Armstrong v R

Between 2 and 18 July 2013, the applicant was tried before Payne DCJ and a jury of 12 on five counts alleged to have been committed against the complainant, his domestic partner. Count 1 charged that, on 19 August 2011, he assaulted her at Koolewong (contrary to Crimes Act 1900 (NSW), s 61). Counts 2 and 3 charged that, on two occasions between 3 and 23 November 2011, he had non-consensual sexual intercourse with her knowing that she was not consenting (contrary to Crimes Act, s 61I). And counts 4 and 5 charged that, on separate occasions on 3 December 2011, he had non-consensual sexual intercourse with her knowing that she was not consenting in circumstances of aggravation, namely that he intentionally inflicted actual bodily harm immediately before the offence (contrary to Crimes Act, s 61J). On 18 July, the applicant was found guilty of counts 1, 4 and 5, and acquitted on counts 2 and 3.

On 20 March 2014, the trial judge sentenced the applicant to imprisonment, including on counts 4 and 5. In relation to count 4, the term of imprisonment was eight years and six months with a non-parole period of five years and six months, in each case commencing on 27 April 2012. In relation to count 5, the term was eight years and nine months with a non-parole period of five years and nine months, in each case commencing on 27 September 2012.

The applicant correctly seeks leave to appeal against his conviction on counts 4 and 5 (the two grounds involving mixed questions of law and fact) and against the sentence imposed for those offences: Criminal Appeal Act 1912 (NSW), s 5(1)(b), (c). A notice of intention to apply for leave to appeal was filed on 31 March 2014 but expired on 30 September 2014. On 17 February 2015, an extension of that time was granted, which expired on 30 April 2015. On 21 August 2015, a request for a further extension of the time for giving notice of the application for leave to appeal was refused.

Thus, the applicant also requires an extension of the time in which to apply for leave to appeal. On 25 August, the application for that extension was filed. The affidavit in support provides the following chronology of events. On 14 December 2014, the applicant’s solicitor received a copy of the transcript and forwarded it to counsel, who provided a draft set of submissions in support of the proposed appeal on 3 March 2016. Those submissions were sent to the applicant on 10 March 2016. During the following 12 months, the applicant sought to include in the submissions material which was rejected by counsel as not justified. In late July 2016, he considered briefing senior counsel on a private basis, rather than through Legal Aid. It was not until August 2017, 15 or so months after the written submissions were first prepared, that the applicant advised that he was content to rely on those submissions. Although there has been significant and, to some extent, unjustified delay in pressing the proposed appeal, the time for giving notice should be extended to allow it to be considered on its merits. There is no prejudice to the Crown in doing so.

The three proposed grounds of appeal are:

In about June 2011, the complainant and the applicant commenced a relationship which continued on and off until 3 December 2011. For part of that time, they lived with the complainant’s three-year old son, J, in premises in Woy Woy rented by the complainant.

Count 1 concerned an incident on 19 August 2011. Counts 2 and 3 related to an alleged incident on 24 November 2011 and counts 4 and 5 to incidents which occurred on 3 December 2011.

There was also an incident at the Crowne Plaza in Terrigal on 2 October 2011, which was captured on closed-circuit television and in relation to which the applicant was separately charged and pleaded guilty. When the applicant was first arraigned in the present matter on 4 December 2012, the indictment only charged counts 2–5. After that arraignment, the Crown and defence jointly took the position that the trial was not ready to proceed but asked the Court as then constituted (Ellis DCJ) to determine the admissibility of the evidence of the Terrigal incident as tendency evidence. In a judgment on that question delivered on 6 December 2012, his Honour ruled that evidence to be admissible.

When the matter first came before Payne DCJ on 24 June 2013, count 1 was added to the indictment; the evidence in support of that count was notified as tendency evidence relied on in respect of counts 2–5; and the evidence of the Terrigal incident was notified as also relied on in respect of count 1. Without taking submissions as to the possible application of Criminal Procedure Act 1986 (NSW), s 130A, the trial judge proceeded to hear the argument as to the admissibility of the tendency evidence. Having concluded that evidence had significant probative value and that its probative value substantially outweighed its prejudicial effect, her Honour ruled it admissible: Evidence Act 1995 (NSW), ss 97(1), 101(2). Accordingly, in relation to counts 4 and 5, the evidence admitted as tendency evidence was that concerning count 1 and the Terrigal incident. The latter evidence included a DVD copy of the CCTV footage, which became Exhibit A and was played twice in the trial and later provided to the jury together with a "clean laptop" to play the DVD in the jury room. That occurred without any objection by the accused’s counsel.

Before considering the arguments directed to the admissibility of this evidence, it is convenient to outline the parties’ respective positions in relation to each incident.

In its opening address, the Crown described the circumstances of count 1 as follows:

The applicant’s case in relation to count 1 was that it did not happen.

The circumstances of this incident, as opened to the jury, were as follows:

The CCTV footage shows those events occurring over less than a minute. The complainant is seen inside and exiting the Crowne Plaza premises ahead of the applicant. After she turns back to face him, he approaches her, grabs her hair and pushes her backwards. He continues to hold onto her hair as she falls to the ground. She then regains her feet and moves away, as bystanders in the immediate area move towards her to render assistance. At that point, the applicant gestures aggressively at those bystanders before leaving the premises.

The Crown opened its case in relation to these charges as follows:

In the argument in relation to the admissibility of the tendency evidence, the applicant’s counsel described the accused’s position with respect to counts 4 and 5 as reflected in his ERISP of 4 December 2012. In essence, his position was that no sexual intercourse occurred during the 3 December incident; that he and the complainant had an argument, which then became physical, with both using force; but that he was not the aggressor and was “defending himself”.

The applicant’s written submissions challenge the trial judge’s conclusions both that the evidence had significant probative value (s 97(1)(b)) and that its probative value substantially outweighed its prejudicial effect (s 101(2)). Written in June 2016, those submissions did not take account of the decision in Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187. As will become apparent and the applicant’s counsel accepted early in oral argument, some of the submissions directed to the former conclusion cannot stand with the reasoning of the majority (Kiefel CJ, Bell, Keane and Edelman JJ) in Hughes.

The applicant submits that the trial judge erred in finding that tendency evidence had significant probative value for the following reasons:

As the Crown submits, the applicant’s first and second reasons do not proceed from a correct understanding of the test posed by s 97(1)(b). As to that test, the majority said in Hughes at [40]:

Accordingly, it is not to the point that the tendency evidence may not directly establish all elements of an offence charged. Its having significant probative value depends on whether, taken with the other relevant evidence, it makes one or more of the facts in issue significantly more likely. In a case such as the present, it may do so by supporting the credibility of the complainant’s account as to the infliction of actual bodily harm, so as to make that version of events significantly more likely than that of the applicant: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [62] (French CJ, Kiefel, Bell and Keane JJ).

As the trial judge noted, the applicant’s case was that he was “not violent [and that] any violence he undertook was defensive action and that he was not the aggressor”: Revised Reasons, p 7. His denial of having committed “intentionally inflicted actual bodily harm” gave rise to the issue in relation to which the tendency evidence was said to have significant probative value for counts 4 and 5. In relation to those counts, her Honour considered the effect of that evidence “standing alone or having regard to the other evidence the Crown would adduce in the trial”: Revised Reasons, p 5. Her Honour concluded that the tendency evidence was sufficiently probative of the accused’s propensity to act violently towards the complainant, and in turn supported the complainant’s version of events, the jury’s acceptance of which the applicant’s third reason takes for granted. The trial judge is not shown to have erred in that assessment, and the applicant’s argument directed to s 97(1)(b) should be rejected.

Next, the applicant submits that the trial judge erred in undertaking the balancing exercise required by s 101(2) in the following respects:

Contrary to the applicant’s first submission, the trial judge did address the risk of prejudice relied on in argument before her. Counsel for the accused had described that risk as “a standing invitation to a jury to engage in … dangerously impermissible reasoning … simply that because the accused has been violent towards the complainant on this occasion in October that the complainant’s evidence ought to be believed and ought to be accepted on both … occasions”. Her Honour summarised that submission at Revised Reasons, p 9.

Nor is the trial judge shown to have erred in assessing the prejudicial effect of that evidence in light of the directions which could be given to the jury in the course of the summing up. In relation to tendency evidence, “prejudicial effect” (s 101(2)) focuses attention on the risk of departure from that mode of reasoning upon which the “probative value” of such evidence rests, namely, its rational use in assessing the probability of a person having a particular tendency that in turn affects the probability of a fact in issue. In assessing prejudicial effect, it is appropriate to take into account the ameliorating effect of any directions available to be given to the jury: see DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [14] (Spigelman CJ), [104] (Allsop P), [171] (Simpson J); RH v R [2014] NSWCCA 71 at [176] (Ward JA, Harrison and RA Hulme JJ agreeing). It then becomes necessary to consider whether such directions would sufficiently “overcome the prejudicial effects of the evidence, individually and collectively, upon the jury”: Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [113] (French CJ, Hayne, Kiefel and Bell JJ). That consideration may depend on whether the evidence tends to induce a subconscious bias against the accused: see Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528 at [56]–[57] (Hoeben CJ at CL, Adams and Hall JJ agreeing). In addressing this question, the trial judge concluded that “any possible prejudice can be cured by strong directions”: Revised Reasons, p 10. The applicant’s second submission asserts, but does not identify, error in that conclusion.

The third submission, that the trial judge did not consider the application of s 101(2) with respect to the count 1 evidence, also is not made out. The trial judge acknowledged that it was necessary to address the admissibility of the evidence in relation to count 1 as well as the Terrigal incident: Revised Reasons, p 3. Her Honour then specifically considered whether that evidence had significant probative value: Revised Reasons, pp 7–9). In conducting the balancing exercise required by s 101(2), her Honour considered together the probative value and prejudicial effect of the “evidence for the Crown … in relation to both of the incidents”, which is necessarily a reference to the Terrigal incident and the circumstances of count 1: Revised Reasons, p 10.

It follows that ground 1 is not made out. Had the trial judge’s ruling involved error, there would have been a “departure from trial according to law”, and accordingly a miscarriage of justice. It would then have been necessary to consider whether that miscarriage was “substantial” within the proviso to Criminal Appeal Act, s 6(1): see R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [41]–[42] (Simpson J, McClellan CJ at CL agreeing). That question does not arise.

Ground 2 raises a question as to whether the use of the tendency evidence admitted in the trial resulted in a miscarriage of justice. Acceptance of that ground would also then require consideration of the proviso. The applicant relies on the following two matters "related to the tendency evidence which suggest a miscarriage of justice occurred":

In its opening, the Crown had described the tendency on which it relied as a tendency both to have a particular state of mind and to act in a particular way, namely “to be violent toward the complainant”. In exchanges with counsel before the final addresses, the trial judge discussed aspects of the proposed tendency direction. In its final address, the Crown referred to the tendency as being “to act in a particular way”. In the course of the defence final address, the trial judge noted the two formulations of the tendency in the Crown opening and indicated that she would direct the jury that the tendency relied on was to act in a particular way.

A draft copy of the direction given to the jury in the summing was provided to counsel and discussed before being finalised. In her final direction to the jury, the trial judge identified the tendency relied on as being "to act in particular way, namely to be violent towards the complainant”. With respect to counts 4 and 5, the jury was specifically directed as follows in relation to the evidence of the Terrigal incident (and separately directed in the same terms in relation to the count 1 evidence):

These directions instructed the jury in unambiguous terms what the tendency was and the manner in which it could and could not be used. The direction was agreed by counsel, and no argument was put (either before the summing or following it) that the direction had either of the characteristics now contended. The applicant’s first submission in support of this ground is rejected.

As to the use of the CCTV footage, the issue is whether the jury’s opportunity to watch the DVD unsupervised on any number of occasions led to a miscarriage of justice because there was a real risk that doing so could induce a juror or jurors to adopt an irrational response to that evidence or the accused. Two considerations tell against there being any such miscarriage. First, counsel for the accused, who was astute to the interests of his client throughout the trial, did not object to or seek any direction concerning the replaying of the DVD, notwithstanding that Ellis DCJ had suggested the possibility of such a direction after the first arraignment. Secondly, what appears on the footage is not particularly graphic or likely to induce such a reaction on repeated viewing.

Grounds 1 and 2 are not made out. Leave to appeal from the convictions on these grounds should be granted, and the appeal dismissed.

The applicant submits that the sentencing judge erred in determining the objective seriousness of counts 4 and 5 by failing to take into account the duration of each offence and that neither was undertaken by the applicant for the purpose of deriving sexual gratification. In her remarks on sentencing, her Honour had noted the submissions of counsel for the accused as to both matters, but concluded that the offences were “degrading and demeaning towards the complainant” and “objectively very serious”. As the respondent accepts, her Honour did not make express findings directed to either matter. The appellant submits that her Honour should have done so and then taken each matter into account as diminishing the objective seriousness of each offence. The ultimate question, therefore, is whether any failure to do so amounted to House v The King (1936) 55 CLR 499 error.

In my view, the answer is plainly no, as suggested by the following reasons of Hoeben CJ at CL (Adams and RA Hulme JJ agreeing) in Simpson v R [2014] NSWCCA 23 at [30]–[32]:

The sentencing judge was entitled to regard the duration of the digital penetration as “largely irrelevant” in its context, and in any event as just one of the circumstances to be taken into account, as her Honour did. And there is nothing to commend the proposition that engaging in sexual intercourse without consent to gratify oneself is in any sense more objectionable than doing so to humiliate and physically dominate another.

Ground 3 has no merit, and leave to appeal from the sentences imposed should be refused.

Accordingly, the orders I propose are:

ROTHMAN J: I agree with Meagher JA.

BUTTON J: I agree with Meagher JA.