Criminal law - Jurisdiction, practice and procedure - Information, indictment or presentment - Particulars - Function of - Direction to jury that evidence of accused amounted to an admission of guilt - Whether evidence of accused and particulars of charge significantly different - Whether misdirection. Criminal Code, ss311, 312, 314, 317.

Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Duty of judge - Formation of view of facts consistent with verdict - Crime charged comprising several acts - Trial judge making own findings as to what acts proved for the purposes of sentence - Whether obliged to invite the jury to find specially which of the several acts are found to be proved. Criminal Code, s383.

Counsel for applicant: H J Kable QC with Miss T Kohl

Solicitors for respondent: Director of Public Prosecutions

2 Application for leave to appeal against sentence refused.

GREEN CJ This is an appeal against the appellant's conviction on one count of assault and one count of rape and an application for leave to appeal against sentence.

"1 STATEMENT OF CRIME

First Count

ASSAULT - Contrary to Section 184 of the Criminal Code.

PARTICULARS

ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 unlawfully assaulted Annette

Maree Brown by grabbing her throat with his hands, pointing

a loaded shotgun at her face and striking her head against

a kitchen window.

2 STATEMENT OF CRIME

Second Count

AGGRAVATED SEXUAL ASSAULT - Contrary to Section 127A of the

Criminal Code.

PARTICULARS

ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 unlawfully and indecently

assaulted Annette Maree Brown by forcing his finger into

her vagina.

3 STATEMENT OF CRIME

Third Count

RAPE - Contrary to Section 185 of the Criminal Code.

PARTICULARS

ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 had oral sexual intercourse

with Annette Maree Brown without her consent.

4 STATEMENT OF CRIME

Fourth Count

RAPE - Contrary to Section 185 of the Criminal Code.

PARTICULARS

ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 had vaginal sexual

intercourse with Annette Maree Brown without her consent."

3. The appellant was convicted on counts 1 and 3 and acquitted on counts 2 and 4.

"3 The conviction for assault should be set aside on the

ground that the trial judge erred in law in directing the

jury that they could convict of assault on the basis of the

evidence given by the accused when the accused's evidence

was inconsistent with the assault particularised by the

Crown and the evidence led in support thereof.

4 The conviction for assault should be set aside as

constituting a miscarriage of justice on the basis that the

learned trial judge directed the jury that the jury could

lawfully convict the accused of assault on the basis of the

version given by the accused when that evidence was:

(a) inconsistent with the evidence led by the Crown; and or

(b) inconsistent with the opening of the Crown; and/or

(c) inconsistent with the assault particularised by the

Crown; and/or

(d) constituted a denial of the facts particularised by the

Crown; and/or

(e) constituted a denial of the evidence led in support of

and consistent with the particulars.

5 The conviction for assault should be set aside as

constituting a miscarriage of justice having regard to the

fact that the Crown case as presented through its witnesses

and as opened to the jury was so different from the version

given by the accused in the witness box which version the

learned trial judge directed the jury would be sufficient

to ground a conviction for assault.

6 The learned trial judge erred in law in directing the

jury that for the purpose of their deliberation the Crown

case was not bound by the particulars of the indictment in

respect of count 1 of the indictment.

7 The learned trial judge erred in law in directing the

jury that they could convict the accused of an assault on

the basis of facts other than those particularised in the

indictment."

5. Grounds 3, 4, 5 and 7 can be dealt with together. The statements of fact in these grounds as to the effect of the learned trial judge's directions to the jury are in substance correct in that he said to the jury that although the verdict was "entirely" for the jury it seemed to him that "on (the appellant's) own version he's guilty of assault".

6. The appellant properly does not complain to this court that the charge was duplicitous the acts charged being a connected series of events comprising a single transaction. The essential issue raised by these grounds is thus whether the evidence given by the appellant was sufficient to lawfully satisfy a jury that the appellant had committed an assault in one or more of the three ways set out in the particulars.

7. In the course of his evidence the appellant denied that he had "grabbed" the complainant's neck. But his evidence would have been capable of sustaining findings that he struck a forceful blow to the complainant's neck with his hand which was of sufficient force to cause her to "end up" on the kitchen bench, that obvious marks on the complainant's neck coincided with the points of contact between his hand and the complainant's neck and that that application of force was something more than or different from a single blow involving only momentary contact as his hand was in contact with her neck for "two to three seconds". The appellant also did not dispute any of the evidence of admissions he had made to the police which included evidence that he had said that he had "pushed" the complainant "under the throat" and that when a question was put to him suggesting that he had "grabbed" the complainant's throat his answer was to the effect "that's how I pushed her".

8. In the course of his opening address counsel for the Crown did not enlarge upon what was entailed by the words in the particulars of the charge "grabbing her throat with his hands". During an exchange between the learned trial judge and counsel for the Crown in the course of his opening address counsel said that the Crown was "saying" there were three assaults which included "the application of force, throttling ...". Counsel did not elaborate upon that statement and as there was no other suggestion that the Crown was alleging that the accused stopped the complainant's breath I am satisfied that the word "throttling" was used loosely and was not intended to extend what was connoted by the word "grabbing" as used in the indictment. The complainant in her evidence said that the appellant "grabbed me round the throat and started pushing me into the window", that the appellant had two hands around her throat and that she "was scared that (the appellant) was going to choke (her)" but she did not say that the appellant's action in fact had had any throttling effect. In the course of his summing up the learned trial judge did not characterise the Crown case as including or comprising an allegation that the appellant had strangled or throttled the complainant.

9. In my view it could not be said that the Crown case included an allegation that the appellant had throttled the complainant. In essence the Crown case as pleaded and as it was presented consisted of an allegation that the appellant had applied force with his hands to the complainant's neck for more than a momentary period of time. The appellant's evidence was capable of proving that allegation. The only differences between the Crown case and the appellant's evidence were that on the Crown case the appellant used two hands and that those were "round" the complainant's neck whilst the appellant's evidence was that he only used one hand and by implication that the area of contact between his hand and the complainant's neck did not extend as far round her neck as was alleged by the Crown. In my view those differences between the Crown case and the appellant's evidence in relation to this part of the assault alleged in count 1 were merely differences in degree not qualitative differences.

10. I hold that the appellant's evidence was capable of sustaining a finding that the appellant had assaulted the complainant in one of the three ways particularised in the indictment and that therefore the learned trial judge did not misdirect the jury.

11. There is no substance in ground 6. The direction complained of is taken out of context and read in isolation creates a misleading impression. The learned trial judge did say "the Crown is not bound by (the) particulars" in the indictment but then immediately made clear what he was intending to convey by saying that the Crown did not have "to prove everything exactly" as it was pleaded and then giving examples of where slight differences between the particulars and the evidence would not be material and concluding with the observation "we're not that technical that you go dismissing cases just because ... the events are proven to be slightly different". I hold that considered in its context - as I am satisfied the jury would have considered it - the statement referred to in this ground was not a misdirection.

12. The only ground of this appeal is that "the conviction was unsafe and unsatisfactory having regard to the evidence of the trial". I have had the advantage of reading the reasons for judgment of Zeeman J and for the reasons he gives I am not satisfied that the jury should have entertained a reasonable doubt as to the appellant's guilt. In particular I reject the submission that the appellant's acquittal on count 2 necessarily demonstrated that the jury took a view of the complainant's credibility as a witness generally such that they could not properly have relied upon her evidence in respect of count 3. Further I am not satisfied that any inferences may be drawn from the request from the foreman save that some jurors wanted to refresh their memories of some parts of the complainant's evidence by looking at the transcript.

13. The main findings of fact made by the learned trial judge in imposing sentence were as follows:

"(The appellant) grabbed (the complainant) by the throat

with his left hand. I am unable to find that he also

grabbed her by the throat with his right hand. With a

strong grip on her throat he propelled her backward and

onto a bench or the kitchen sink, it matters not in my

view, causing the back of her head to strike some object.

This attack on her left three obvious bruises on her neck

from his fingers, a superficial laceration in her scalp 2.7

centimetres long which bled. The complainant fell to the

floor. She was dazed. She looked up at a time when the

prisoner was pointing the shotgun at her. I am unable to

find when he had loaded it, but it was loaded.

...

On the evidence he did not of course pull the trigger of

the gun while it was pointing at her. So he did not in

fact endeavour to shoot her. That's the finding I make.

But he did threaten by gesture to do so by pointing the gun

at her, and he certainly caused her to believe she was

going to be shot. The facts surrounding the conviction for

rape are that the prisoner having so assaulted the

complainant, directed her to go to the bedroom. She went

with him. He took the gun with him to that room. He put

it down there. She was clearly distressed and crying. He

told her to put on an item of lingerie which he brought

with him and he demanded that she perform fellatio on him,

and she did so."

14. After making comments about the seriousness of the crimes and the personal circumstances of the appellant including his emotional state, his age and the fact that he had no previous convictions for offences of violence the learned trial judge sentenced the applicant to imprisonment for two years five months which sentence took into account a period that the appellant had already spent in custody. The grounds of the application are as follows:

"1 The sentence was manifestly excessive in all the

circumstances.

2 The sentence of the learned trial judge upon the accused

upon the indictment should be set aside as constituting a

miscarriage of justice in consequence of errors made by the

learned trial judge with respect to count 1 on the bases

that:

(i) The learned trial judge failed to seek a verdict from

the jury in accordance with s383 of the Code; and/or

(ii) The learned trial judge failed to direct the jury in

accordance with Gilson v The Queen [1991] HCA 24; 100 ALR 729 and to

apply the law as articulated in that case; and/or

(iii) The learned trial judge imposed a sentence in

respect of a crime more serious than that of which the

accused was necessarily convicted by the jury; and/or

(iv) The learned trial judge proceeded to impose sentence

in respect of facts said to be relevant to count 1 which

were inconsistent with the finding of the jury."

15. In my view there is no substance in this ground. The findings made by the learned trial judge were open to him on the complainant's evidence and those findings did not call into question the verdict of acquittal upon count 2 so as to bring into play the principle applied in Garrett v R [1977] HCA 67; (1977) 139 CLR 437. There is no basis upon which it could be said that inferences as to what view the jury might have taken about the credibility of the complainant's evidence in relation to count 2 precluded the making of the findings made by the learned trial judge.

16. The crime of which the appellant was convicted was assault. The crime for which the appellant was sentenced was not a more serious crime but the same crime of assault. The findings made by the learned trial judge did not result in the appellant being sentenced for a more serious crime than that of which he was convicted nor was he sentenced for committing acts which were different from or more serious than those charged in the indictment.

17. The decision in Gilson v R now reported in [1991] HCA 24; (1991) 172 CLR 353 applies to cases where a person is charged in the alternative with different crimes. It has no application to this case where the appellant was charged with the single crime of assault.

18. Following the verdict of guilty the jury's function was exhausted and the learned trial judge was then required to assume the responsibility of making all findings of fact necessary for the proper exercise of his sentencing discretion; Rowbottom v R unreported (CCA 24 March 1960) cited with approval in Prokopiec v R 1982 Tas R 170, Kingswell v R [1985] HCA 72; (1985) 159 CLR 264, 280, 283 and 288. For the reasons I have given I am satisfied that the findings made by the learned trial judge were lawfully open to him on the evidence. The trial judge properly and lawfully performed a function which the law required him to perform. I cannot see how it could be said that any miscarriage of justice could flow from his not seeking special verdicts from the jury relating to matters which it was his duty and function to determine. This was not the sort of case in which the verdict of the jury was ambiguous or apparently inconsistent or otherwise could not be properly understood without special verdicts or special findings.

19. The sentence could not have been characterised as manifestly excessive even had the appellant only been convicted of the single count of rape. A fortiori it could not be characterised as a manifestly excessive sentence for the rape and the assault.

20. In my opinion the appeal against conviction should be dismissed and the appeal for leave to appeal against sentence should be refused.

UNDERWOOD J The appellant was tried on an indictment containing one count of assault, one count of aggravated sexual assault and two counts of rape. The jury found him guilty of the assault and guilty of one count of rape. He was sentenced on the whole indictment to two years and five months' imprisonment. The sentence took into account a period in custody on remand of about one month.

2. The appellant has appealed against the convictions and has applied for leave to appeal against the sentence.

3. The facts which gave rise to the convictions all occurred within the space of about an hour or a little less on the morning of 30 October 1992. The appellant and the complainant had been living together in a de facto relationship of man and wife at 123 Gunn Street, Devonport for some time prior to that day. The appellant is the father of the complainant's youngest child. It was not always a harmonious relationship. There were periods of separation, one of which occurred about two weeks before 30 October 1992. In the intervening period between that separation and the occurrence of the events which gave rise to the matters charged, there had been some, mostly acrimonious, contact between the appellant and the complainant.

4. On the evening before 30 October 1992, the complainant was visited by the appellant's then best friend. They spent the night together in the same bed. The appellant knew that a male had spent the night with the complainant as earlier in the evening, armed with a shotgun, he sat outside the complainant's window and heard her talking to a male. According to the appellant he took the shotgun so that he could kill himself if the complainant would not have him back. After listening under her window for a while, the appellant deposited the gun in a garden shed, left the property and went to a friend's house until about 7.30am. The appellant then got a taxi and returned to the complainant's house. By the time he arrived, his former best friend had left and the complainant was alone in the house with her children. The appellant put his hand through what was described in evidence as a "doggy door" and reached inside for a key that was customarily kept in a convenient location. As the key was not there, the appellant smashed the glass in the door and marched in, carrying the gun he had collected from the shed. The complainant, alarmed by the noise, was in the process of telephoning the police when the appellant approached her and took the telephone out of her hand. With respect to what followed there was a divergence between the account given by the appellant and that given by the complainant. I shall briefly set them out under each count.

Count 1 Assault

"ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 unlawfully assaulted Annette

Maree Brown by grabbing her throat with his hands, pointing

a loaded shotgun at her face and striking her head against a

kitchen window."

5. The complainant said that the appellant came up behind her and started abusing her and seized her around the throat with both hands. She said the appellant then banged her head against the window above the kitchen sink and she cut her head on the window frame. According to the appellant, after he had taken the telephone from the complainant he was arguing with her and went to hit her in the shoulder with his open hand to knock her back, all the while holding the gun in his right hand. He said that he was pretty sure that his left hand "come in contact with her shoulder as I pushed her like that and then went straight up through her throat" (sic). There were fingermark bruises on one side of the complainant's throat which the appellant said could have been caused when he shoved her. The appellant said that the complainant "flew across the kitchen sink and then down onto the ground". He said she did not go anywhere near the window but a glass broke as she went across the kitchen sink. It was common ground that in this scuffle the complainant cut her head. According to the complainant, while she was lying on the floor she looked up and saw the appellant pointing the gun at her and saying "I'm gunna shoot ya." She said she just curled up and waited for the gun to go off. According to the complainant the appellant then said "I'm gunna shoot meself then" and she looked up to see him holding the gun with the barrel pointed to his head. The appellant said that he did not point the gun deliberately at the complainant but admitted loading it and turning the gun on himself saying he might as well shoot himself. He said he pulled the trigger but the gun did not fire.

Count 2 Aggravated Sexual Assault

"ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 unlawfully and indecently

assaulted Annette Maree Brown by forcing his finger into her

vagina."

6. According to the complainant, the appellant continued to verbally abuse her and during the course of this abuse forcibly inserted some of his fingers into her vagina. The appellant denied that anything like that occurred and the jury acquitted him of that count.

Count 3 Rape

"ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 by having oral sexual

intercourse with Annette Maree Brown without her consent."

7. According to the complainant the appellant then took her into the bedroom and told her to put on a piece of underwear, described as a "teddy" that he took out of his pocket. The appellant admitted that during the immediately preceding period of separation he had taken this item of underwear and some other garments belonging to the complainant on one of his visits to the house. The complainant said that after she had put on the teddy, the appellant directed her to perform fellatio upon him. She said she did so because she was terrified of him. According to the appellant, the two of them did go into the bedroom together and he did ask the complainant to put on the teddy but there was no fellatio. According to him, he and the complainant were both upset and crying. He said that the two of them just sat on the bed and cuddled each other for about 15 minutes until the baby, who slept in that room, woke up and needed attention. The jury convicted on this count.

Count 4 Rape

"ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 by having vaginal sexual

intercourse with Annette Maree Brown without her consent."

8. According to the complainant, the compulsory act of fellatio ceased when her elder son walked into the room. She said that she got up and went to the toilet and there followed a period of time during which the complainant and the appellant were moving about the house. She said that at all times she agreed with him to try and pacify him and calm him down. She said that they took a shower together and then returned to the bedroom where she cuddled the appellant at his request and then had vaginal sexual intercourse with him. She said that she did so because she was frightened of him. In his evidence, the appellant agreed that there was a period of time during which the two of them moved about the house together, that they showered together and then had vaginal intercourse in the bedroom. According to the appellant, that act was with the complainant's consent or at the very least, he honestly but mistakenly believed she was consenting. The jury acquitted on this count.

9. At the start of the trial, then counsel for the appellant complained to the learned trial judge that the count of assault was bad for duplicity in that it alleged an assault by means of threatening the complainant by pointing a loaded shotgun at her as well as an assault by throttling her and striking her head against the window. The learned trial judge did not accept that submission.

10. The learned trial judge gave the jury adequate and proper directions with respect to the crime of assault committed by way of threat. He also directed them to the effect that they may not need to consider that aspect of the case on count 1 because if they accepted the appellant's version of the events with respect to that count, that would be sufficient to bring in a verdict of guilty. The appellant alleges that error of law occurred in giving that direction. Ground 1 of the unamended notice of appeal provided:

"As to the conviction for assault ... the Trial Judge erred

in law in directing the jury that they could convict of

assault on the basis of the evidence given by the accused

(Appellant) when the accused's evidence was inconsistent

with the assault particularised by the Crown."

11. On the hearing of the appeal that ground was expanded by the addition of three more grounds but, as I understand it, the complaint remained the same namely, that the Crown case as particularised was so different from the version given by the appellant that error of law occurred, or alternatively there was a miscarriage of justice in the direction that the jury could find the appellant guilty on count 1 on his evidence alone. The submission was that error and/or miscarriage of justice arose out of the failure to direct the jury that they could only convict on count 1 if they were satisfied to the requisite degree, of an assault as particularised in the indictment and as described by the complainant in evidence. It was a corollary of that submission that the assault on the complainant as described in evidence by the appellant was outside that contemplated by the indictment. No authority was cited in support of the proposition that the direction given amounted to an error of law. The additional grounds are:

"The conviction for assault should be set aside on the

ground that the trial judge erred in law in directing the

jury that they could convict of assault on the basis of the

evidence given by the accused when the accused's evidence

was inconsistent with the assault particularised by the

Crown and the evidence led in support thereof.

The conviction for assault should be set aside as

constituting a miscarriage of justice on the basis that the

learned trial judge directed the jury that the jury could

lawfully convict the accused of assault on the basis of the

version given by the accused when that evidence was:

(a) inconsistent with the evidence led by the Crown; and/or

(b) inconsistent with the opening of the Crown; and/or

(c) inconsistent with the assault particularised by the

Crown; and/or

(d) constituted a denial of the facts particularised by the

Crown; and/or

(e) constituted a denial of the evidence led in support of

and consistent with the particulars.

The conviction for assault should be set aside as

constituting a miscarriage of justice having regard to the

fact that the Crown case as presented through its witnesses

and as opened to the jury was so different from the version

given by the accused in the witness box which version the

learned trial judge directed the jury would be sufficient to

ground a conviction for assault."

12. Count 1 alleges the commission of one crime, viz assault. Although counsel for the appellant at the trial submitted that it was bad for duplicity, the learned trial judge's rejection of that submission was not made a ground of appeal and rightly so. On the Crown case, the events particularised under count 1 were "of a similar nature (and) connected with one another, in the time and place of their commission that they could fairly be regarded as forming part of the same transaction or criminal enterprise" per Lord Diplock in Director of Public Prosecutions v Merriman (1973) AC 584 at 607.

13. The particulars, and the admissible evidence led in support of them, alleged that there was a single assault on the complainant that took place over a relatively short period of time. The legal elements that the Crown had to establish to ground a conviction for the crime charged as particularised, were an unlawful, direct and intentional application of force to the person of the complainant and/or a threat to apply such force in circumstances where the appellant believed on reasonable grounds that the appellant then had the ability to make good his threat.

14. The Code prescribes the requirements for a valid indictment. Section 311(1) provides:

"An indictment shall be entitled 'in the Supreme Court of

Tasmania', with the addition of the name of the place of

trial, and shall contain and be sufficient if it contains a

statement of the specific crime or crimes with which the

accused person is charged, together with such particulars as

may be necessary for giving reasonable information as to the

nature of the charge."

"The statement of a crime in an indictment shall describe

the crime shortly, in ordinary language, avoiding as far as

possible the use of technical terms, and without necessarily

stating all the essential elements of the crime."

"After the statement of the crime particulars of such crime

shall be set out in ordinary language, avoiding as far as

possible the use of technical terms."

"(1) An indictment shall conform as nearly as may be to the

forms set out in Appendix C, the statement of the crime and

the particulars thereof being varied according to the

circumstances of each particular case. Figures and

abbreviations may be used in an indictment for expressing

anything which is commonly expressed thereby.

(2) The forms of indictment set forth in Appendix C shall be

taken as a guide as to what particulars are necessary."

18. There was no submission that count 1 was drawn in breach of any of the foregoing legislative provisions. The classic statement of the rationale behind the requirement for the provision of particulars in a criminal charge is to be found in Johnson v Miller [1937] HCA 77; (1937-1938) 59 CLR 467 where Evatt J said at 497-498:

"It is of the very essence of the administration of criminal

justice that a defendant should, at the very outset of the

trial, know what is the specific offence which is being

alleged against him. This fundamental principle has been

deemed applicable to bodies which are not strictly judicial

in character. But the rigorous application of the principle

by courts of justice proper is to be regarded as deriving

from the court's inherent power and jurisdiction. It is

inherent because it is an essential and integral part of any

system of administering justice according to law. For

various reasons, including the miscarriages caused by

technical objections to matters of form, the formal

indictment, information or complaint is allowed to become

more sparing in the information it imparts. Side by side,

the jurisdiction to order particulars may call for more

frequent exercise. It is an essential part of the concept

of justice in criminal cases that not a single piece of

evidence should be admitted against a defendant unless he

has a right to resist its reception upon the ground of

irrelevance, whereupon the court has both the right and the

duty to rule upon such an objection. These fundamental

rights cannot be exercised if, through a failure or refusal

to specify or particularise the offence charged, neither the

court nor the defendant (nor perhaps the prosecutor) is as

yet aware of the offence intended to be charged."

19. There are many cases to the same effect. Some of them are referred to in the decision of the Full Court of this Court in Wong v Kirkham 55/1989. There was no complaint that the particulars did not fulfill their proper legal purpose.

20. There was no complaint that any of the evidence given by the appellant should not have been admitted. It was true, as Mr Kable QC submitted, that his evidence was at variance with the particulars of count 1 in the indictment and the evidence of the complainant given in support of them, at least with respect to the use of the shot gun. But that is the case in the majority of criminal trials. The issue for the jury on count 1 was whether they were satisfied beyond reasonable doubt on the evidence admitted in accordance with law, of the existence of the legal elements in the crime of assault on the complainant at the time referred to in that count. It was common ground that the evidence of the appellant and the evidence of the complainant related to the same day, the same time and the same place. The appellant could not say that there was any unfairness about him giving the account that he did give to the jury. The appellant, by that account, admitted assaulting the person named in count 1 at the time and place referred to in that count. He was charged with the commission of an assault, part of which comprised a direct and intentional application of force to the person of the complainant. He admitted on oath to doing that albeit, by shoving her in the throat with his hand and not by grabbing her throat as particularised and detailed in the evidence of the complainant. It would be contrary to law and common sense to direct the jury if they were satisfied beyond reasonable doubt only of the appellant's version, that they should find him not guilty of assault. In these circumstances the only proper direction that the learned trial judge could have given the jury with respect to the appellant's evidence, was that if they accepted it they would be satisfied of the elements of the assault pleaded in count 1.

21. One of the grounds added during argument was that error occurred in a direction to the jury "that for the purpose of their deliberation, the Crown case was not bound by the particulars of the indictment in respect of count 1 of the indictment." The learned trial judge did so direct the jury but a reading of the whole of the passage in which that direction appears clearly shows that his Honour was telling the jury that the Crown was not bound to prove every particular alleged under the count before the jury could convict. His Honour was not telling the jury that the particulars to count 1 were immaterial. The direction complained of is taken out of context. Read in its context it does not amount to a misdirection.

22. Ground 2 of the notice of appeal attacks the conviction for rape on count 3 on the basis that the verdict is unsafe and unsatisfactory. Mr Kable QC submitted that the acquittal on count 2 was an important consideration on this ground. The submission was that the only direct evidence on counts 2 and 3 came from the complainant and the accused. On count 2 there was medical evidence capable of corroborating the complainant's version. The events relevant to counts 2 and 3 all occurred within a short space of time. Notwithstanding these matters the jury brought in a not guilty verdict on count 2 and a guilty verdict on count 3. That, submitted Mr Kable, was an indication that the verdict was unsafe and unsatisfactory. He did not submit that the verdict of not guilty on count 2 necessarily demonstrated that the jury were not satisfied of the existence of an essential element in the crime charged on count 3.

23. The function of the Court of Appeal when considering this ground has been spelled out by the High Court in Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657; Chamberlain and Anor v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521; Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454. In Chamberlain (No 2) Gibbs CJ and Mason J (as he then was) said at 534:

"... the proper test to be applied in Australia is, as

Dawson J said, to ask whether the jury, acting reasonably,

must have entertained a sufficient doubt to have entitled

the accused to an acquittal, ie must have entertained a

reasonable doubt as to the guilt of the accused. To say

that the Court of Criminal Appeal thinks that it was unsafe

or dangerous to convict, is another way of saying that the

Court of Criminal Appeal thinks that a reasonable jury

should have entertained such a doubt. The function which

the Court of Appeal performs in making an independent

assessment of the evidence is performed for the purpose of

deciding that question. The responsibility of deciding upon

the verdict, whether of conviction or acquittal, lies with

the jury and we can see no justification, in the absence of

express statutory provisions leading to a different result,

for an appellate tribunal to usurp the function of the jury

and disturb a verdict of conviction simply because it

disagrees with the jury's conclusion. We do agree that in

many cases the distinction will be of no practical

consequence; it will be merely a matter of words. That will

not generally be the case where questions of credibility are

decisive. However, whether it matters from a practical

point of view or not in a particular case, it is not

unimportant to observe the distinction - the trial is by

jury, and (absent other sources of error) the jury's verdict

should not be interfered with unless the Court of Criminal

Appeal concludes that a reasonable jury ought to have had a

reasonable doubt."

24. As Mason CJ observed in Morris at 462 after referring to the passage from Chamberlain (No 2) that I have set out above, "in performing the function which is discussed (above) the Court of Criminal Appeal is deciding a question of fact." Consequently this ground falls to be considered without taking into account the fact that there was a verdict of acquittal on count 2 but a verdict of guilty on count 3 although from my part, I see nothing surprising or contradictory in the two verdicts having regard to the totality of the evidence.

25. After the jury had been deliberating for some time, they returned into the court and asked the learned trial judge if they could have a transcript of the complainant's evidence from the time she entered the bedroom. The foreman said that they had the evidence on video of the accused's story and in essence, to be fair, the jury would like a transcript of that part of the complainant's story. The learned trial judge refused this request giving cogent reasons for so doing. The jury again retired. Mr Kable QC submitted that the failure of the learned trial judge to summarise the complainant's evidence-in-chief and the salient points of cross-examination with respect to count 3 after the jury's request "should cause the court concern as to the safety with which the verdict can be viewed." Having regard to the terms in which the request for a transcript was couched, I feel no such concern. In any event, in the circumstances of this case, this ground is to be approached by a review of all the evidence. With respect to count 3, in addition to the evidence of the complainant and the defendant, there was evidence of recent complaint. Although there was a sharp difference between the evidence of the complainant and the evidence of the appellant, a study of the transcript discloses that during the two days the complainant was in the witness box, in substance, she adhered to the story that she first gave in evidence-in-chief. The credibility of the appellant and the complainant was crucial to the jury's deliberations on all counts and there is no reason to suppose that any of the verdicts were unsafe and unsatisfactory upon an independent assessment of all the evidence.

26. The remaining grounds relate to the sentence. It is necessary to set out the major part of the learned trial judge's findings and comments on passing sentence. He said:

"The prisoner is convicted by the verdicts of the jury of

assault and rape. I make the following findings of fact

concerning the assault. Armed with a shotgun he kicked open

a small pet's door in the back door of the house and

endeavoured to reach the back door key which was not there.

He then went to the front door and punched in a glass panel

and let himself in. The complainant was terrified as a

result of the noise at the back door and endeavoured to get

help from the police by ringing 000, but because of a state

of panic, was unable to express what she wanted clearly

enough. The accused came into the kitchen with the gun, he

took the telephone from her and hung it up. He shouted at

her, being extremely angry with her, calling her a slut. He

grabbed her by the throat with his left hand. I am unable

to find that he also grabbed her by the throat with his

right hand. With a strong grip on her throat he propelled

her backward and onto a bench or the kitchen sink, it

matters not in my view, causing the back of her head to

strike some object. This attack on her left three obvious

bruises on her neck from his fingers, a superficial

laceration in her scalp 2.7 centimetres long which bled.

The complainant fell to the floor. She was dazed. She

looked up at a time when the prisoner was pointing the

shotgun at her. I am unable to find when he had loaded it,

but it was loaded. Whether a cartridge was loaded in the

breech ready to fire seems doubtful. It may or may not have

been. But whether or not it was, the prisoner believed that

it was loaded ready to fire. I am unable to find whether he

said anything amounting to a threat to shoot, but I accept

the complainant's evidence that she believed that he was

going to shoot her and she curled up into a ball waiting for

it to happen. Plainly it is consistent with the jury's

verdict on Count 3, and I so find, that some of what the

prisoner told the police and what he said in court, was

untrue. But he admitted that he pointed the gun at her. To

the police he said that he went to point it in her

direction, but then thought that that was not the reason he

went to the house. In cross-examination he admitted that

the gun was pointing at her when she was on the floor,

although on his evidence only for a split second. And he

only admitted that it was possible that he thought of

killing her. On the evidence he did not of course pull the

trigger of the gun while it was pointing at her. So he did

not in fact endeavour to shoot her. That's the finding I

make. But he did threaten by gesture to do so by pointing

the gun at her, and he certainly caused her to believe she

was going to be shot. The facts surrounding the conviction

for rape are that the prisoner having so assaulted the

complainant, directed her to go to the bedroom. She went

with him. He took the gun with him to that room. He put it

down there. She was clearly distressed and crying. He told

her to put on an item of lingerie which he had brought with

him and he demanded that she perform fellatio on him, and

she did so. I accept her evidence that she began to dry

retch. He did not have an erection at the time. The acts

committed by the prisoner which are encompassed by the

crimes of which he was convicted were serious acts of

violence and depravity intentionally committed against the

complainant because of her persistent refusal to reconcile

with the prisoner and also because of his discovery earlier

in the night from outside her bedroom window that she was in

bed with another man. What he did were acts of subjugation

and humiliation. I accept that the prisoner was in a state

of emotional turmoil and distress, being unable to accept

her rejection of him. He was so upset that prior to

entering the house he had contemplated committing suicide,

and that thought was in his mind for at least a moment in

the house, for I accept the evidence that he put the gun to

his own head and pulled the trigger. I have no doubt that

he was confused and am equally in no doubt that at the

relevant times in the house he vented his frustration by the

acts of violence and depravity of which he was convicted,

and that they were done in a state of frustration for the

purpose of hurting the complainant and for the purpose of

humiliating her."

27. The grounds of appeal with respect to sentence are as follows:

"The sentence of the learned trial judge upon the accused

upon the indictment should be set aside as constituting a

miscarriage of justice in consequence of errors made by the

learned trial judge with respect to count 1 on the bases

that:

(i) the learned trial judge failed to seek a verdict from

the jury in accordance with s383 of the Code; and/or

(ii) the learned trial judge failed to direct the jury in

accordance with Gilson v the Queen [1991] HCA 24; 100 ALR 729 and to apply

the law as articulated in that case; and/or

(iii) the learned trial judge imposed a sentence in respect

of a crime more serious than that of which the accused was

necessarily convicted by the jury; and/or

(iv) the learned trial judge proceeded to impose sentence in

respect of facts said to be relevant to count 1 which were

inconsistent with the finding of the jury."

28. There was a further ground that the whole sentence was manifestly excessive.

29. Put shortly, the appellant's complaint on sentence is that the learned trial judge directed the jury that they could find the appellant guilty on the appellant's version ie, without being satisfied to the requisite degree that he assaulted the complainant by threatening her with a loaded rifle, but proceeded to impose sentence on the basis that he had done just that.

30. The learned trial judge was asked by then counsel for the appellant to find specially with respect to the issue of assault by threat. He declined to do so. The Code, s383(1) provides:

"383 (1) Upon the trial of an indictment the jury may in

any case

(a) subject to the provisions of subsection (1) of section

381, return a general verdict of 'guilty', or 'not guilty';

(b) find specially upon all the facts necessary to enable

the judge to pass judgment; or

(c) if they return a general verdict, find specially upon

any question submitted to them by the judge."

31. The common law has long recognised the right of a trial judge to submit questions to the jury for them to answer. According to Sir James Stephen, History of the Criminal Law of England, Vol 1, 311, "special verdicts are verdicts in which the jury not wishing to decide upon the law find the facts specially, referring it to the court to say whether upon those facts the prisoner is or is not guilty of the crime for which he is indicted." A well known case in which a special verdict of that kind was taken is R v Dudley and Stephens (1884-1885) 14 QBD 273. It would appear that, unlike the case of a general verdict, a jury cannot be compelled to make any special findings of fact. See R v Allday (1837) 8 C and P 136; [1839] EngR 199; 173 ER 431. It has been said that in cases where the jury find specially, the appropriate course is for the court to advise the jury on the law relevant to the facts as found and then take a general verdict from them. See R v Howard (1895) 13 NZLR 619; R v Storey (1931) NZLR 105 at 116-117. Cf Archibold, Criminal Pleading Evidence and Practice, 41 edn, par4-469. No doubt the common law is the origin of s383(1)(a) and (b).

32. The common law has also long recognised the right of a trial judge to put questions to a jury after they have returned a general verdict. It is not uncommon in cases where a verdict of manslaughter, brought in on an indictment for murder, may have been reached by reason of either diminished responsibility or provocation. See for example Matheson v The Queen (1958) 42 Cr App R 145. In that case the Court of Criminal Appeal said at 153:

"It may happen that on an indictment for murder the defence

may ask for a verdict of manslaughter on the ground of

diminished responsibility and also on some other ground such

as provocation. If the jury return a verdict of

manslaughter, the judge may, and generally should, then ask

them whether their verdict is based on diminished

responsibility or on the other ground or on both."

33. The same reasoning applies in cases where a verdict of manslaughter may have been brought in on the basis of either provocation or absence of one or more of the requisite intents prescribed in the crime of murder. This is no doubt the rationale for s383(1)(c). However, this Court has previously expressed caution about the use of this statutory provision, suggesting that it should be reserved for cases like Matheson v The Queen (supra). In Cornick v The Queen CCA 40/1987 Cox J (with whose judgment the other members of the court agreed) reviewed the United Kingdom authorities and concluded at 18:

"In my view it is neither necessary nor, at least in most

cases, desirable to request a jury to refine their decision

after a general verdict. In the present case the learned

trial judge was fully within the proper exercise of his

function as laid down in Prokopiec (supra) in making a

factual finding that the appellant was acting under

provocation at the time of the killing. He did not in any

event make a formal finding that but for that provocation

the killing would have amounted to murder."

34. There are of course, inherent difficulties in seeking answers to questions after delivery of a general verdict, even when those questions are sent into the jury room when the jury are first asked to retire to consider their verdict. The questions may not be answered. It may not be possible to answer the questions. See R v Warner (1967) 1 WLR 1209. Although all, or the prescribed majority of the members of the jury, are satisfied to the requisite degree of the existence of all the elements of the crime charged, the same may not be the case with respect to a fact, the existence of which is not essential to a general verdict.

35. It is well established that it is the function of the trial judge to find the facts after a verdict of guilty. The authorities with respect to this proposition have been recently reviewed by this Court in Bresnehan v The Queen CCA 78/1992. It is unnecessary to refer to those authorities again or set out the relevant principles for they were not called into question on this appeal.

36. Counsel for the appellant submitted that the circumstances of this case were so unusual that the judge erred in not acceding to the request to put a special question to the jury with respect to the issue of whether there was an assault by threat with the rifle. Counsel submitted that without seeking an answer to that question, the learned trial judge was not entitled, on the authority of R v De Simoni [1981] HCA 31; (1980-1981) 147 CLR 383, to sentence on the basis of an assault by threat. Counsel submitted that an assault by threat with a rifle was a major circumstance of aggravation and the High Court has held that sentence cannot be imposed upon such a circumstance unless it was pleaded in the indictment. De Simoni was a case concerning the Criminal Code (WA) which, by s582 expressly provided, "if any circumstance of aggravation is intended to be relied upon it must be charged in the indictment." That case has no application to the circumstances of the present case. Once it is accepted that the events particularised constituted part of one transaction entitling them to be grouped together under one count of assault, the submission that sentence cannot be imposed upon a circumstance of aggravation unless the jury have established that circumstance of aggravation beyond reasonable doubt cannot succeed.

37. When asked by then counsel for the appellant to ask the jury to specially find with respect to assault by threat the learned trial judge said (736):

"I'm not going to ask them to give a special verdict. I

don't see it as appropriate in this case. They've got a lot

of things to decide, four counts, and I'm not going to

trouble them having to come back with a decision on

particular facts. I don't see it as appropriate. The

judge's job is to decide the facts for sentencing purposes

provided that he does so consistent with the verdict."

38. Although I think it might be said that this case is one in which it would have been appropriate for the judge to have put a special question to the jury, it cannot be said that his failure to do so amounted to an error in the exercise of the discretion conferred by the section. The question might have been appropriate because the learned trial judge specifically directed the jury that they could find the appellant guilty on count 1 without considering the allegation of assault by threat, and that aspect of the particulars pleaded under count 1 would have significance in the sentencing process. Careful scrutiny of the learned trial judge's findings with respect to assault by threat shows that each was well supported by the evidence. However, having regard to a view I have clearly come to with respect to sentence, it is unnecessary to consider the application for leave to appeal against sentence any further.

39. No complaint was made with respect to the learned trial judge's description of the acts of the appellant as "serious acts of violence and depravity intentionally committed against the complainant" and that "what he did were acts of subjugation and humiliation." His Honour's categorisation of the criminal conduct of the appellant would have been completely apposite had he found the appellant's conduct with respect to count 1 as described by him in evidence. In my view, a sentence of 2 1/2 years is a very modest sentence for conviction on count 3 alone. Assuming that the appellant had not pointed the loaded rifle at the complainant, the crimes of which the appellant was convicted were nonetheless serious crimes of domestic violence. In my opinion sentencing for crimes of domestic violence should proceed in accordance with the following principles expressed by the Alberta Court of Criminal Appeal in R v Brown (1992) 73 CCC (3d) 242 at 249:

"When a man assaults his wife or other female partner, his

violence toward her can be accurately characterised as a

breach of the position of trust which he occupies. It is an

aggravating factor. Men who assault their wives are abusing

the power and control which they so often have over the

women with whom they live. The vulnerability of many such

women is increased by the financial and emotional situation

in which they find themselves, which makes it difficult for

them to escape."

40. If the appellant succeeds in showing that error occurred in the sentencing process, it will be necessary for this Court to re-impose sentence on the whole indictment. I am very clearly of the opinion that the minimum sentence that should be imposed on the basis that the assault occurred as described by the appellant, is the one imposed by the learned trial judge. For that reason I would refuse the application for leave to appeal against sentence.

41. I would dismiss the appeal against conviction and refuse leave to appeal against sentence.

ZEEMAN J The appellant stood trial on an indictment containing four counts as follows:

"1 STATEMENT OF CRIME

First Count

ASSAULT - Contrary to Section 184 of the Criminal Code.

PARTICULARS

ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 unlawfully assaulted Annette

Maree Brown by grabbing her throat with his hands, pointing

a loaded shotgun at her face and striking her head against

a kitchen window.

2 STATEMENT OF CRIME

Second Count

AGGRAVATED SEXUAL ASSAULT - Contrary to Section 127A of the

Criminal Code.

PARTICULARS

ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 unlawfully and indecently

assaulted Annette Maree Brown by forcing his finger into

her vagina.

3 STATEMENT OF CRIME

Third Count

RAPE - Contrary to Section 185 of the Criminal Code.

PARTICULARS

ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 had oral sexual intercourse

with Annette Maree Brown without her consent.

4 STATEMENT OF CRIME

Fourth Count

RAPE - Contrary to Section 185 of the Criminal Code.

PARTICULARS

ANDREW JASON PARKER at Devonport in Tasmania on or about

the 30th day of October, 1992 had vaginal sexual

intercourse with Annette Maree Brown without her consent."

2. The jury acquitted the appellant of the crimes charged by counts 2 and 4 but convicted him on the other counts. The appellant was sentenced to imprisonment for a term of 2 years and 5 months. The appellant has appealed against both convictions and alternatively seeks leave to appeal against sentence. Both the appeal and the application for leave to appeal were heard together.

3. The grounds of appeal against the conviction for assault are as follows:

"1 As to the conviction for assault on the ground that the

Trial Judge erred in law in directing the jury that they

could convict of assault on the basis of the evidence given

by the accused (Appellant) when the accused's evidence was

inconsistent with the assault particularised by the Crown.

3 The conviction for assault should be set aside on the

ground that the trial judge erred in law in directing the

jury that they could convict of assault on the basis of the

evidence given by the accused when the accused's evidence

was inconsistent with the assault particularised by the

Crown and the evidence led in support thereof.

4 The conviction for assault should be set aside as

constituting a miscarriage of justice on the basis that the

learned trial judge directed the jury that the jury could

lawfully convict the accused of assault on the basis of the

version given by the accused when that evidence was:

(a) inconsistent with the evidence led by the Crown; and or

(b) inconsistent with the opening of the Crown; and/or

(c) inconsistent with the assault particularised by the

Crown; and/or

(d) constituted a denial of the facts particularised by the

Crown; and/or

(e) constituted a denial of the evidence led in support of

and consistent with the particulars.

5 The conviction for assault should be set aside as

constituting a miscarriage of justice having regard to the

fact that the Crown case as presented through its witnesses

and as opened to the jury was so different from the version

given by the accused in the witness box which version the

learned trial judge directed the jury would be sufficient

to ground a conviction for assault.

6 The learned trial judge erred in law in directing the

jury that for the purpose of their deliberation the Crown

case was not bound by the particulars of the indictment in

respect of count 1 of the indictment.

7 The learned trial judge erred in law in directing the

jury that they could convict the accused of an assault on

the basis of facts other than those particularised in the

indictment."

4. The remaining ground, ground 2, concerns the conviction for rape and asserts that it was unsafe and unsatisfactory having regard to the evidence at the trial. The appellant seeks leave to appeal against sentence on the following grounds:

"1 The sentence was manifestly excessive in all the

circumstances.

2 The sentence of the learned trial judge upon the accused

upon the indictment should be set aside as constituting a

miscarriage of justice in consequence of errors made by the

learned trial judge with respect to count 1 on the bases

that:

(i) The learned trial judge failed to seek a verdict from

the jury in accordance with s383 of the Code; and/or

(ii) The learned trial judge failed to direct the jury in

accordance with Gilson v The Queen [1991] HCA 24; 100 ALR 729 and to

apply the law as articulated in that case; and/or

(iii) The learned trial judge imposed a sentence in

respect of a crime more serious than that of which the

accused was necessarily convicted by the jury; and/or

(iv) The learned trial judge proceeded to impose sentence

in respect of facts said to be relevant to count 1 which

were inconsistent with the finding of the jury."

5. The evidence given by the complainant, Miss Brown, was to the following effect. She and the appellant had lived in a de facto relationship for some years. Not long before 30 October 1992, the day upon which the events the subject of the indictment occurred, she had terminated that relationship and the appellant had left the house where they had been residing together. Miss Brown spent the night of 29/30 October 1992 at her house with another man. He left the house prior to 7.00am. After this man had left, but whilst the complainant was still in bed, she heard banging on the back door. Hearing this, she got up, put on a dressing-gown, went to the kitchen where the telephone was located and telephoned the emergency number. Whilst speaking on the telephone she heard the sound of breaking glass at the front door. Very shortly thereafter the appellant entered the kitchen, took the telephone from her and started yelling. He then grabbed her around the throat and banged her head into a window whilst calling her a slut. The complainant ended up on the floor lying half curled up, feeling dazed. She looked up at the appellant and saw that he held a gun which was pointed at her. She curled up further, put her head down and waited for the gun to be discharged. The grabbing of her neck, the banging of her head against the window and the pointing of the firearm were the subject of count 1.

6. Whilst the complainant was still in this position on the floor, the appellant told her that he was going to shoot himself. She looked up briefly. She saw that he was holding the gun up to himself (in a manner not further described in the evidence) and that he then put it down. The appellant started yelling at her, accusing her of sleeping with the man with whom she had spent the night. The complainant, who by then had got up from the floor, responded to this accusation by denying that she had done so, whilst admitting that she had slept with another man. The appellant then took hold of her, saying "Let's see who's been in there" or "See if anyone's been here", and inserted some of his fingers into her vagina. That alleged act on the part of the appellant was the subject of count 2.

7. The appellant, speaking in an authoritative voice, said "Let's go into the bedroom". The complainant went into the bedroom. The appellant accompanied her there, taking the gun with him. She next saw the gun on the bedroom floor. The appellant produced a garment known as a "teddy" and told the complainant to put it on. She did as she was told. Having stripped to his underwear, the appellant asked her to give to give him "a head job". She understood that as a demand that she suck on his penis. She did this for a short time. She stopped when her eldest child entered the bedroom. The act of oral sexual intercourse was the subject of count 3.

8. Having been interrupted by the child, both the complainant and the appellant left the bedroom. The complainant was upset and crying. Both showered and then returned to the bedroom. The appellant asked the complainant to give him a cuddle. She complied with that request. Subsequently, intercourse occurred. That act of intercourse was the subject of count 4.

9. The appellant gave evidence at the trial. His account of the relevant events may be summarised as follows. On the morning of 30 October 1992 he went to the complainant's house carrying a 5 shot pump action shotgun and having in his possession about 8 cartridges. Upon arriving at the house he first went to the back door and then to the front door where he gained entry after smashing a window. He found the complainant in the kitchen where she was speaking on the telephone. An argument ensued. Whilst holding the gun in his right hand he pushed her on the shoulder with his open left hand. As he pushed her, his hand "went straight up through the throat". As a result the complainant "flew across the kitchen sink and then down on to the ground." The appellant accepted that as a result the complainant's head must have hit a window breaking the glass. The appellant then loaded the shotgun, put it under his chin and pulled the trigger. It failed to discharge. In the course of bringing the gun up under his chin it may have been pointed at the complainant momentarily.

10. The appellant denied that he had placed his fingers in the complainant's vagina at any stage. After the gun failed to discharge the appellant recalled that he had brought the teddy with him because he wished to see the complainant in it before he died. He produced it, threw the gun to the ground and told the complainant to put on the teddy. Both then went into the bedroom. The complainant was crying. The appellant realised that what he had been trying to do was wrong. They sat on the bed and talked. He denied that he had asked the complainant to suck his penis or that she did so. The complainant suggested that they shower together. They did so. In the shower there was some consensual sexual contact. They returned to the bedroom, each wrapped in a towel. They then got into bed and engaged in consensual sexual intercourse.

11. The question as to whether the appellant had pointed the shotgun at the complainant was the subject of some cross-examination as follows:

"Q Now, do you agree that later in the interview, you told

the police when you were asked at what stage, or at any

stage, not what stage, any stage did you point the firearm

at her, 'Er, not directionally' - this was your answer. Do

you agree with, that you said this, 'Er, not directionally

at her, when she was on the ground I went to put it - point

it in that direction and I turned round and I thought "Na,

that wasn't the reason I came here. The reason I came here

was to turn round and pull it on meself, not her"'. Do you

agree you told them that?

A Yes.

Q Is that the truth?

A Yes.

Q So you admit that at one stage it went through your mind

that you were pointing the gun at Annette Brown?

A For a split second.

Q Just for a split second?

A Yes.

Q And at the time you were pointing the gun at Annette

Brown, she was on the ground?

A Yes.

Q Now at the time you were pointing the gun at Annette

Brown you had a split second thought perhaps, to pull the

trigger?

A Oh, I don't recall.

Q But you knew that wasn't the reason why you came there?

A Yes, that's correct.

Q I suggest to you at that time, by knowing it was not the

reason you came there, you had a thought to shoot her while

she was on the ground?

A Possibly.

Q And you told her that didn't you?

A No I did not. I didn't mention any words that I was

gunna harm her in any way."

12. The appellant seeks to challenge his conviction for assault on grounds which assert that some or all of several particular directions given by the learned trial judge to the jury were erroneous. The first of those directions was as follows:

"Now the first count of assault. Just let's read that -

firstly it's alleged that he assaulted Miss Brown and then

there's some particulars given. Now let's look at those.

It says that, on 30th October, he 'Unlawfully assaulted

Annette Marie Brown by grabbing her throat with his hands,

pointing a loaded shotgun at her face and striking her head

against a kitchen window.'

Now what I direct you about, as a matter of law on,

concerns those particulars. The purpose of particulars,

that is, what he is supposed to have done, is to give the

accused adequate notice of the nature of the case he has to

deal with. It would be unfair to an accused if he was

charged with assault and he was given no idea as to what he

was alleged to have done and he had to come to court

blindly and face some unspecified nature of a kind of

assault. So the idea of particulars is to give him an idea

of the nature of the case. But the Crown is not bound by

those particulars. The law is not that stupid as to be

technical and require the Crown to prove everything exactly

as they've got it and if they don't the Crown case must

lose. It's not as stupid as that. The occasion, the

events, are identified there and - well put it another way

- if instead though the Crown started to argue 'Well we

mightn't have proven anything like that but in the bedroom

he kicked her.' The judge would be down on the Crown like

a tonne of bricks and say 'No. That's not going to be left

to the jury. That's totally unfair. The accused had no

notice that that was going to be the kind of case alleged

against him'. Okay?"

13. The second of those directions, given shortly after his Honour had referred to the evidence of the complainant as to count 1, was in the following terms:

"The evidence of the accused was, however, that he pushed

her. He agrees with some violence - that he pushed her in

the region of the neck intending to hit the shoulder but

connecting in the region of the neck and it was that force,

that application of force to her which propelled her

backwards and she landed on the sink and hit her head on

something. So that he didn't intentionally cause her head

to hit anything. it was just a consequence of the force

he'd applied to her. And I don't know if that should make

any difference to your eventual verdict because what I'm

going to say to you is that it seems to me, on his own

version, he's guilty of assault. And I would expect your

verdict is likely to be one of guilty on the first count.

Just because - if for no reason because he admits that he

applied force to her, that he connected with her neck, he

seems to admit that those marks on her neck are from his

fingers and that to me, as a lawyer, is an intentional

application of force to the person of Miss Brown to which

she didn't consent. But that verdict is one for you and

not for me and I want to emphasise that."

14. The nub of the appellant's submission in support of all the relevant grounds is that although in the course of his evidence he may have admitted to having committed an assault upon the complainant, such assault was not that charged by the indictment in that it was not encompassed by the particulars or at least by those particulars as expanded by the case presented by the Crown through its witnesses. The appellant submitted that it followed from that proposition that it was not open to the jury to convict the appellant of assault on the basis of being satisfied that he had committed the assault admitted by him.

15. For an indictment to be sufficient, the Criminal Code ("the Code"), s311(1) requires not only a statement of the relevant crime but also "such particulars as may be necessary for giving reasonable information as to the nature of the charge." Section 314 makes some provision as to the form of the particulars but it has been recognised that even though particulars may satisfy the requirements of the Code, the court in its inherent jurisdiction may order the delivery of further reasonable particulars if their absence creates embarrassment (see R v Brett (1961) Tas SR 178 at 186-188).

16. The purpose of particulars was expressed by Dixon J (as he then was) in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489-490 in the following terms:

"The court hearing a complaint or information for an

offence must have before it a means of identifying with the

matter or transaction alleged in the document the matter or

transaction appearing in evidence."

17. That purpose was further considered by the High Court in S v R [1989] HCA 66; (1989) 168 CLR 266. In that case the appellant had been charged on an indictment charging him with three counts of incest with his daughter. Each count charged an act of intercourse on a date unknown but within a specified period of twelve months. The second and third periods so specified overlapped. The complainant had given evidence of two specific acts of intercourse and evidence of numerous further acts over a period of two years, which period encompassed the whole or part of each of the periods referred to in the indictment. The evidence was not such that any act of intercourse could be identified as being the subject of a particular crime charged in the indictment. Toohey J, after stating the objection as being that the appellant did not know with any certainty the charge he had to meet and after referring to what Dixon J had said in Johnson v Miller, said at 282:

"Of course this does not mean that the prosecution must

specify a particular date as the occasion on which it

relies. But it does mean that, as soon as it appears that

a count in the indictment is equally capable of referring

to a number of occasions, each of which constitutes the

offence the legal nature of which is described in the

count, the prosecution should identify the occasion which

is said to give rise to the offence charged. This did not

happen in the present case nor did the trial judge

adequately convey to the jury the difficulties facing the

applicant by reason of the failure to do so. The matter

was left to the jury on the basis that so long as they were

satisfied an act of carnal knowledge occurred during a

period specified in a count in the indictment, they could

convict the applicant on that count. The trial miscarried

for that reason."

18. In their joint judgment, Gaudron and McHugh JJ said, at 286-287:

"Prejudice is the focus of consideration when the question

is whether some order should be made as to the conduct of

the trial to avoid difficulties which may be occasioned by

reason of uncertainty as to what precisely is charged.

Ordinarily, those difficulties will be averted by ordering

particulars, by amending the indictment, or by putting the

prosecution to its election and appropriately confining the

evidence to the offences charged. See Johnson v Miller

(1937) 59 CLR, at pp 480-481, 486, 497-498, 501. However,

when a trial proceeds without an order averting those

difficulties, the question is whether there has been a

blemish on the trial amounting to a substantial miscarriage

of justice."

19. In the present case it cannot be doubted that the occasion upon which it was said the appellant had assaulted the complainant was identified with precision. It was the occasion on 30 October 1992 when the appellant, carrying a shotgun, entered the respondent's house, came upon her while she was speaking on the telephone in the kitchen and when one or more of his hands came into contact with her neck causing the injury depicted in the photographs which were in evidence and resulting in her head striking a window.

20. Senior counsel for the appellant accepted that the alleged conduct of the appellant particularised in count 1 properly had been made the subject of one charge of assault although the particulars referred to a number of acts of the appellant each of which, if proved, would constitute an assault. The jury could lawfully have convicted the appellant of assault upon being satisfied that he had committed one of those acts. In particular, if the jury had not been satisfied that the appellant had done anything with the shotgun which amounting to an assault, that would not have been the end of the matter as other acts, not involving the shotgun but capable of constituting an assault, were alleged. Leaving aside the use of the shotgun, the crime charged, as particularised, involved an assertion that the appellant had been guilty of a non-consensual intentional application of force to a particular part of the person of the complainant by the use of a particular part of the appellant's body and that that application of force had occurred at a specified time and place and had had specified consequences. The relevant assault as alleged by the complainant and the assault admitted by the appellant each substantially answered to that description. Even though in evidence the appellant described the assault in terms somewhat different from the description given by the complainant, there was sufficient identity between that described by the appellant and that particularised in the indictment to enable the jury to convict the appellant of assault on the basis of his own evidence.

21. That conclusion effectively disposes of all the grounds of the appeal against conviction for assault other than ground 6. That ground may be disposed of briefly. It is correct to say that in the course of his summing up the learned trial judge told the jury that the Crown was not bound by the particulars. However, that direction ought not to be looked at in isolation. Reading the relevant passage in context, it is clear that what his Honour conveyed to the jury was that the Crown was not bound by particulars in the sense that its case would fail unless it proved precisely what was alleged by those particulars. Observations made by the learned trial judge immediately after the passage complained of clearly amounted to proper directions to the jury as to the nature and purpose of particulars and the extent to which the Crown was bound by them. Ground 6 fails.

22. Having dealt with the grounds of appeal against the conviction for assault, it is appropriate to next consider the second of the grounds upon which the appellant seeks leave to appeal against sentence.

23. The jury having convicted the appellant of the crime of assault after having been told by the learned trial judge that they might well convict him of that crime on the basis of his own evidence, his Honour made his own findings of fact for the purposes of sentence. In essence the learned trial judge accepted the account given by the complainant and rejected that given by the appellant. In particular, he made the following findings of fact:

"The accused came into the kitchen with the gun, he took

the telephone from her and hung it up. He shouted at her,

being extremely angry with her, calling her a slut. He

grabbed her by the throat with his left hand. I am unable

to find that he also grabbed her by the throat with his

right hand. With a strong grip on her throat he propelled

her backward and onto a bench or the kitchen sink, it

matters not in my view, causing the back of her head to

strike some object. This attack on her left three obvious

bruises on her neck from his fingers, a superficial

laceration in her scalp 2.7 centimetres long which bled.

The complainant fell to the floor. She was dazed. She

looked up at a time when the prisoner was pointing the

shotgun at her. I am unable to find when he had loaded it,

but it was loaded. Whether a cartridge was loaded in the

breech ready to fire seems doubtful. It may or may not

have been. But whether or not it was, the prisoner

believed that it was loaded ready to fire. I am unable to

find whether he said anything amounting to a threat to

shoot, but I accept the complainant's evidence that she

believed that he was going to shoot her and she curled up

into a ball waiting for it to happen."

24. At the conclusion of the evidence but before the learned trial judge commenced his summing up, his Honour had indicated to counsel that he intended directing the jury that they could convict the appellant of assault on the basis of his own evidence. The following exchange then occurred:

"Mr Richardson: The other matter I just in conclusion with

that matter that - the ruling Your Honour's just made is,

whether Your Honour is going to leave with the jury, any

indication of on what bas - if that's going to be Your

Honour's direction, on what basis they convict. Because we

then get back to the same problem we had, when I, when this

case opened, and I made a submission that we had a problem

with duplicity, which again was rejected, and I accept

that. But again, if they accept the accused's evidence,

the form of the assault would be considerably different to

the form of assault complained of in the indictment.

His Honour: Well they may not even - you see, they may not

even decide, I'd imagine they wouldn't have to decide.

They'd say he's certainly guilty of assault, we'll find him

guilty of that, on his own story he's guilty, and I would

imagine that's how they will proceed. And then it will be

a matter for me on sentencing to decide what I would find,

had been proven."

25. I have some difficulty in construing what counsel said to the learned trial judge as an application that the jury be asked to answer some additional question. What counsel said amounted to no more than an inquiry as to the learned trial judge's intentions. However at the conclusion of the summing up counsel for the appellant raised the matter again. This time he did submit that the learned trial judge ought to invite the jury to answer some specific question or questions (the form of which was not specified) because, in the words of counsel, "... it's important to know 'is he being convicted of what he said he did' or 'is he being convicted of something he didn't say he did?'" His Honour dealt with the submission as follows:

"I'm not going to ask them to give a special verdict. I

don't see it as being appropriate in this case. They've

got a lot of things to decide, 4 counts, and I'm not going

to trouble them having to come back with a decision on

particular facts, I don't see it as appropriate. The

judge's job is to decide facts for sentencing purposes

providing that he does so consistent with the verdict."

26. Senior counsel for the appellant submitted that the discretion having been invoked, it was incumbent upon the learned trial judge to exercise that discretion and that he failed to do so. It was not submitted that the jury ought to have been asked to bring in a special verdict in the true sense, which is provided for by the Code, s383(1)(b) and the nature of which was explained in R v Brown [1949] VicLawRp 32; (1949) VLR 177, but rather that the learned trial judge ought to have invited the jury to find specially upon some question or questions to be submitted to them in addition to returning a general verdict. It was submitted that some question ought to have been asked with a view to ascertaining from the jury whether they had been satisfied beyond reasonable doubt that the appellant had assaulted the complainant by way of pointing the shotgun at her.

27. In R v Matheson (1958) 2 All ER 87 at 90 Lord Goddard CJ, giving the judgment of the Court of Criminal Appeal, made the following observations of general application to cases where, on a charge of murder, it was open to the jury to return a verdict of manslaughter on several alternative bases. His Lordship said:

"Before parting with the case, this is a convenient

opportunity for laying down a rule of practice in cases

where a defence of diminished responsibility is raised.

The judges of this court have resolved that a plea of

guilty to manslaughter on this ground should not be

accepted, though it seems it may be in Scotland - Kirkwood

v H M Advocate (1) (1939 SC (J) 36). The issue must be

left to the jury just as the issue must be if the defence

is insanity. It may happen that on an indictment for

murder the defence may ask for a verdict of manslaughter on

the ground of diminished responsibility and also on some

other ground such as provocation. If the jury return a

verdict of manslaughter the judge may and generally should

then ask them whether their verdict is based on diminished

responsibility or on the other ground or on both."

28. The practice there said to be desirable in cases of manslaughter appears to have been followed in England (see, eg, Frankum (1983) 5 Cr App R (S) 259) and in various Australian jurisdictions (Veen v R [1979] HCA 7; (1979) 143 CLR 458, per Stephen J at 465; R v Rolph (1962) Qd R 262; R v Low (1991) 57 A Crim R 8). Nevertheless, it appears that in England the practice has been applied in cases other than those of manslaughter. Stosiek (1982) 4 Cr App R (S) 205 was a case where the appellant had been convicted of assault in circumstances where the evidence would have enabled the jury to convict him on a number of alternative bases. In giving the judgment of the court, Watkins LJ, at 207-208, observed as follows:

"The jury were not, we are informed, as is usual, invited

to tell the judge after they had brought in their verdict

against the appellant, of the basis upon which they had

convicted him. So the judge was left in a state of

ignorance about how the jury came to their conclusion.

...

In those circumstances, the court has to be extremely

astute as to give the benefit of any doubt to a defendant

about the basis on which a jury has convicted. Judges are

discouraged from asking juries upon what basis they have

reached their conclusions and this Court does not want, by

what it feels impelled to do in this case, in any way to

cause judges to depart from what is regarded as the usual

and proper practice of refraining from inviting juries to

explain their verdicts."

29. His Lordship does not appear to have lent any encouragement to any practice of asking a jury to explain their verdict. To the extent that his Lordship may have suggested that a sentencing judge ought to give an accused person the benefit of any doubt as to the basis upon which the jury convicted, as distinct from the benefit of any doubt arising on the evidence, the law of this State is to the contrary. It is for a sentencing judge to make his own findings of fact, applying the criminal standard of proof, not inconsistent with the verdict of the jury. It is not for a sentencing judge to surmise what view the jury took of the evidence. So much was held by this Court in Prokopiec v R (1982) Tas R 170 at 174-175.

30. A further view as to the undesirability of asking a jury to explain its verdict was expressed by the Court of Criminal Appeal in Solomon (1984) 6 Cr App R (S) 120 where Beldam J, giving the judgment of the court, said at 127:

"It is not difficult to see the reason why it is

undesirable to ask a jury to explain an otherwise

unambiguous verdict. There are many instances of cases, of

which the present is one, in which the offence charged may

be supported by more than one view of the evidence given in

the case. The jury entirely consistently with their oaths

may have reached agreement on the general verdict, though

not precisely on the same basis of fact, and to invite them

further to refine their decision could only lead to

confusion. See for example the case of Agbin (1979) CrimLR

171."

31. The present case had some unusual aspects which might have led the learned trial judge to conclude that a question ought to be submitted pursuant to s383(1)(c). However, the circumstances were not such that it could be said that they required his Honour to take that course. It was a matter of discretion. The learned trial judge exercised his discretion against submitting any further question to the jury. I do not consider that any error attended that exercise of his discretion. I am not persuaded that any miscarriage of justice flowed from the learned trial judge's refusal to submit any additional question to the jury. The jury performed its function by bringing in a verdict that the appellant was guilty of the crime of assault. For the purposes of sentencing the learned trial judge, relying on the same evidence as that which was before the jury, and applying the criminal standard of proof, found the facts.

32. The real complaint is that the learned trial judge found as a fact that the assault had included the use of the shotgun when the jury may not have found this as a fact and indeed may never have directed their minds to that question. This was not a matter which affected the appellant's liability to punishment. The only matter which affected the appellant's liability to punishment was whether he had assaulted the complainant. The particular circumstances of the assault were relevant only to the sentencing discretion of the learned trial judge. As a general rule liability to punishment is to be determined by the jury and matters relevant to the exercise of the sentencing discretion are to be determined by the judge (Kingswell v R [1985] HCA 72; (1985) 159 CLR 264, per Gibbs CJ, Wilson and Dawson JJ at 280, per Mason J at 283). An application of that general rule required that the learned trial judge not leave any additional question to the jury. The Code entitled his Honour to depart from that general rule but the circumstances of the case did not require him to take that course.

33. I do not consider that Gilson v R [1991] HCA 24; (1991) 172 CLR 353 assists the appellant. That case is authority for the proposition that where an accused person is charged in the alternative with two separate crimes and the jury is satisfied beyond reasonable doubt that the accused person has committed one or other, but is unable to say which, then the jury ought to find the accused guilty of the lesser crime. The appellant was only charged with one count of assault and it was not open to the jury to find him guilty of any alternative crime.

34. The suggestion that the learned trial judge imposed a sentence in respect of a crime more serious than that of which the accused was necessarily convicted by the jury is misconceived. The crime of which the appellant was convicted by the jury was the crime of assault. The appellant was sentenced for that crime. As I understand the submission made by senior counsel for the appellant it was to the effect that his Honour ought to have taken, as a starting point, the view of the facts which the jury necessarily must to have taken and to make findings of fact not inconsistent with such a view. That is not in accordance with the law. The view taken by the learned trial judge generally accorded with the evidence given by the complainant which in turn accorded with the particulars contained in the indictment. The taking of such a view in no way was inconsistent with the verdict of the jury. It was a view of the facts which his Honour was entitled to take.

35. The appeal against the conviction for rape is to be considered in accordance with the legal principles well settled since a number of recent decisions of the High Court. The primary submission made by senior counsel for the appellant in support of this ground may be summarised as follows:

1 The appellant was acquitted of the crimes charged by

counts 2 and 4.

2 The legal consequence of those acquittals is that the

facts alleged as constituting the crimes charged by the

relevant counts are deemed not to have occurred.

3 A necessary conclusion to be drawn from the acquittal on

count 2 is that the jury did not find the complainant to

have been a reliable witness, at least in so far as she

recounted events said to constitute the crime charged by

that count.

4 On the review of the whole of the evidence required for

the purposes of this ground the Court ought to take into

account that the complainant was an unreliable witness and

that the crimes charged by counts 2 and 4 had not been

committed.

5 A review taking those matters into account ought to lead

to a conclusion that the verdict on count 3 was unsafe and

unsatisfactory even though that conclusion otherwise would

not be reached.

36. When asked during the course of submissions whether he wished to point to any other defect in the evidence in support of count 3 which might make it unsafe and unsatisfactory, senior counsel for the appellant was not able to point to any such defect. I have some difficulty with adopting the approach contended for. However I find it unnecessary to consider whether it ever would be appropriate to adopt such an approach. It is fundamental to the submission that this Court is able to conclude that the jury found the complainant to be an unreliable witness. I am quite unable to come to that conclusion.

37. There is one obvious reason why the jury might have taken the view that they could rely on the evidence of the complainant in relation to count 3 as establishing to their satisfaction that the events described by her had occurred but that they ought not to place the same reliance on her evidence in relation count 2. In relation to the former, but not in relation to the latter, there was evidence of recent complaint. The jury could properly have concluded that they would have expected the complainant to complain at the first possible opportunity of both matters and that in the absence of such a complaint as to count 2, they entertained a reasonable doubt in relation to that count. Such reasoning would not have required the jury to conclude that the complainant was unreliable or untruthful. It required no more than they had not reached the requisite state of satisfaction.

38. The acquittal on count 4 cannot assist the appellant in this context. Clearly the evidence was such that the jury might well not have been able to exclude the existence of an honest but mistaken belief on the part of the appellant that the complainant consented to the act of intercourse. A failure of the jury to be so satisfied necessarily would have resulted in an acquittal but did not require any rejection of the complainant's evidence. The jury could have accepted the complainant's evidence relevant to this count in its entirety and yet have acquitted the appellant.

39. The appellant also submitted that a request by the jury for a transcript could assist the Court in reaching the conclusion that the verdict was unsafe and unsatisfactory. Such a request was made after the jury had been deliberating for some time and is recorded in the following passage from the transcript:

"His Honour: Now, Mr Foreman, you have a question?

Jury Foreman: Yes, your Honour, the jury would like to ask

if it's possible to see the transcript of Miss Brown's

evidence of the event from the time she entered the

bedroom.

His Honour: Well it's not the practice to give the

transcript to the jury. I'll hear submissions from

counsel. I don't really think I should depart from the

practice.

Mr Stoddart: Your Honour, I've never known a transcript to

be given to a jury.

His Honour: No, neither have I.

Mr Richardson: I think it goes further than that. I seem

to recall some decisions of the Court of Criminal Appeal

that that was not a practice to be - we all know it might

be of some assistance but -

His Honour: Yes. There's two hundred and forty pages -

Jury Foreman: Now, your Honour, as we were reminded by

counsel that the seriousness of the charge against the

accused to make a fair decision, we need to be clear on

both sides of the case.

His Honour: I understand that.

Foreman: We have the evidence on video of the accused's

story.

His Honour: Is there any aspect you want reminding of?

It's two hundred and forty pages long, it would take you

hours and hours. You'd have someone read it out to you or

you're going to each get copies -

Foreman: No, no we - okay -

His Honour: You should understand though, I mean you would

never find your way through it, it would take you hours.

The principle is that transcripts not go into juries and I

suppose that's one of the reasons - it takes a lot of skill

to read a transcript and know where to look and in fact a

lot of lawyers and judges at the end of a day they index

transcripts up, work on them for some hours. You wouldn't

know that this is going on overnight but they're indexing

and noting so they can find things. So it's not really

appropriate. If you want reminding of her evidence I can

remind you of certain aspects of it, if you need that. In

a way I would have thought her evidence is generally

speaking pretty clear. It's just very much in variance of

course with the accused in some regards but if you want

reminding of it I'll give it to you. I can't really give

you the transcript.

Foreman: No okay. It seemed a reasonable request, your

Honour, but if it's not possible -

His Honour: No. And I mean it would not be a good idea,

you'd never wade through it.

Foreman: As your Honour must appreciate from ordinary

people on six days in this court perhaps it's not so easy

to remember everything.

His Honour: No.

Foreman: Probably asked to judge on both sides.

His Honour: Yes.

Foreman: Okay.

His Honour: You've got no idea how long it takes to read

two hundred and twenty or two hundred and eighty pages.

Foreman: I guess we have. I guess I probably thought that

some - I thought I'd limit it by saying the time she

entered the bedroom, I guess I thought -

His Honour: Yes, but it's spread throughout the pages, you

see.

Foreman: Yes.

His Honour: It's everywhere, it's all through it.

Foreman: Okay. I accept that.

His Honour: Now, I will just make inquiries of you as to

how much longer you think you might need and I'm only

raising that now because it takes me about an hour to get -

at least an hour to get an evening meal organised.

Foreman: I would imagine within an hour.

His Honour: Don't think I should be thinking about that

now?

Foreman: No.

His Honour: Okay. All right. Well if you'd retire again,

please."

40. Whilst I find it somewhat surprising that the learned trial judge did not offer to read to the jury some relevant passages of transcript, I do not consider that the consequences argued for by senior counsel for the appellant flow from what occurred. There is considerable force in the argument advanced by counsel for the respondent that the tenor of the foreman's questions and observations was such as to suggest that the absence of the provision of any further material to the jury could only have had an adverse effect on the Crown case. In any event counsel who appeared for the appellant at the trial made no submission that his Honour ought to have inquired from the foreman as to whether the jury wished to have some evidence read to them. The failure of the learned trial judge to make such an inquiry is not the subject of any separate ground of appeal. The ground under consideration requires the Court to make its own review of the evidence. The Court ought not to attempt to deduce some error in the jury's reasoning processes from a request from the foreman for a transcript and the reasons advanced by him for making that request.

41. I have read the evidence given by the complainant at the trial. If it was appropriate for the jury to act on that evidence then the verdict of the jury could not be described as being unsafe or unsatisfactory. Her evidence clearly and unequivocally described the commission by the appellant of the crime charged by count 3. The appellant's evidence was that it did not happen. There was nothing in the Crown case which required the jury to discount this evidence of the complainant (see eg R v Dellapatrona (1993) 31 NSWLR 123 at 141). The question was one of credit. That was a question for the jury. Obviously they determined this question against the appellant. They were entitled to determine the question in this way. They were entitled to accept the evidence of the complainant. Once they accepted it a conviction was inevitable. The conviction is not unsafe or unsatisfactory.

42. It was submitted that the sentence imposed was manifestly excessive. In the course of his comments on passing sentence the learned trial judge observed as follows:

"The acts committed by the prisoner which are encompassed

by the crimes of which he was convicted were serious acts

of violence and depravity intentionally committed against

the complainant because of her persistent refusal to

reconcile with the prisoner and also because of his

discovery earlier in the night from outside her bedroom

window that she was in bed with another man. What he did

were acts of subjugation and humiliation. I accept that

the prisoner was in a state of emotional turmoil and

distress, being unable to accept her rejection of him. He

was so upset that prior to entering the house he had

contemplated committing suicide, and that thought was in

his mind for at least a moment in the house, for I accept

the evidence that he put the gun to his own head and pulled

the trigger. I have no doubt that he was confused and am

equally in no doubt that at the relevant times in the house

he vented his frustration by the acts of violence and

depravity of which he was convicted, and that they were

done in a state of frustration for the purpose of hurting

the complainant and for the purpose of humiliating her."

43. The appellant did not seek to challenge any of those observations or the learned trial judge's categorisation of the crimes of which the appellant stood convicted. Those observations taken together with the findings of fact made by the learned trial judge, some of which I have set forth, make it impossible to conclude that the sentence was manifestly excessive. I would go so far as to say that it was a lenient sentence.

44. I would dismiss the appeal and refuse the application for leave to appeal.