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Court of Criminal Appeal 19 December 2018

Mulholland v R

[2018] NSWCCA 299

Sexual offences
CRIME APPEAL CONVICTION WHETHER SUMMING UP UNBALANCED OR UNFAIR

Citation: Mulholland v R [2018] NSWCCA 299
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2018
Judges: Payne JA (at [1]), Schmidt J (at [126]), Fagan J (dissenting, at [131])

Background

The applicant was convicted in the District Court of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The complainant was his housemate in a Bondi Junction apartment, which she shared with her partner and a third housemate. She alleged that, in the early hours of 21 February 2016, the applicant entered her bedroom and sexually assaulted her twice while her partner lay asleep beside her.

The applicant denied the offending. He was subsequently woken by the complainant's partner and told to leave. Police attended and found the applicant's clothing in the complainant's bedroom. A DNA examination produced results consistent with the Crown's case.

Following conviction, the applicant sought leave to appeal to the Court of Criminal Appeal. He argued that the trial judge's summing up was fatally flawed, either because the judge impermissibly expressed personal views on the evidence, or because the summing up as a whole was so unbalanced that it denied him a fair trial.

  • Whether the trial judge impermissibly expressed his own views on matters of fact during the summing up.
  • Whether the trial judge's responses to defence counsel's closing address rendered the summing up unbalanced or unfair to the accused.
  • Whether any identified imbalance caused a miscarriage of justice sufficient to warrant allowing the appeal, notwithstanding the apparent strength of the Crown case.

Decision

The majority (Payne JA and Schmidt J) allowed the appeal. They confirmed the established principle that a trial judge's role in a criminal trial is to hold the balance between the parties: the judge is not an inquisitor who remedies deficiencies in either side's case, and there is a firm limit on the extent to which a judge may comment on the facts.

The majority assessed the summing up as a whole, examining six specific topics the applicant had identified as problematic. These included the judge's treatment of the complainant's credibility, his handling of the defence's submissions about the DNA evidence, and his comments on the positioning of the applicant's clothes in the bedroom. Across these topics, the majority found the trial judge had gone beyond legitimate comment, effectively responding to defence submissions in a manner that advanced the Crown case rather than neutrally assisting the jury.

Despite acknowledging that the Crown case was a strong one, the majority held that the cumulative lack of balance in the summing up caused a miscarriage of justice. The applicant lost a chance, fairly open to him, of being acquitted. That conclusion was sufficient to warrant the appeal being allowed.

Fagan J dissented. He examined the same six topics and concluded that, when considered in the context of the entire summing up, the trial judge's observations did not give rise to any imbalance and did not exceed the bounds of legitimate comment established by the authorities. He would have dismissed the appeal.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • A trial judge in a criminal trial must hold the balance between the parties and must not use the summing up to remedy weaknesses in the Crown's case or to respond to defence submissions in a manner that favours the prosecution.
  • The Court of Criminal Appeal confirmed that whether a summing up is unfairly balanced must be assessed by considering the summing up in its entirety and in the context of all issues and evidence at trial, not by isolating individual passages.
  • Even where the Crown case is strong, a conviction will be set aside if an unbalanced summing up deprives the accused of a chance of acquittal that was fairly open on the evidence.
  • The decision illustrates the real risk of miscarriage arising from the cumulative effect of multiple problematic passages in a summing up, even where each passage, viewed alone, might appear relatively minor.
  • Fagan J's dissent highlights that reasonable minds can differ on whether individual judicial observations, taken in context, cross the line from legitimate comment into impermissible advocacy for one side.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4

Cases
- ARS v R [2011] NSWCCA 266
- AP v R [2017] NSWCCA 270
- B v The Queen (1992) 175 CLR 599; [1992] HCA 68
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Green v The Queen (1971) 126 CLR 28; [1971] HCA 55
- Huynh v The Queen [2013] HCA 6; (2013) 228 A Crim R 306
- Majok v R [2015] NSWCCA 160
- Odisho v R [2018] NSWCCA 19
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
- R v Dookheea [2017] HCA 36; (2017) 91 ALJR 960
- R v Heuston (1995) 81 A Crim R 387
- R v Meher [2004] NSWCCA 355
- R v RTB [2002] NSWCCA 104
- R v Sukkar [2005] NSWCCA 54
- R v Williams (1990) 50 A Crim R 213