Rahman v R

1. [1]

   HARRISON J: The analysis and conclusions of Davies J reflect my reasons for joining in the making of the orders at the conclusion of the hearing on 1 December 2021.

2. [2]

   DAVIES J: At the conclusion of the hearing of this appeal on 1 December 2021, the Court made the following orders:

3. [3]

   The applicant stood trial in late 2019 at the District Court at Sydney before her Honour Judge Traill and a jury on an indictment containing four counts of aggravated indecent assault of a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW) (those sections have since been repealed and replaced). The maximum penalty for this offence is ten years’ imprisonment, and there is a standard non-parole period of eight years.

4. [4]

   On 11 October 2019 the jury returned verdicts of guilty in respect of each count.

5. [5]

   On 11 September 2020 the applicant was sentenced to an aggregate sentence of three years and three months’ imprisonment commencing 1 October 2019 and expiring 31 December 2022 with a non-parole period of two years and three months expiring 31 December 2021. It is more convenient to identify the indicative sentences, when the particular offending in relation to each count is described.

6. [6]

   The applicant now seeks leave to appeal against his conviction on three grounds, and seeks leave to appeal against the sentence imposed on two grounds, as follows:

Background to the offending

1. [7]

   The complainant AA was born in November 2003. She has two older brothers, BB and CC, who were born in 1999 and 2000 respectively.

2. [8]

   In about 2008 the mother of the complainant engaged the applicant as a home tutor for BB and CC. The complainant began to participate in these lessons in 2010. The tutoring always occurred at the complainant’s home, which was first in Lakemba and subsequently in Homebush West.

3. [9]

   The tutoring classes were always conducted in the dining room, with the applicant and the children seated at the dining room table.

4. [10]

   BB and CC stopped attending the classes at the conclusion of their schooling in 2016 and 2017 respectively. Thereafter, the applicant continued to tutor the complainant only.

5. [11]

   The four occasions which resulted in the four charges against the applicant were not isolated incidents. The complainant, after she disclosed the offending to one of her friends, DD, said that the applicant had been touching her inappropriately since she was eight years old. When the applicant participated in a Joint Investigation Response Team interview (JIRT), she said that the inappropriate touching commenced when she was in year 1, and continued to the time when she was in years 4 or 5 when it ceased, but then recommenced in 2018.

The offending

1. [12]

   On a day between 20 January and 13 April 2018, the applicant was tutoring the complainant at her home. One of her brothers was in his bedroom and the other brother was lying on the couch near the dining table. The complainant was in the lounge room sitting at her computer, working on an assignment.

2. [13]

   The applicant sat next to the complainant, and put his hand underneath her dress and touched her on her thigh. The applicant moved his hand around on the complainant’s thigh for about two minutes. This tickled the complainant, and she removed his hand.

3. [14]

   The indicative sentence for this offending was six months’ imprisonment with a non-parole period of three months.

4. [15]

   The complainant said that during April 2018 in the school holidays, the applicant was tutoring her at the dining table in the family home. One of her brothers was at home but not in the dining room. The applicant was sitting at the head of the dining table, and the complainant was standing next to him while he was answering a question.

5. [16]

   While the complainant was standing next to him, the applicant used his hand to grab the complainant's bottom, and squeezed her bottom for approximately ten minutes. That made the complainant feel uncomfortable.

6. [17]

   The indicative sentence for this offending was two years’ imprisonment with a non-parole period of one year.

7. [18]

   On 6 September 2018, the applicant attended the complainant’s home at 8pm for a mathematics tutoring session. One of her brothers was home in his bedroom. During the tutoring session, the applicant said to the complainant, “Oh I love you and you know you’re really nice to me. If you were your brother’s age, I would tell your mother I loved you”. At the time when the applicant spoke these words, the complainant was standing next to him.

8. [19]

   The applicant then put his arm around the complainant, and touched her on the bottom on the outside of her clothing. The applicant tried to hug the complainant and said, “Oh you never hug me back". He tried to kiss the complainant on the mouth with his lips, and kissed her on the corner of her mouth. The complainant said, “I don’t like hugs”.

9. [20]

   The indicative sentence for this offending was two years’ imprisonment with a non-parole period of one year.

10. [21]

    About five minutes after the incident giving rise to count 3, the complainant was standing next to the applicant when the applicant told her to sit on his lap. The applicant grabbed the complainant’s arms and tried to pull her onto his lap. The complainant resisted and said, “No, its okay”. The applicant pulled the complainant back onto his lap, and put both of his hands underneath her robe and squeezed the complainant’s chest on the outside of her t-shirt.

11. [22]

    The complainant got up and told the applicant that she had to end the tutoring session because her friend was going to call her. The applicant said that he would disturb the complainant while she was talking to her friend.

12. [23]

    At 11:24pm that evening, the applicant sent a text to the complainant saying, “How’s it going talking to your friend? Entertaining???" The complainant did not respond.

13. [24]

    The indicative sentence for this offending was two years and six months’ imprisonment with a non-parole period of one year and six months.

Complaint evidence

1. [25]

   The complainant first disclosed the offending to her school friend, DD in the school holidays in April 2018. The two girls had been to the movies and were sitting in a shopping centre at the time. DD told the complainant that she should tell an adult. The complainant did not tell an adult because she did not think that, as a child, she would be believed.

2. [26]

   The complainant made a further disclosure to DD at school on Friday, 7 September 2018 because the incidents constituted by counts 3 and 4 had happened the day before. The complainant was crying as she spoke to DD, and another of her friends, EE, noticed and comforted her. The complainant’s drama teacher became aware that the complainant was upset, and disclosure was then made to her. The drama teacher explained that she had an obligation to report the matter, and that was done to the Deputy Principal.

3. [27]

   On 12 September 2018 the applicant was arrested and interviewed. He denied the allegations. An examination of his mobile phone located the text message sent to the complainant on 6 September 2018, and also located four photographs taken of the complainant during a tutoring session on 9 May 2018.

Grounds of appeal

1. [28]

   The applicant gave evidence at the trial. He was cross-examined about photographs on his phone depicting the complainant. The photos had been taken during tutoring sessions. The applicant denied that he had taken the photographs. He said that the children he was tutoring had access to his phone, and that one or more of them had used his phone to take photographs.

2. [29]

   When cross-examining the applicant, the Crown prosecutor asked these questions:

3. [30]

   In the closing address, the Crown said this in relation to the applicant’s evidence concerning the taking of the photographs:

4. [31]

   The applicant submitted that those remarks went beyond an attack on his credibility. He submitted that the remarks amounted to a submission that the jury could regard his allegedly untruthful evidence as revealing a consciousness of guilt.

5. [32]

   The Crown submitted that it was clear from the closing address that it had relied on the asserted lie (that the applicant had not taken the photographs) at the trial as discrediting his credibility. The Crown submitted that it was the fact that the applicant took the photographs of the complainant, and not the fact that he lied about having done so, that was relied upon by the Crown as some evidence of his sexual interest in the complainant. In those circumstances, the Crown submitted that there was no need for the trial judge to enquire of the prosecutor as to the use sought to be made of the asserted lie, because it was clear from the closing address.

6. [33]

   In Dhanoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 the issue was whether the applicant was amongst a group of four men who had assaulted and robbed another man who had invited them back to his home unit from the pub where they had been drinking. When the police were investigating the complaint, the police told the applicant that his fingerprints had been found at the unit, and he was asked whether he could explain how his prints came to be there. He said that he had no idea, and he denied that he had been at the hotel and denied knowing anything about the incident.

7. [34]

   In his evidence at the trial, the applicant admitted he had been at the hotel and that he had gone back to the unit with the three other men. He gave an account of what he did at the unit which, if accepted, could have provided an innocent explanation of the presence of his fingerprints.

8. [35]

   In his final address, the prosecutor highlighted the differences between what the applicant had said to the police and what he said in evidence at the trial. The prosecutor did not put to the jury that what the applicant said to the police amounted to lies which indicated a consciousness of guilt. The trial judge did not put such a possibility to the jury in his summing up. No directions of the kind considered in Edwards v The Queen (1993) 178 CLR 193 were given.

9. [36]

   The judgment of Gleeson CJ and Hayne J said at [29] that it was not a case in which it could have been contended that it was reasonably open to the jury to find that, in his answers to the police, the applicant had deliberately lied, and that such lies reflected a knowledge on the part of the applicant that telling the truth would implicate him in the commission of the offences.

10. [37]

    The judgment went on to say at [34]:

11. [38]

    In the same case, McHugh and Gummow JJ said at [62]:

12. [39]

    McHugh and Gummow JJ also said:

13. [40]

    It is clear from the Crown’s closing address that the evidence of the applicant, said to be untruthful, was relevant only to an assessment of his credibility. Nothing was said to suggest that the applicant gave the evidence he did in that regard because, if he told the truth, that would reveal his guilt about the offences. Although it had been put to the applicant in cross-examination that, if he took the photographs, that would indicate an inappropriate interest in the complainant, the way the Crown dealt with the photos in his closing address was simply to submit that the applicant had lied about taking the photos, and then to submit that the taking of the photos demonstrated his sexual interest in the complainant:

14. [41]

    When the Crown returned to the issue of the photos and the assertion that the applicant had lied, the matter was put squarely on the basis of the applicant’s credibility:

15. [42]

    There is the further problem that there was no clear evidence that indicated that the applicant’s denial of taking the pictures was a lie. The evidence of the complainant’s brother CC was that he may have taken the photos. When he was first asked in cross-examination about taking the photos he said that he could not remember. He agreed that he had access to the applicant’s phone, but only when he was being tutored by the applicant. He was no longer being tutored in May 2018 when the photos were taken.

16. [43]

    Nevertheless, he then gave this evidence:

17. [44]

    In re-examination, he gave this evidence:

18. [45]

    If CC’s evidence was accepted, there was no other evidence indicating that the applicant’s evidence that he did not take the photos was a lie. It was that evidence of CC which led counsel for the applicant at the trial to suggest in her closing address that it was CC who had taken the photos, and that the applicant was telling the truth in denying that he (the applicant) had taken them.

19. [46]

    As to the operation of r 4.15 Supreme Court (Criminal Appeal) Rules 2021 (NSW), the applicant accepted that no direction had been sought by counsel for the applicant at the trial, but submitted that there could be no forensic reason for the absence of such a request. The Crown submitted that the seeking of a direction on lies would have served only to highlight the inconsistency in the applicant’s evidence about the photographs, and where they were taken from and where he was sitting when they were taken.

20. [47]

    However, the more likely reason the issue of lies was not raised was because of the way counsel for the applicant at the trial dealt with the photographs, by relying on the evidence of CC. What defence counsel was anxious to do was to point to the inconsistency in the Crown’s case as a result of that evidence. If defence counsel had sought an Edwards direction, such a direction would have undermined the submission that CC’s evidence showed that no lie had been told by the applicant.

21. [48]

    No miscarriage of justice was occasioned by the trial judge’s not giving an Edwards direction. Lies amounting to consciousness of guilt did not arise at the trial. Nothing in the Crown’s final address could have led the jury to consider that, if they found that the applicant lied about taking the photos, he did so out of a sense of guilt. Such a direction from the trial judge would have been confusing to the jury, given the way the trial had been conducted.

22. [49]

    Leave should be refused under r 4.15.

23. [50]

    Detective Senior Constable Clarke gave evidence that the applicant had no prior criminal history. In her summing up, the trial judge said this in relation to the applicant’s character:

24. [51]

    The trial judge did not give to the jury the second part of the usual character direction found in the Bench Book as follows:

25. [52]

    The applicant submitted that the Crown case substantially relied on the evidence of the complainant. The Crown sought to impugn the applicant’s credibility by asserting that he was untruthful in his evidence, thereby leading to a conclusion that he was not a credible witness. That lack of credibility could then be used to disbelieve his evidence that he did not commit these offences.

26. [53]

    In that context, the applicant submitted that it was crucial that there be a complete direction as to his good character. Because the trial judge made no reference to the second limb of the standard good character direction, there was a critical failure to direct the jury that the applicant’s good character was a factor in considering whether to accept or reject his explanation given in evidence.

27. [54]

    The applicant relied on what was said by Harrison J (Bathurst CJ agreeing) in Xu v R [2019] NSWCCA 178 at [37] that the issue of good character:

28. [55]

    The applicant submitted that there could be no forensic reason for the absence of a request for a redirection as to the applicant’s good character, because the Crown relied heavily on the applicant’s asserted lies.

29. [56]

    The Crown submitted that the evidence of good character was limited to a single question and answer given by Detective Clarke:

30. [57]

    The Crown pointed also to what counsel for the accused had said in his closing address:

31. [58]

    The Crown submitted that the failure of trial counsel for the applicant to seek any redirection is readily explicable as an appreciation of the limitations of the evidence that had been called.

32. [59]

    In Melbourne v The Queen McHugh J said:

33. [60]

    His Honour then made reference to the character evidence upon which the accused relied (the lack of previous convictions bar one drink driving charge), the fact that he was not adversely known to police, and to the evidence that he was a “quiet man”, a man who was “always gentle”, and had “never” been “aggressive”. His Honour said of this evidence:

34. [61]

    Justice Hayne (with whom Gummow J agreed) said at [156]:

35. [62]

    It is apparent that counsel for the applicant at the trial made only passing reference to the brief evidence of Detective Senior Constable Clarke in relation to the applicant’s having no prior criminal convictions. The remark to the jury was not made in the context of whether they should believe the applicant’s evidence. The Crown in his closing address said nothing about the issue of character. Neither side asked the trial judge to give a character direction, and counsel for the applicant did not ask for a redirection at the conclusion of the Judge’s summing up. In the context of the character evidence given, that was no doubt because that evidence did not bear on the issue of the credibility of the applicant but only, as the trial judge said, on the likelihood of whether he had committed the offences.

36. [63]

    In the light of the character evidence and the way the trial was conducted, it cannot be said that the failure by the trial judge to refer to the second of the character direction constituted a miscarriage of justice.

37. [64]

    Leave should be refused under r 4.15.

38. [65]

    After his arrest, the applicant participated in an ERISP at St George police station on 12 September 2018. The applicant answered a number of questions about when he started to tutor the children, where in the complainant’s house it took place, and how he was paid.

39. [66]

    At question 136 Senior Constable Clarke said that the complainant had made allegations that the applicant had indecently assaulted her, the last time being on 6 September 2019. She asked if he wanted to tell her anything about that, and he replied:

40. [67]

    The precise allegations of what the complainant said had taken place were then put to the applicant who said “No” in answer to everything. The following exchange then occurred:

41. [68]

    Senior Constable Clarke then asked the custody manager to come in to speak to the applicant in the usual manner.

42. [69]

    The recording of the ERISP was played to the jury. The trial judge said nothing to the jury at that time about the applicant’s right to silence.

43. [70]

    In her summing up, the trial judge first made reference to the ERISP, and then to the fact that the applicant had given evidence at the trial. Her Honour said:

44. [71]

    The applicant submitted that from question 139 he exercised his right to silence. The applicant submitted that the trial judge ought to have given the jury a modified direction with regard to his right to silence. The applicant submitted that it was incumbent upon the trial judge to direct the jury that they were not permitted to take into account the fact that he stopped being questioned in a manner to be used against him at all. The applicant submitted that the fact that her Honour indicated that he was “perfectly entitled to do so” by stopping the interview, did not have the same force and effect as directing the jury that the accused’s silence cannot be used against him in any manner at all.

45. [72]

    The Crown drew attention to what was said by the trial judge in the passage set out at [70] above, and particularly to the portion of the summing up where her Honour said that the accused had the right to remain silent and was not required to give evidence. The Crown submitted that whilst the latter part of that direction was given by reference to the applicant's evidence at the trial, it must have been readily apparent to the jury that the same applied to his interview with the police. The Crown submitted that it was clear from the content of the interview itself and the manner in which it was conducted that the applicant was not obliged to answer questions.

46. [73]

    The Crown submitted that it was not suggested by any party to the proceedings that the applicant's decision not to be interviewed further could (much less should) be used against him.

47. [74]

    The Crown pointed out that no request was made by the applicant’s trial counsel for any further direction, and in those circumstances r 4.15 applies. The Crown submitted further that the applicant has not expressly formulated the direction which he now asserts ought to have been given.

48. [75]

    In Petty v The Queen (1991) 173 CLR 95 the High Court (Mason CJ, Deane, Toohey and McHugh JJ) said at 99:

49. [76]

    In R v Reeves (1992) 29 NSWLR 109 this Court was dealing with the position where evidence had been given by a police officer that the accused would not say anything about the incident in respect of which he was later charged.

50. [77]

    Justice Hunt (with whom Mahoney JA agreed with additional reasons and Badgery-Parker J agreed) said at 114-115 that Petty v The Queen:

51. [78]

    Justice Mahoney said this at 112:

52. [79]

    Although Adamson J in Taylor-Joycey v R [2021] NSWCCA 29 (Leeming JA and Harrison J agreeing) said at [89] that she was not persuaded that the use of the word “invariably” in the passage extracted from Reeves had the effect that there had been any error of law in the case her Honour was dealing with, that should not be taken as a statement of general principle to weaken what was said in Reeves. It is evident from what her Honour went on to discuss at [90]-[91], that the way the trial was conducted by counsel for the accused in that case meant that the absence of a direction in relation to the accused’s silence did not lead to an error of law. In particular, her Honour said at [91] that there were reasons why defence counsel may not have sought such a direction.

53. [80]

    By reason of what was said by Mahoney JA in Reeves, the position is that where evidence is led by the Crown of the applicant’s exercise of that right to silence, a conviction will ordinarily be set aside where no direction was given in circumstances such as here.

54. [81]

    The need for a direction is emphasised in the present case by the fact that the applicant answered questions up until the time that questions were put about the specific allegations made by the complainant. In those circumstances, there was a much greater risk that the jury might wrongly infer against the applicant that something had occurred as the complainant alleged, when it was only at that point in the interrogation that the applicant exercised his right to silence.

55. [82]

    I do not consider that the direction given by the trial judge was adequate. What her Honour said was that,

56. [83]

    The problem with the former of those statements is that there was no explanation about the basis for the entitlement, nor any direction that they could draw no adverse inference from that entitlement. The problem with the latter statement is that there is no reason to think that the jury would have taken it to mean other than that the accused was under no obligation to give evidence. The use of the present tense “has”, followed by the reference to giving evidence makes that clear. The trial judge made no connection between the right to silence and what occurred in the middle of the ERISP.

57. [84]

    The standard direction is relevantly as follows:

58. [85]

    There are two important aspects to that direction. First, all people have a right to silence. Secondly, it would be wrong to use the exercise of the right to silence against an accused when he acted on the basis of what the police correctly told him. Neither of those matters was clearly conveyed to the jury by what the trial judge said. Although the trial judge said that the accused had the right to remain silent, it was (as noted earlier) said in the context of the accused having given evidence and denied the allegations.

59. [86]

    The Crown pointed to the caution given by the police during the ERISP, and to what the Crown said in his opening address when he was outlining what took place during the ERISP:

60. [87]

    Two things can be said about those matters. First, statements by the police and the Crown prosecutor do not carry the authority of the Court, and may not, in the minds of the jurors, carry much weight. On the other hand, a trial judge will invariably tell a jury that they must obey the directions the judge gives to them. Secondly, the statement by the Crown prosecutor (like the statement of the trial judge discussed at [82]-[83] above) does not make reference either to the basis of the applicant’s “right”, nor to the important matter that no inference can be drawn by the exercise of the right.

61. [88]

    The parties ought to have sought a silence direction at the time of the tender of the ERISP and in the summing-up: Reeves at 115. When the inadequate direction was given, a further direction ought to have been sought. It is difficult to conceive of any forensic reason why that was not done. It must be assumed to be inadvertence on the part of counsel for the accused.

62. [89]

    In those circumstances it cannot be said that the applicant did not lose the real possibility of an acquittal fairly open to him. In that way, r 4.15 should not prevent the matter being raised in this Court. It cannot be said that no substantial miscarriage of justice has actually occurred from the absence of a proper direction.

63. [90]

    I would uphold this ground of appeal.

Appeal against sentence

1. [91]

   In the light of the upholding of the conviction appeal, it is not necessary to say anything about the grounds concerning the sentence.

Conclusion

1. [92]

   In the light of the above reasons, I joined in making the orders set out above but it is appropriate that they should be varied so as to make clear that leave to appeal should only be granted in relation to ground 3 and should be refused in respect of grounds 1 and 2. Accordingly, I propose that the orders made should be varied so as to read as follows:

   1. (1)

      Refuse leave to appeal under Rule 4.15 in respect of grounds 1 and 2.

   2. (2)

      Grant leave to appeal in respect of ground 3.

   3. (3)

      Appeal upheld.

   4. (4)

      Quash the appellant’s conviction.

   5. (5)

      Order a re-trial.

2. [93]

   WRIGHT J: My reasons for joining in the orders made on 1 December 2021 were in accord with the reasons given by Davies J and I agree with the proposed variation for the reasons given by his Honour.