AK v R

Court of Criminal Appeal (NSW)|2022-06-22|Before: Beech-Jones CJ, Price J, Lonergan J, O'Brien AM

Cross-examination

The complainant did not contact the police earlier because she was waiting for her parents to return from overseas. She said she didn't have anyone to stay with during this time and she was scared to be alone.
The complainant was cross-examined about making a statement that the applicant almost killed her. She said: "When he lashed on me and then pinned me to the ground and constantly start[ed] hitting, punching my head."
The complainant agreed that she was referring to the occasion where she alleged the applicant punched her 27 times. She agreed she took no photographs, despite having access to her mobile phone, and she never sought medical attention for the injuries. She said the last thing on her mind was to take photos or seek medical help or police intervention. She said, "I wish[ed] I [were] dead".
These are the facts which on the Crown case constituted Count 9, which states that "on the 26th day of October 2018 at Belrose" the applicant did assault the complainant.
She agreed that she had access to her car and was able to use it to drive to and from work.
The complainant said she did not go and see her GP in Fairfield because the applicant timed her movements and if she took longer than normal, the applicant's brother or sister-in-law could report her to the applicant.
The complainant agreed there was nothing stopping her from going to see a doctor or getting medical advice. She said that fear prevented her from going to the police. She said if she had gone to the police and the applicant was subsequently arrested, she would then still have to deal with the applicant's family. She said she was alone.
The complainant agreed that it was her idea to organise the Airbnb in Homebush where she would spend time alone with the applicant.
The complainant couldn't recall being angry when she arrived at the applicant's parents' home on 25 October 2018. She denied that she and the applicant's sister had a discussion upon her arrival, with the applicant's sister being conciliatory and nice.
The complainant said she only met the applicant once before marrying him. She said her family did not place pressure on her to marry him, but the applicant did. She agreed that no one forced her to marry the applicant. Her parents were in Australia when she got engaged to the applicant.
The complainant was shown a series of photographs from when she and the applicant were at the Shangri-La Hotel and the Hydro Majestic Hotel. She agreed that she looked happy in some of the photos. She did not agree that she was smiling in photograph 6 which was a photo of the applicant and the complainant at the Hydro Majestic Hotel.
The complainant saw Dr El-Sahadi on 29 August 2018 which disrupted the honeymoon. She said she couldn't remember whether the applicant was a passenger in her car. She agreed that it was only her and Dr El-Sahadi in the examination room. She didn't say anything to Dr El-Sahadi about the assaults. She said she told Dr El-Sahadi that she was newly married but didn't tell her that it had only been five days.
She complained to Dr El-Sahadi that she was bleeding from her genital area and had pain in that region. Dr El-Sahadi advised her not to have sex. Dr El-Sahadi suggested a further check-up and prescribed a cream. Dr El-Sahadi recommended stitching but she didn't do this. She did not refer the complainant to a specialist gynaecologist. She then travelled back to the Hydro Majestic Hotel with the applicant to continue the honeymoon.
The complainant rejected the assertion that being in the examination with Dr El-Sahadi presented the perfect opportunity to call for help. She said that she could have called for help but there would have been consequences.
The complainant was asked why she would spend time with someone who has been sexually assaulting her. She replied, "Well, I didn't want to spend time. I wasn't making sense of any of it all in the beginning." When told that the obvious thing to do would be to get away from the person, she replied: "It's always the obvious thing to do. It's always that first thing and it's easier said than done, especially when you're newly married and just you're in disbelief that this is just all happening in the beginning."
The complainant said she kept the bloodied white t-shirt in a blue plastic bag which she kept in her luggage. She gave the luggage to her brother who placed it in the storage room at her parents' house. She said she never unpacked the bag until it was given to police when they first attended her house. She took her clothes from the honeymoon with her and she washed them. She was asked that if she was concerned about consequences, why did she not wash the white t-shirt? She responded that it was in the storage room at her parents' house so she did not have it with her at the Belrose studio. She said she put all of her wedding things in the luggage and included the bloodied white t-shirt because she found it embarrassing.
Uniformed police attended the complainant's father's house when she was there. She did not initiate the first contact. She told them briefly about the assaults. The police officers did not take a statement from her on this occasion. She didn't want the police to do anything on this occasion. She could not remember whether she told the police about her Islamic marriage. She had no injuries on her body to show the police.
The complainant said she asked the police questions about protection, what would happen if she reported the applicant, and what the consequences would be. She said they explained an AVO and what would happen if she provided a statement. She did not want the police to make contact with the applicant at that stage.
She was asked what changed her mind between 11 November 2018 and 14 November 2018 and she said the information that was provided to her influenced her decision as well as having more time to think and the reassurance that she would be safe.
She remembered that a doctor told her that she had herpes but she couldn't recall when this occurred. She could not remember whether this was before she went to the police. She denied that it was the case that she went to the police shortly after she was told that she had herpes.
The complainant said that contracting herpes wasn't very upsetting that "it is what it is, like there's medications". She couldn't remember whether she saw Dr El-Sahadi on 27 November 2018. She said that she was in pain. She reiterated that she wasn't upset about receiving the news. She denied that this is what motivated her to attend Fairfield Police Station at 1:00am on 14 November 2018.
The complainant agreed that on the second assault occasion when the applicant punched her 27 times, she sustained significant injuries. She rejected the assertions that the assault never happened and that it was not true. She agreed that the assault occurred on the day that there was an argument between her and the applicant and the neighbour came out of her apartment and helped pick up broken glass. She agreed that she threw the glass but said she did not throw it at the applicant. The complainant said she was telling the applicant to leave but she said she was not yelling.
She did not see a doctor after the assault. She did not take a photo of herself as it was the last thing on her mind. She did not go to any of her friends for help or advice. She said she didn't tell her family about what was going on.
When cross-examined about what had occurred at the Hydro Majestic Hotel, the complainant said it wasn't true that by the time they got to their room she had her period. She said they watched a movie on a computer and then ate some pizza. She said it was not true that sex did not occur on that day.
She agreed that the next day on 29 August 2018, she wanted to see a doctor because she had experienced pain during sex. She and the applicant drove to Fairfield to see her doctor. The applicant waited outside of the examination room. She said it was not true that no sex occurred on this day. She rejected the assertion that no sex occurred at the Hydro Majestic Hotel at all.
She said it wasn't true that after seeing her doctor, she and the applicant waited about three weeks before having sex again at the Belrose studio. She said the applicant did not allow that waiting time. She said he was very pressuring and very aggressive about it so she had no choice.
She said that she organised the Airbnb at Homebush. She said, "Yes, I had no choice" when trial counsel put it to her that she and the applicant had consensual intercourse at the Airbnb.

Re-examination

The Crown clarified what the complainant meant by not having a choice. She said that the applicant was very pressuring and very aggressive so by that time she just wanted to get out so that she could be with her parents.
She said if she said no to the applicant then he would show aggression and start yelling and cursing. She said, "it's better to just give in and get it over and done with".
The complainant said that she saw the neighbour who helped her pick up the broken glass after the assault incident in October 2018 around the apartment complex, so she would see her when she was coming from and going to work or the shops. She said she didn't have any interactions with her, other than smiling and being friendly.

A summary of the evidence of the complainant's brother

Examination-in-chief

The complainant is older than her brother. He was 21 years old at the time of giving his evidence in June 2020. He attended the complainant's Islamic wedding on 8 August 2018 as well as the reception on 28 August 2018.
The complainant contacted him while she was on her honeymoon and said, "It's going good." She later contacted him again telling him to drive to Fairfield Station to pick up her and the applicant's bags. He spoke with the complainant and said it seemed "very unusual". The complainant was in a rush with a "very red" face and told him, "Yeah, everything's fine". He offered to give the complainant breakfast, but she told him, "No, I'm busy and I can't". The applicant was a few metres away.

Cross-examination

He did not think it was necessary to ask the police to conduct a welfare check of the complainant. He spoke to his mother and said, "Something just kind of feels off."

A summary of the evidence of the complainant's mother

Examination-in-chief

The complainant's mother went to Iraq on 21 September 2018 and returned on 20 November 2018. She travelled to Iraq with her eldest son. Her husband was already in Iraq.
Prior to leaving Australia, she felt that the complainant was not happy or content. The complainant told her that she was not content and that the applicant hit her. She said that she encouraged the complainant to be patient.
She received phone calls from the complainant while she was in Iraq. In the first call, the complainant complained about being hurt. In another call, the complainant was screaming with a loud voice and was hysterical. This was between 9 and 11 November 2018. The complainant told her that the applicant beat her, hit her and had also expelled her from the house.

Cross-examination

When her daughter told her about the beating, the complainant's mother cried and told her to take care of herself and to be careful.
She could not remember if she told the complainant to go to the doctor. She told the complainant that if she wished she could go to the police. She said the first time the applicant beat the complainant, she asked the complainant to go to his parents.

A summary of the evidence of the complainant's father

Examination-in-chief

The complainant's father met with the applicant before the marriage. He formed the opinion that the applicant was "the kind of a person that he hides certain things and does not like to reveal it." He left the ultimate decision to his daughter and his wife about whether the complainant should marry the applicant.
He did not attend the wedding reception on 26 August 2018 because he had gone to Iraq. The applicant called him two weeks after the marriage ceremony. The quality of the phone call was poor but the applicant told him that there was a problem. He contacted the applicant through WhatsApp by sending a combination of text and audio messages, attempting to provide him with guidance.
He returned to Australia in November 2018. The complainant picked him up from the airport. He noticed that the complainant looked pale, like she had lost some weight, and was sad and melancholic.
A few days later he asked the complainant to come home because he was a bit sick and needed her to look after him. She came home with her clothes and belongings. She went to her room and locked her door. She was crying and told him to leave her alone. Later he spoke to her and she called the police. The complainant later went to the police station and took with her the bloodstained clothing.

Cross-examination

He agreed that the complainant came to his house to look after him because he had the flu.

A summary of the evidence of Dr Salwat Abraham El-Sahadi

Examination-in-chief

Dr El-Sahadi said the complainant was a regular patient of hers as of August 2018.
The complainant came to see her on 29 August 2018 at MP Medical Centre. She examined the complainant and as a result of the examination, she created progress notes.
Dr El-Sahadi said the complainant attended her surgery because she complained of genital area pain and "the bleed during intercourse". The complainant also told her that she was a newly married lady for five days only.
Dr El-Sahadi said she only did a peripheral (i.e. external) examination of the genital area. She discovered that the complainant had a long cut in the genital area. She said the cut was not only external but a bit internal and longer than she would normally see in a newly married lady. She estimated that the injury was about four or five centimetres. She described the cut as "not only superficial, cracking inside, it's a bit deeper."
Exhibit 13 was handed to the jury which was a diagram of female genitalia marked by Dr El-Sahadi. Dr El-Sahadi marked the diagram where she saw the injury on the complainant on 29 August 2018.
Dr El-Sahadi advised the complainant that she should rest and not have intercourse until she feels no pain. She also gave the complainant an antibiotic ointment to put on the wound. She told the complainant to revisit her if the wound had not improved in a few days.

Cross-examination

Dr El-Sahadi said that the cut was longer than she would usually see in newly married women. She said usually the cut would extend around one centimetre. She said the cut is normally not that deep or that long.
She told the complainant not to have intercourse until the wound healed because to do so would mean that the wound would keep opening and cause complications. She said it would be very painful.
She said she only used her finger to examine the genital area because it was very painful for the patient. She was gentle and just looked externally and used her fingers to open the labia to see the vagina.
Dr El-Sahadi then saw the complainant again on 27 November 2018. On this occasion, the complainant was upset because she had visited another GP who had told her that she had the herpes virus which is a sexually transmitted disease. The complainant mentioned that she had thrush and she was upset about it.
The complainant was sitting with her head down, upset and emotional. Dr El-Sahadi believed she was also crying.
Dr El-Sahadi made a note that the complainant had seen another GP two weeks earlier who told her that she had the herpes virus. She discussed the treatment of the condition with the complainant.

Re-examination

Dr El-Sahadi said that when she did the examination with her finger she was able to see the entirety of the injury.

Examination-in-chief

Dr Angstmann was a qualified medical practitioner registered in Australia. He had a Fellowship to the Royal Australia and New Zealand College of Obstetricians and Gynaecologists. He was employed as a specialist obstetrician/gynaecologist at Royal Women's Hospital in Sandringham, Victoria.
Dr Angstmann provided an expert certificate at the request of New South Wales Police. In preparing his statement, Dr Angstmann had access to a statement that the complainant "took a beating", a photograph of bloodied clothing, the statement of Dr El-Sahadi and her clinical records. Dr Angstmann did not personally examine the complainant.
Dr Angstmann was also provided with a copy of the transcript of Dr El-Sahadi's evidence and Exhibit 13 marked by Dr El-Sahadi. Dr Angstmann agreed that having considered Exhibit 13 and the description of a cut by Dr El-Sahadi, it would be reasonably expected that this referred to "a laceration which is a ragged or irregular split in the skin resulting from blunt trauma."
Dr Angstmann said that a laceration typically results from blunt force such as from "fingers, penis, inanimate objects". He said it occurs where "the strength of the tissue is overloaded by that source."
Dr Angstmann said that the complainant's injury exceeded into the vagina and involved the fossa navicularis which was the indicated penetration.
Dr Angstmann said that arousal results in physiological lubrication occurring. Lack of arousal results in lack of lubrication which changes the elastic potential of the tissue. The region becomes more liable to injury.
Dr Angstmann provided the following response when asked to comment on the size of the injury described by Dr El-Sahadi: "Most injuries that occur as a result of either consensual or non-consensual sexual activity are small. In a kind of bigger study in the Australian population looking at the size of injuries upon a sexual assault, the average length of injury was 5 millimetres and in that study of well over a thousand participants the maximum recorded length of an injury was 30 millimetres or 3 centimetres. The - a 4 to 5 centimetre laceration to the posterior vaginal wall is a substantial injury in the context of this - of these types of injuries. It's an injury more akin with birth trauma than, than what is commonly ascribed to sexual assault."
Dr Angstmann said that what was described by the complainant could reasonably account for the injuries. He said that the pain and bleeding suffered by the complainant was to be reasonably expected with this sort of injury. He said this was consistent with an injury to the fossa navicularis and posterior vaginal wall.
Dr Angstmann said that further penile-vaginal penetration after the first injury would mean the tissues become even more susceptible to injury. He said that re-traumatism to an injury such as the complainant's would result in delay in its healing and extension.
Dr Angstmann said that the commonest experience with women's sexual intercourse is to not have bleeding, despite community perception. He said that he does not see it as a common feature of a first sexual experience and that opinion is backed up very strongly by current medical literature.
Dr Angstmann said bleeding from the anus is not normal. However, he said bleeding after anal intercourse whether consensual or non-consensual is relatively common.
He said that a laceration to the tissue of the anus could have caused the bleeding described by the complainant.

Cross-examination

Dr Angstmann identified that a limitation of the report was that there was no examination of the anal area. He also agreed that the presence of haemorrhoids could cause anal bleeding.
Dr Angstmann agreed that having intercourse shortly after the initial cut could have extended the tear.
Dr Angstmann acknowledged that limitations of the report and his opinion could be influenced by Dr El-Sahadi having only conducted an external examination and that she had only estimated the length of the tear.
Dr Angstmann rejected the assertion that the complainant's choice to deal with the injury through "conservative management", as opposed to stitches, was an indication of the severity of the tear. Dr Angstmann said that conservative management was a valid option and many women elect not to have stitches.
Dr Angstmann said that this injury would not always result in a referral to a specialist gynaecologist, but if it didn't it was the type of injury that would be referred to emergency departments and gynaecologists.
Dr Angstmann said that the region of the body that the injury occurred to has a "rich and generous blood supply" so conservative approaches, including rest, would be expected to allow for the area to heal over time.
Dr Angstmann accepted that anxiety regarding intercourse could affect arousal and lubrication.
Dr Angstmann said that in his 14-year career, he had only seen four or five injuries of a similar nature.

Re-examination

Dr Angstmann said that the four or five other similar injuries he had seen were all from professional sex workers who had been victims of sexual assault.

Examination-in-chief

Ms Wiseman gave evidence that in October 2018, the applicant resided in an adjacent unit to her unit in Belrose.
On an occasion after she had worked a night shift, she had returned at about 9:00am. She heard very loud, very high-pitched screaming which was coming from the direction of her front door. She heard some raised voices and then it went silent. Shortly after that, there was a bang against her door and she heard glass smashing. She opened the door and saw a man coming out of Unit 26. The man was of Middle Eastern appearance, average height with dark hair and he walked towards the exit.
Ms Wiseman called through the door of Unit 26, "Are you okay?" A woman opened the door. Ms Wiseman asked if she could call anybody for her. The woman's eyes were red and puffy and she looked upset. She replied, "No, it's okay". Ms Wiseman noticed glass on the door and said, "We need to clean this glass up". The woman offered to help but Ms Wiseman replied, "No, it's okay. I can … clear up the glass" and then the woman went back into her unit. She said there was a lot of glass on the floor.

Cross-examination

In cross-examination, Ms Wiseman said that when she spoke to the woman, she did not see any injuries. She did not remember her having a head scarf on.

A summary of the evidence of Detective Senior Constable Brent Valleau

Examination-in-chief

At around 7:30pm on 15 November 2018, Detective Senior Constable Valleau received a phone call from the complainant. She told him that she had an apprehended violence order against the applicant. The complainant told him she believed the applicant was driving up and down her street.
The complainant asked whether the applicant had been charged following a complaint of assault she had made the day before. She told him that the applicant was living with his parents in Liverpool.
He attended the applicant's parents' house with another officer. He had a conversation with the applicant and then arrested him for a domestic violence offence.

Cross-examination

He agreed that the complainant did not provide the registration details of the car which she said had been driving up and down her street.

A summary of the evidence of Leading Senior Constable Daniel Smith

Examination-in-chief

On 11 November 2018, Leading Senior Constable Daniel Smith attended the complainant's father's house in Fairfield with another officer at around 2:45pm in response to a police radio message. He spoke with the complainant's father and then with the complainant. The complainant said she did not want police involvement. She explained that she had engaged in a Sharia marriage in August 2018, but the relationship had been toxic from the start, with lots of fights and problems. She said she had been "rushed" into the marriage.
He told the complainant that she did not have to return to live with the applicant, in accordance with Australian law, and she was pleased. The complainant did not want the police to contact the applicant because it would cause more problems.

Cross-examination

Constable Smith was taken through a COPS (Computerised Operational Policing System) entry he had made regarding the time he had spent with the complainant.
The COPS entry was made in relation to an alleged incident that occurred between the complainant and the applicant at 8:00am on 11 November 2018. He agreed he had written "nil" under the injuries section and "N/A" under the medical treatment received section.
He agreed that he wrote, "The VIC[tim] refused to outline anything further about [what] happened in her relationship with the P[erson ]N[amed] or why police were called." The entry noted that there were no visible injuries or fears for the complainant's safety. The COPS entry became Exhibit 15.

Re-examination

The reference in the entry to 8:00am on 11 November 2018 was to the complainant leaving the applicant's home and returning to her own home on that day.

A summary of the evidence of Detective Senior Constable Brett McCormack

Examination-in-chief

Detective Senior Constable Brett McCormack was the officer in charge of the case. He met the complainant on 14 November 2018. There had been earlier contact with the complainant on 11 November 2018. She had complained of domestic violence and sexual assault.
He spoke to the complainant at 1:15am. At about 3:05am, the complainant participated in a recorded interview with Senior Constable Tim Croucher and Constable Holly Murdoch regarding the allegations of domestic violence. A provisional AVO was finalised at 8:03pm on 15 November 2018. The applicant was arrested at his family's home in Liverpool on 15 November 2018 regarding the domestic violence allegations. The applicant exercised his right to silence.
During his meeting with the complainant on 14 November 2018, Detective McCormack did not take a detailed statement regarding the sexual assault allegations because of the time of day. The complainant came and saw him again on 26 November 2018 and he then met with her on a number of occasions before finalising her statement on 10 December 2018.
As a result of this meeting, he commenced further investigation into the matter. He sought CCTV footage from the Shangri-La Hotel between 26 to 28 August 2018 but it was not available. The same applied with enquiries of the Hydro Majestic Hotel.
On 26 February 2019, the applicant attended the police station with a solicitor and again declined to be interviewed. The applicant agreed to participate in a forensic procedure, being a buccal swab. Forensic analysis was conducted on the white bodysuit worn by the complainant.
At the time of charging the applicant, he had no prior criminal history or convictions.

Cross-examination

Detective McCormack agreed that the applicant was charged with the domestic violence offences on 15 November 2018 and the sexual assault offences on 26 February 2019. He said there was a delay due to the duration of the number of appointments with the complainant to obtain her statement as well as further investigation that was conducted.

Examination-in-chief

The applicant was between 26 to 27 years old when he came to Australia and was 36 years old at the time of giving his evidence in June 2020. He operated four hairdressing salons.
The applicant said he saw the complainant five to six times before marrying her. He married the complainant on 26 August 2018, after which they went to the Shangri-La Hotel. He said they arrived at the hotel after midnight. The couple had a shower in their room and then had some sex. The applicant said the complainant agreed to have sex. The complainant started sucking his penis for about two to three minutes. She then got on top of him. The complainant took off the applicant's underwear and her own underwear. The applicant said, "I pushed a little bit with my penis and then she screamed in pain. She said, 'Ah' and then I removed myself. Both of us stopped." They then went to sleep.
The next morning, they woke up and had breakfast. They spent the day in their hotel room talking about their future together and what they were planning to do. They left the hotel room at dinner time to go to the hotel restaurant. They then walked to the Harbour Bridge. They went to a 7-Eleven store to buy lubrication. The applicant said the complainant suggested it.
They went back to the hotel room. The complainant suggested trying to have sex again and said, "maybe it will be better". They started kissing each other. The complainant then started sucking his penis and then sat on his penis after she had taken his clothes off. The complainant put the lubricant on the applicant's penis. The complainant again said it was painful so they stopped. The applicant said he did not notice anything about the complainant at that time. They then went to sleep.
The next morning they packed up to leave the hotel. They discussed sexual intercourse and agreed that they would stop if it was painful.
They caught an Uber to Fairfield to pick up a car from the complainant's brother. They drove to the Hydro Majestic Hotel and arrived between 3:00pm and 4:00pm. They watched a movie and ordered pizza. They did not have sex.
The complainant asked the applicant to go to the doctor. The applicant went with the complainant to her doctor in Fairfield, but he did not go inside the surgery. The complainant did not specify why she wanted to see the doctor but she said it was due to the pains. The complainant told him that she could not have sex for a couple of weeks. They went back to the Hydro Majestic Hotel. The next day they went on a tour in the Blue Mountains and had a good time together. They went back to the hotel and watched movies. They did not have sex.
The couple left the Hydro Majestic Hotel on 31 August 2018. They went back to the applicant's studio in Belrose. This was the end of their honeymoon. The complainant lived with the applicant at his studio for about three months. The relationship did not go well because of intervention from the complainant's family. They had sex again after about three weeks.
He recalled an occasion when they fought. The complainant had received a message from her mum. The applicant asked to listen to it. The complainant refused, was agitated and threw water on the applicant's face. He asked her why she did that and her response was "to shut up". The applicant changed his clothes and went out. The complainant threw a candle at him as he was leaving. The candle hit the neighbour's door and shattered. A lady came out and asked what happened. He did not speak to her and just left.
The applicant denied ever hitting the complainant. He went to his parents' house to avoid fighting with the complainant. His brother, sister-in-law, and parents were at the house. He called his sister to come over. The complainant arrived at the house a couple of hours later. The complainant went to his parents' room and she was screaming and fighting with his parents. He did not speak to the complainant but told his mother that the complainant had hit him and thrown water at him. He left after about 10 to 20 minutes and went to his Belrose studio. He was aware that the complainant stayed in his parents' house for a further three or four days.
The applicant agreed that he and the complainant went for a night to an apartment in Homebush. They had sexual intercourse that night. They went back to the Belrose studio. The complainant stayed for 10 days and they had further sexual intercourse during this time. Subsequently, after he came home from work, he found she was gone, together with her belongings.
The applicant was arrested regarding the alleged domestic violence on 15 November 2018 and the alleged sexual assaults on 26 February 2019. The applicant was told that he had contracted herpes after the complaints by the complainant were made. He was told by the complainant's mother.

Cross-examination

The applicant said that prior to 8 August 2018, he had met the complainant once or twice. He denied pressuring her to marry him quickly. He did not accept that his work commitments were more important than the marriage. He said he became sexually attracted to the complainant on his wedding night in the bedroom at the hotel. He agreed that he had only known the complainant for a very short period before getting married, being 20 days.
The applicant did not know what sort of work the complainant did. He never knew and he never asked. He did not want to interfere in her personal life. He said he never asked her when she would be working. He knew two of her friends. He did not ask her when she was seeing her friends. He denied trying to control the complainant and her friends. The applicant said that the complainant spoke to her mother a lot. He thought it was too much but he never stopped her from doing it.
The applicant denied striking the complainant in September 2018 at the Belrose unit. He called the complainant's father because he had received a voicemail from him. He agreed he told the complainant's father there were problems with the relationship. The applicant said that the problem was that the complainant would argue and fight with him. He agreed that the complainant's father's messages were polite and offered him help and advice.
With regard to the fight at the Belrose unit when the candleholder had been thrown, the complainant had received a voicemail message from her mother. He had wanted to listen to it. He "demanded if possible" to listen to it. He denied punching the complainant after she threw water at him. He denied trying to pull the complainant's arms away from her face. He denied the complainant was screaming for help. He left the unit quickly after the argument. He denied leaving because he had assaulted her. He left because he wanted to avoid problems.
The applicant had two brothers and two sisters, but they were "not too close". When he got to his family's home, his brother, his sister-in-law and his parents were present. He called his sister because he was upset. He wanted to talk to her to calm himself down.
The applicant denied telling his family to stop the complainant from leaving his parents' house. He denied abusing her. He did not talk to the complainant at all when she came to the house.
The applicant was asked about messages between 26 October 2018 to 29 October 2018 between him and the complainant, which was during the time that the complainant was living at the applicant's parents' house. He did not want the complainant to go to "Carla's house" and for this reason had replied "No". The applicant said he did not want her to come home either as he wanted to avoid conflict.
When the applicant texted, "I want to teach you with life", he said he meant that life would teach her. He disagreed that he was saying that he would be the one to teach her. The applicant said it was not punishment for her to stay at his parents' house. He said the complainant did not need his permission to go to work. She could come and go as she pleased.
The Crown put to the applicant the complainant's account of events at the Shangri-La Hotel. He denied acting as alleged. He said there were only two instances of penile-vaginal sexual intercourse with the complainant, which were at the Shangri-La Hotel. There was one instance where the complainant put his penis in her mouth which preceded sexual intercourse. The applicant said he did not see the complainant bleeding. She did not use her shirt to stop bleeding and he did not get angry with her. The applicant said he did not see blood on his penis. The applicant said the complainant only told him that she was in pain. The complainant never showed him that she was bleeding. He agreed that the complainant should go to see a doctor. He insisted that there had been no sexual intercourse whilst they stayed at the Hydro Majestic Hotel. He denied having anal sex with the complainant after her visit to the doctor. The applicant said he never saw the shirt with blood on it. He denied that he was ever "pressuring and aggressive" about sex with the complainant.

A summary of the evidence of the applicant's sister

Examination-in-chief

The applicant's sister recalled that the complainant came to her parents' place on 25 October 2018. She received a call from the applicant before 9:00am asking her to go to her parents' place. She arrived at her parents' place some time between 9:00am and 10:00am. When she arrived, her parents, her brothers and her brother's wife were there. The complainant arrived between 11:00am and 12:00pm. She let the complainant inside the house.
The complainant asked if the applicant was there. She told her the applicant was there. The complainant immediately started screaming at her and saying, "What do you want from my life? Why is it that you hate me?" She told the complainant that she did not hate her and said that if she did hate her, why would she have helped with organising the wedding ceremony and all the things that came with it. The complainant apologised and said, "It could be the case that the demon, the evil spirit, is in my head making me act in the way I do."
She left the house before 1:00pm. The applicant was still there at the time.
The next time she saw the complainant was on 28 October 2018 when she was still at her parents' home. She had gone to the house to arrange the family trip to Port Stephens.
She also saw the complainant and the applicant on 1 November 2018 at a second cousin's house in Fairfield. They prepared a traditional meal in preparation for the trip to Port Stephens. They hired a two-storey house in Port Stephens and the trip commenced on 2 November 2018. The men slept on the ground floor and the women slept upstairs. When the women were together alone, they would not wear a head scarf. She saw the complainant without her head scarf on and saw no injuries.

Cross-examination

She said that on 25 October 2018, she spoke to the applicant over breakfast. He told her about the fight he had with the complainant at his Belrose unit. She denied that the complainant told her that the applicant had hit and hurt her. She denied that she told the complainant that it was her fault. She denied telling her that it was okay for a husband to hit his wife.

A summary of the evidence of the applicant's sister-in-law

Examination-in-chief

The applicant's sister-in-law gave evidence that she too had been at the applicant's parents' home on 25 October 2018. She was woken up by the complainant's loud screaming at Maida. She did not pay much attention and she then made breakfast.
She recalled that the complainant stayed for four or five days. She saw the complainant leave two or three times. She did not see any injuries on the complainant. She also went on the family trip to Port Stephens. She saw the complainant without a head scarf and saw no injuries.

Consideration

In criminal trials, where the onus falls on the Crown to establish guilt beyond reasonable doubt, the significance of evidence of an accused's good character is well known. As McHugh J explained in TKWJ at [94]: "Evidence of good character almost always helps an accused person's defence. Sometimes it is the decisive factor in returning a verdict of not guilty. It may demonstrate that it is unlikely that the accused committed the act charged, or it may support the credibility of the evidence of the accused in denying his or her guilt." (Footnotes omitted.)
In the applicant's trial, evidence was adduced that the applicant had no prior convictions. The members of the jury were directed by the trial Judge that they should accept that the applicant was a person of prior good character. The trial Judge gave the standard jury direction that the evidence of an accused's good character could be taken into account in his favour on whether the Crown had proved his guilt beyond reasonable doubt by reasoning that "such a person is unlikely to have committed the offence charged" and by using "the fact that the accused is a person of good character to support his credibility."
However, due to a lack of communication by the applicant's then instructing solicitors to his trial counsel, the jury did not have the benefit of the evidence of Ms Zedan and Ms Alnimer.
The available evidence from Ms Zedan included that the applicant was never violent or abusive to her and had always been respectful. The available evidence from Ms Alnimer included that the applicant was a gentle person, a gentleman and she could not imagine him to be violent. Both Ms Zedan and Ms Alnimer had been in relationships with the applicant in years preceding the applicant's arranged marriage to the complainant.
This evidence, which was not adduced, was relevant to the likelihood of the applicant having committed the offences and to his credibility. The evidence was capable of bolstering the applicant's case that all sexual activity was consensual; that he did not have a tendency, as asserted by the Crown, to have sexual intercourse in circumstances where the complainant was not consenting and in circumstances where she expressed that the sexual acts caused her pain; and further, he neither struck her nor sought to control her.
The Crown submitted, in determining whether the failure to call Ms Zedan and Ms Alnimer amounts to a "miscarriage of justice" within s 6(1) of the Criminal Appeal Act, that the approach taken in TKWJ by the High Court should be followed as that appeal concerned the failure to adduce character evidence. It should be noted that in TKWJ, two issues were raised. The first issue was the contention that it was open to the appellant's counsel to seek a ruling in advance by the trial Judge as to whether the Crown would be permitted to call evidence in reply or rebuttal to the appellant's character evidence and the second was, independently of the failure to seek an advanced warning, whether the failure to call character evidence in the defence case resulted in a miscarriage of justice.
McHugh J referred to two issues when considering whether a miscarriage of justice had occurred, the first was whether there was a "material irregularity in the trial" and second was whether there was "a significant possibility that the irregularity affected the outcome" (TKWJ at [79]).
Gaudron J took a different approach. Her Honour said at [26]: "The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open"." (Footnotes omitted.)
Hayne J expressed the following view at [104]: "The miscarriage being said to lie in the fact that some evidence could have been, but was not, placed before the jury, the ultimate question will be whether the jury would have been likely to entertain a reasonable doubt about guilt if all the evidence had been before it." (Footnotes omitted.)
The High Court dismissed the appeal. On the question of the failure to adduce good character evidence, the High Court considered that if the good character evidence had been called, rebuttal evidence would have been called and there was no significant possibility that calling the character evidence would have led to the appellant's acquittal (TKWJ at [52]).
TKWJ was decided in 2002. Since that time, s 6(1) of the Criminal Appeal Act (or the equivalent provisions in other states) has been much considered by the High Court (See for example: Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7). In TKWJ, the High Court appears not to have drawn a distinction between a "miscarriage of justice" and a "substantial miscarriage of justice" in the proviso. In Weiss, the High Court gave close consideration to the proviso and established the principles governing its application.
Although TKWJ is helpful, I am not persuaded that consideration of a complaint of a miscarriage of justice arising from a failure to call character evidence is confined to the approach taken by the High Court in that case.
Mr Game submitted that a miscarriage of justice would be established if the irregularity had the capacity to affect the outcome of the trial.
Most recently in Hofer, the High Court considered the distinction between a miscarriage of justice and the proviso. The irregularity in Hofer arose from the prosecution's prejudicial cross-examination of the accused. The plurality (Kiefel CJ, Keane and Gleeson JJ) said at [41]: "A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused. This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed. The larger and different question raised by the proviso, which is reserved to an appellate court, of whether there has notwithstanding that departure been no substantial miscarriage of justice, focuses upon whether the nature and effect of the error which has occurred prevents the appellate court from undertaking its assessment as to whether guilt has been proved to the requisite standard." (Emphasis added; footnotes omitted.)
The plurality considered that the prejudice to the appellant was not addressed by the trial judge as it should have been. The plurality said at [47]: "… Absent such directions there was a real chance that the jury may have assumed that the reason for the omission was that the appellant had changed or more recently made up his story." (Emphasis added; footnotes omitted.)
The plurality concluded that there had been a miscarriage of justice.
Gageler J observed at [115], [118] and [123]: "[115] The need for an appellate court to consider, and ordinarily be satisfied of, "a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial" in order to find a miscarriage of justice has routinely informed the analysis undertaken to establish whether or not there was a miscarriage of justice in subsequent cases. … [118] … What is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial. … [123] Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect", an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred." (Emphasis added; footnotes omitted.)
Gordon J observed at [130]-[132]: "[130] The text of the provision reveals a fundamental difference between the two steps of first, deciding whether a ground of appeal is established and second, considering whether the proviso may (not must) be applied. One of the three kinds of grounds of appeal (verdict that is unreasonable or cannot be supported on the evidence; wrong decision of any question of law; and on any other ground whatsoever there has been a miscarriage of justice) will not be established if the mistake made at trial was one which could have had no effect on the outcome of the trial. That is, when considering whether a ground of appeal is established it is necessary and sufficient for the appellate court to conclude that the error might have made a difference. [131] By contract, when considering whether the proviso applies, the appellate court cannot apply the proviso unless it is persuaded that the admissible evidence at trial proved the accused's guilt beyond reasonable doubt. But that is a negative proposition. The appellate court cannot apply the proviso unless it is persuaded to that conclusion. Other considerations may show that the discretion which the proviso gives ("provided that the court may … dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred") should not be exercised (emphasis added). The proviso cannot be applied unless the appellate court is positively persuaded of the accused's guilt beyond reasonable doubt. And it is the Crown that must persuade the court to the requisite standard. [132] In applying the proviso, an appellate court "must itself decide whether a substantial miscarriage of justice has actually occurred". This is "an objective task not materially different from other appellate tasks" which "is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction". More particularly, "[t]he appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record" (emphasis added), the Crown proved beyond reasonable doubt that the appellant was guilty of the offence on which the jury returned its verdict of guilt." (Emphasis added; footnotes omitted.)
Whatever approach is taken to a miscarriage of justice, whether it be a "departure from a trial according to law to the prejudice of the accused" [1] or an irregularity which "had the meaningful potential or tendency to have affected the result of the trial" [2] or an error that "might have made a difference", the failure to call Ms Zedan and Ms Alnimer at the applicant's trial due to the inadvertence of his former instructing solicitors has resulted in a miscarriage of justice.
There is no doubt that the Crown case is particularly cogent in the sexual assault charges (Counts 1 to 7). The complainant's evidence of forced non-consensual sexual intercourse finds strong support in the bloodstained t-shirt, the medical evidence of the extent of the vaginal injury (Dr El-Sahadi and Dr Angstmann) and the text messages on 27 October 2018. [3] However, there remain aspects of the complainant's testimony which are germane to her credibility which include her evidence concerning the extent of the assault which constitutes Count 9 and the testimony of Ms Wiseman that she did not see any injuries on the complainant and text messages on 29 October 2018.
As I have explained at [255] to [258] above, the good character evidence which was not adduced was capable of bolstering the applicant's case. Unlike TKWJ, there is no suggestion that the Crown intends to call rebuttal evidence.
Although the Crown did not make submissions on the proviso, I propose to turn to its application as the appeal may be dismissed if this Court "considers that no substantial miscarriage of justice has occurred". The applicant gave evidence in the trial during which he denied any wrongdoing. His evidence concerning the assault charges (Counts 8 and 9) finds some support in the testimony of Ms Wiseman, the applicant's sister and the applicant's sister-in-law. This Court may only be satisfied of the applicant's guilt beyond reasonable doubt if there is no reasonable possibility of his evidence being true. This assessment is not to be undertaken by attempting to predict what some hypothetical future jury might do if the evidence of Ms Zedan and Ms Alnimer is given, but "on the basis that the appellate court is itself satisfied of the appellant's guilt beyond reasonable doubt".
It may be that the Crown will challenge this character evidence by drawing a distinction between their relationships and the arranged marriage which the complainant entered into. However, what is made of the evidence is a matter for a future jury and not a matter about which I should speculate or predict.
As the error in this appeal has resulted in evidence not being adduced, I am of the view, notwithstanding the strength of the Crown case, that this error prevents me from being able to assess whether guilt has been established beyond reasonable doubt.
As Kiefel CJ, Bell, Keane and Gordon JJ observed in Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [15]: "Contrary to the appellant's submission, Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of "process" and "outcome" may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter." (Footnotes omitted.)
I am unable to conclude that no substantial miscarriage of justice has occurred.

Orders

Accordingly, I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the convictions entered in the District Court of New South Wales on 17 December 2020. 4. Order a new trial. 5. List for Mention at the Sydney District Court in Court 3.1 at 9:30am on 26 August 2022. 6. Direct that no later than 6 weeks prior to the date of the retrial, the Respondent notify the chamber of Price J or Beech-Jones CJ at CL of that date.
LONERGAN J: I have had the advantage of reading the judgment of Price J in draft. I agree with the orders proposed by his Honour. I am grateful to his Honour for his comprehensive summary of the evidence, the submissions and the nature and degree of significance of the potential evidence of Ms Zedan and Ms Alnimer, with which I agree.
I have also had the advantage of reading the judgment of Beech-Jones CJ at CL in draft. I agree with his Honour that the applicant has established that the failure to call Ms Zedan and Ms Alnimer at his trial resulted in a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act. I am satisfied that there is a significant possibility that had it been led, the jury would have entertained a doubt about his guilt.

Endnotes

See [267] above.
See [270] above.
See [112] above.

Amendments 19 September 2022 - Para [5] typographical correction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2022

HEADNOTE [This headnote is not to be read as part of the judgment] On 1 July 2020, a jury in the District Court found AK (the applicant) guilty of two counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW) (Counts 1 and 7 on the indictment), five counts of sexual intercourse without consent contrary to s 61I of the Crimes Act (Counts 2, 3, 4, 5 and 6), and two counts of common assault contrary to s 61 of the Crimes Act (Counts 8 and 9). On 17 December 2020, O'Brien AM DCJ sentenced the applicant to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years. The complainant was the applicant's wife and they had met through an arranged marriage. The alleged offences under Counts 1 to 7 occurred on their wedding night and during their honeymoon. The alleged offences under Counts 8 and 9 occurred subsequently when the married couple were living together. The sole ground of appeal was that the absence at trial of evidence from Ms Michelle Zedan and Ms May-Lin Alnimer, consequent upon the failure of the applicant's trial solicitor to brief trial counsel with their statements, occasioned a miscarriage of justice. Ms Zedan and Ms Alnimer had formerly been in relationships with the applicant. They made statutory declarations that said, in summary, that the applicant was non-violent, pleasant, friendly, gentle, kind and caring. Both women said that they would be willing to give evidence of the applicant's good character. Through no fault of the applicant, this evidence was not brought to the attention of the applicant's trial counsel. The applicant's trial counsel swore in an affidavit that he was not made aware of the deponents. In oral argument before this Court and in written submissions, Mr Game SC submitted that a miscarriage of justice had been established as the evidence, if it had been led, had the capacity to affect the outcome of the trial. He further submitted that due to the miscarriage of justice, the verdicts could not be saved by the proviso. Mr Balodis for the Crown submitted that the prosecution case was so strong, including the medical evidence that corroborated the complainant's evidence, that there was not a significant or reasonable possibility that the deponents' evidence would have made a difference to the outcome. Mr Balodis said the Crown had not made submissions on the proviso because if this Court found that there was a miscarriage of justice, "very little room" was left for the proviso. Held (per Price J; Beech-Jones CJ at CL and Lonergan J agreeing), granting leave to appeal, allowing the appeal, quashing the convictions entered in the District Court, ordering a new trial and listing for Mention at Sydney District Court. As to the sole ground of appeal: The evidence of Ms Zedan and Ms Alnimer was relevant to the likelihood of the applicant having committed the offences and to his credibility. It was capable of bolstering the applicant's case that all sexual activity was consensual; that he did not have a tendency, as asserted by the Crown, to have non-consensual sexual intercourse with the complainant in circumstances where she expressed that she was in pain; and that he sought to control the complainant: [258] (Price J). Hofer v The Queen (2021) 291 A Crim R 114; [2021] HCA 36; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, considered. As to the concept of "miscarriage of justice": The High Court has considered the concept of "miscarriage of justice" and, on occasion, has been divided on what this amounts to. This case is different to the position in TKWJ because in this case there was no suggestion that the failure to adduce the evidence of the two witnesses could be reasonably explained: [8] (Beech-Jones CJ at CL). The High Court has resolved the inquiry as to whether a miscarriage of justice occurred by emphasising the necessity to consider what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a "significant possibility" that the acts or omissions of which complaint is made affected the outcome of the trial: [9] (Beech-Jones CJ at CL). Hofer v The Queen (2021) 291 A Crim R 114; [2021] HCA 36; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, considered. Ali v R (2005) 214 ALR 1; [2005] HCA 8; Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28; Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, referred to. Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26; GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40; Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44; Rogerson v R; McNamara v R [2021] NSWCCA 160, cited. As to the proviso: The error that occurred in the trial resulted in evidence not being adduced and it is not possible for the Court to speculate about what a future jury may make of this evidence: [276]-[277] (Price J). The Court is unable to conclude that no substantial miscarriage of justice has occurred: [279] (Price J). Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, referred to.

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