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Court of Criminal Appeal 27 August 2021

Gorge v R

[2021] NSWCCA 206

Sexual offences
CRIMINAL LAW SUMMING BALANCE FAIRNESS WHERE NO COMPLAINT MADE AT TRIAL REQUIREMENTS OF BALANCE AND FAIRNESS

Citation: Gorge v R [2021] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 27 August 2021
Judge(s): Hoeben CJ at CL, Hamill J, Wilson J

Background

The appellant was convicted in the District Court of aggravated indecent assault and aggravated sexual intercourse without consent, offences alleged to have occurred on 5 June 2018. The complainant, referred to by the pseudonym Fatima, was a 17-year-old employee at the appellant's café. Following a guilty verdict on 15 August 2019, the appellant was sentenced to an aggregate term of four and a half years imprisonment with a non-parole period of three years.

The prosecution case centred on the complainant's evidence, supported by an early complaint and DNA evidence. The complainant described a pattern of escalating sexual misconduct by the appellant during her shifts, culminating in an incident in his car after he offered her a lift to a nearby gym. She gave evidence that the appellant forcibly directed her hand to his exposed penis, and subsequently committed sexual intercourse without consent.

The appellant sought to appeal his conviction on a single ground: that the trial judge's summing-up failed to adequately put the defence case to the jury, or failed to put it at all. Because no objection had been raised at trial and no re-direction sought, the appellant also required leave to appeal.

  • Whether the trial judge's summing-up was sufficiently balanced and fair to the accused, having regard to the requirement that a summing-up adequately convey the defence case to the jury
  • Whether the failure to refer specifically to submissions made on behalf of the accused constituted a miscarriage of justice
  • Whether leave to appeal should be granted where no complaint was made at trial

Decision

The Court of Criminal Appeal granted leave to appeal, recognising that the failure to object at trial, while relevant, did not preclude the Court from examining whether the summing-up was adequate. The absence of a trial objection or request for re-direction remained a relevant consideration, but the Court proceeded to examine the summing-up as a whole.

Hamill J acknowledged that a trial judge is required to put the defence case fairly to the jury, including referring to the arguments and evidence relied upon by the defence. The Court noted that this obligation does not demand a mechanical recitation of every submission made by defence counsel; rather, the summing-up must be assessed in its totality and in the context of the particular trial.

The Court found that although the trial judge did not expressly refer to certain specific defence submissions, the summing-up was not unbalanced in any way that caused a miscarriage of justice. The trial was relatively short, the issues were clear and uncomplicated, and the defence case was not a complex one. The judge had adequately directed the jury on the relevant legal principles, including the need to be satisfied beyond reasonable doubt, and had fairly summarised the evidence including weaknesses in the complainant's account that were at the heart of the defence.

The appeal was dismissed. The Court found no error of the kind that would amount to a miscarriage of justice, and the absence of any complaint during the trial reinforced the conclusion that the summing-up, considered as a whole, was fair and adequate.

Orders Made

• Leave to appeal granted.
• Appeal dismissed.

Key Takeaways

  • A summing-up must be assessed as a whole rather than by examining individual omissions in isolation; the absence of a specific reference to a defence submission does not automatically render the summing-up unfair.
  • Where a trial is short and the issues are clear and uncomplicated, the obligation on a trial judge to canvass defence arguments in detail is less demanding than in longer, more complex proceedings.
  • Leave to appeal may be granted even where no objection was raised at trial and no re-direction was sought, but the absence of any such complaint is a relevant factor weighing against a finding of miscarriage of justice.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test is whether the summing-up, taken as a whole, was balanced and fair to the accused, not whether every defence argument was explicitly rehearsed by the judge.
  • No allegation was required to establish that the trial judge had become an advocate for the prosecution; an imbalance falling short of that standard can still ground an appeal, but the imbalance must be of sufficient gravity to have occasioned a miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- Castle v The Queen; Bucca v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Domican v R (1992) 173 CLR 555; [1992] HCA 13
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- Maraache v R [2013] NSWCCA 199
- El-Jalkh v R [2009] NSWCCA 139
- Dixon v R [2017] NSWCCA 299
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489
- Healey v R [2006] NSWCCA 235
- R v Meher [2004] NSWCCA 355
- Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260
- R v Davis [1999] NSWCCA 15
- R v Zorad (1990) 19 NSWLR 91