Gorge v R

1. [1]

   HOEBEN CJ AT CL: I agree with Hamill J and the orders which he proposes.

2. [2]

   HAMILL J: Mahir Gorge seeks to appeal against his convictions in relation to one count of aggravated indecent assault contrary to 61M of the Crimes Act 1900 (NSW) (count 1) and one count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act (count 3). The two offences were allegedly committed on 5 June 2018 and the complainant, Fatima (a pseudonym), [1] was a 17-year-old employee at the applicant’s café in San Souci. Mr Gorge was found guilty on 15 August 2019 following his trial in the District Court before his Honour Judge Ingram SC and a jury. On 22 November 2019 he was sentenced to an aggregate term 4½ years imprisonment with a non-parole period of 3 years. There is no application for leave to appeal against the sentence.

3. [3]

   The applicant raises a single ground of appeal against the conviction, namely that “a miscarriage of justice was occasioned by the failure of his Honour to sum up the case for the defence, sufficiently or at all”. Because no complaint or objection was made at the trial, and no re-direction was sought, Mr Gorge requires leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). [2]

4. [4]

   I have concluded that leave to appeal should be granted but that the appeal must be dismissed. These are my reasons for that decision.

The prosecution case at trial

1. [5]

   The prosecution case was dependant on the evidence of the complainant although reliance was also placed on her early complaint and some forensic (DNA) evidence.

2. [6]

   The complainant gave evidence that the applicant acted inappropriately towards her on a number of occasions between the time she started working at the café (22 April 2018) and the date of the alleged offences (5 June 2018). She said there were several instances of the applicant making inappropriate jokes and unwelcome sexual advances towards her during her shifts at the café. The offences were alleged to be an escalation of that behaviour and the culmination of a course of conduct which commenced during work hours earlier the same day.

3. [7]

   The complainant gave evidence that on one occasion the applicant asked her to touch his chest. The complainant refused and the applicant grabbed her hands and put them on his chest, saying, “Oh, now it’s my turn. Let me touch yours”. This was referred to as “the Chest Incident”.

4. [8]

   The complainant said on another occasion the applicant asked her which of the café’s male employees she would choose to “smash” (or have sex with) while showing her pictures of circumcised and uncircumcised penises on his computer. This was called “the Laptop Incident”.

5. [9]

   On 5 June 2018, the complainant gave evidence that the applicant was holding a sausage in his hand and waving it in her direction. CCTV footage said to depict “the Sausage Incident” was tendered and played to the jury at the trial.

6. [10]

   The complainant testified that on the day of the alleged offences, the applicant made lewd comments about oral sex while she was cleaning up in the sink area (“the Sink Incident”). There was a question over whether this incident was captured on CCTV and the complainant was cross-examined on that subject. The complainant gave evidence that the applicant asked her to perform oral sex on him and to “shake on it”. She said:

7. [11]

   At closing time during the same shift, the complainant gave evidence that she and the applicant were bringing in tables from outside the café while it was raining. The applicant moved a table so that Fatima got wet. She said “you made me wet. Now I’m wet” and the applicant replied “oh, now you’re all wet” with a smirk on his face. This interaction was recorded on the café’s CCTV cameras.

8. [12]

   These incidents were relied upon by the prosecution at trial as background or context evidence and to provide some support for the complainant’s account of the “escalation of conduct” leading up to the offences.

9. [13]

   Fatima said she planned to go to the Female Fitness Club gym “around the corner” at the end of her shift on 5 June 2018. It was raining heavily and she decided to book an Uber despite the short distance to the gym. As she was walking back inside, the applicant called out from his vehicle and asked the complainant what she was doing. Fatima told him that she was waiting for an Uber and the applicant offered to drive the complainant to the gym saying, “[d]on’t be silly, like come in”.

10. [14]

    Fatima got into the applicant’s car. The applicant said he knew where the gym was, but Fatima put the gym’s location into the Google Maps application on her ‘phone. She noticed the applicant took a wrong turn and stopped the car at an unfamiliar location. The complainant said the applicant put his seat all the way back and asked her to fellate him:

11. [15]

    The complainant said she tried to distract the applicant by pretending another employee of the café was across the road. Fatima gave evidence that she was “really scared” and felt nervous when the applicant unzipped his jeans and exposed his penis saying, “Yeah, you’re going to do it”. The complainant said the applicant then grabbed her hand and made her “rub his penis up and down” until it was erect. Fatima gave evidence that she was not consenting and that she “didn’t know what to do and [she] didn’t want to do it”. This conduct was the subject of count 1.

12. [16]

    The applicant then put his hand behind Fatima’s head, pulled her hair and forced her head down towards his genital area, before “slamming” her mouth onto his penis. The applicant kept hold of the complainant’s head and forced her to fellate him. The complainant said the applicant was moaning and saying words like “Oh, yes, baby” and “Come on, baby”. The applicant continued to do this for a period of time; about “two minutes, one minute. I don’t remember exactly”. The applicant tried to touch Fatima’s breasts and began “grabbing and squeezing” her bottom. At one point, the applicant put one of his hands inside Fatima’s jeans. Fatima gave evidence that she had tears in her eyes and “couldn’t really breathe”. The applicant ejaculated into the complainant’s mouth and shortly after she spat the ejaculate into a used coffee cup in the centre console area of the car. The applicant zipped up his jeans, said “I am going to sleep like a baby tonight” and told Fatima “don’t tell a soul”. This allegation was the basis of count 3 of the indictment.

13. [17]

    The applicant then drove the complainant to the gym. Fatima had noticed a zip-lock bag of cannabis inside a used coffee cup. The applicant said, “that’s my weed”, to which Fatima replied, “well you’re not getting it back” and took it when she left the car.

14. [18]

    Once she was inside the gym, the complainant called her boyfriend, Amir (a pseudonym), [5] and said, “I think Marcus [the applicant] is a paedophile and I have weed from Marcus”.

15. [19]

    Amir gave evidence of this conversation and said he advised the complainant to “chuck [the cannabis] in the bin”. She sounded “normal” in that conversation. Later that night they had another conversation in which Fatima told Amir, “my boss is a paedophile” and she sounded sad. Amir gave an account of what Fatima told him about what had happened. The narrative generally, but not precisely, accorded with the evidence Fatima gave at the trial. Amir was cross-examined about a statement in which he told police that Fatima “sounded very weird, she wasn’t herself” in their first telephone conversation.

16. [20]

    Fatima also told her mother, Amani (a pseudonym), [6] and two co-workers about the incident. Her mother recalled that Fatima told her the applicant, “pulled her by the hair and he forced her down there and he told her to suck his dick and he forced her”. Two other employees of the café gave evidence of what they were told by the complainant. Rose (a pseudonym) [7] said Fatima called her on the night of the incident and told her that the applicant followed her around all day asking for her “to give him head”, that he “forced her” and “asked her to swallow it”. Rose said the applicant sounded uneasy, distant and agitated. During the conversation, Rose encouraged Fatima to tell an adult about what had happened. Rose messaged Eva Johnstone via Instagram, who was a slightly older female staff member, asking her to call Fatima and said “something happened at work to [Fatima] and I think she needs someone older to talk about it”. Screen shots of the Instagram messages from Rose to Ms Johnstone were tendered at the trial. Ms Johnstone gave evidence that she had a ‘phone conversation with Fatima later that night during which Fatima said the applicant “raped her” and described the events in similar terms to the evidence that Fatima eventually gave at trial. Ms Johnstone sent several follow-up messages to Fatima checking on her well-being and providing advice about how to obtain her pay and resign, which were also tendered as an exhibit at trial.

17. [21]

    On 6 June 2018, after some discussion between the Fatima, Amir and others, Fatima reported the matter to police. She made a statement and photographs were taken of bruising on the interior wall of Fatima’s upper lip. Fatima believed this injury was caused during the incident with the applicant.

18. [22]

    The applicant attended Kogarah Police Station voluntarily on the morning of 8 June 2018, after he was requested to attend by police, and spoke with detectives. He participated in an electronically recorded interview (“ERISP”), was arrested and charged later that day, and released to bail on 12 June 2018.

19. [23]

    Forensic evidence established the presence of semen inside the applicant’s car and a DNA profile consistent, to a very high degree of probability, with that of Fatima on the applicant’s work-shirt. There was also a semen stain on the shirt in the same location. The evidence of the forensic examiner and biologist was not without complication because some of the samples returned presumptively positive results for semen or “sperm cells” but the result could not be confirmed in all cases. In view of the way the case was conducted at trial and on appeal, there is no need to descend into the detail of these complications.

The applicant’s case at trial

1. [24]

   The applicant’s case at trial largely accorded with the narrative he provided to police in his ERISP on 8 June 2018. He relied on what he had told police and did not give evidence at the trial. However, the applicant called evidence from his wife and another employee of the café, Mittiporn Wuttirat (“Tong”).

2. [25]

   There was no substantial dispute about the complainant’s timeline of events on the afternoon of 5 June 2018. The applicant agreed that the complainant travelled with him in his vehicle to the Female Fitness Club shortly after work finished, and that the applicant pulled the car over for a period of time. However, the applicant’s case was that the complainant initiated the intimate conduct the subject of count 1 and denied that the conduct alleged in count 3 occurred at all. He said whatever happened between he and the complainant took place when he stopped the car to locate his cigarettes.

3. [26]

   The applicant disputed the complainant’s characterisation of the “background evidence” (the “Chest”, “Laptop”, “Sausage”, “Sink” and “Table” incidents). He adduced evidence from Tong to rebut parts of the prosecution’s case. Tong said she had never seen the applicant do anything inappropriate towards the complainant. She said the applicant was “friendly” and would “make a joke with us all”. She gave evidence that he made jokes about his “boobies” with her. This conflicted with the complainant’s evidence in which she denied that the applicant would frequently make jokes with staff members about his chest muscles. Trial counsel relied on this evidence to undermine the complainant’s evidence that the applicant’s conduct was sinister and directed to her specifically. It was submitted the conduct was merely part of the applicant’s friendly and jocular interaction with the staff at the café.

4. [27]

   The applicant’s wife gave evidence relating to “date nights” during which the couple had sex in his car and occasions when the applicant wore his work shirts during sexual activity. She also gave evidence that she and the applicant had sex “most mornings” while the applicant wore his work shirts. This evidence was adduced to explain the DNA evidence led by the prosecution concerning forensic samples of semen obtained from the applicant’s clothing and car shortly after the complaint was made.

5. [28]

   The applicant’s case as to the presence of Fatima’s DNA was simply that the finding was uncontroversial given that there was no issue that she had travelled in the applicant’s car.

The ground of appeal: A miscarriage of justice was occasioned by the failure of his Honour to sum up the case for the defence, sufficiently or at all.

1. [29]

   The applicant submitted that the summing-up lacked balance and was “deficient, in that it failed sufficiently or, indeed, entirely, to refer to the arguments, which had been advanced on the [applicant’s] behalf”. Reference was made to cases such as R v Zorad (1990) 19 NSWLR 91 at 105 and El-Jalkh v R [2009] NSWCCA 139 at [147] (James J). The submissions focussed on various failures to discuss the defence case at different stages of the summing-up. Specifically, the applicant complained about the directions and the lack of reference to the defence case in respect of four categories of evidence: the “complaint” evidence, the ERISP, the CCTV evidence and the DNA evidence.

2. [30]

   Fatima’s various accounts of the incident to her mother, boyfriend and two co-workers after the incident and the days following was referred to as “complaint evidence”. At the hearing of the appeal, the applicant conceded that the defence case on the complaint evidence was addressed in the summing-up but submitted that it was “perhaps unsatisfactory”. [8]

3. [31]

   The applicant submitted that the trial Judge failed to “discuss the differences” in the accounts of the incident the complainant provided to various witnesses. [9] The applicant contended that the “only substantial” reference to the defence case in this part of the summing-up was to contextualise the direction which followed; which was to the effect that contradictions in recollection or recounting might be expected in the aftermath of a traumatic incident. [10] The applicant took the Court to the following part the summing-up:

4. [32]

   The applicant criticised Judge Ingram’s summing-up of the applicant’s ERISP as being little more than “a prelude to a Zoneff [12] direction”. That is, the reference to the ERISP was simply used as an example of how the jury was entitled to use the applicant’s version of events if it formed the view that parts of it were false. It was submitted that it amounted to a direction as to how the jury “could treat lies in his record of interview, if its members concluded that the [applicant] had told lies”. [13] The applicant submitted this was an example of a failure to adequately to address or explain the applicant’s case. The applicant referred to the following part of the summing-up:

5. [33]

   It was submitted that, “far from explaining the [applicant’s] case, the direction, being one of the few references to the record of interview, had the very real capacity to detract from the importance of that record of interview”. [15] At the hearing of the appeal it was submitted:

6. [34]

   The applicant argued that the trial Judge did not explain to the jury how the CCTV footage had the capacity to undermine the credit of the complainant in relation to the evidence she gave as to the background incidents. The applicant argued that the Judge erred in failing to draw the jury’s attention to Fatima’s responses when confronted with the CCTV evidence and that the cross-examination on this issue, and by reference to this objective evidence, had a capacity to undermine the complainant’s credibility.

7. [35]

   At the trial, defence counsel (who did not appear on the appeal) used the CCTV footage in cross-examining the complainant in relation to the Sausage Incident and the Sink Incident. It was submitted that the complainant made various concessions and changed her version of events.

8. [36]

   In relation to the Sausage Incident, the applicant relied on the following cross-examination:

9. [37]

   The complainant conceded that other people were present when this incident occurred:

10. [38]

    The prosecution led the following evidence in relation to the CCTV footage said to capture the Sink Incident:

11. [39]

    Defence counsel cross-examined as follows:

12. [40]

    Counsel then replayed the CCTV footage and Fatima made some concessions as to whether the footage actually related to the Sink Incident:

13. [41]

    The applicant’s case is that these kinds of inconsistencies in the complainant’s evidence, and the concessions she made during cross-examination when confronted with the CCTV footage, ought to have been brought to the jury’s attention in the course of the summing-up.

14. [42]

    The applicant submitted that as the Prosecutor at trial had “at least partly” relied on the DNA evidence, and the trial Judge had at least implicitly referred to the Prosecutor’s argument, that fairness required the Judge to refer to “at least some of the arguments” made by the defence in countering that evidence and those arguments. At the hearing of the appeal, the applicant emphasised the trial Judge’s failure to link the DNA evidence with the applicant’s account of how a mixed DNA profile may have been deposited. [22]

15. [43]

    The applicant drew attention to the following part of the summing-up:

16. [44]

    It was submitted that these directions, and the other passages of the summing-up, failed to provide any explicit reference to the positive case of the applicant on this issue; that is, the explanation provided by the applicant in his ERISP and the evidence of his wife concerning the couple’s “date nights”, which included sexual intercourse in their car and while the applicant was wearing his work shirt.

17. [45]

    The thrust of the applicant’s case on appeal is that this accumulation of failures to put the applicant’s case led to a mistrial. The applicant suggests the omissions meant that there was “no discussion of the defence case” in the context of the summing-up.

18. [46]

    The respondent submitted that the summing-up, viewed as a whole and in the context of the relatively simple issues that the jury was called on to determine, established no unfairness to the applicant, did not lack balance, and did not give rise to a miscarriage of justice.

19. [47]

    The trial Judge directed the jury at length on the nature of “complaint evidence” and the respondent relied on the following directions which were said to be favourable to the applicant:

20. [48]

    The respondent submitted that the summing-up adequately addressed the ERISP and, in spite of the Zoneff direction, the jury were directed twice, on two different days, regarding the appropriate use of this evidence. The respondent drew attention to the first direction concerning the use of the ERISP which was in the following terms:

21. [49]

    The respondent also drew attention to this passage of the summing-up:

22. [50]

    The prosecutor at the trial sought a re-direction and the following further direction was provided on the day the jury retired to consider its verdict:

23. [51]

    The respondent submitted that the trial Judge’s summary of the background evidence incidents, captured on CCTV, were largely devoid of reference to the arguments made by either counsel. The respondent drew attention to the following directions:

24. [52]

    In any event, the respondent submitted that the key dispute as to the CCTV evidence was not so much whether the incidents occurred but whether they had any “sinister” meaning or were no more than harmless “workplace banter”.

25. [53]

    The respondent submitted that the trial Judge directed the jury in relation to the inferences which could properly be drawn from the DNA evidence, and referred to the following part of the summing-up to which reference has already been made:

26. [54]

    The respondent also drew attention to the directions on alternative inferences given in more general terms later in the summing up:

Consideration and resolution

1. [55]

   There was no dispute as to the applicable legal principles and the parties each provided the Court with helpful references to the relevant case law. There is no doubt that a trial judge is required to put an accused person’s case “fairly and adequately” to the jury. [31] One of the issues is whether the jury might have been left under a misapprehension as to the defence case, such that they could not discharge their function. [32]

2. [56]

   In the end, the test is one of fairness in the context of the particular case, [33] and “when any excursion into the issues and evidence is taken”. [34] The “unfairness” which will ground a miscarriage of justice resulting from a summing-up “so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt”. [35] One formulation of the question to be addressed on appeal, as articulated in Maraache, [36] is whether “there was a reasonable possibility that the jury was misled by the summing-up in a significant way or that the jury might not have returned a verdict of guilty had his Honour directed their attention to the version of events advanced” by the defendant at trial.

3. [57]

   In R v Davis [1999] NSWCCA 15 it was said (at [24]):

4. [58]

   Similarly, in Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [108]:

5. [59]

   In Aravena v R, it was also said at [104] – [106]:

6. [60]

   In Domican v R (1992) 173 CLR 555; [1992] HCA 13 the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said at 561:

7. [61]

   In RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 the High Court (Gaudron ACJ, Gummow, Kirby and Hayne JJ) said at [42]:

8. [62]

   More recently, in McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, the High Court (Bell, Keane, Gordon and Edelman JJ) said at [35]:

9. [63]

   The majority addressed the permissible scope of judicial comment at [45]:

10. [64]

    Their Honour’s also stressed at [30]:

11. [65]

    Finally, at [47] their Honour’s said:

12. [66]

    I have considered the summing-up as a whole and in the context of the issues in dispute at the applicant’s trial. I am comfortably satisfied that the summing-up met the test of fairness and balance demanded by the authorities.

13. [67]

    I accept that the trial Judge could have spent more time summarising or reminding the jury of the specific evidence relied on and arguments advanced by the applicant at the trial. By way of example only, it may have been preferable if his Honour had made explicit or more extensive reference to the applicant’s wife’s evidence and its possible relevance to the forensic and DNA evidence relied on by the prosecution. However, the jury could hardly have been under any misunderstanding of the significance of Mrs Gorge’s evidence and the purpose for which it was adduced.

14. [68]

    There was nothing in the summing-up that would have hinted to the jury that the Judge held some view of the case adverse to the applicant. No contrary submission was made. The complaint in the present appeal concerns the absence or inadequacy of judicial comment on certain details of the defence case, rather than any suggestion that the trial Judge made comments that were impermissibly favourable to the prosecution.

15. [69]

    The case is in stark contrast to cases such as McKell v the Queen [37] where the Judge allowed himself to become an advocate for the prosecution. For the most part, Judge Ingram steered clear of expressing any view of the facts. On more than one occasion his Honour said that he was expressing no view of the facts or evidence when he directed the jury on particular legal principles. One instance of this was when he gave the jury the Zoneff direction. A failure to give such a direction would have undoubtedly led to criticism in circumstances where the jury may well have concluded that the version provided by the applicant should not be accepted.

16. [70]

    As to the applicant’s submissions concerning the complaint evidence, the jury was reminded in general terms of the inconsistencies within that evidence and directed that “the absence of complaint when first speaking to [Amir] is a matter that you may take into account in assessing the credibility of the complainant”. [38] This is a reasonably standard direction, as were the other aspects of the summing-up which emphasised that there may be reasons why a person in the complainant’s position may delay in complaining and why they may provide somewhat inconsistent accounts. In any event, this was a case in which the complaint was prompt. It was not an issue upon which the applicant would have benefited from an extensive factual analysis by the trial Judge.

17. [71]

    As to the ERISP, the jury was reminded that the applicant relied on the version of events he provided to police and directed clearly that he was under no obligation to give evidence or to prove his innocence. Further, for the trial Judge to have dwelled at any length on the applicant’s recorded interview was unlikely, forensically, to have assisted the applicant. There were several aspects of the interview that may not have resonated with the jury. For example, the applicant’s repeated, and non-responsive, assertion that the complainant “was always late to work” or his assertion that “she was having trouble with her boyfriend and throwing it all at me” may have been seen as an attempt to shift the blame and undermine the complainant’s allegation by referring to irrelevant details. Further the jury may have found the applicant’s account to police, that the complainant was the instigator of the sexual contact while he repeatedly tried to stop her, implausible in light of the other evidence. It is unnecessary to go into more detail, but the trial Judge’s comments were as circumspect as the circumstances allowed.

18. [72]

    In relation to the context evidence, the Judge referred to the evidence of Tong and the jury was reminded of the defence suggestion that this was “workplace banter and that that type of behaviour occurs from time to time in workplaces”. [39] The jury was directed that it was not a court of morals and that it ought not to project their own views of the appropriateness of such “banter” on to the issues in the trial.

19. [73]

    As to the DNA and other forensic evidence, the Judge summarised the expert evidence and then provided the jury with a hypothetical example of the DNA of an alleged burglar being found inside a house that was broken into. His Honour told the jury:

20. [74]

    This was a transparent allusion to the possibility that there may be some alternate explanation for the semen located in the car and the presence of the complainant’s DNA on the applicant’s shirt. Little would have been added by the Judge explaining that which was patently obvious to the jury – that Mrs Gorge’s evidence could provide an innocent explanation for the forensic evidence relied on by the prosecution.

21. [75]

    This was a trial in which the evidence was given over the course of four short days (2, 5, 6 and 7 August 2019). It was largely a case of the word against word. The issues were simple and plain. The first issue was whether the complainant initiated the sexual contact that was the subject of count 1 and the second was whether the incident the subject of count 2 occurred at all. In each instance, the jury was directed that the prosecution bore the onus of proof and that it was largely reliant on the evidence of one witness, supported by prompt complaint and some forensic evidence. The inconsistencies in the complaint evidence were patent. The alternative explanation for the DNA and other forensic evidence was also obvious. While these matters do not relieve the trial Judge of his obligations, [41] they illustrate the simplicity of the factual dispute in this trial which, in turn, is relevant to extent to which judicial comment is necessary for a jury properly to understand and assess the defence case. [42]

22. [76]

    The summing-up commenced on the same day that both parties had addressed the jury (8 August 2019). The jury retired to consider its verdict the next day.

23. [77]

    While the submissions made by counsel for the applicant, both in writing and on the hearing of the appeal were not without merit, the summing-up viewed as a whole was balanced and fair. The jury would have been under no misapprehension as to the evidence they needed to assess in order to resolve the issues which arose for consideration.

24. [78]

    I would reject the single ground of appeal advanced on the appeal.

Conclusion and Orders

1. [79]

   I would not invoke r 4.15 of the Supreme Court (Criminal Appeal) Rules to prevent the applicant from advancing this ground. However, the appeal must be dismissed. The orders I would make are as follows:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [80]

   WILSON J: I agree with Hamill J.