Chow v R

1. [1]

   DAVIES J: The applicant was charged with the following offences to which he pleaded not guilty:

2. [2]

   The applicant stood trial before her Honour Judge S Harris and a jury. On 14 April 2023 the jury found the applicant guilty on all counts.

3. [3]

   On 29 September 2023 her Honour sentenced the applicant to an aggregate sentence of imprisonment for 7 years 10 months commencing 20 June 2021 and expiring 19 April 2029 with a non-parole period of 5 years expiring 19 June 2026.

4. [4]

   The indicative sentences were as follows:

5. [5]

   The applicant filed a notice of appeal against his conviction on the following grounds:

6. [6]

   At the outset of the hearing of the appeal the applicant abandoned grounds 1(a) and 1(b). During the hearing of the appeal the applicant sought, and was granted, leave to add a further ground as follows:

7. [7]

   The appeal was filed out of time and the applicant seeks an extension of time. The Crown does not oppose an extension of time being given.

The Crown case

1. [8]

   At the time of the offences the complainant was aged 24 and the applicant was aged 26. They met in about December 2019 at a dinner gathering, having been introduced by the complainant’s friend, Xie Yu, who was also the complainant’s support person in her police interview on 25 December 2020. The complainant is from China and her family lives there.

2. [9]

   The complainant and the applicant commenced their relationship in December 2019 and soon afterwards moved in together, living first at an address in Mascot before moving to Lachlan Street in Waterloo where the offending was alleged to have taken place. They resided there with the applicant’s younger brother, Minwei Chow, his younger sister, Chi Yong Chow, and their friends Zeng Jun Min and Jinwuen Ng.

3. [10]

   The complainant said that problems began to emerge in their relationship around about April 2020. Some of the problems involved tensions in relation to money.

4. [11]

   The offences occurred over a six day period between 20 and 25 December 2020. On 20 December 2020 the complainant washed the applicant’s pants which contained a foreign exchange ticket inside his pocket to the value of $5,000.00. The applicant became angry and he did a number of things including verbally abusing her, asking her to apologise, and throwing her cosmetic skin care products (worth about $800.00 or $900.00) on the ground.

5. [12]

   The applicant then went to the kitchen, grabbed a knife and left the apartment. When he returned he put the complainant’s cat in a sealed container and left the apartment with the cat and container, saying, “If you want to leave, don't feel regret.” The cat was a gift from the applicant to the complainant earlier in the relationship.

6. [13]

   The applicant then returned to the apartment. The complainant was in the bedroom sitting on the bed. The applicant came into the bedroom, took the cat out of the container, took out the knife and said:

7. [14]

   This constituted count 1.

8. [15]

   On Wednesday, 23 December 2020, there was an argument during the day when the complainant told the applicant she wanted to leave and that they were “no longer boyfriend and girlfriend”. She then left for several hours.

9. [16]

   Later in the day when she returned, she told the applicant that her parents wanted her to return to China. At about 4:00pm the complainant said that the applicant put her cat into the microwave and pressed the button. She said she thought the cat would have been in the microwave oven for one to two minutes but she wasn’t sure. She said she could hear the cat screaming painfully. She tried to stop the applicant but she couldn't.

10. [17]

    She then went into Zeng Jun Min’s room. The applicant followed her into the room carrying a knife wrapped in newspaper and said, “I think we need to talk about it. Have a talk. If you don't come into the room with me we will be over. We will die.” Zeng Jun Min told the applicant that he needed to put the knife down before they could talk. After about ten minutes the applicant put the knife down. This constituted count 2.

11. [18]

    That night at about 11:00pm, the complainant went to sleep on the couch in the living room because she did not want to sleep in the bedroom with the applicant. At some point the applicant came into the living room and picked the complainant up and carried her from the couch to the bedroom they had previously shared. She struggled against him, hitting her hand against the doorway. He asked her if she was injured but she said she was not.

12. [19]

    The applicant then locked the bedroom door and put the complainant on the bed. He got onto the bed and held her tightly from behind. She told him that their relationship was over and that she did not want him back. She later fell asleep. She woke up to find the applicant kissing her shoulder, her back and her vagina. He then put his penis into her mouth while his legs were on either side of her head and she could not move. That lasted for two or three minutes. This constituted count 3.

13. [20]

    The applicant next put either his hand or two fingers inside the complainant’s vagina. This constituted count 4.

14. [21]

    The applicant then retrieved a condom from the bedside chest and put it on his penis. He then inserted his penis into her vagina for about ten minutes. The complainant said to him, “I don’t want to have a sexual relationship with you as a boyfriend/girlfriend anymore. I’m not your girlfriend.” The complainant tried to move off the bed but somehow the applicant moved her body back. This constituted count 5.

15. [22]

    The applicant then removed his penis from her vagina, took the condom off, and then reinserted his penis into her vagina without a condom. He then continued until he ejaculated. This constituted count 6.

16. [23]

    The next morning, the complainant “tried to have the things up leaving”. (The complainant’s evidence was given through an interpreter. This statement appears to mean that she gathered her things together in order to leave.) The applicant sat there, used a knife to cut his own wrist, and said, "If you leave me, I will jump from this building." The complainant said that the applicant wanted her to stay but she disagreed. The applicant then went out onto the balcony and sat on the handrail threatening to jump. The complainant said, "I will stay, I will stay here. You calm down.”

17. [24]

    The applicant did not get down from the handrail but sat there for about 15 minutes. Someone apparently called the police and when they arrived they pushed the buzzer downstairs. When the applicant saw the police he got down off the handrail and left the balcony. The police did not come to the apartment and the complainant did not speak to them at that point.

18. [25]

    The applicant left the apartment. The complainant packed her luggage and went to Xie Yu’s place. She asked Xie Yu to take her to a chemist to get the “birth control pill”. Ms Yu asked her, “Did he force you to have sex?” and the complainant said “Yes”. The complainant stayed at Ms Yu’s house on the night of 24 December 2020.

19. [26]

    The following morning, the applicant sent a text to the complainant telling her she could come back to the apartment to get her luggage. The complainant went to the apartment for that purpose. When she arrived, the applicant wanted to talk to her and said he wanted the cat. While she was in the bedroom packing, the applicant entered the bedroom. He shut and locked the door. He started talking about the cat. At some point he held her tightly on her arms and pushed her to the ground. She felt pain in her lower back and arms and suffered bruising to her right arm. This constituted count 7.

20. [27]

    At some point, the complainant started recording the conversation using her phone. In that conversation, the applicant admitted to having beaten the cat for disciplinary reasons. He asked her to give him the cat.

21. [28]

    The complainant sent a text to her friend to call the police. The applicant left the unit. Ten minutes later the police arrived. At about that time the applicant sent a text to the complainant saying, “If you withdraw it, I will take it that nothing happened…I just wanted you to give my cat back to me”.

22. [29]

    That evening at Mascot Police Station the complainant recorded an interview (the Domestic Violence Evidence in Chief (“DVEC”)) with the police and the police took photos of her. Later that evening a Dr Pfeiffer examined her.

23. [30]

    During the course of the interview, the complainant did not say anything to the police about the sexual assaults. The next day, the complainant commenced the first of her written statements to the police.

24. [31]

    The Crown also relied on a number of uncharged acts as context evidence. In the light of the abandonment of ground 1(a), it is not necessary to detail that evidence.

The course of the trial

1. [32]

   It is necessary to say something briefly about procedural matters concerning the trial because of a submission made by the applicant in relation to the acts and omissions of his trial counsel.

2. [33]

   The first trial commenced before Judge David on 15 March 2023. The applicant was represented by different counsel from counsel who subsequently appeared for him. On the third day of the trial, counsel then acting for the applicant informed Judge David that the applicant wished to instruct new counsel. On the fourth day of the trial (20 March 2023) new counsel appeared for the applicant. That counsel continued to appear for the applicant throughout the first trial, the subsequent trials and the sentence proceedings.

3. [34]

   The applicant’s new counsel objected to aspects of the DVEC that were not raised by the previous counsel. As a result of that and other matters, the jury was discharged.

4. [35]

   On 28 March 2023 the second trial commenced before Judge Harris. Following the Crown’s opening address, a juror sent a note to the judge saying that they could not be impartial. Judge Harris then discharged the whole jury.

5. [36]

   On 29 March 2023 the third trial commenced before Judge Harris and proceeded to verdict on 14 April 2023.

Grounds of appeal

1. [37]

   It is convenient to deal with the two grounds of appeal together. At the hearing of the appeal, counsel addressed ground 1(c). At the conclusion of the oral submissions made by the Crown, the Court suggested to the applicant’s counsel that ground 1(c) as drafted may not accurately reflect the substance of the submissions concerning consciousness of guilt. It was at that point that counsel for the applicant sought leave to add the further ground of appeal. He indicated the substance of the proposed ground. Both counsel indicated that they did not wish to supplement their submissions as a result of adding the further ground.

2. [38]

   In his closing address the Crown prosecutor said about the self-harm incidents:

3. [39]

   A little later the Crown said this:

4. [40]

   The applicant submitted that the purpose for which the evidence of the self-harm was led was not made explicit. However, the applicant submitted that there were four discernible purposes for which it was adduced:

5. [41]

   The applicant submitted that the italicised words in the passage above at [39] had the effect of introducing the issue of consciousness of guilt, in the sense that the Crown prosecutor was suggesting that what the applicant did that morning (cutting his wrist and climbing onto the balustrade of the balcony (“the self-harm incident”)) was done because the sex between the complainant and the applicant the previous night had not been consensual.

6. [42]

   In her Honour’s summing up to the jury, when setting out additional submissions made by each of the parties, her Honour said:

7. [43]

   The applicant submitted that this framing of the post-offence conduct by the trial judge supported the Crown’s case on consent. The applicant submitted that it was not made explicit by the Crown or the trial judge how it was capable of supporting a lack of consent, but the inescapable inference was that it was evidence of either a specific or general guilty conscience.

8. [44]

   The applicant submitted that, whether or not the Crown prosecutor had introduced consciousness of guilt in what he said in the passage at [39] above, the trial judge made a link between the Crown’s submission that the sex was non-consensual and what the applicant did the following morning in threatening self-harm with a knife and jumping from the balcony. In those circumstances, the applicant submitted that the trial judge should have given a direction that the jury should not use the evidence about the self-harm incident to reason in a consciousness of guilt fashion. The applicant submitted that the judge should have directed the jury that the evidence was only admitted in relation to the applicant’s attempt to manipulate the complainant into not breaking up with him and/or leaving the flat that morning.

9. [45]

   The applicant submitted that the trial judge should have given that part of the suggested direction in the Criminal Trials Bench Book at [2-965] as follows:

10. [46]

    The Crown submitted that the words in that portion of the judge’s summing up, “is supported by what followed”, was a reference to the complainant’s evidence of being in the process of leaving later that morning. Her Honour was not saying that the non-consensual sex was supported by the threats of self-harm. Rather, the threats of self-harm were merely the applicant’s “apparent response” to the complainant’s intention of leaving the apartment.

11. [47]

    In the first place, it is clear that the Crown prosecutor was not relying on consciousness of guilt as part of the case against the applicant. Consciousness of guilt had been raised in a separate context in relation to the police trying to locate the applicant in order to arrest him. The Crown eschewed reliance on consciousness of guilt.

12. [48]

    In my opinion, nothing in the Crown prosecutor’s closing address, including the italicised portion at [39] above, resulted in an invitation to the jury to engage in consciousness of guilt reasoning. A reading of all of the portions of the closing address dealing with the self-harm incident indicates that the evidence of the self-harm incident was linked to the applicant’s manipulation of the complainant not to leave the apartment and not to break up with him. The point clearly being made by the Crown from the italicised portion of the address was that, if the complainant and the applicant had broken up but then reconciled and had consensual sex, one would not have expected the self-harm behaviour the next morning. The only rational inference that the jury could have drawn from the closing address was that the self-harm behaviour was related to the applicant’s attempt to manipulate the complainant and not to any notion that he engaged in that behaviour out of guilt for having had non-consensual sex with the complainant the night before.

13. [49]

    The passage in the trial judge’s summing up is not so clear. Her Honour was, no doubt, endeavouring to summarise the submission made by the Crown in the passage or passages set out at [38] and [39] above, and was doing so in an ex tempore summing up which followed immediately after the defence’s closing address. In doing so, on one reading of what her Honour said, she appears to make more of a link between the non-consensual sex (on the Crown’s submission) and the self-harm incident by saying to the jury that the Crown’s submission was that that behaviour supported the non-consensual sex.

14. [50]

    Although there is force in the Crown’s submission that “what followed” was simply the complainant’s evidence that “she was in the process of leaving later that morning”, her Honour added “coupled with” the accused’s apparent response of self-harm. Those words were, perhaps, somewhat unfortunate, but it is not at all obvious, however, that making the link in that way would lead the jury to reason that the attempts at self-harm were from guilt on the part of the applicant for having engaged in non-consensual sex. Of the two matters said to be “coupled”, the complainant’s intention to leave could not constitute consciousness of guilt reasoning, so it is difficult to see how what the trial judge described as the applicant’s “apparent response” to that intention could elevate his response to consciousness of guilt reasoning.

15. [51]

    It is clear that the course of events, relied on by the Crown and summarised in the passage by the trial judge set out at [42] above, comprised three matters consecutively as the Crown made clear in its closing address: the sex including unprotected sex the night before, the clear indications of the complainant that she was intending to leave that morning, and the self-harm behaviour to manipulate (as the Crown repeatedly asserted) the complainant into staying.

16. [52]

    If, as I have determined, consciousness of guilt reasoning cannot be derived from the Crown prosecutor’s closing address, it can be seen that the applicant’s submission effectively obtains its only support by a focus on two words said by the trial judge when summarising the greater detail in the Crown’s submissions on this aspect of the matter.

17. [53]

    No objection was taken by the applicant’s trial counsel to the Crown prosecutor’s address nor to what the trial judge said, nor was any direction sought that the jury should not engage in consciousness of guilt reasoning. In that regard, the absence of any application by the applicant’s trial counsel either for those remarks of the trial judge to be corrected or for her Honour to give a direction that the jury should not engage in consciousness of guilt reasoning is significant for two reasons. First, it means that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applies. Secondly, it is a good indication that, in the atmosphere of the trial, counsel saw no injustice as to what was being done.

18. [54]

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

19. [55]

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

20. [56]

    The likelihood is that the subtle difference in the trial judge’s summary of the Crown prosecutor’s submission went unnoticed by both the Crown prosecutor and the applicant’s trial counsel. Nor is there any reason to suggest that the jury would have focused on those two words of the judge to place a different meaning on the self-harm incident than the one the Crown prosecutor had emphasised at length. If counsel did notice the subtle difference, but made a conscious decision not to raise the matter because drawing it to the jury’s attention might inflict more damage than remaining silent, then any such decision was a forensic one in the context of the atmosphere of the trial.

21. [57]

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

22. [58]

    Similarly, Gaudron J said:

23. [59]

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

24. [60]

    In Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 the trial judge introduced the topic of the possibility of lies constituting evidence of consciousness of guilt when it had not been raised by the Crown. In upholding the appeal on the ground that the trial judge, having introduced the notion of consciousness of guilt, did not thereafter give a full direction in accordance with Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, the High Court said that where the prosecutor did not expressly or by implication suggest that any answer given was a lie told out of consciousness of guilt, it was unnecessary and indeed undesirable that any Edwards direction should have been given. The joint judgment went on to say at [20]:

25. [61]

    In Pethybridge v R [2020] NSWCCA 247, Paynes JA (Fagan and Cavanagh JJ agreeing) said:

26. [62]

    It is clear that it would have been entirely artificial not to have led the evidence of what occurred on the morning of 24 December. Nor was any objection taken to the evidence. Contrary to the applicant’s submission, it was tolerably clear that the complainant’s clear intention of leaving that morning was supportive of her case that the sex the night before was not consensual. She did not leave as intended, and the reason for that was the applicant’s self-harm behaviour. On the applicant’s suggestions of the possible purposes for which the evidence was led (at [40] above), nothing in the Crown’s conduct of the case and in its closing address suggested that the evidence was led otherwise than for purposes (c) and (d).

27. [63]

    The applicant now complains that the trial judge did not put to the jury what his counsel had said in his closing address, that he may have engaged in the self-harm behaviour because he was upset from money problems, that he was young and he was in love.

28. [64]

    A reading of defence counsel’s closing address where this matter is mentioned makes clear that the matter was mentioned only as an introduction to a point made about what the applicant did when he got down from the balcony fence. The matter was not mentioned in the context of answering the Crown’s submission about the applicant attempting to manipulate the complainant into remaining at the apartment and in the relationship or to link the matter to the sexual activity the night before. Significantly, the trial judge summarised the defence case in 14 points and then immediately asked counsel if they wanted to raise any matter of fact or law before the jury ballot was conducted. Both counsel said that they did not.

29. [65]

    A reading of the whole of the evidence, addresses and summing up of the trial shows clearly that the matter of consciousness of guilt reasoning from the self-harm incident was not in the contemplation of those acting for the parties nor the trial judge. Viewed objectively (Kirby J in Zoneff at [71]) the evidence could not be relied upon to prove guilt. The absence of any objection by the applicant’s trial counsel to anything said by the Crown in its closing address or to what the trial judge said when summing-up, and the absence of any request for a consciousness of guilt direction points strongly to the conclusion that in the atmosphere of the trial there was no concern that the jury might engage in consciousness of guilt reasoning.

30. [66]

    Contrary to ground 1(d), the trial judge did not direct the jury that it could reason that the sexual activity was non-consensual based on the incidents that followed. In the impugned passage, set out at [42] above, the trial judge merely summarised a submission of the Crown as the passage makes clear. It was not a direction to the jury. For the reasons earlier given, it did not give rise to consciousness of guilt reasoning.

31. [67]

    There is no basis for concluding that the jury may have engaged in consciousness of guilt reasoning. As Zoneff makes clear, it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought. Judged objectively (Nudd at [10]) it is also clear why counsel for the applicant would not have wanted to highlight the issue.

32. [68]

    The applicant submitted that, in deciding whether r 4.15 prevents the applicant now submitting that such a direction ought to have been given, the court should take into account that the applicant’s trial counsel inherited a trial that had already commenced and in which a strategy had already seemingly developed. However, trial counsel was briefed after the jury was discharged in the first trial but had been briefed some eight days prior to the commencement of the second trial which also resulted in a discharge of the jury.

33. [69]

    The only limitation on the applicant’s trial counsel was that some of the complainant’s evidence in chief had been given in the first trial. As she had not been cross-examined, it is difficult to understand how counsel was not able to conduct the defence according to whatever strategy he devised. It is also difficult to understand how defence counsel’s approach to the issue of consciousness of guilt was in any way circumscribed by the fact that he commenced to act for the applicant some eight or nine days before the trial commenced.

34. [70]

    In Zhou v R [2021] NSWCCA 278, Beech-Jones CJ at CL (Davies & Wilson JJ agreeing) said at [22]:

35. [71]

    The applicant does not demonstrate any miscarriage of justice from any direction or failure to give a direction by the trial judge, nor from anything in the Crown’s closing address. Rule 4.15 applies with result that leave should be refused in respect of both grounds of appeal.

Conclusion

1. [72]

   I propose the following orders:

   1. (1)

      Extend time for the filing of the Notice of appeal to 14 February 2025.

   2. (2)

      Refuse leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. [73]

   CAVANAGH J: I agree with Davies J.

3. [74]

   YEHIA J: I have had the considerable advantage of reading the judgment, in draft, of Davies J. I agree with his Honour’s proposed orders and with his Honour’s reasons.