Citation: Chow v R [2025] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 23 May 2025
Judges: Davies J (principal judgment); Cavanagh J and Yehia J agreeing
Background
The applicant and the complainant began a relationship in December 2019 and moved in together. The offending occurred over six days in December 2020 and included threats made against the complainant, three counts of sexual intercourse without consent, and an assault that caused bruising and lower back pain.
A central piece of evidence concerned the morning of 24 December 2020, when the applicant cut his own wrist and threatened to jump from the balcony. The Crown led this self-harm evidence to show that the applicant was attempting to manipulate the complainant into staying in the relationship after she had ended it.
The jury found the applicant guilty on all counts. He was sentenced to an aggregate term of 7 years and 10 months imprisonment, with a non-parole period of 5 years. He sought leave to appeal his conviction, arguing that the self-harm evidence had been misused at trial to invite consciousness of guilt reasoning.
Legal Issues
- Whether the Crown prosecutor's closing address introduced consciousness of guilt reasoning by suggesting that the self-harm behaviour on the morning of 24 December 2020 was inconsistent with consensual sex having occurred the previous night.
- Whether the trial judge's summing-up, which linked the self-harm threats to the issue of consent, amounted to a direction that invited consciousness of guilt reasoning.
- Whether the trial judge was obliged to direct the jury not to reason from the self-harm evidence in a consciousness of guilt fashion, even though no such direction was sought at trial.
Decision
The Court dealt with both grounds together and refused leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, which applies where a party did not raise the relevant complaint at trial.
On the Crown's closing address, the Court found no miscarriage of justice. The Crown prosecutor's point was not that the applicant felt guilty about non-consensual sex; it was that the self-harm behaviour was inconsistent with a reconciliation having occurred. The only rational inference open on the evidence was that the self-harm was an attempt to manipulate the complainant into remaining in the relationship, not an expression of guilt.
On the trial judge's summing-up, the Court noted that the judge described the Crown's case as being that non-consensual sex was supported by what followed, namely the breakup "coupled with" the threats of self-harm. However, no objection was raised by trial counsel at the time. The Court found that the subtle difference between the judge's summary and the Crown's actual closing address was likely not noticed by the jury. If trial counsel did notice it and chose not to act, that was a forensic decision. The Court of Criminal Appeal is, in any event, an unsatisfactory forum for assessing such decisions by trial counsel.
The Court further held that a consciousness of guilt direction would have been positively wrong to give in the absence of any party seeking it. A reading of the whole proceedings showed that neither side, nor the trial judge, had contemplated using the self-harm evidence in a consciousness of guilt sense. The absence of any objection from defence counsel strongly indicated there was no concern at trial that the jury was reasoning in that way.
Orders Made
- Time for filing the notice of appeal extended to 14 February 2025.
- Leave to appeal refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Key Takeaways
- The Court of Criminal Appeal confirmed that consciousness of guilt reasoning arises only where evidence of post-offence conduct is used to infer that the accused acted out of a sense of guilt; evidence of conduct that points to a different rational explanation (here, manipulation of the complainant) does not engage that doctrine.
- Under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, failure to object to a direction or address at trial can preclude a ground of appeal; the absence of objection here was treated as either a forensic decision by counsel or evidence that no miscarriage had occurred.
- A court of criminal appeal is not a suitable forum for evaluating the performance of trial counsel, particularly where the counsel's decision not to object could be characterised as a tactical or forensic choice.
- Giving a consciousness of guilt direction in the absence of any application for one, and where neither party nor the judge contemplated the evidence being used that way, would itself have been an error.
- No miscarriage of justice is established merely because the trial judge's summary of the Crown case differed subtly from what the Crown prosecutor actually said in closing, particularly where the overall trial context does not support the harmful inference alleged.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 59, 61I
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
Cases:
- ARS v R [2011] NSWCCA 266
- Brown v R [2019] NSWCCA 269
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- Pethybridge v R [2020] NSWCCA 247
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Zhou v R [2021] NSWCCA 278
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28