Clement v R

1. [1]

   PAYNE JA: On 9 September 2019, Mark Clement (“the applicant”) stood trial on an indictment containing five counts at the New South Wales District Court before his Honour Judge Bourke and a jury. The applicant pleaded not guilty to the following counts:

   1. (1)

      count 1: between 30 June 2001 and 31 December 2003, the applicant did assault [the complainant] and at the time of the assault committed an act of indecency upon her in circumstances of aggravation, namely, that at the time of the offence [the complainant] was under the age of 16 years (contrary to s 61M(1) Crimes Act 1900 (NSW));

   2. (2)

      count 2: between 30 June 2001 and 31 December 2003, the applicant did have sexual intercourse with [the complainant] without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence [the complainant] was under the age of 16 years (contrary to s 61J(1) Crimes Act);

   3. (3)

      count 3: between 30 June 2001 and 31 December 2003, the applicant did assault [the complainant] and at the time of the assault committed an act of indecency upon her in circumstances of aggravation, namely, that at the time of the offence [the complainant] was under the age of 16 years (contrary to s 61M(1) Crimes Act);

   4. (4)

      count 4: between 30 June 2001 and 31 December 2003, the applicant did assault [the complainant] and at the time of the assault committed an act of indecency upon her in circumstances of aggravation, namely, that at the time of the offence [the complainant] was under the age of 16 years (contrary to s 61M(1) Crimes Act);

   5. (5)

      count 5: between 30 June 2001 and 31 December 2003, the applicant did assault [the complainant] and at the time of the assault committed an act of indecency upon her in circumstances of aggravation, namely, that at the time of the offence [the complainant] was under the age of 16 years (contrary to s 61M(1) Crimes Act).

2. [2]

   On 18 September 2019, the jury returned verdicts of guilty on counts 1, 3, 4 and 5. On 19 September 2019, the jury returned a verdict of guilty on count 2.

3. [3]

   On 21 November 2019, the applicant was sentenced to an aggregate sentence of 4 years and 9 months’ imprisonment, with an aggregate non-parole period of 2 years and 9 months. The head sentence will expire on 20 August 2024 and the non-parole period on 20 August 2022. The indicative sentences were as follows: count 1: 18 months; count 2: 4 years; count 3: 20 months; count 4: 22 months; count 5: 20 months.

Relevant facts

1. [4]

   The complainant is related to the applicant, although not part of his immediate family. The complainant referred to the applicant as “uncle”. The complainant was aged between 8 and 10 at the time of the offending and the applicant aged between 30 and 33 years old.

2. [5]

   The complainant was a regular visitor to the applicant’s home with her family both before and after the evening in question. The complainant alleged that the offending the subject of the indictment took place on one evening between 2001 and 2003 when the complainant was visiting the applicant’s home with other family members for a function. The complainant had fallen asleep and had been put to bed in a spare bedroom.

3. [6]

   The complainant alleged that the applicant came into the room on two occasions during the night and committed the offences. The complainant alleged that she awoke to the sound of the applicant, who used a wheelchair, pushing himself down the hallway using the walls to help him. The applicant went to the corner of the bed and said “hi” or “hey” but the complainant did not respond.

4. [7]

   The complainant alleged that the applicant moved closer to where the complainant was sleeping, pulled off the blankets from her and sat on the bed. He lifted his hands under her nightie, grabbed and rubbed her breast area, and kissed her cheek and neck (count 1). The applicant asked the complainant if “Uncle Mark could touch here” or “kiss here”. The complainant did not say anything and did not move. The applicant rubbed her breasts and the outside of her vagina, and then inserted more than one finger inside her vagina (count 2). The complainant did not move or say anything.

5. [8]

   The applicant left the room and the complainant tried to go back to sleep. The complainant alleged that the applicant re-entered the room soon afterwards. The complainant alleged that the applicant pulled up the complainant’s nightie and pulled her underwear down, exposing her vagina. The complainant could hear the shutter sound on a camera. The applicant then touched the complainant’s breasts, nipples and the outside of her vagina (counts 3, 4 and 5). The applicant then left the room and she did not see him again until the following morning.

6. [9]

   The complainant first disclosed the allegations to her then-boyfriend over 10 years later, in 2013, when she told him that “one night Mark had came into my room and … had molested me … and took photos of it”. The complainant’s mother, sister, half-brother and brother gave evidence that the complainant made similar allegations about the applicant to them between 2013 and 2016.

7. [10]

   The complainant made a statement to the police in late January 2017. As part of the police investigation, the complainant made two lawfully recorded telephone calls to the applicant on 30 March 2018 and 2 April 2018. During the trial, the prosecution relied on the contents of the two pretext telephone conversations between the applicant and the complainant.

8. [11]

   The use made by the Crown Prosecutor of those pretext calls and the summing up by the trial judge about them was the focus of the applicant’s case in this Court.

Ground of appeal

1. [12]

   The applicant relied upon one ground of appeal:

2. [13]

   Prior to final addresses, the Crown Prosecutor at the trial told the trial judge that the Crown did not rely upon the first pretext call as containing any admissions and did not rely on consciousness of guilt reasoning. The applicant submitted that in circumstances where the Crown Prosecutor at trial had disclaimed any reliance upon admissions being made in the pretext calls it was an error for the trial judge to direct the jury that they may reason that the applicant had lied in his evidence in court by reason of the truth being revealed by the applicant during the first pretext call.

3. [14]

   Alternatively, if the first pretext call did arguably contain admissions, the applicant submitted that the trial judge erred in failing to give a direction to the jury based on Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 or, alternatively, a direction based on Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, about how they could treat the evidence of the first pretext call conversation. It was submitted that in the absence of a careful direction there was a real risk that the jury would reason that admissions made in the first pretext call supported an inference that the applicant had lied in his evidence in court. Whilst it was accepted that no request for a direction of one of the kinds now identified was made by defence counsel at the trial, the applicant submitted that the failure to give such a direction meant that he lost a real chance of being acquitted.

4. [15]

   To examine the applicant’s complaint, the evidence about the first pretext call and how it was addressed at the trial needs to be identified in some detail.

5. [16]

   Both the recording and transcript of the first pretext call between the applicant and the complainant on 30 March 2018 were admitted at trial as exhibits 5 and 5A. The relevant parts of the transcript of the first pretext call provide as follows:

6. [17]

   The applicant was cross-examined about the first pretext call by the Solicitor Advocate appearing for the Crown during the trial. Relevantly, the cross-examination included the following:

7. [18]

   As to the part of the first pretext call conversation where the applicant said “well, I just hope you haven’t been dwelling on it. What I might have done, or not real”, in cross-examination the applicant was asked:

8. [19]

   As to the latter part of the first pretext call conversation, the cross-examination of the applicant was as follows:

9. [20]

   As I have earlier explained, prior to addresses, and in the absence of the jury, the Crown told the trial judge that it did not rely on the first pretext call as containing admissions and that consciousness of guilt reasoning would not be suggested to the jury.

10. [21]

    Contrary to that submission, the Crown expressly asserted in closing address that the first pretext call contained truthful admissions and that the jury should conclude on that basis that the applicant had lied in his evidence in court:

    1. (1)

       “[the complainant] rings him out of the blue. His guard is down. It’s an unguarded conversation between [the complainant] and Uncle Mark. No jury. No judge. No police officer. No promise to tell the truth being read to him. It was just a phone call. In that unguarded moment Uncle Mark is being truthful” (Emphasis added.);

    2. (2)

       “… in the telephone calls, the first one he says ‘I don’t – I don’t remember honestly’. You hear him sigh, the Crown says. There’s a pause where he’s thinking, thinking carefully about what words to say. He’s remembering the incident, you might think”;

    3. (3)

       “‘look, darling, I’m sorry. I hope that hasn’t affected you’. What hasn’t affected her? The abuse? Because it happened”;

    4. (4)

       “‘well, I’ll be thinking about that now and I just’. Thinking about what? Thinking about the abuse. Thinking about the time that he touched [the complainant]. Thinking about the time he was taking photos of her. That’s how the Crown says you can use that evidence”;

    5. (5)

       “and in that second phone call he said disgusting three times. Continues to talk about the world, how come, how prevalent it is. One might think, well why wasn’t that his reaction in the first phone call. Why wasn’t [his] initial gut reaction of someone accusing you of something that you’d falsely done, why didn’t Uncle Mark in that first phone call with [the complainant] say, disgusting; darling if something’s happened to you, I’m sorry for that, but it wasn’t me. I did not do these things to you. You need to get some help. Something’s happened, I don't know what it is, but it doesn’t involve me. I’m not that kind of bloke that touches kids. That wasn’t the gut reaction that the accused had in that first phone call. The Crown says it was an unguarded moment that was spontaneous, and that was the truth.” (Emphasis added.)

11. [22]

    The trial judge accurately summarised the Crown submissions regarding the first pretext call conversation as follows:

12. [23]

    That is, the trial judge told the jury that they were entitled to reason as the Crown invited them; to conclude that the applicant was lying in his evidence given in court by reason of the applicant’s answers during the first pretext call in what he said, by his conduct in sighing and by failing to deny the allegations as forcefully as it was suggested he should have.

13. [24]

    The applicant submitted that the Crown suggested that the applicant’s responses and what he said in the first pretext call conversation revealed that he remembered committing the offences charged against him, revealed that he knew he was guilty, and for that reason the jury could reject his subsequent denials that such a thing happened. The first pretext call went to the credibility of his denials of guilt because it showed that he was guilty.

14. [25]

    The applicant submitted that the Crown’s address to the jury, in the context of the cross-examination of the applicant, created a risk that the jury would use the first pretext call conversation as evidence of admissions by the applicant and also to support an inference of consciousness of guilt on his part.

15. [26]

    The applicant contended that this submission was bolstered by two statements of the Crown to the jury:

    1. (1)

       first, that in comparing the second pretext call conversation to the first “spontaneous, unguarded phone call, you’ll find the truth”; and

    2. (2)

       secondly, that “the Crown would invite you to accept [the complainant’s] evidence, to believe her, that she’s telling the truth to you, and that the evidence of the phone calls support that”.

16. [27]

    The applicant submitted that from the trial judge’s summing up the jury would have understood that they were entitled to use the first pretext call conversation as evidence of the applicant’s guilt.

17. [28]

    The applicant accepted that this was not a case where the Crown sought explicitly to rely on consciousness of guilt reasoning. However, the applicant submitted that this was a case where, as stated by Gleeson CJ, Gaudron, Gummow and Callinan JJ at [16] in Zoneff, “the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of a consciousness of guilt”.

18. [29]

    Alternatively, the applicant submitted that the trial judge should have directed the jury about the use they could make of what the Crown submitted were lies told by the applicant. The applicant cited Zoneff at [23] where Gleeson CJ, Gaudron, Gummow and Callinan JJ said:

19. [30]

    The Crown submitted that the applicant made no admissions in the pretext telephone calls. However, the Crown at trial drew a distinction during the cross-examination of the applicant, and in her submissions to the jury, between the applicant’s hesitant responses in the first call, and his later vehement denials. The Crown framed the applicant’s complaint as being that this submission at trial invited impermissible consciousness of guilt reasoning.

20. [31]

    The Crown submitted that the absence of an Edwards-type direction occasioned no miscarriage of justice. As the applicant’s trial counsel made no request for such a direction nor complained about the summing up, r 4 of the Criminal Appeal Rules (NSW) was engaged.

21. [32]

    The Crown submitted that an Edwards direction in the present case would have involved the trial judge identifying with precision the words or conduct upon which the Crown relied (expressly or impliedly) as constituting an implied admission, and telling the jury that the Crown relied upon those matters as evidence of the applicant’s guilt.

22. [33]

    The Crown submitted that it has been recognised by the High Court that an Edwards direction is not always necessary or appropriate. In Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, Gleeson CJ and Hayne J said:

23. [34]

    The Crown submitted that the manner in which the trial judge summarised the argument for the Crown did not invite consciousness of guilt reasoning.

24. [35]

    Had the trial judge determined to give an Edwards direction in circumstances in which one was not requested, it “might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue”: Dhanhoa at [64] per McHugh and Gummow JJ.

25. [36]

    As to the applicant’s alternative submission that a Zoneff direction should have been given, the Crown submitted that trial counsel did not request such a direction. The Crown also reiterated that no complaint was made by trial counsel about the Crown address nor the summing up.

26. [37]

    The Crown submitted that the Crown at trial framed her submissions to the jury by reference to “credibility”: that is, the jury was invited to reject the applicant’s denials given in the record of interview and in court on the basis of a comparison with his tone and words in the first call. The Crown submitted that defence counsel at the trial did not perceive the Crown to be making a submission to the jury which invited or relied upon impermissible consciousness of guilt reasoning.

27. [38]

    The Crown submitted that in the present case, the applicant’s trial counsel adopted the submission of the Crown that the applicant’s responses in the first recorded call were “genuine” and “unguarded”. His response was described by his counsel as a denial of what was a very vague allegation of wrongdoing, but a denial framed in kind and compassionate terms towards the complainant. This was consistent with the applicant’s overall case that he was a man of good character who had a good relationship with the complainant at all times, including after the alleged occasion in question. During that call, it was submitted, the applicant was the one who was genuine, whereas the complainant was not. In turn, this bolstered the applicant’s case that the complainant’s conduct towards him in the years following the alleged offences was inconsistent with the offences having occurred.

28. [39]

    The Crown submitted that neither the Crown nor the applicant’s counsel used the expression “admission”, nor made reference to “consciousness of guilt” in the context of the telephone call evidence. A direction, even in limited terms, may have given unnecessary or unwelcome prominence to the reasoning process with which the applicant is now concerned: Palmer v R [2018] NSWCCA 205 at [45].

Consideration

1. [40]

   The starting point for considering this application for leave to appeal is whether in the first pretext call the applicant made express or implied admissions. The Crown on the appeal submitted that in the first pretext call the “applicant made no admissions”. I agree.

2. [41]

   Regrettably, however, the Crown advocate at trial did invite the jury to find that admissions were made by the applicant in the first pretext call. Further, rather than clarify with the Crown the apparent disconformity between the initial Crown submission that no admission was made in the first pretext call and the Crown closing address to the jury which asserted just that, the trial judge directed the jury that it was open to reason that in the first pretext call the applicant made express or implied admissions and revealed the “truth”.

3. [42]

   A striking feature of this case is that the Crown advocate at the trial agreed prior to final address that the Crown did not rely on any evidence contained in the pretext calls as admissions, and then went on to do precisely that in her address to the jury. The process of reasoning the jury was invited to engage in about the first pretext telephone conversation, by both the Crown and the trial judge, was as follows:

   1. (1)

      in the “unguarded” first pretext call conversation the applicant admitted that he might have touched the complainant inappropriately;

   2. (2)

      when the applicant “sighed” it was because he remembered an incident where he touched the complainant inappropriately. This was an admission by conduct;

   3. (3)

      when the applicant first said “I am gobsmacked” he did not deny touching the complainant inappropriately, permitting the inference that he knew that he had touched the complainant inappropriately and was “gobsmacked” by what he had done. This was truthful evidence that the applicant had touched the complainant inappropriately;

   4. (4)

      when the applicant said “I hope that hasn’t affected you” this was an admission that he had touched the complainant inappropriately;

   5. (5)

      when the applicant said “I’ll be thinking about that now” the jury could infer that the applicant was admitting that he would be thinking about the incident where he touched the complainant inappropriately;

   6. (6)

      the jury should infer from the applicant saying he would “have to think about” what the complainant alleged, and not responding with an immediate unequivocal denial, that he did what the complainant alleged;

   7. (7)

      that the spontaneous, unguarded first phone call revealed “the truth”; and

   8. (8)

      that on the basis of the “truth” revealed in the first pretext call, the jury should conclude that the applicant lied in his evidence in court.

4. [43]

   I reject the submission that the Crown’s address to the jury should properly be characterised as relating to credibility only. The substance of the Crown’s address, summarised accurately by the trial judge, was to invite the jury to draw an inference from the tone and content of the first pretext call that the applicant was there admitting his guilt. The Crown did not tell the jury that the first pretext call conversation was relied on only for the purposes of credibility. The trial judge did not instruct the jury that this was how they may use the evidence of the first pretext call, that is, only in that limited way.

5. [44]

   I have concluded that the trial judge erred in directing the jury that on the basis of admissions allegedly made in the first pretext call it was open to them to accept the Crown submission that the applicant’s evidence in court was untruthful; “the Crown argued you would find that he was not telling the truth in his answers given in this court.” The Crown address invited the jury to conclude that the applicant had told the truth in the first pretext call and had lied in his evidence in court. The Crown address invited confusion about whether the jury could reason that the applicant had lied in his evidence by reason of a consciousness that he was guilty.

6. [45]

   In the unusual circumstances of this case, the trial judge should have enquired of the Crown whether it sought to withdraw the concessions about admissions and consciousness of guilt initially made and, if it was to be submitted that lies were relied upon, required the Crown to specifically identify the admissions allegedly made and the lies allegedly told by the applicant in his evidence. As the plurality explained in Zoneff:

7. [46]

   This was a case where there was a significant risk of confusion or doubt as to the way in which the prosecution put its case. In final address the Crown enthusiastically invited the jury to conclude that admissions had been made in the first pretext call from which they could infer that the applicant’s evidence in court was a lie.

8. [47]

   If, contrary to the position of the Crown in this Court, it was to be submitted at the trial that the first pretext call should be left to the jury as containing admissions, from which the jury could reason that the applicant’s evidence in whole or in part in court was a lie told in consciousness of guilt, a direction based on that given in Edwards was required. If the Crown submitted at the trial that the first pretext call should be left to the jury as containing admissions and that the applicant’s evidence in whole or in part in court was a lie, which went only to the applicant’s credibility, a direction of the kind identified in Zoneff and adapted to the circumstances of the present case, should have been given. The direction suggested by the applicant to the following effect would have been appropriate:

9. [48]

   The remaining question is whether leave under r 4 of the Criminal Appeal Rules should be granted. Rule 4 is engaged because no application was made on the applicant’s behalf at trial for an Edwards or Zoneff direction. Ultimately, the question is whether the applicant has demonstrated that there was a miscarriage of justice occasioned by the absence of a direction: ARS v R [2011] NSWCCA 266 at [148] per Bathurst CJ (with whom James J and Johnson J agreed). It is unnecessary in this case to consider whether, as the applicant submitted, the High Court in GBF v The Queen [2020] HCA 40 has altered the test for establishing a miscarriage of justice. In the application of existing authority, this is a case where leave should be granted under r 4. Whilst the degree of confusion in this case was perhaps not as pronounced, there was a risk of the kind identified by this Court in Christian v R [2012] NSWCCA 34; (2012) 223 A Crim R 370:

10. [49]

    I have concluded that a miscarriage of justice was here occasioned. This was a case where there was a real risk that the jury misunderstood the use they were entitled to make of evidence about the first pretext call conversation and whether the applicant had lied in his evidence in court. That confusion was central to the issues the jury were called upon to decide. I would in those circumstances set aside the conviction and order a new trial.

Proposed Orders

1. [50]

   For the foregoing reasons I propose the following orders:

   1. (1)

      Leave to appeal under r 4 of the Criminal Appeal Rules granted;

   2. (2)

      Appeal allowed;

   3. (3)

      Set aside the appellant’s conviction;

   4. (4)

      Remit the matter for retrial to the District Court arraignment list on Friday 4 December 2020.

2. [51]

   BELLEW J: I agree with Payne JA.

3. [52]

   WRIGHT J: I agree with Payne JA.