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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
Date: 19 December 2018
Judge(s): Payne JA (at [1]), Schmidt J (at [126]), Fagan J (at [131])

Background

The appellant was convicted following a jury trial of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) and sentenced to an aggregate term of 4 years and 9 months. The charges arose from an incident in the early hours of 21 February 2016 at a shared apartment in Bondi Junction, where the appellant was a long-term flatmate of the complainant, her partner, and another flatmate.

The complainant's evidence was that she awoke to find the appellant having sexual intercourse with her and that she lay still, pretending to be asleep because she was frightened. After the incident she went to the bathroom in distress, spoke to the other flatmate, photographed clothes found next to her side of the bed, and eventually called police. The appellant denied the allegations.

The central issues at trial included the complainant's reliability, the significance of the appellant's DNA found in her low vaginal area, and whether several circumstantial features of the evidence (including the location of the appellant's clothes and shoes) were consistent with guilt or with innocent explanation. The applicant sought leave to appeal on two grounds: that the trial judge's summing up was unbalanced and unfair, and that the trial judge made impermissible findings of fact.

Legal Issues

  • Whether the trial judge's summing up was so unbalanced or unfair to the applicant as to constitute a miscarriage of justice under s 6 of the Criminal Appeal Act 1912 (NSW).
  • Whether the trial judge impermissibly went beyond summarising the Crown and defence cases, offering the jury his own speculative explanations for gaps and inconsistencies in the evidence.
  • Whether any imbalance in the summing up deprived the applicant of a real chance of acquittal.

Decision

Ground 2: Unbalanced and unfair summing up

The majority (Payne JA and Schmidt J) upheld the appeal on this ground, finding the summing up as a whole was unbalanced and unfair to the applicant (at [120]). The trial judge's approach was to state each of the six major themes of the defence case and then offer a counter-explanation, but those counter-explanations were drawn from outside the Crown's own submissions and in several instances were not supported by the evidence (at [58]).

On the complainant's statement to police: The trial judge offered the jury a possible interpretation of the complainant's statement that she "didn't know what was going on," but that interpretation was not one advanced by the Crown and was not a summary of any evidence in the trial. This amounted to impermissible speculation (at [62]-[66]).

On the movement of the appellant's clothes: The Crown's closing address on this topic was characterised by Payne JA as clear and appropriately moderate. The trial judge's summing up, however, ranged far beyond that submission, posing rhetorical questions that could only have been understood as inviting the jury to infer that the appellant had moved his own clothes, and possibly that he had done so consciously of guilt (at [89]-[97]).

On the appellant's shoe: The trial judge went further still, suggesting by implication that the appellant may have deliberately placed a shoe under his bed for a forensic purpose at trial. This was entirely outside the Crown case and amounted, in Payne JA's assessment, to a devastating and unfair attack on the defence (at [102]-[104]).

On the DNA evidence: The trial judge's discussion of how the appellant's DNA might have been transferred to the complainant involved speculation outside the Crown case, including references to clothing contact that had not been raised by the prosecution (at [109]-[113]).

Overall effect: The summing up urged upon the jury a particular mode of reasoning by offering logical possibilities to explain away each of the six defence themes, without those possibilities being grounded in Crown submissions or evidence. As the majority noted, citing R v RTB, "[j]uries are not required to think like that." This denied the applicant an adequate opportunity to have his defence properly considered (at [114]-[119]).

The miscarriage of justice question: The majority was satisfied that the imbalance caused a miscarriage of justice, in the sense that the applicant lost a chance fairly open to him of being acquitted. That conclusion held despite the Crown case being acknowledged as strong (at [123]-[124]).

Ground 1: Having upheld Ground 2, the Court found it unnecessary to separately address Ground 1 (at [120]).

Fagan J (dissenting): Fagan J would have dismissed the appeal. His Honour considered that each of the trial judge's observations on the six themes was a legitimate appeal to common sense, did not go beyond permissible comment, and did not unbalance the summing up or deprive the defence arguments of their force (at [131]-[148]).

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal allowed.
  • Conviction set aside.
  • Matter remitted to the District Court for re-trial.

Key Takeaways

  • A trial judge is entitled to comment on the facts and to draw the jury's attention to matters not raised by counsel, but only to restore balance to the trial and only where the comment is grounded in evidence or in a fair summary of the parties' cases. Offering the jury a "thesis" of the judge's own construction is impermissible (at [52], [117]-[118]).

  • The Court of Criminal Appeal confirmed that the test for a miscarriage of justice arising from an unbalanced summing up is whether the applicant lost a real chance (or a chance fairly open) of being acquitted. A strong Crown case does not preclude that finding where the summing up was materially unfair (at [123]-[124]).

  • Where a trial judge systematically addresses each major defence theme by offering counter-explanations not drawn from Crown submissions or the evidence, the cumulative effect across the whole summing up can constitute unfairness even if individual passages might, in isolation, appear defensible (at [67], [118]-[119]).

  • Rhetorical questions posed by a trial judge during a summing up carry significant weight because juries may understand them as reflecting judicial opinion. Where such questions pointed toward an inference adverse to the accused and were not part of the Crown case, the Court treated them as productive of unfairness (at [95]-[97]).

  • The reaction of trial counsel to impugned passages in a summing up remains a relevant consideration on appeal, but it is not conclusive. Here, the majority found that a subsequent redirection only partially ameliorated the damage already caused by the original passage (at [96]).

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
- AP v R [2017] NSWCCA 270
- ARS v R [2011] NSWCCA 266
- B v The Queen (1992) 175 CLR 599; [1992] HCA 68
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Castle v R (2016) 92 NSWLR 17; [2016] NSWCCA 148
- 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
- R v Zorad (1990) 19 NSWLR 91
- Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- Tekely v R; Nagle v R [2007] NSWCCA 75
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42