Consideration
44Essentially, the applicant's case on appeal depends upon the location of the injuries to his arm and the purported amended discrepancy in the description of how those injuries were sustained.
45Because of the applicant's perception of inconsistency in evidence and impossibility of occurrence, the applicant accuses his counsel and solicitor at trial of incompetence or failure to put the instructions given to them, or both. None of that allegation is made out.
46Ms Mayne, the solicitor at trial, gave evidence in the appeal. Her evidence was compelling and displayed a remarkable knowledge of the facts of the case and organisation of material provided, at length, by the applicant to the Legal Aid Commission. Those notes and that evidence confirm that the trial was conducted wholly in accordance with the instructions of the applicant.
47Counsel in the trial, Mr Averre, likewise, while not having access to notes of the trial, displayed a remarkable memory of a trial that occurred two years earlier and the details of the examination, cross-examination and address that occurred during the course of the trial. His memory of the instructions received from the applicant was also compelling.
48Contrary to the applicant's submissions, each of the applicant's solicitor and barrister dealt with all of their instructions appropriately and competently. A study of the transcript at trial discloses that cross-examination was competent and appropriate and tested all that was necessary to test in order to disclose, to the best advantage, the applicant's instructions.
49The fundamental difficulty faced by the applicant is that his case depends upon a perception by him of that which the Crown and the complainant said about the injuries to his arm and the manner in which he "choked" the complainant. That perception was, in significant respects, incorrect.
50The complainant was aware that she had scratched (or dug her nails into) the applicant's forearm, but was unsure, or did not recollect, precisely when it was that injury was inflicted. Thus, the evidence of the applicant that it was inflicted at the time that the arm was on the "shoulders" and/or "neck" was uncontroverted. It also occurred just before, or at the time that, the complainant was rendered unconscious.
51Thus, there is no discrepancy in the timing of the infliction of the injury to his forearm.
52Secondly, and far more importantly, the applicant's recollection of the Crown address is significantly in error. During the Crown opening (AB201, transcript 28.11.12, page 3) the incident was relevantly described in the following way:
"She [the complainant] will tell the Court I expect that when she got to the next corner, which is Queen Street, a fairly quiet street, the man came up behind her. He put his arm around her throat and proceeded to apply pressure to her. He said nothing. At this stage [the complainant] had a large shoulder strap bag on her shoulder. The Crown says that the accused applied so much pressure that she blacked out momentarily, causing her to drop the bag. The accused made no attempt to take the bag or look in the bag and indeed ignored the bag and dragged her down Queen Street..."
53In the closing address (AB401, Transcript 4.12.12, page 28) the Crown said:
"And she [the complainant] did glance in the window when she realised that he was following her and she started to go faster and the accused, he thinks that this is some sort of amorous engagement, runs after her. And the Crown says he put her in a headlock with his arms squeezing, applying quite some force.
She drops her bag, he has no interest in her bag. He makes no demand for money or property. Doesn't look in the bag. His interest is in her.
She passes out. You might have thought that the scuff marks on the top of the boots where he dragged her, she said that those scuff marks weren't there before this altercation."
Later in the closing address, the Crown says (AB402, Transcript 4.12.12, page 29):
"The accused has scratch marks on his right arm. The photograph. You might think that where those scratch marks are, very much supports the evidence of [the complainant]. If someone had their arm around your neck, and you were trying to get them off, the obvious way to do it would be to reach around and try and wrench them off, leaving marks in the position where you might expect to find it. Not if someone just puts their arm around you in a hug. How would you get scratch [marks] on the outside of the arm, you just push the arm away and run.
Well [the complainant] had no opportunity to run, she was in a serious headlock and she wasn't motioned down the alleyway. She was dragged while she was unconscious and then she was very much frogmarched down there and she was thrown on the ground.
You have all the injuries, you will see the photographs."
54The applicant submits to this Court that there was a change in the Crown position relating to the position of his arm during the choking incident. There is no significant or substantial change in the position described by the Crown. That was the evidence of Mr Averre. That evidence is corroborated by the transcript.
55The misperception of the applicant was disclosed during the course of his cross-examination of Ms Mayne, the solicitor at trial. In demonstrating to her a position of the arm, he described the expert evidence (and some of the inferences available from the lay evidence) as the pressure being placed on the neck by the "crook of the elbow". The display of the applicant, during the course of cross-examination, was that the elbow was at the front of the neck. Nowhere, in the evidence or the submissions, is it suggested that the elbow was at the front of the neck.
56The evidence both of the experts and lay witnesses, together with the addresses of the Crown both in opening and in closing, are consistent with the crook of the elbow being at the side of the neck, not at the front of the neck. Thus, the evidence is consistent with the applicant's evidence that that the upper part of the arm (the humerus) was at the back of the neck, the elbow was bent at the side of the neck and the forearm was at the front of the neck.
57The foregoing positioning of the arm, which seems to be the only available position on the evidence before the Court below and before this Court, renders unarguable the applicant's submission that the infliction of the injury in that position was impossible and renders any submission as to inconsistency and lack of cross-examination unsustainable.
58Because the applicant is unrepresented, I have paid more attention to the evidence even though no submission was addressed to it other than as dealt with above. There is no aspect of the trial, including the conduct and competence of counsel or solicitor, that has occasioned the miscarriage of justice or rendered the trial anything other than a fair trial.
59More importantly, the evidence in the proceedings would not even arguably suggest that it was not open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offence of which he was convicted. I have no doubt of the kind that would suggest there was an insufficiency of evidence or that would involve a reasonable doubt as to the conclusion reached by the jury: see Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 473; M v R [1994] HCA 63; (1994) 181 CLR 487 at 493; MFA v R [2002] HCA 53; (2002) 213 CLR 606 at 623-624; SKA v R [2011] HCA 13; (2011) 243 CLR 400.
60I have no doubt, reasonable or otherwise, as to the guilt of the accused and the appeal against conviction is, in my view, untenable.
61Ultimately, the expert evidence supported the version of events described by the complainant. The independent witnesses supported the version of events given by the complainant. Each class of evidence was materially inconsistent with the version of events given by the applicant. The criticism of the evidence of Mr Dalley as inconsistent with the evidence of the complainant misunderstands the circumstance that the observations of Mr Dalley occurred after the initial contact by the applicant, at the time immediately after the complainant lost consciousness. As a consequence there is, in the expert and independent evidence, only corroboration of the complainant's version and significant inconsistency with the version given by the applicant.
62As earlier stated, in relation to the sentence appeal, the applicant's submission concentrates on the maximum sentence available for indecent assault without regard to the fact that, in the offence here charged, the indecent assault is but one ingredient or element of the far more serious offence of which the applicant was convicted.
63The maximum sentence for the instant offence is 25 years' imprisonment. The applicant was convicted after trial and, notwithstanding the subjective factors to which the sentencing judge referred, a sentence of a non-parole period of 7 years with a remainder of term of 2 years and 4 months, commencing 17 January 2012 is neither out of the range available to the sentencing judge for this offence and this offender nor manifestly excessive.
64While the foregoing expression of view as to manifest excess is a conclusion, it is based upon the findings of fact of the sentencing judge as to the circumstances of the offence and the subjective circumstances of the offender and relates, particularly, to the range of sentences that have been imposed for such an offence, bearing in mind that there are few such examples.
65The expression of opinion takes account of the circumstances of the offence described above, the intoxication of the applicant and the applicant's brain and/or psychiatric injuries. The sentencing judge took into account that the offence that was ultimately committed after the choking was an indecent assault and not sexual intercourse without consent, thus lessening the culpability of the applicant, but also that the offence was interrupted by the conduct of the surrounding residents and others who observed or heard what was occurring.
66There is no error of principle or error that would warrant this Court interfering or considering interference with the sentencing discretion exercised by the trial judge: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. The sentence is consistent with the statutory regime and within the range of sentences available and is not manifestly excessive.
67For the foregoing reasons, I consider that the ground of appeal on conviction and the ground of appeal on sentence are untenable and do not warrant the grant of leave to appeal. I propose that the Court refuse leave to appeal.
68WILSON J: I agree with Rothman J. The question of leave is one which involves consideration of the merits of the proposed appeal; in my opinion the grounds advanced by the applicant in support of both his conviction and sentence appeals are wholly lacking in merit.
69I wish to fully endorse the observations of Rothman J with respect to the evidence given before this Court by Ms. Mayne and Mr. Averre, the applicant's solicitor and counsel respectively at trial. Ms. Mayne was an impressive witness who was clearly an extremely capable solicitor; she had a thorough grasp of the applicant's case, her memory of it being significantly aided by the comprehensive file notes and records that she had taken and maintained. The practice of making thorough contemporaneous notes bespeaks her professionalism. Mr. Averre too was a witness of integrity. I had no hesitation in accepting the evidence of each.