciousness of guilt of the offences charged. As noted above, the applicant makes no complaint about this aspect of the Crown case. Rather, the applicant’s complaint concerns what followed.

11. [49]

    A little later in the cross-examination, the Crown Prosecutor cross-examined the applicant to suggest to him that, following receipt of the brief of evidence, he had spoken to his co-accused about the version that they would each give in court: the Crown Prosecutor described this as a “mutually false account”. The applicant agreed that he had spoken with Mr Galey-Newbury “about the allegations” (albeit the timing of this was imprecise) but denied colluding to give a false account. Mr Galey-Newbury made a similar denial.

12. [50]

    As the end of the defence case approached, the trial judge provided the parties with a list of proposed directions and inquired of the Crown what use would be made of JP3 in his closing address, making clear that the judge wished to know this in advance. The Crown Prosecutor responded that “on their cases, the evidence that they’ve given, it is consciousness of guilt”. He also made reference to “going to the jury about mutually false cases”.

13. [51]

    In the first portion of his closing address, the Crown Prosecutor introduced the topic of mutually false cases as follows:

14. [52]

    The Crown Prosecutor addressed the jury about the text messages in some detail. The following extracts illustrate the way in which the submission was put (emphasis added):

15. [53]

    At the end of that day, prior to the conclusion of the Crown address, and in the course of discussion about directions, the trial judge raised the subject of consciousness of guilt again:

16. [54]

    The following day, the Crown Prosecutor continued his closing address. When he came to the topic of lies, he said as follows (emphasis added):

17. [55]

    It was apparent that this did not reflect the submission that the trial judge had understood the Crown Prosecutor would make concerning consciousness of guilt. Her Honour raised the issue:

18. [56]

    The decision in Boykovski and Atanasovski (1991) 58 A Crim R 436 (provided to the trial judge) concerned a trial in which the co-accused were charged with deliberately lighting a fire to destroy their furniture shop which was suffering financial difficulties. Each accused gave evidence that they were both present at a soccer club elsewhere at the time of the fire. In the course of rejecting an unreasonable verdict ground, a majority of the Victorian Court of Appeal decided that it was open to reason that the giving of identical alibis, if found to be false, was relevant to establishing a consciousness of guilt. It was upon this decision (and the decision of the Privy Council in Mawaz Khan and Amanat Khan v The Queen [1967] 1 AC 454 considered therein) that the Crown Prosecutor based his concept of a “mutually false” version.

19. [57]

    As outlined above, as a matter of principle, where a statement about a particular matter is able to be proved false by circumstantial evidence, it may be open to the Crown to rely on such as a consciousness of guilt lie, even when the statement is made in court. An alibi is a particularly clear example of evidence which may fall into this category. Similarly, in Lane, the accused’s claim that she had given her newborn baby to another nominated person was capable of being proven to be factually false by a circumstantial case which did not depend upon proof that the accused had killed the baby.

20. [58]

    In the appeal, the respondent submitted that the present was a case where it was permissible for the prosecution to rely on lies in the applicant’s evidence for the purposes of consciousness of guilt reasoning. For example, the respondent pointed to the evidence of text messages providing a time frame; the evidence of the applicant’s mother as to when she saw Mr Galey-Newbury; and evidence of injuries to the complainant, as matters that could be relied upon to establish the falsity of the applicant’s assertion about Mr Galey-Newbury’s absence from the bedroom, without needing to be satisfied of his guilt of any particular offence.

21. [59]

    It is not necessary to resolve whether the available evidence in the present trial permitted the Crown to establish that this or any other particular assertion of the applicant in his evidence could be circumstantially demonstrated to be false consistently with the principles in Lane and related authorities. That is because, as senior counsel for the respondent properly acknowledged, the submission that was put by the Crown Prosecutor at trial was not articulated with the care and precision that would have been required in order to advance such an argument. That concession was both appropriate and necessary. What occurred was that the Crown Prosecutor sought to leave his case to the jury on the basis that the entire account given by the applicant in evidence was a deliberate lie capable of evidencing consciousness of guilt for the offences charged. There can be no question that the reasoning was impermissibly circular.

22. [60]

    The respondent submitted that this formulation did not occasion a miscarriage of justice, because the lies were ultimately left to the jury correctly by the trial judge in summing up.

23. [61]

    The trial judge provided her proposed direction to the parties in advance, and discussed it with them before giving it to the jury. The discussion proceeded as follows:

24. [62]

    Her Honour subsequently summed up to the jury as she had foreshadowed:

25. [63]

    Her Honour separately directed the jury in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, which included a direction in the following terms:

26. [64]

    In summarising each of the parties’ cases towards the end of the summing up, the trial judge said of the Crown case:

27. [65]

    Part of the applicant’s complaint about the Crown Prosecutor’s address is that it included what the applicant contends was an improper submission that the applicant and the co-accused had colluded at some time prior to trial, yet after the exchange of text messages in JP3. As the respondent identifies, the circumstances of this case differ from those in McGuire v R [2021] NSWCCA 287, in which this Court held that there was no evidence upon which the Crown could have properly suggested that the accused had changed his account upon receipt of the brief. In the present case, the applicant left open the possibility that he had spoken with his co-accused at some stage after the allegations were made. Of more significance, there was a meaningful foundation for the submission that the applicant and his co-accused had fabricated an account arising from the text messages themselves. The way in which her Honour directed the jury concerning lies introduced the text messages as the source of the fabricated account which then “continued” through to the evidence of each accused at trial. Such a submission, if appropriately confined, may have been properly available. It is difficult – and ultimately unnecessary – to reach a conclusion concerning the complaint about collusion in isolation, given that the Crown Prosecutor’s submission was not so confined.

28. [66]

    The applicant submits that the erroneous way in which the Crown Prosecutor put his case on lies was not cured by the summing up. In assessing the adequacy of the summing up to remedy the problem with the way in which the Crown Prosecutor addressed, the respondent points to the absence of objection by the applicant’s counsel. It is difficult to identify any objective forensic reason why objection was not taken to this aspect of Crown Prosecutor’s address, nor why an additional direction was not sought. If there was a concern about reinforcing an already prejudicial submission made by the Crown Prosecutor, as suggested by the respondent as a possibility, that could have been raised and discussed. Unfortunately, the trial judge was not assisted by trial counsel on this issue.

29. [67]

    The trial judge gave clear and correct directions in accordance with Edwards concerning the jury’s use of JP3. Her Honour had also directed the jury, in accordance with Liberato, that if they disbelieved the applicant’s evidence, they should put it to one side, rather than reason from that disbelief that the applicant was guilty of the counts on the indictment. However, the Crown Prosecutor had addressed the jury, in language reflecting an Edwards direction, that they could reason from disbelief of the applicant’s evidence that he lied because he was conscious of his guilt of the charged offences.

30. [68]

    There is no problem in principle in a Crown Prosecutor addressing the jury using language consistent with the way in which they will be instructed (and in some circumstances it may be a sensible way to avoid misstatement). However, on this occasion, the phrasing of this submission in these terms only increased the possibility of the jury adopting the erroneous reasoning that had been urged upon them by the Crown Prosecutor. Although it was plainly not intended by the trial judge, the inclusion of the phrase “mutually false account” in the summing up had the capacity to echo or endorse the reliance by the Crown Prosecutor upon all of the applicant’s evidence at trial as post-offence conduct revealing a consciousness of guilt. The Crown Prosecutor’s submission was directly at odds with the Liberato direction and concerned a fundamental matter, namely, how the accused’s evidence concerning the charged acts should be treated by the jury.

31. [69]

    Correction of this submission through directions was necessary to avoid the possibility that the jury might reason in the erroneous way advanced by the Crown. Ultimately, what occurred constituted an error or irregularity in the applicant’s trial which could realistically have affected the reasoning of the jury to its verdict: Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20 at [3].

32. [70]

    A miscarriage of justice was occasioned in the applicant’s trial. Accordingly, this ground of appeal should be upheld.

Ground 2: prosecutor misconduct

1. [72]

   The applicant submitted that the conduct of the Crown Prosecutor during cross-examination and closing address led to the trial miscarrying. The submissions were made by reference to categories of conduct, with the applicant asserting that the Crown Prosecutor:

   1. (1)

      provided personal commentary on the applicant’s evidence in cross-examination;

   2. (2)

      provided personal commentary on the applicant’s evidence in closing;

   3. (3)

      misstated and mischaracterised evidence;

   4. (4)

      improperly raised collusion between the applicant and co-accused;

   5. (5)

      invited the applicant to comment on the complainant’s evidence; and

   6. (6)

      invited the applicant to comment on whether questions were put to the complainant by his counsel.

2. [73]

   The applicant relied on the cumulative effect of the Crown Prosecutor’s conduct rather than on any one particular aspect of it. The respondent’s response to most of these examples involved noting, first, that objection had not been taken and, second, that in any event the conduct complained of could not have had a material impact on the jury’s approach to its task. As to the first, given the legal principles outlined below, it is relevant but not determinative that no objection was taken. As to the second, it is the cumulative effect of the Crown Prosecutor’s conduct which ultimately is relevant in a case such as this.

3. [74]

   Before turning to consider examples from each of these categories it is appropriate to set out relevant legal principles relating to this type of complaint.

4. [75]

   The principles relating to the conduct of Crown Prosecutors in a criminal trial are well-established. In Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; [1983] HCA 42, Deane J said:

5. [76]

   In Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330, this Court summarised the standards expected of prosecutors:

6. [77]

   Relevant principles are also summarised in Glenn (a pseudonym) v R [2020] NSWCCA 308 at [189]-[219] and have recently been considered in Zurshig v R [2021] NSWCCA 309; Crockford v R [2022] NSWCCA 115; (2022) 100 MVR 206; Day v R (No 2) [2023] NSWCCA 312; LH v R [2024] NSWCCA 165; and Gardiner v R [2026] NSWCCA 44 at [115]-[124].

7. [78]

   Features of a Crown address that have, alone or in combination, been held to justify the censure of the court include: a submission to the jury based upon material which is not in evidence; intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury; comments which belittle or ridicule any part of an accused’s case; impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit; and conveying to the jury the Crown Prosecutor’s personal opinions: Livermore v The Queen (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31]; LH at [134].

8. [79]

   A formulaic approach should not be taken in terms of determining whether or not a prosecutor’s conduct exceeds proper boundaries. Rather, it is a question of the overall tenor or impression made upon a jury: Livermore at [32]; Glenn at [201]; Gardiner at [101]. Thus it was said in Hughes at [275] that determination of a ground relating to the conduct of a prosecutor requires the Court to “analyse exactly what was said or done, consider the impugned conduct in the context of the entirety of the trial and also consider whether the prejudice was cured by steps taken by the presiding judge”.

9. [80]

   This type of complaints generally involves, as in this case, an assertion of a miscarriage of justice under the third limb of s 6(1) of the Criminal Appeal Act. The High Court held in Brawn that where a claimed third limb miscarriage goes to an “error or irregularity” in the trial then to establish the miscarriage “it must be shown that the error or irregularity was material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict” (quoting from [3]). An example the Court gave of an error or irregularity was improper cross-examination by a Crown Prosecutor: at [9], citing Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36.

10. [81]

    The respondent drew attention to this passage in Brawn (citations omitted):

11. [82]

    Thus, strictly, an anterior question arises in cases such as this before considering materiality, namely whether the conduct by the Crown Prosecutor, considered as a whole, amounted to an error or irregularity. What does that notion involve?

12. [83]

    The “ultimate question” when assessing the separate issue of whether there was a misdirection by the trial judge – as referred in the passage just quoted from Brawn – involves considering “whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task”: Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [46]; Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 at [41]. That requirement to consider the impugned conduct in context is similar to the approach taken to assessing criticisms of the conduct of a prosecutor.

13. [84]

    In Crockford at [24], this Court suggested that in cases of prosecutor misconduct if “there is a real possibility that the jury was distracted or diverted, the court should accept that there has been miscarriage of justice”. That case was decided prior to Brawn. At the least that formulation seems to incorporate some type of materiality reasoning, and no separate materiality requirement was stated. It is also notable that it uses the language of “real possibility”, whereas Brawn at [7] refers to the test for misdirection involving “what the jury would have understood the direction to convey” (emphasis added).

14. [85]

    In this appeal the respondent still commended the Crockford formulation to this Court as being an appropriate test for assessing whether an error or irregularity was made out, submitting that the Court would then go on to assess materiality. The respondent acknowledged that materiality would “almost always” be made out if the first test was satisfied. However, it submitted that materiality would not always be satisfied, giving the example where some clear direction by the trial judge was seen to have cured the error or irregularity constituted by the Crown Prosecutor’s conduct. Yet, as already noted, this Court in Hughes at [275] referred to considering the impugned conduct in the context of the entirety of the trial, including whether the prejudice was cured by steps taken by the judge.

15. [86]

    It has been recognised in the administrative law context – where a similar requirement for materiality generally applies – that there are some errors for which the potential for a material effect on the decision is inherent in the nature of the error, an example being legal unreasonableness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [6]. That point illustrates that in some instances consideration of whether or not some ground of error is made out, and whether or not any such error is material, can be linked.

16. [87]

    In Gardiner, Mitchelmore JA concluded (at [97]) that “the Crown prosecutor’s cross-examination of the applicant was productive of unfairness that ‘could realistically have affected the reasoning of the jury to their verdicts’: Brawn at [10]”. Justice Dhanji expressed the issue in terms of whether “the questioning departed from proper standards so as to constitute an irregularity, the effect of which was material, and thereby a miscarriage” (at [100], and note [224]; see also Coleman J at [242]). The members of the Court in that case thus did not seek to distinguish in strict terms between identification of the error or irregularity and assessment of whether or not the error was material.

17. [88]

    The respondent is correct to submit that strictly there are two issues which must be addressed, namely whether there is an error or irregularity and, if so, whether that was material in the relevant sense. However, in this area both will involve an assessment of the likely prejudicial effect of the improper conduct of the Crown Prosecutor in the context of the whole trial, including in light of any directions given by the trial judge.

18. [89]

    Consistently with Crockford, and analogously with Hargraves and Huxley, the error or irregularity can be expressed in terms of whether, in context, the conduct of the Crown Prosecutor was liable to distract or divert the jury from its proper task. The issue then is the degree of likelihood of that occurring. Even if another standard applied at the error or irregularity stage, the issue would then need to be addressed to the materiality standard. It is not apparent why there would be much utility in stating one test as to likelihood which was then in practice subsumed by another, lower test at the materiality stage.

19. [90]

    In sum, this appears to be an area in which the two stages of analysis are best captured in one assessment. The ultimate issue can be expressed in terms of whether, viewed in context, the conduct of the Crown Prosecutor was liable to distract or divert the jury from its proper task to an extent which could realistically have affected the reasoning of the jury to its verdict.

20. [91]

    Another uncertainty in this area is whether r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applies, requiring leave to appeal on the basis that there is a complaint about a “direction, omission to direct, or decision as to the admission or rejection of evidence, given by a trial judge”. Varying views have been expressed: see eg Lyndon v R [2014] NSWCCA 112 at [29]; Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 at [178]-[180] and [799]; Xie v R [2022] NSWCCA 185 at [115]; Glenn at [226]; LH at [203]-[210]. It is sufficient here to proceed on the basis that even if the rule does not apply directly, “many of the principles derived from the decisions concerning the engagement of [the rule] are applicable”: Glenn at [226]; see also Medich at [799]. That is so, at the least, because where the accused is represented by counsel then the starting assumption is that “misconduct on the part of the prosecutor which could have such [a prejudicial] effect will be identified and raised by counsel in the course of the trial”: Crockford at [125]. A failure to complain or object may indicate that trial counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done: Medich at [180].

21. [92]

    That said, it is relevant also to note the following observation of Gleeson CJ in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30:

22. [93]

    These statements by Hayne J in that case are also pertinent:

23. [94]

    The opinions of an advocate about the matters in dispute are irrelevant and should not be expressed: see eg Hughes at [273]; R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 at [60]. Further, a prosecutor should never use language designed or calculated to inflame the jury: Hughes at [267]. And they must not belittle or ridicule an accused person or their evidence or case: ibid, [270].

24. [95]

    The applicant submitted that during the cross-examination of the applicant the Crown Prosecutor made personal observations and commentary on his testimony. The applicant drew the Court’s attention to a number of passages in this regard.

25. [96]

    Example 1 relates to the very commencement of the Crown Prosecutor’s cross-examination of the applicant, which began as follows (emphasis added):

26. [97]

    The applicant submitted that the Crown Prosecutor’s comment “good” was an opinion which tended to deride the applicant’s evidence. The respondent submitted that the comment “Good” was of no moment in the context of the cross-examination as a whole. Any effect on the jury would have dissipated and been overtaken by the immediately subsequent events: namely, the Crown Prosecutor stopped his cross-examination soon thereafter upon realising that Mr Galey-Newbury’s counsel should have an opportunity to cross-examine first. That may be so, but the applicant’s case relies on the cumulative effect of a series of aspects of the Crown Prosecutor’s behaviour. The statement “Good” was irrelevant, although it must be accepted it is the sort of statement that is sometimes uttered without having any particular import (for example reflecting satisfaction that something has been understood or that people understand each other). In the formal context of cross-examination following the exchange cited above, it might have conveyed that the Crown Prosecutor was pleased with the answer, but there are a number of possibilities concerning what or to whom the Crown Prosecutor’s comment was directed. The tone in which it was said is not discernible from the transcript. On the material before this Court, no reliable inference can be drawn that the word was intended, or would have been perceived by the jury, as amounting to personal observation or commentary.

27. [98]

    Example 2 again related to the beer bottle (emphasis added):

28. [99]

    The respondent said that the Crown Prosecutor was asking the applicant whether he asked the complainant’s permission to put the beer bottle in her vagina as he “put it in”, whereas the applicant’s answer was about asking her “Can I use this” when he had picked it up before using it. The respondent also says that this comment could have left no lasting impression on the jury. Trial counsel raised no objection and the Crown Prosecutor went on later to ask the applicant questions about his having asked the complainant if it was okay to use the beer bottle prior to his doing so.

29. [100]

    The applicant’s first quoted answer was not entirely unresponsive. In any event, the bolded statement involved irrelevant personal commentary which also tended to deride the witness, and should not have been said. We return below to the use of the word “shoved” in this and other questioning.

30. [101]

    Example 3 was (emphasis added):

31. [102]

    The applicant submitted that the Crown Prosecutor’s use of “I’ll get to that” suggested he disagreed with the applicant’s evidence, without providing any basis for so doing. The applicant said words to that effect six times during cross-examination, and submitted that the practice was particularly inappropriate where it was used to dismiss direct answers to questions asked.

32. [103]

    Strictly, expressing that intention may have been irrelevant. However, in the context of the trial it is apparent that the Crown Prosecutor had a rather linear approach to the cross-examination, as he did later in his closing address, and when a point was raised which he planned to address later then he tended to indicate as much. Saying “I’ll get to that”, in context, communicated that he was going to come to address that point in time. The habit was not prejudicial.

33. [104]

    The applicant also submitted that the Crown Prosecutor’s words “of course” pre-empted the applicant’s answer and insinuated that the expected answer was unbelievable or incorrect in circumstances where the Crown Prosecutor knew the applicant’s evidence did not contain any suggestion that he had his hand over the complainant’s mouth. Even if that is right, the prejudicial effect of this statement by itself is limited.

34. [105]

    Example 4 related to some cross-examination about the order in which the applicant said sexual activities had occurred (emphasis added):

35. [106]

    The applicant submitted that the unfair sting of the Crown Prosecutor’s question was that the applicant’s impending denial could not be believed. The respondent said that this should not be accepted as it was more likely that the Crown Prosecutor was anticipating the applicant answering that digital penetration did occur, consistently with his evidence in chief. Yet the respondent referred in support of this submission to part of the applicant’s evidence in chief which related to earlier events, not the events the Crown Prosecutor was asking about subsequent to the use of the beer bottle. In any case, the Crown Prosecutor’s question was inappropriate by its tendency to pre-empt and undermine the applicant’s answer to the question being asked.

36. [107]

    Example 5 was (emphasis added):

37. [108]

    The applicant characterised this as a type of advocate’s trick. It was said that while objections were made and the questioning went no further, the damage of the Crown Prosecutor’s unfair assertion had already been done. The question suggesting how the applicant held the beer bottle unfairly characterised the applicant’s evidence and trivialised it.

38. [109]

    The respondent said that the applicant was rightly critical of the exchange beginning “It’s preposterous…”. However, it said that it was objected to and withdrawn by the Crown Prosecutor, and there was no basis to find that the “question” was asked expecting it would be objected to and withdrawn as a type of “advocate’s trick” – including because the question which immediately followed would counter such a suggestion. The objection to and withdrawal of the question was said to have neutralised any impact. No directions were sought by trial counsel to neutralise any further impact.

39. [110]

    The respondent was correct to concede that the question beginning “It’s preposterous” was rightly criticised. As to whether or not it was an advocate’s trick in the sense of having been intended to make the point even knowing the question would likely be objected to, the respondent is also right to suggest that the following attempted question suggests more that the Crown Prosecutor genuinely wanted to pursue the point.

40. [111]

    The applicant also submitted that the question “[w]hy would you do it to start” was not a real question but a rhetorical flourish. The respondent said it was a legitimate question and was relevant to the applicant’s account that he was simply using the bottle because his penis had gone soft. In context, we do not regard the question as improper.

41. [112]

    Example 6 was (emphasis added):

42. [113]

    The respondent conceded that the applicant was rightly critical of the bolded statement and that it should not have been said. However, it was submitted that it could not have had any lasting impact on the jury.

43. [114]

    The bolded part of the exchange was inappropriate and amounted to ridicule of the applicant’s evidence to some degree. That being said, the Crown Prosecutor’s comment was itself rather ridiculous. We do not consider that it would have had any lasting impact on the jury.

44. [115]

    The applicant submitted that the Crown Prosecutor continued the practice of providing personal commentary in his closing address. The applicant referred to the following passage in the judgment of McClellan CJ at CL in KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213 (citation omitted):

45. [116]

    Example 7 was (emphasis added):

46. [117]

    The respondent submitted that the characterisation of the evidence as “quite laughable” was forceful but not improper, saying a prosecutor is not prohibited from firmly calling upon the jury to reject a defence case as being inherently unbelievable. It cited the following passage from Crockford:

47. [118]

    The respondent said that here the Crown Prosecutor did ground the submission in the defence. The respondent accepted that it would have been preferable for the Crown Prosecutor to have framed the submission by reference to how the jury might consider the evidence, rather than saying this was “how the Crown would see it”. The respondent said that, nevertheless, this framing would not have distracted or diverted the jury from their task.

48. [119]

    We agree with that submission. What was said to be laughable was the applicant’s explanation on a particular issue. The manner of expression was somewhat florid but within acceptable limits of putting the Crown case in a firm and forceful manner.

49. [120]

    Example 8 involved the Crown Prosecutor interpolating while reading from the transcript of the applicant’s cross-examination during his address as follows (emphasis added):

50. [121]

    The respondent accepted that the Crown Prosecutor’s interpolation that “This is a great one” should not have occurred. We agree. It tended to ridicule the applicant. That being said, any prejudice here was limited.

51. [122]

    Example 9 is as follows (emphasis added):

52. [123]

    The respondent accepts that the applicant’s criticism of the bolded part of the quote is fair. However, it says that the implication of the statement was subtle and would not have had the significance contended for.

53. [124]

    The statement may have been subtle but it was still inappropriate personal commentary, and in relation to a not insignificant aspect of the Crown’s case, being the alleged collusion between the applicant and co-accused. That being said, the prejudicial effect of this statement would be limited.

54. [125]

    Example 10 is the following passage, given in the context of the Crown Prosecutor’s closing to the jury on the element of “in company” (emphasis added):

55. [126]

    The respondent submitted that this comment reflected the fact that there was no evidence or suggestion in the case that Mr Galey-Newbury was engaging in any sexual activity with the complainant otherwise than in the company of Mr Paulley, and that it could not have diverted the jury from its task in any way. That submission has force. This comment is of no real consequence.

56. [127]

    Example 11 was as follows (emphasis added):

57. [128]

    The respondent said that, while this submission was put using very firm and forceful language, it was not impermissible for the same reasons it raised for Example 7 set out at [116]-[117] above.

58. [129]

    The statements about an aspect of the applicant’s evidence being “nonsense” and “errant nonsense” were not improper. They were strong submissions but ones linked to the evidence. They suggested that that evidence was entirely implausible, which was a reasonable point to make.

59. [130]

    The suggestion that the applicant “knows that he looked foolish giving that evidence” was not appropriate. If the intention was to remind the jury of particular features of the applicant’s demeanour when he gave this evidence, it should have been put more carefully by reference to the applicant’s demeanour or what the jury was able to observe. That said, it was more in the nature of a palpably over the top rhetorical flourish than anything which would tend to distract or deflect the jury from its task.

60. [131]

    The applicant says that the Crown Prosecutor misstated the applicant’s evidence in relation to his erection and the reason he used the beer bottle. This argument also encompassed a complaint that the Crown Prosecutor’s repeated assertion that the applicant had “shoved” the bottle into the complainant’s vagina was misleading and prejudicial. The following examples were given.

61. [132]

    By the time the applicant came to give his evidence there had been complaint evidence from a friend of HM, Ms Newman. There had been messages between the two not long after the events had occurred, and they had also spoken. Ms Newman testified that HM had told her that “there was a bottle involved” and “she said that I’m pretty sure the bottle was shoved up her private parts”.

62. [133]

    Another complaint witness, Ms Bennett, had been telephoned by HM soon after the events in question. HM had been highly distressed and complaining of pain. Ms Bennett’s testimony involved her characterising the use of the beer bottle as having been “shoved”:

63. [134]

    HM herself did not use the word “shoved” in her evidence in court. Nevertheless, given the evidence of the two complaint witnesses there was certainly a basis for the Crown Prosecutor to put that characterisation to the applicant. However, it was the manner in which he did so, and his persistence, which gives rise to cause for concern.

64. [135]

    The following exchange was the first involving use of the word “shoved” in the cross-examination (emphasis added):

65. [136]

    The cross-examination up to “You disagree with shoved, do you?” was reasonable. After a reasonably long answer to that question, the Crown Prosecutor said “The question that I asked you … is not whether you put it in, but shoved it with force”. In fact his question had not used the words “with force”. By adding those words to his question (indicating this was what he had meant by “shoved”), the prosecutor was making clear that “shoved” was a charged expression which carried an implication of significant force. There was nothing improper in doing so – it was part of the Crown case that the applicant had used force and the language of “shove” was an appropriate way to convey that. The prosecutor’s questions could then be taken to proceed on the basis that “shoved” carried this additional implication, one which the applicant was entitled to resist even though he agreed that he “put” the beer bottle in the complainant’s vagina.

66. [137]

    The next set of questions and answers made clear that the applicant did not accept that the word “shoved” described what he had done with the beer bottle. In that context, the next question put by the Crown Prosecutor had the potential to be unfair, being: “No, no. As you put it in - that is, inserted it or shoved it in her vagina, did you say, ‘Is it okay?’”. To imply that the applicant had accepted he had shoved the bottle in her vagina by the applicant’s use of the word “put” mischaracterised the applicant’s evidence. In context, this question was actually a compound question, involving two distinct propositions: first, that the applicant had shoved the bottle, being a characterisation that the applicant had rejected and thus this proposition still had only the status of a question; and second a query as to whether he had said “Is it okay?”. It would have been different if the applicant had accepted the “shoved” characterisation, in which case the question would still have been building on what had already been established.

67. [138]

    In Libke, at [127], Heydon J quoted approvingly the following explanation of the difficulties of “compound questions” given in an American text (C A Wright, Federal Practice and Procedure: Evidence, West, Minnesota, 1993, § 6164, p 354):

68. [139]

    The question “And you shoved it in nine to ten centimetres, did you?” was objectionable and potentially prejudicial for the same reason.

69. [140]

    Soon after that in the cross-examination there was the following exchange (emphasis added):

70. [141]

    Each of the highlighted questions in this passage improperly assumed what had been rejected by the applicant and for being a compound question. It may be noted that the trial judge made some suggestion that the Crown Prosecutor use the word “inserted”, but this deflected him only momentarily.

71. [142]

    There was then some cross-examination about evidence of HM’s injuries in her crotch area and about precisely what the applicant said he had done. Then the Crown Prosecutor returned to his theme (emphasis added):

72. [143]

    The proposition advanced by counsel for the applicant in her objection was correct – “shoved” was not in the complainant’s evidence. However, there was then some discussion about the complaint evidence and her Honour ended up saying “So, therefore, the Crown can put what the complaint was?”, which counsel for the applicant, correctly, accepted. That is not what the Crown Prosecutor did; instead he said (emphasis added):

73. [144]

    This question was again an improper compound question which assumed what had been disputed by the applicant.

74. [145]

    Five pages on in the transcript this exchange occurred (emphasis added):

75. [146]

    Given his closing address, discussed below, it seems the two questions and answers highlighted here were considered by the Crown Prosecutor to be an acceptance by the applicant that he had “shoved” the beer bottle up HM’s vagina. They cannot safely be understood in that way. The first question was, once again, a compound question. The answer illustrates the problem identified above with respect to such questions: it is unclear which proposition the applicant was agreeing to, being that he “shoved it” or that he did so four times. As to his last quoted answer – “Why would I keep shoving …” – in context that appears to be a sarcastic riposte turning the Crown Prosecutor’s language back upon him.

76. [147]

    A few pages on in the transcript there was this exchange (emphasis added):

77. [148]

    The first highlighted question again, in context, was a compound question and the answer thus is again ambiguous. In context it is open to read his answer “Yeah” as going to whether he had an erection. That understanding is reinforced by the next questions and answers, which focus on the erection. Much the same can be said of the next highlighted questions.

78. [149]

    In sum, it was legitimate for the Crown Prosecutor to suggest to the applicant he had shoved the bottle up HM’s vagina. There is a limit to how many times it is reasonable to put such a question, which here may have been approached. But the core problems here are that the Crown Prosecutor’s questions mischaracterised the applicant’s evidence after the applicant had made clear he did not accept the “shoved” characterisation, and then proceeded to ask him questions as though the applicant had accepted that characterisation, where those questions in substance involved two propositions (itself an objectionable practice), rendering the later answers on that issue ambiguous.

79. [150]

    There was no re-examination, which might have been used to clarify whether or not the applicant accepted the “shoved” characterisation. Further, there was only one objection taken in relation to this line of questions. Nevertheless, this mode of questioning fell below proper standards. The way it was picked up in the Crown Prosecutor’s closing address warrants further comment.

80. [151]

    In closing address the Crown Prosecutor commenced with some general submissions, then turned to address each count. It was count 3 which related to the insertion of the beer bottle into HM’s vagina, being an allegation of intercourse in company without consent causing actual bodily harm. Counts 4 and 5 were alternative counts on the event. In addressing these counts the Crown Prosecutor recited some transcript of the cross-examination of the applicant relating to the beer bottle. He then said (emphasis added):

81. [152]

    The italicised portions of this extract would have been consistent with the applicant not having used the word “shoved”. But the bolded portions involve the Crown Prosecutor twice saying that the applicant’s evidence was that he shoved it up HM’s vagina, in a context where the word “shoved” was used repeatedly.

82. [153]

    Three pages later the Crown Prosecutor quoted the portion of the transcript of the applicant’s cross-examination set out at [144] above in which the applicant, on one view, had accepted use of the word “shoved”. He then quoted another bit of the cross-examination; made the reasonable submission that no person would consent to insertion of a brittle glass bottle into their vagina; and then reiterated his “no Plan B” point (see above at [95]). He then raised the issue of the pain HM said she had suffered from the bottle (emphasis added):

83. [154]

    The relevance of that submission is that it illustrates the force of the Crown Prosecutor’s repeated use of the word “shoved”. It painted a picture of a forceful, indeed brutal, action. That was a legitimate picture to paint in the context of count 3 and the alternative counts. And, as noted, that word had been invoked by two complaint witnesses. The problem was tying this to a purported admission by the applicant where, properly understood, there had been no such admission, at least not one that was free from substantial ambiguity.

84. [155]

    The Crown Prosecutor repeated his use of the word “shoved” towards the end of his closing address. He referred in an unobjectionable manner to the complaint evidence. But he also said this (emphasis added):

85. [156]

    The applicant made a further complaint about that submission, saying that he had not given evidence that the reason he used the beer bottle was to get an erection; only that that was the effect on him of using the beer bottle. Nor did the Crown Prosecutor suggest to him that the video showed a “full erection”, but rather suggested the video showed his “penis being soft”. The respondent accepted that the Crown Prosecutor could have been more precise. These errors do not appear to be of great significance.

86. [157]

    Returning to the main concern here, the applicant’s counsel did not seek that the submissions be corrected about whether or not the applicant had used the word “shoved”. That is a relevant consideration. Nevertheless, it is necessary for this Court to address the possibility that the Crown Prosecutor’s closing address misled the jury into actually believing that the applicant had admitted or agreed that he had used force when inserting the beer bottle.

87. [158]

    Viewing the Crown Prosecutor’s address in its full context, we do not think this possibility arose. In the course of his lengthy submissions addressed to the conduct involving the beer bottle, the Crown Prosecutor twice described the difference between the Crown’s version and the applicant’s version as “stark”. At one point he spoke about concepts of physical and mental elements of the offence, explaining that what the applicant had admitted to was limited to the “actus reus” or physical act of the offence (at this point at least, the Crown Prosecutor used the phrase ‘inserting’ the beer bottle). Reading the closing address as a whole, it was made clear that the applicant’s case was that he sought and received the complainant’s express consent to insert the beer bottle into her vagina, and that during the act she loudly expressed sexual pleasure. The Crown submitted that the applicant’s account of events was variously “errant nonsense”; “a fanciful story” and “problematic and flawed from beginning to end” (some of this phrasing was the subject of the second category of complaint under this ground, addressed above). Whilst the Crown’s forensic purpose in using these descriptors is likely to have been to impress upon the jury the implausibility of the applicant’s account, they also served to emphasise the significant distinction between the Crown and defence cases.

88. [159]

    We are not persuaded that the jury would have been left with the mistaken understanding that the applicant had actually admitted to any act of intentional physical violence or use of force with respect to Count 3. In reaching this conclusion, the absence of any objection from trial counsel that the applicant’s evidence had been mischaracterised in the Crown address is also relevant. Further, if there was any ambiguity about the applicant’s position, it was made clear in summing up. When referring to the applicant’s case, the trial judge said:

89. [160]

    Accordingly, whilst some aspects of the cross-examination and address concerning Count 3 ought not to have been conducted in the way that they were, the conduct was not liable to distract or divert the jury from its proper task to an extent which could realistically have affected the reasoning of the jury to its verdict.

90. [161]

    In closing address the Crown Prosecutor submitted (emphasis added):

91. [162]

    The applicant said that this submission did not logically engage with the evidence and suggested the fact that the applicant gave evidence that at times he had “half erections” was mutually exclusive with his evidence that he ejaculated. It was said that this proposition was never put to the applicant and could not seriously be made, including because it was contrary to the evidence. The respondent accepted that the remark was gratuitous and not reflective of the evidence of the applicant, but said it was ultimately an obvious (albeit inappropriate) rhetorical flourish that did not have capacity to divert the jury from their consideration of the evidence.

92. [163]

    We agree that the remark was inconsistent with the evidence and gratuitous. Yet it also has the character of a rhetorical flourish of limited significance.

93. [164]

    As was considered in relation to Ground 1, it was the Crown case that the evidence of the applicant and his co-accused was the product of collusion between them. The applicant accepted it was open to the Crown Prosecutor to explore the issue of collusion in cross-examination but submitted that the Crown Prosecutor ultimately went beyond what was properly available.

94. [165]

    The Crown Prosecutor asked the applicant questions about his access to the brief:

95. [166]

    The applicant disagreed that he had spoken to the co-accused about the brief.

96. [167]

    In the Crown Prosecutor’s closing address it was argued – the applicant suggested by sarcastic ridicule – that the applicant had tailored his evidence to the evidence of the complainant, giving the following examples (emphasis added):

97. [168]

    The applicant said that the effect of the cross-examination and these submissions in closing was that the applicant and the co-accused invented their versions, jointly, after being served with the prosecution brief and hearing the evidence at trial. The applicant referred to Glenn, where a Crown concession was accepted that it was not appropriate for the Crown Prosecutor to have suggested that the accused’s evidence was “pre-rehearsed” in similar circumstances (at [258]-[260]). The applicant also referred in this context to McGuire. In that case the Crown Prosecutor established in cross-examination that the accused had received the brief of evidence. But there was no material to support the suggestion that the accused had changed his account of what had occurred after receiving the prosecution brief and in order to fit with it. The appeal was upheld because “the cross-examination of Mr McGuire and the attack upon his credit asserting that he had tailored his evidence ‘was based upon an assumption’ which was not established” (at [45]).

98. [169]

    The respondent submitted here that it was open to the Crown Prosecutor to suggest collusion between the applicant and Mr Galey-Newbury having regard to the text messages set out at [32] above and the evidence that they gave at trial. In particular, both accused gave evidence that the message “I did nothing wrong” which appeared in a text message sent by the applicant to the co-accused at 7:17am was a typographical error and should be read “you did nothing wrong”. The respondent said that collusion had been put to each of the accused when they gave evidence.

99. [170]

    This complaint overlaps with Ground 1. As addressed above, the manner in which collusion was put to the applicant was rather confusing. It was open to the Crown Prosecutor to ask if the applicant had spoken to the co-accused about the case against them, albeit strictly it might be questioned whether the Crown Prosecutor had a sufficient basis to put this as a positive proposition (“You spoke to Galey-Newbury about the evidence that you had”) rather than as an open question (“Have you spoken to Galey-Newbury about the evidence against you?”).

100. [171]

     The nub of the complaint relates to what was said in closing address. We agree with the applicant that the highlighted remarks were sarcastic and inappropriate. Further, the fact that in some respects the evidence of the two accused was consistent with the evidence of HM and/or with the evidence of each other does nothing to establish collusion. Their evidence in that regard might simply have been true. Even if it was not true, both had heard HM give evidence, and Galey-Newbury had heard the applicant give evidence – therefore the possibility of tailoring of evidence did not necessarily imply prior collusion.

101. [172]

     The impugned comments were inappropriate. That being said, they were also somewhat unclear as to what, precisely, was being suggested. They did not allege collusion in terms. The potential prejudice from these remarks per se was relatively limited, leaving aside their significance for Ground 1.

102. [173]

     The applicant complained that the Crown Prosecutor adopted a practice of asking questions in a form that invited the applicant to comment on the complainant’s evidence.

103. [174]

     This example involved two points of the cross-examination relating to the beer bottle (emphasis added):

104. [175]

     Then later:

105. [176]

     The applicant also raised the following exchange in which the Crown Prosecutor asked the applicant to comment on whether the complainant’s evidence constituted a violent sexual assault:

106. [177]

     Relevant principles were recently summarised by Adamson JA in ZBJ v R [No 2] [2025] NSWCCA 187:

107. [178]

     In Gardiner Dhanji J also examined relevant case law, concluding:

108. [179]

     The applicant submitted that the effect of the impugned statements in the examples given above was to invite the applicant to comment on why the complainant gave the evidence she did, and to require the applicant to explain why the complainant’s claims should not be accepted. The applicant argued that the questions were irrelevant, unfair and should not have been asked.

109. [180]

     In relation to the question beginning with “Well, you know that she disagrees…”, the respondent submitted that this was not inviting the applicant to express an opinion on whether the complainant lied, but was rather an unfortunate attempt to put the Crown case that the applicant did not ask HM for permission to put the beer bottle in her vagina by summarising the evidence to which the applicant’s response was sought. The respondent accepted that, if that is what the Crown Prosecutor intended, the question was worded infelicitously. However, the respondent said that there were questions later on the topic and there is nothing to suggest that this single question could have diverted the jury from its proper task of evaluating the Crown case. The respondent argued that the same can be said for the other questions comprising Example 16, and says again that it is significant that no objection was taken.

110. [181]

     In response to Example 17, the respondent conceded that the applicant was rightly critical of the questions, that any answer to those questions could only have been irrelevant, and that the questions should not have been asked. However, it was noted that no objection was taken to them and no direction was sought about them by trial counsel. Moreover, it was said that the applicant responded to the question in a way that could not have had any adverse impact on the jury’s assessment of either his evidence or the Crown case.

111. [182]

     Whatever the Crown Prosecutor’s intention was in putting the questions in Example 16, the questions did tend to suggest that the applicant should have to explain why his evidence was different from HM’s evidence. He was not asked whether HM’s evidence was untrue. The Crown Prosecutor was simply reiterating HM’s evidence in a manner which implicitly invited commentary on it, tending to reverse the onus of proof. When the applicant twice answered “Okay” to the questions asked about HM giving contrary evidence, it may well have appeared to the jury that that was a somewhat inadequate response, because he gave no reason why their evidence differed. That was the vice of the question.

112. [183]

     The concession by the respondent was rightly made. There is another example of the same conduct quoted below at [185] (see the italicised question).

113. [184]

     These examples related only to a limited number of questions in a reasonably long cross-examination. Nevertheless, they involved a significant departure from fair and proper practice by the Crown Prosecutor.

114. [185]

     The applicant complained that the Crown Prosecutor cross-examined the applicant on two occasions in relation to whether he had heard his counsel put certain propositions to HM. The relevant exchanges were as follows (emphasis added):

115. [186]

     Then later (emphasis added):

116. [187]

     The applicant referred to the following passage from Hofer (citation omitted):

117. [188]

     The applicant submitted that this was not one of the “clearest of cases” where the questioning was appropriate. The applicant noted that, in closing, the Crown Prosecutor did not refer to the fact that counsel for the applicant had not asked questions of the complainant on the topics referred to in the exchange extracted above. However, the Crown Prosecutor did submit that the evidence of the applicant was a fabrication and should not be believed. The applicant argued that the impugned questions were designed to support the Crown Prosecutor’s ultimate assertion in an unfair and impermissible way.

118. [189]

     The respondent accepted that the bolded questions in the extract above should not have been asked, with reference to Hofer. However, the respondent submitted no miscarriage of justice was occasioned as a result. As to the first bolded question (“…That she didn’t pull out, but you did?”) the respondent said that there was no subsequent suggestion of recent invention on this point. As to the other two questions, the respondent said that it must be recalled that, ultimately, the Crown case at trial was that the applicant and Mr Galey-Newbury were giving “mutually false” evidence and the two questions about Mr Galey-Newbury never being on the bed would not have had any impact in the context of that overall case. It was also noted that no objection was taken to any of these questions.

119. [190]

     We agree with both parties that the questions should not have been asked. In context, however, the prejudice would have been relatively limited for the reasons given by the respondent.

120. [191]

     The first category of conduct complained of was that the Crown Prosecutor provided personal commentary on the applicant’s evidence in cross-examination. Six examples were given by the applicant. We have concluded that some of the examples given involved inappropriate conduct by the Crown Prosecutor, albeit not all of the complaints made by the applicant about those examples were made out.

121. [192]

     The second category was that the Crown Prosecutor provided personal commentary on the applicant’s evidence in closing address. Five examples were given. Two of those involved a degree of improper conduct, but they would have caused relatively limited prejudice.

122. [193]

     The third category related to the Crown Prosecutor having misstated and mischaracterised evidence. Three examples were given. The third, Example 14, was inconsistent with the evidence and gratuitous yet also had the character of a rhetorical flourish of limited significance. The other two examples were more significant. Example 12 involved repeated questioning involving the use of the word “shoved” as though the applicant had accepted that characterisation where he had not done so, at least not in terms free of ambiguity. The Crown Prosecutor’s mode of questioning in this regard fell below proper standards. In the portions of his closing address outlined as Example 13, the Crown Prosecutor used those ambiguous answers as though they were admissions, incorporating them into a picture he painted of the applicant having engaged in forceful and brutal treatment of HM. While this had the potential to be unfair, when the Crown Prosecutor’s questions and closing address are viewed in their full context, we are not persuaded it gave rise to the possibility of deflecting or diverting the jury from their task.

123. [194]

     The fourth category was that the Crown Prosecutor improperly raised collusion between the applicant and co-accused. The impugned comments were inappropriate but the potential prejudice from those remarks per se was relatively limited (leaving aside their significance for Ground 1).

124. [195]

     The fifth category involved a complaint that the Crown Prosecutor invited the applicant to comment on the complainant’s evidence. The examples given related only to a limited number of questions in a reasonably long cross-examination. Nevertheless, they were a material departure from fair and proper practice by the Crown Prosecutor.

125. [196]

     The sixth category was that the Crown Prosecutor invited the applicant to comment on whether questions were put to the complainant by his counsel. The impugned questions should not have been asked. In context, however, the prejudice would have been relatively limited.

126. [197]

     In sum, some degree of unfair and improper conduct was established in relation to all six categories but with varying degrees of potential prejudice. The applicant relies on the cumulative effect of all of these matters.

127. [198]

     The authorities recognise that the assessment of whether the impugned conduct viewed in its full context resulted in a miscarriage of justice involves a question of degree and can be a matter of “tenor and impression” (Libke at [2]; Livermore; Glenn at [201]). The conduct must be viewed in the context of the trial as a whole. The matter which gave this Court the most pause, being the Crown Prosecutor’s compound questions and closing address about the beer bottle being “shoved” (Examples 12 and 13), ultimately was not liable to distract or divert the jury from its proper task when considered in its full context, including other parts of the Crown Prosecutor’s closing and the trial judge’s summing up. That is especially so when one takes into account the propriety of the Crown Prosecutor putting the Crown case robustly to the jury, which permissibly included a contention that the beer bottle was inserted with force. The other matters we have addressed, where they fell short of the requisite standard, gave rise to limited prejudice.

128. [199]

     The failures were not so significant “in the context of [the] overall trial” to “so affect or permeate [the] trial as to warrant the conclusion that the [applicant] has actually been denied his fundamental right to a fair trial”: Whitehorn at 664 per Deane J. We are not persuaded the conduct of the Crown Prosecutor, viewed cumulatively and in context, was liable to distract or divert the jury from its proper task to an extent which could realistically have affected the reasoning of the jury to its verdict. Thus Ground 2 is not made out.

Orders

1. [200]

   The applicant did not resist a retrial being ordered pursuant to s 8 of the Criminal Appeal Act if the appeal was upheld. Such an order is appropriate, recognising that the case against the applicant appears to be a relatively strong one.

2. [201]

   The following orders will be made:

   1. (1)

      Extend the time for filing the applicant’s notice of appeal to 8 December 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Uphold the appeal.

   4. (4)

      Quash all of the applicant’s convictions on the indictment filed on 22 September 2023.

   5. (5)

      There be a new trial of the applicant.

   6. (6)

      The matter is listed in the arraignment list in the District Court on 16 June 2026.