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Category: Principal judgment

Parties: Rahul Bhuller (Applicant)
Rex (Respondent)

Representation: Counsel:
D Petrushnsko (Applicant)
T Abdulhak with M Reynolds (Respondent)
Solicitors:
Du & Associates Lawyers (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00279445

Publication restriction: Statutory prohibition on the publication of any matter that identifies the complainant or is likely to lead to the identification of the complainant under section 578A of the Crimes Act 1900 (NSW).

HEADNOTE

[This headnote is not to be read as part of the judgment]

This is an application under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against conviction. There were initially 27 charges on the indictment relating to conduct of the applicant, Rahul Bhuller, towards his then girlfriend, EE, between 3 August 2018 and 11 September 2018. Before trial, the applicant pleaded guilty to 5 of the charges. At trial, EE was the Crown’s principal witness. At the conclusion of the Crown case, the primary judge directed verdicts of not guilty for 7 counts about which EE had not given sufficient evidence. On the remaining 15 counts the applicant was found not guilty of 4 counts and guilty of 11 counts. Those 11 convictions were the subject of this appeal.

The issues on appeal, contained in a single ground of appeal, related to a claim by the applicant that defence counsel at trial was incompetent because:

(i) they failed to investigate certain matters;

(ii) they failed to take instructions from the applicant; and

(iii) they failed to conference the applicant’s brother and adduce additional evidence.

The Court (Payne JA, Dhanji and Richardson JJ agreeing) held, granting leave to appeal but dismissing the appeal, that:

As to grounds (1)**(i)–(iii):

(1) Where incompetence of counsel is contended, the critical issue is not whether counsel erred in some way, but whether a miscarriage of justice occurred. That is, whether the appellant lost a chance of acquittal that was fairly open. [135]-[139]

R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Ali v R [2005] HCA 8; 79 ALJR 662; Brawn v The King [2025] HCA 20; 99 ALJR 872; Smith (a pseudonym) v R [2025] NSWCCA 145 applied.

As to ground (1)(iii):

(2) Assuming the new evidence sought to be adduced was admissible, it did not have the capacity to undermine EE’s credibility or reliability. The new evidence was consistent with the evidence given by EE. [141]

(3) Rational forensic decisions or strategies of trial counsel, determined objectively, do not give rise to a miscarriage of justice. In this case, were it necessary to go further, it was a reasonable forensic decision available to counsel at the time of the trial to tender the affidavit evidence of the applicant’s brother and not to call the applicant’s brother to give further evidence. [139], [142]-[150]

Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 applied.

As to grounds 1(i) and (ii)

(4) The applicant’s complaints about difficulties in communicating with his legal representatives lacked precision and were contradicted by the available documentary evidence. The applicant’s complaints regarding the non-provision of materials were inconsistent with contemporaneous documents and the record of the trial. The applicant failed to demonstrate that counsel failed to follow instructions, failed to investigate, and/or failed to properly cross-examine the Crown’s principal witness. The applicant failed to articulate the basis of his claim that he was “misled” about the status of Legal Aid funding he had sought in order to adduce certain evidence at trial, nor how that evidence would have advanced his case. A miscarriage of justice was not established. [150]-[170]

JUDGMENT

1. PAYNE JA: This is an application under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) by Rahul Bhuller for leave to appeal against his convictions for 11 offences alleging violent sexual offending against his then girlfriend, who by law may not be identified and will be referred to in these reasons as “EE” (or “the complainant”).

2. The applicant was tried in a judge-alone trial before her Honour T Smith SC DCJ (the “primary judge”) in the District Court. The indictment contained 27 counts. Prior to the commencement of the trial, the applicant pleaded guilty to 5 of the 27 counts and was tried on the remaining 22 counts. At the conclusion of the Crown case, upon application by the applicant’s counsel, the primary judge directed verdicts of not guilty for 7 counts (counts 8, 11, 13, 14, 15, 16, and 26). The directed verdicts of not guilty related to counts about which the complainant had not given sufficient evidence. On the remaining 15 counts, the applicant was found not guilty of 4 counts (counts 6, 17, 21 and 25) and guilty of 11 counts (counts 1, 2, 3, 4, 7, 9, 10, 19, 20, 24 and 27).

3. The primary judge imposed an aggregate sentence of imprisonment for 12 years and 10 months, with a non-parole period of 9 years.

4. A sole proposed ground of appeal is advanced, out of time, namely that defence counsel at his trial was incompetent by failing to:

5. investigate the matter (“ground 1(i)”);

6. take proper instructions from the applicant (“ground 1(ii)”); and

7. conference Mr Sahil Bhuller and adduce the evidence outlined in his affidavit dated 7 November 2024 (“ground 1(iii)”).

8. For the reasons that follow, I would grant leave to appeal out of time but dismiss the appeal.

Relevant facts

6. On 15 June 2018, the applicant and the complainant met at Kogarah train station, where they exchanged Facebook information. They began messaging each other and speaking on the phone. On 28 June 2018, the applicant and the complainant went out on a date. This was a week after the complainant’s 18th birthday. Some short time later, they became involved in a relationship and EE moved into the applicant’s unit in Dulwich Hill.

7. The offences for which the applicant was charged were allegedly committed between 3 August 2018 and 11 September 2018. At the time, the applicant was 28 years old, and the complainant was 18 years old.

Proceedings in the District Court

8. On 6 June 2019, an indictment was presented containing 27 counts. On 11 February 2020, the applicant pleaded guilty to five of the counts as follows:

9. Count 5 — Assault occasioning actual bodily harm between 1 and 2 September 2018 (pursuant to section 59(1) Crimes Act 1900 (NSW)) (that is, hitting the complainant’s head, pushing her head into a wall, dragging her by her hair, and hitting her all over her body with the palm of his hand);

10. Count 12 — Using an Offensive Instrument (a belt) with intent to commit an indictable offence, namely assault occasioning actual bodily harm between 28 August 2018 and 11 September 2018 (pursuant to section 33B(1)(a) Crimes Act) (that is, using a belt to whip the complainant’s back);

11. Count 18 — Assault occasioning actual bodily harm on 9 September 2018 (pursuant to section 59(1) Crimes Act) (that is, punching the complainant a number of times with a closed fist to the arms, legs and back of her head);

12. Count 22 — Using an Offensive Instrument (a belt) with intent to commit an indictable offence, namely assault occasioning actual bodily harm on 10 September 2018 (pursuant to section 33B(1)(a) Crimes Act) (that is, using a belt to whip the complainant’s back, face, collarbone and left shoulder); and

13. Count 23 — Assault occasioning actual bodily harm on 10 September 2018 (pursuant to section 59(1) Crimes Act) (that is, punching the complainant to the right side and back of the head, and kicking her ribs and legs).

14. On 16 February 2021, an order for a judge-alone trial was made pursuant to s 365 of the Criminal Procedure Act 1986 (NSW). On 26 April 2021, the applicant was arraigned before the primary judge and maintained pleas of not guilty to the remaining 22 counts. The trial proceeded on a judge-alone basis before the primary judge.

Evidence before the primary judge

10. The Crown case included a Statement of Agreed Facts in relation to the five counts to which the applicant pleaded guilty, which was signed by the applicant and tendered in the trial, and a record of interview between the applicant and the police.

11. The principal evidence in the Crown case was given by the complainant. As part of her evidence in chief, a recorded statement made by the complainant was played (as permitted by s 289F of the Criminal Procedure Act). A number of body-worn camera recordings, police statements, and the history the complainant gave to ambulance officers and at the hospital, each of which contained disclosures by her, were tendered at trial without objection. They were not relied upon by the Crown for the truth of the facts asserted by the complainant and were relevant to the credibility of the complainant only. The applicant’s legal representatives relied upon inconsistencies or failures in the disclosures in support of their submissions that the complainant was not an honest or reliable witness. The complainant was cross-examined on many of these disclosures. The complainant gave additional evidence at trial.

12. The Crown called as witnesses the officer-in-charge (“OIC”) of the police investigation, Detective Senior Constable Luikens, a Constable Tuite, and two medical experts, a Dr Pfeiffer and a Professor Ellis. A forensic examination of EE had been carried out by Dr Pfeiffer.

13. The Crown led documentary evidence including statements from witnesses not required for cross-examination, photographs depicting the complainant’s injuries, crime scene photographs, and information obtained from the applicant’s phone and computer.

14. The defence called one expert witness, forensic pathologist Professor Duflou, and tendered the complainant’s banking records. The applicant did not give evidence in his trial.

15. Several pieces of evidence were recovered from the applicant’s unit at Dulwich Hill. It is not necessary to set them all out in detail. However, as an example, a piece of evidence which the primary judge found persuasive in relation to several of the counts was a handwritten list found in ripped-up pieces in a bin in the unit. The list was reconstructed. There was no issue at trial that the complainant had written the list. The complainant said that she had done so because the applicant asked her to — he had been in a state of rage and asked her to list what he had done to her, so he could go and punish himself for those things. However, when the applicant looked at the list, he ripped it up and threw it in the bin. The list stated:

“Kicked me

Punched me

Slapped me

made me drink your piss

taste your shit

made me eat my vomit after forcing me

ashed in my mouth

burnt my tongue with a smoke

burnt my face with a frying pan

dislocated my jaw

hit me with a hammer

belted me

choked me

dragged me across the floor by my hair

hit with a tool

smashed my head against the wall

Spat on me

pulled my hair out

palm me in head

squeezed my bruises

pushed my eye in when I cried

held a kife [sic] up to my throat and left marks

pushed my fingers back

hit my hands with a spatular [sic]

made me hold my hand out over a lighter”

16. The applicant in the Agreed Facts admitted to doing a number of these things to the complainant. The primary judge stated that she “found the complainant’s evidence in relation to the ripped up handwritten note generally very powerful”. Her Honour considered that all the evidence pointed to the complainant having had no plans to call the police. It was her family’s decision to call the police, and her reaction to them telling her that they had done so was “entirely consistent with her having had no plans whatsoever to involve police”.

Tendency evidence

17. The Crown relied upon the Agreed Facts as tendency evidence in that “it demonstrated a tendency on behalf of the [applicant] to act in a particular way, namely in a violent, aggressive, hurtful and humiliating manner towards the complainant”, in relation to all remaining counts other than count 1. The primary judge ruled the evidence admissible as tendency evidence in respect of those counts, though her Honour noted that she did not utilise that tendency evidence when determining the aggravated sexual assault charges.

18. The primary judge noted that though the Crown had relied upon tendency evidence founded on two “external complainants”, which had been previously ruled admissible as tendency evidence by her Honour J Culver DCJ on 12 February 2020, the primary judge did not rely upon this tendency evidence when arriving at the verdicts.

Context evidence

19. The Crown led evidence regarding other acts of alleged misconduct by the applicant, though the primary judge “[noted] the limited use to be made of this context evidence as background evidence to explain the charged conduct.”

Findings of the primary judge

Complainant’s injuries

20. On 11 September 2018, the complainant’s sister called the police, and the applicant was arrested. A medical examination was subsequently conducted of the complainant. Photographs of the complainant were obtained in the course of the investigation, including several taken by the applicant on 3, 4 and 6 September 2018. Dr Pfeiffer took photographs of the complainant on 12 and 13 September 2018. These photographs depicted bruising to various parts of the face, body, arms, hips and legs of the complainant. Medical examinations also noted that, in addition to the bruising, the complainant had a broken nose and burst eardrum.

21. There was no issue at trial that all of the complainant’s injuries (catalogued by the doctor at the hospital after police intervention on 11 September 2018 and observed in the photographs taken on the applicant’s phone on 3, 4 and 6 September 2018) were inflicted by the applicant upon her.

22. The applicant agreed, in the Agreed Facts, that he had assaulted the complainant on a number of occasions in September 2018. This included hitting her all over her body with an open palm, whipping her with a belt on two occasions, punching her and, on an occasion when his knuckles were hurting from hitting her, kicking her instead. The applicant’s case was that the complainant’s injuries were all caused by conduct encompassed by the offences to which he pleaded guilty.

Findings of the trial judge

23. As I have said, directed verdicts of not guilty were entered in relation to 7 counts. A short summary of the findings for the remaining 15 counts which were the subject of judgment by her Honour is as follows. The summary is not intended to be exhaustive but, given the nature of this application, instead focuses on the aspects of the case highlighted by the parties in this Court.

Count 2 — Common assault between 3 and 4 August 2018 (pursuant to s 61 Crimes Act 1900)

24. The primary judge found the applicant guilty on this count. The complainant’s evidence was that, on 3 August 2018, she and the applicant had been out with the applicant’s friends (a Mr Bepary and someone called Daniel) to a bar and then back to Mr Bepary’s house in Paddington. They were all “very, very intoxicated” on alcohol and had smoked a little bit of marijuana. The applicant and the complainant then returned to the applicant’s unit in Dulwich Hill. The complainant gave evidence that when they got home, the applicant sat in his armchair and asked her to dress up in her lingerie and dance for him. The complainant agreed and did so, but the applicant fell asleep. The complainant woke the applicant up and tried to tell him to go to bed. The applicant became very aggressive, and screamed at the complainant that she would have done it for her exes, and asked her to do it again. The applicant again fell asleep. When the complainant tried to wake the applicant up to get him to go to bed, the applicant stood up with his arm out in front of him swinging at the complainant in a sweeping motion, connecting with her throat and upper chest region. The complainant fell to the ground, hitting her head on the base of a fan.

25. The complainant gave evidence that she then got off the ground and told the applicant to go to bed. The applicant then used his arm to hold the complainant’s head in the crook of his elbow and squeezed. The complainant described this as shocking rather than causing pain and noted that it did not leave any marks on her. She and the applicant then went to bed.

26. The primary judge was satisfied beyond reasonable doubt that the evidence the complainant gave about the applicant striking her with his arm and using his arm to hold her head in the crook of his elbow whilst squeezing was both honest and reliable. Her Honour considered each of the essential elements of the offence were clearly established by the relevant conduct.

Count 3 — Common assault between 13 and 24 August 2018 (pursuant to s 61 Crimes Act 1900)

27. The primary judge found the applicant guilty on this count. The complainant’s evidence was that she went on a trip to her hometown, returning on 13 August 2018. Within a couple of days of returning from her hometown, the applicant went through her mobile phone. The applicant had the complainant’s head in the crook of his elbow as she lay on the bed, and “was squeezing” while the applicant looked through all the photos on her phone. The applicant told her he was going to hit her for everything he found that he did not like. He told her to sit up, and struck her with an open palm to the cheek. Throughout the night, the complainant was slapped for anything the applicant found on her phone that he did not like. In total, the applicant slapped her over 30 times, and it went all the way through to the next morning. The complainant said she was scared, very confused, and extremely upset. All of the slaps were to her head, and they caused her pain.

28. The complainant then gave evidence that the applicant locked himself in the bathroom and whipped himself with the belt. When the complainant asked him what he was doing, he told her that because he had punished her for something she did not deserve, he needed to punish himself. The applicant’s mother and daughter were due to visit that day. The complainant said that the applicant told her to wash her face with cold water and put make-up on to hide the red marks on her face from crying and being hit. He told the complainant to harden up and not show any negative emotion when his family came, otherwise she would be punished further if she let his mother know what he had done. The complainant confirmed that she continued to stay in the unit after this incident; describing the applicant as having said to her:

“if you want to leave this is will be your only chance to leave without it being betrayal. You can stay with me until you find your own place but, yeah, this is the only chance you’ll get to leave without it being betrayal.”

29. The complainant said that she was scared that if she left, she was going to be hurt more than she already had been. She stated:

“after witnessing that and hearing him say to me before if I ever left him it would be the ultimate betrayal and that I’d be punished I didn’t know what to do so I did stay. I was very frightened, very conflicted with my own feelings because I had this very confused man hurting himself while hurting me. It was just a - yeah, I was very confused.”

30. This was said to have occurred within the approximate two-week period in which the applicant’s family were in Sydney, between 12 and 24 August 2018.

31. Her Honour was satisfied beyond reasonable doubt that the evidence the complainant gave about being slapped by the applicant that formed the basis of that count was both honest and reliable. Each essential element of the offence was established by the relevant conduct.

Count 4 — Common assault between 12 and 31 August 2018 (pursuant to s 61 Crimes Act 1900)

32. The primary judge found the applicant guilty on this count. The complainant gave evidence that, on another occasion in the later part of August 2018, the applicant had slapped her throughout the day “whenever he felt like it”. On this day the applicant was sitting in his armchair and kept calling the complainant and her mother “sluts”, and saying, “sluts like you deserve to be raped”. The complainant had previously told the applicant that her mother had been a victim of abuse. The complainant became quite aggravated, and the applicant then said to her, “I bet you would love to hit me”. The complainant did not respond but the applicant kept saying, “[j]ust hit me, just hit me”. The complainant struck the applicant with an open palm to the side of his face. He yelled at her to “do it again” and continued to call her and her mother degrading names. She struck the applicant again. The applicant asked her why she was hitting him. The applicant said that he did not deserve it, that he should not be punished, to which she replied, “I don’t deserve to be hit or punished either”.

33. The primary judge noted, in relation to the complainant’s evidence:

“[399] The complainant was asked how she felt when she was struck by the [applicant]. She responded that the strikes caused pain and made her feel terrified and very confused. She said that she didn’t know what would happen if she were to run as the [applicant] had told her before that leaving him would be the ultimate betrayal and that she would be punished for that. The complainant went on to nominate in evidence that every time the [applicant] hit her, she wanted to run but that she couldn’t for her safety, and for the safety of her family and friends. The complainant nominated that she felt terrified and confused. (T 94-95)”

34. It was the alleged act of the applicant slapping the complainant on this occasion throughout the day prior to her hitting the applicant that formed the basis of the common assault in this count.

35. The primary judge found, in assessing the complainant’s credibility, that she had been generally consistent about the events the subject of that charge, having even nominated it to the police who first attended the unit.

36. Evidence from the Agreed Facts was taken into account as evidence of the relevant tendency. The primary judge found that evidence did make it more likely that the accused would behave as alleged in this count, in violent, hurtful and humiliating ways.

37. Her Honour was satisfied beyond reasonable doubt that the evidence the complainant gave about being slapped by the applicant as relied upon by the Crown as the basis for that count was both honest and reliable. Each essential element of the offence was established by the relevant conduct.

Count 6 — Cause the complainant to take an intoxicating substance, being alcohol, with the intention of enabling himself to intimidate the complainant between 1 and 2 September 2018 (pursuant to s 38(b) Crimes Act 1900)

38. The primary judge found the applicant not guilty on this count. On 1 September 2018, the Agreed Facts described:

“3. On the afternoon of Saturday 1 September 2018, [the complainant] and Rahul BHULLER had a fight. BHULLER told her, ‘I want to give you the option to tell me everything. Have you sent any nude photos to anyone?’. [The complainant] told BHULLER that she had sent a photo of her nipple ring to some friends. BHULLER asked if she had slept with anyone since she had met him. [The complainant] replied that she had slept with her ex-boyfriend on her 18th birthday. [The complainant’s] birthday was between the day she met BHULLER at the railway station and their first date. BHULLER became angry and screamed at [the complainant], before saying ‘I’m going to kill him. No, I’m going to kill you.’

4. Rahul BHULLER hit [the complainant] in the head, pushed her head into a wall and he pushed her to the ground. He dragged her across the ground by the hair. He picked her up by the hair and hit her all over the body with the palm of his hand.”

39. The primary judge set out the complainant’s evidence in relation to that count, including:

“[431] In examination-in-chief, the complainant recalled an incident that she thought happened on the same night (that is, the night she had told the [applicant] about having slept with her ex- boyfriend at her 18th birthday).

[432] She said that the [applicant] was drinking and he asked her to get him cigarettes from the gas station. He told her that she had 25 minutes to buy the cigarettes and she wasn’t allowed to take her phone. The complainant gave evidence that prior to leaving the unit he said, ‘if you leave this will be the ultimate betrayal and I will kill you and anything that gets in my way.’ (T 96)

[433] The [applicant] gave her money and she ran to the petrol station. The complainant said that the first petrol station was closed so she went to a petrol station further away. She bought a pack of cigarettes and walked back to the unit. As she walked back, she stated that she thought to herself, ‘I’m doing this for my sister, I’m doing this for my mother, I’m doing it for my family.’ (T 96)

[434] When the complainant walked into the unit, she described the [applicant] hugging her and starting to cry. She gave evidence that he said, ‘I thought you weren’t going to come back, I thought you were leaving*.’ The complainant said that she replied, ‘No I’m back I’m here.*’ The complainant described the [applicant] as only being in this state for a minute and then going back to being ‘dark and angry’ and continuing to hit her. (T 96)

[435] The complainant said the [applicant] asked her why she cheated on him and she kept saying ‘I didn’t, I didn’t cheat*.*’ She said that the [applicant] continued to inflict blows to her head. (T 96)”

40. The conduct the subject of this count occurred after the complainant returned from the service station on 1 September 2018. The primary judge accepted the complainant’s account that the applicant was drinking alcohol himself. He caused her to quickly drink more than half a bottle of vodka by threatening her, and when she subsequently vomited because he caused her to consume yet more vodka, he then intimidated her. That is, whilst holding a kitchen knife, he told her to eat the vomit. When she replied, “I don’t want to”, he said to her, “eat it or I’ll make you.” The complainant then ate her own vomit, while the applicant stood over the sink with her. The primary judge found that the complainant’s account was honest and reliable.

41. Her Honour grappled with the elements required to be proved in the way this count was framed:

“[509] … If the complainant’s account is accepted beyond reasonable doubt then the accused has ‘caused her to take’ an intoxicating substance, the alcohol, by threatening her that if she did not drink it she would be further physically punished and then later when she said that if she kept drinking she was going to be sick, by grabbing a knife and walking towards her with it [see discussion of the meaning of ‘cause to take’ in Riley v R [[2011] NSWCCA 238].

[510] However, the second element the Crown must establish beyond reasonable doubt is that when the accused caused the complainant to drink the alcohol that he did so with the intention of enabling him to the commit the offence of Intimidation. The use of the term ‘enable’ in the provision is important.

…

[524] The accused had already intimidated the complainant prior to the conduct the subject of this charge. It was even through intimidation that he caused her to drink the alcohol.

[525] So far as it is suggested that the accused’s intent was to enable him to commit a different form of intimidation, such as for example making her eat her vomit through threats, the vomiting having occurred from the alcohol he caused her to drink, I would need to be satisfied beyond reasonable doubt that the reason he forced her to drink the alcohol was so as to make her vomit and further, that his intention at the time he caused her to drink it was to force her through threats to make her eat the vomit.”

42. Her Honour was unable to conclude, beyond reasonable doubt, that the applicant’s intention at the time of making the complainant drink the alcohol was to enable him to commit an offence of intimidation, that being the second element the Crown needed to establish beyond reasonable doubt. Her Honour noted that this conclusion was in no way based on an adverse finding in relation to the credibility or reliability of the complainant.

Count 7 — Sexual intercourse without consent in circumstances of aggravation, namely that the complainant was deprived of her liberty before the commission of the offence on 2 September 2018 (pursuant to s 61J(1) Crimes Act 1900)

43. The primary judge found the applicant guilty of the statutory alternative of sexual intercourse without consent contrary to 61I of the Crimes Act (as provided for by s 80AB of the Crimes Act). The complainant gave evidence of what occurred on 2 September 2018, the day after the events the subject of counts 6 and 27 occurred (that is, that the applicant detained the complainant, forced her to drink alcohol up until she vomited and thereafter forced her to eat her own vomit, and subjected the complainant to multiple acts of violence including with a metal baseball bat, pliers, and a mallet-like hammer). The complainant stated that, on 2 September 2018, the applicant asked her to perform oral sex, because he didn’t want to hit her, and she had to be punished for what she had done. The complainant noted her jaw was “dislocated” and explained to the applicant that “it probably wouldn’t be best”. The applicant told her to fix her jaw and perform oral sex because if she did not, he would bash her. The complainant gave evidence that when she performed the oral sex she did not want to and that she was in pain. When asked if she consented, EE said yes, but when asked to explain in what way she consented, EE said the following:

“I told him that I didn’t want to but he gave me the option, either getting bashed again or to do that because either way he needed a release and either way he was going to get it. So I took that as well I’ll take the easy way out rather than me getting my head slammed into the tiles constantly and using weapons on me I will suck it up for 10 to 15 minutes, perform oral sex on him, even though I am in excruciating amount of discomfort and pain, it was going to be more excruciating if I didn’t. I didn’t really feel like I had all that much of a choice not to. So that’s why I consented.”

44. The applicant repeated that he did not care that she was in pain, and to fix her jaw because he needed to release and if it was not through oral sex, it would be through a bashing. The complainant described trying to put her jaw “back”, “which was hard and excruciating.” The complainant performed oral sex. The complainant said that the applicant made her swallow his semen by saying that if she did not, she would be punished. Her jaw was sore the whole time.

45. In examination-in-chief, the complainant was asked if she felt that she could leave at the time the applicant asked her to perform oral sex. She said:

“No. As I said, he never physically held me there against my will but he had threatened me and the things that he had already done to me, I believed it.”

46. The complainant said the applicant had told her about how he “went after” one of his ex-partners after she left him, and that he had gone to prison for what he did to her. The complainant stated she was terrified that the applicant would “come after her” as he did with his ex-partner, and that if she left he would kill her and her family.

47. The primary judge considered that, among other things, the incident on 1 September 2018, even as described in the Agreed Facts, provided a clear basis for the complainant having fears on 2 September about what the applicant would do if any of his demands were not complied with. Her Honour found the complainant’s evidence in respect of this count “very capable of and worthy of belief, including her description of the choice she was confronted with making”. Her Honour considered it would have been readily apparent to the applicant that the complainant was not consenting to the act of sexual intercourse.

48. The circumstances of aggravation associated with this count, that the complainant was deprived of her liberty, were dealt with by her Honour later in the judgment. In relation to this count, the circumstances surrounding the offence did not support a finding beyond reasonable doubt that the complainant’s liberty was deprived for a period before the commission of the offence. As such, the applicant was found guilty of the statutory alternative of sexual intercourse without consent.

Count 9 — Intimidate the complainant with the intention of causing her to fear physical or mental harm between 1 and 11 September 2018 (pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007)

49. The primary judge found the applicant guilty on this count. The complainant gave evidence of an incident. She could not remember exactly when the incident occurred, but thought it was closer to when the police came to the unit (11 September 2018). She described her and the applicant being in the shower, and the applicant continuously banging her head up against the shower tiles. The applicant then told her that she was going to “drink his piss”. The complainant refused, and the applicant said, “[i]f you don’t, I’m going to kill you.” The complainant refused again. The applicant then grabbed her head and started to bang it into the tiles harder than he had before. The complainant blacked out for a few seconds. She started to get up and the applicant said, “[y]ou’re going to do it or I’m going to kill you, it’s your choice.” The complainant described thinking she was going to lose her life. The applicant told her to kneel on the ground, squeezed her jaw hard, and made her open her mouth. He then urinated in her mouth and told her that if she didn’t swallow it, or if anything spilt out, she would die. The complainant swallowed.

50. The complainant gave evidence that the applicant then said, “[n]ow you’re going to eat my shit”. The complainant refused. The applicant said, “[y]ou’re going to do it otherwise you’re going to die.” The applicant made the complainant hold out her hands, and defecated into them. The complainant threw the faeces on the ground but then picked it up and threw it into the toilet, flushing quickly. The applicant became angry and told her to lick her hands, which had faeces on them. The complainant refused. The applicant banged the complainant’s head into the wall again, saying, “[d]o it”. The complainant did. The complainant then gave evidence that the applicant had a shower with the complainant sitting up against the wall without any water falling on her. The applicant showered until the hot water ran out and told the complainant “[y]ou’re not going to be taking a warm shower.” The complainant said the applicant made her stand in the freezing water for a little while before he left.

51. In assessing the complainant’s credibility, the primary judge stated:

“[608] When hearing the complainant give evidence about this incident, she came across as someone describing a highly degrading, humiliating and frightening incident that she had endured. She appeared to be describing events from a genuine recollection. The revulsion she felt when describing how she had to carry out the relevant acts was palpable.”

52. Her Honour noted the complainant had been generally consistent in her evidence of this incident, and these acts being included on the list (noted at [15] above) was powerful evidence consistent with the complainant’s account. The tendency evidence was considered in this case and her Honour found that the tendency made it more likely that the applicant did do the alleged acts.

53. Her Honour was satisfied beyond reasonable doubt that the account the complainant gave of this incident was honest and accurate, and that each of the elements of the offence were established beyond reasonable doubt.

Count 10 — Sexual intercourse without consent in circumstances of aggravation, namely that the complainant was deprived of her liberty before the commission of the offence between 2 and 11 September 2018 (pursuant to s 61J(1) Crimes Act 1900)

54. The primary judge found the applicant guilty of the statutory alternative of sexual intercourse without consent in relation to this count. The complainant gave evidence of an occasion when the applicant told her to get on her knees and perform oral sex. She said, “I asked to have sex instead of doing it orally because my jaw was too sore, like I could barely open my mouth at that point”. The applicant replied, “like it’s either going to be that or you’re going to be punished more.” She told the applicant her jaw was too sore. She asked him, “can we have normal sex because it will be a lot easier on me and that way you’re still releasing your tension”. The complainant said that the applicant agreed, and then penile/vaginal intercourse occurred. She was still in pain from her other injuries at the time of the intercourse. She said she did not want to have sexual intercourse with the applicant on this occasion.

55. The primary judge then set out the following in relation to the evidence given by the complainant:

“[620] When asked if she thought anything would happen if she didn’t have sex, the complainant said (T 113-114):

‘Definitely. I thought that I would be belted again. I would be whipped with the belt or I would have my head pushed into tiles, or I would have the knife up in my throat again, or the belt around my throat, or just any kind of weapon that he had in there would be used on me again because it previously was and you know he had told me previously many times before that it was either going to be me being beaten up or sex, so I mean throughout it all I didn’t, I didn’t want to but I just thought it was the easier way for me not to you know go through a tremendous amount of pain.’

[621] The complainant was asked how she felt at the time of the sexual intercourse. She responded (T 114):

‘I felt kind of like I did every other time. It was it’s either this or get beaten and if I’m honest I didn’t know, you know, if he would lose control and then kill me because there was a few times where it felt like that was about to happen. I was very fearful for my life and the only reason I you know agreed to any kind of sex was so I wouldn’t get beaten, like every single time I was terrified.’

[622] In relation to why she did not leave before the sexual intercourse took place, she said (T 114-115):

‘Because I didn’t think that I had the chance to. I thought well if he can do this to me there’s like he can go and grab my little sister off the street and murder her. He can go and you know rape my best friends of which he had said previously. Like he had told me that if I had ever left he would go and murder anybody in his way. You know he had on his computer he had my family’s and friends’ addresses and that kind of stuff so I thought like, huh, if I leave he can find them, he’s got, he’s got their information to find them, that’s all that was going through my head, that’s if I leave my friends are dead, my family’s dead, my little sister’s going to be raped, like, I’m sorry, but that’s why I didn’t leave ever because as I said, he didn’t, he didn’t hold me there physically. I could have walked out that door but I knowing that I knew that I wouldn’t be safe ever again, my family would never be safe, my little sister she might not have a life, so that’s why I didn’t leave because I was terrified for my family’s and friends’ safety more than I was my own if I’m honest because I thought if I can stay here and keep him happy then they won’t be touched. If I leave and I anger him or I make him upset in any kind of way I’m dead, they’re dead, and that’s all that was in my head was it was just a survival tactic. It was all a survival tactic.’

[623] The complainant explained that she knew the [applicant] had the information about her family and friends on his computer because he showed her. One time when she walked out of the shower, his laptop was hooked up to the TV and it was all there ‘presented in front of’ her on the TV. (T 115)”

56. The primary judge found the complainant’s account to be honest and accurate beyond reasonable doubt. Her Honour was satisfied that the first three elements had been established beyond reasonable doubt.

57. The circumstances of aggravation associated with this count, that the complainant was deprived of her liberty, were dealt with later in the judgment by her Honour. In relation to this count the circumstances surrounding the offence did not support a finding beyond reasonable doubt that the complainant’s liberty was deprived for a period before the commission of the offence. As such, the applicant was found guilty of sexual intercourse without consent.

Count 17 — Sexual intercourse without consent in circumstances of aggravation, namely that the complainant was deprived of her liberty before the commission of the offence between 2 and 11 September 2018 (pursuant to s 61J(1) Crimes Act 1900)

58. The primary judge found the applicant not guilty on this count. The conduct that formed the basis of the charge was, as the complainant gave evidence of, a particular occasion of alleged anal intercourse in the period between her return from the service station on 1 September 2018 and the arrival of the police on 11 September 2018. The primary judge found, however, that the complainant had “real difficulty” nominating when this act of anal intercourse occurred, meaning that the exact context of the act relative to the other events was not clear.

59. The primary judge recounted the evidence the complainant gave when asked what her thoughts were before the act of anal intercourse, in relation to whether anything may happen if she were to leave. She said:

“… I had pretty much the exact same thoughts. You know if I didn’t do this well someone was going to die, whether it be me or my family or my friends. So it was like I wanted to leave, I didn’t want to do it. I just wanted to run, the whole time I just wanted run but I couldn’t because I was terrified for my life and the life of all my family. But I just thought at that time like if I don’t do this well then who knows what’s going to happen. I could die, they could die, but if I do do this he said that everything would stop and I kind of believed that it didn’t but I thought it might just for today you know so I did. I didn’t leave because I was terrified but I just thought if I do this you know I’m not doing this for me I’m doing this for the safety of my friends and family and myself.”

60. The medical examination suggested some injury, but it could not be considered evidence supportive of anal-penile intercourse. The primary judge was not satisfied beyond reasonable doubt that the applicant knew that the complainant was not consenting or was reckless as to the complainant’s consent in respect of this particular act of sexual intercourse. Her Honour noted that this was “not because of any adverse finding in respect of the complainant’s credibility or reliability but rather the inability of the Crown to establish to the requisite standard the third essential element in light of the evidence given by the complainant (that I did accept)”.

Count 19 — Sexual intercourse without consent in circumstances of aggravation, namely that the complainant was deprived of her liberty before the commission of the offence, between 2 and 11 September 2018 (pursuant to s 61J(1) Crimes Act 1900)

61. The primary judge found the applicant guilty on this count. The complainant gave evidence of another instance of penile/vaginal intercourse. The applicant had stated that he wanted to have intercourse and needed to release. The complainant agreed to this. The complainant said that she did not want to have sexual intercourse on this occasion. She said that she allowed it because she was scared for her life. The complainant said that she was in pain because her body was “black and blue”.

62. The primary judge stated, when assessing the elements of the offence:

“[707] I found the complainant’s evidence of what occurred during this incident, including her recounting of the language used by the [applicant] and what he told her to do in terms of making noise as very convincing. I was satisfied when listening to it of its honesty and accuracy beyond reasonable doubt. The complainant was clearly recounting an event that she had experienced.”

63. Her Honour accepted the complainant’s evidence that the applicant had told the complainant prior to the act of intercourse that she was putrid and disgusting, and that once intercourse commenced, the applicant told the complainant to make some noise because he didn’t want to be “fucking a lifeless body.” Her Honour found this comment was indicative of the accused realising the complainant did not want to participate in the act. Her Honour found that the physical discomfort that the complainant was in at the time as a result of the injuries inflicted by the applicant would have been evident to him. The primary judge found the first three elements were established beyond reasonable doubt.

64. The circumstances of aggravation associated with this count, that the complainant was deprived of her liberty, were not found beyond reasonable doubt. As such, the applicant was found guilty of the statutory alternative of sexual intercourse without consent.

Count 20 — Assault occasioning actual bodily harm between 2 and 11 September 2018 (pursuant to s 59(1) Crimes Act 1900)

65. The primary judge found the applicant guilty on this count. The complainant gave evidence of an occasion where the applicant burnt her with a frying pan. That day, the applicant had beaten her, but the beatings were not as extreme as he had done before. The applicant was in the kitchen using a frying pan to cook, when he turned to her and said “[w]as it worth it?”. The complainant understood this to mean, “[w]as it worth cheating on me?” She said to him, “[n]o it was not worth it.” He said, “[y]ou deserve to be punished.” She said, “I already have been punished.” The applicant said, “[t]his is nowhere near what you deserve”, and walked up to her. He held the hot frying pan up to her face for about 15 seconds. The complainant noted that this left a burn mark on the side of her cheek. She indicated it was about seven centimetres long, red, though not a major burn.

66. The primary judge held that the complainant was mistaken when she nominated in her evidence that the redness was still on her face a month later, and when she later went to hospital. Her Honour stated, however, “I do not find that [the complainant] was being untruthful in this respect. Her mistake needs to be assessed in the context of the number and variety of injuries sustained by her from numerous acts of violence.”

67. The inclusion of “burnt my face with the frying pan” on the ripped-up list located by the police (at [15]) was considered a significant piece of evidence. Tendency evidence was also used by her Honour in considering whether it was more likely that the applicant committed this offence.

68. The primary judge was satisfied that there was a red burn mark occasioned at the time of the incident which was more than transient and trifling but was no longer discernible by the time of the hospital examination. Her Honour found each of the elements of the offence established beyond reasonable doubt.

Count 21 — Intentionally choking being reckless as to rendering the complainant incapable of resistance between 28 August and 11 September 2018 (pursuant to s 37(1) Crimes Act 1900)

69. The primary judge found the applicant not guilty on this count. The primary judge noted that she had raised with the Crown during the trial that this charge had been particularised as choking rather than strangulation. Thus, her Honour found, the Crown was required to prove beyond reasonable doubt that the complainant’s breathing was hindered or stopped, citing R v HBZ [2020] QCA 73. (I note, parenthetically, that on 1 April 2022 the law was clarified in NSW in GS v The Queen; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65. Her Honour’s conclusion that compression of the blood vessels/carotid arteries does not amount to intentional choking is no longer good law in NSW). As the expert evidence left open as a reasonable possibility that the cause of EE becoming unconscious was the lack of blood flow to the brain, as opposed to the compression of the airway causing her to stop breathing, her Honour found the applicant not guilty.

70. Her Honour concluded, “[i]t would be clear from what I have said that my finding is not in any way based on an adverse conclusion in respect of the complainant’s credibility or reliability.”

Count 24 — Assault occasioning actual bodily harm between 2 and 11 September 2018 (pursuant to s 59(1) Crimes Act 1900)

71. The primary judge found the applicant guilty on this count. The complainant gave evidence of an incident which occurred on 10 September 2018, being the same night as the incidents the subject of counts 22 and 23 (that the applicant pleaded guilty to) occurred, as well as the alleged choking that formed the basis of count 21. The complainant stated that the applicant grabbed a can of insect spray and said, “[o]ne can of these killed a live cat before. I wonder how much it will take to kill you.” The applicant backed the complainant up into a corner, spraying the can in her face whilst walking towards her. The applicant sprayed the can in her face for “quite a while” until she started coughing up blood. Her nose started “pouring out blood”. Once her nose started bleeding and she started coughing, the applicant stopped spraying the can in her face. The applicant then kicked the complainant and told her to get up and clean up the blood.

72. The primary judge accepted beyond reasonable doubt that the applicant deliberately sprayed insect spray into the face of the complainant for a sustained period and that this caused her nose to bleed. Her Honour found all the elements of assault occasioning actual bodily harm were established.

Count 25 — Use an offensive instrument, namely a kitchen knife, with intent to commit an indictable offence, namely assault occasioning actual bodily harm between 28 August and 11 September 2018 (pursuant to s 33B(1)(a) Crimes Act 1900)

73. The primary judge found the applicant not guilty on this count. The complainant gave evidence of an incident where the applicant held a big kitchen knife with a black handle up to her throat. He pressed it very firmly against her throat whilst threatening to kill her. She described that, from the pressure of the knife, she suffered a scratch that “bled a little”. She said that the applicant held the knife to her throat for less than a minute before stopping. The complainant maintained that the scratch was caused by pressure of the knife rather than it being used to cut her.

74. The primary judge noted that the Crown needed to prove beyond reasonable doubt that the knife was used by the applicant with the intention of committing the offence of assault occasioning actual bodily harm. Ultimately, her Honour was “able to readily infer an intention to instil fear in the complainant and threaten her”, but not to inflict actual bodily harm. The primary judge stated that this was “not because of any issue [her Honour] had with the complainant’s credibility or reliability but rather because [she] [had] found the specific indictable offence averred by the Crown that the [applicant] had the intention to commit, could not be established beyond reasonable doubt.”

Count 27 — Use an offensive implement, namely a hammer, with intent to commit an indictable offence, namely assault occasioning actual bodily harm between 28 August and 11 September 2018 (pursuant to s 33B(1)(a) Crimes Act 1900)

75. The primary judge found the applicant guilty on this count. Her Honour considered this incident alongside count 6, as they were alleged to have occurred during the same incident on 1 September 2018.

76. The complainant described that, after the applicant forced her to eat her own vomit, the applicant took a metal baseball bat and hit her over the head two or three times. The applicant then used a “hammer-like thing like a mallet thing” to hit her legs. She described it as “too heavy” for her head. The complainant said it caused her pain and bruising, but not as much as what the pliers had done. She said the applicant did not hit her as hard with the mallet as he had with the bat and pliers. The complainant said that when the applicant had had enough of using the bat, mallet and pliers, he kicked her and punched her. This all occurred on one night and did not stop. After these “big beatings” the applicant got the complainant to sit down on the bar kitchen stool so that he could squeeze her bruises instead of hitting her. He told her that he wasn’t going to punch her anymore because he didn’t want to break his hands and knuckles, but that she still deserved to be punished for what she had done.

77. Her Honour accepted that there were many different acts of violence directed towards the complainant by the applicant that evening, including what was set out in the Agreed Facts. The primary judge was satisfied beyond reasonable doubt that the hammer (“more aptly described as a mallet”) located by police was used by the applicant to hit the complainant’s legs, and that the applicant did deliberately do so with some degree of force and with the intention of assaulting her and causing her actual bodily harm in the form of bruising.

78. Her Honour found, in light of the inconsistencies in the complainant’s evidence about being hit in the head with the hammer, she was not satisfied beyond reasonable doubt that it used to hit her forehead that evening. In any event, it was noted that the above finding that the applicant hit the complainant’s legs was alone sufficient to make out the elements of this count. Her Honour reiterated in drawing these conclusions that, “I do not have reasonable doubt about the complainant’s honesty in this respect but rather her reliability bearing in mind the various events that she was subjected to that evening.” Although a motive to lie had been put to the complainant in cross examination, her Honour found that suggestion unpersuasive.

Count 1 — Detain with the intention of obtaining an advantage, namely psychological control over the complainant, and at the time of detain occasioning actual bodily harm between 1 and 11 September 2018 (pursuant to s 86(2)(b) Crimes Act 1900)

79. The primary judge, consistent with the approach of both counsel at trial, addressed count 1 last. It was the Crown’s case at trial that the complainant was detained for the entire period from when she returned from the service station on 1 September 2018 to when the police arrived in the evening of 11 September 2018 or, in the alternative, a shorter period within that time frame. The Crown case was that the detaining included keeping the complainant where she was (in the unit) or with the applicant.

80. The primary judge found the applicant guilty on this count in relation to the lesser period from when the complainant returned to the unit from the service station on the night of 1 September 2018 and throughout that night. Her Honour found that through the events of that night, the complainant was prevented from leaving the unit. It was noted in drawing this conclusion that there did not need to be physical detainment to satisfy the requirements of “detaining”. Her Honour indicated “[i]t can be [a] result of threats and/or violence”.

81. The primary judge, in her verdict judgment, set out at length various pieces of evidence given by the complainant on this count. Her Honour noted that this evidence had arisen at various points throughout the trial (some of which has also been noted above in relation to the other counts).

82. The complainant gave evidence of threats made by the applicant towards her, her friends, and family. This included, in the DVEC (Domestic Violence Evidence in Chief) statement, when the complainant was asked, “[a]nd do you feel like he’s threatened you, like, to stay in the relationship and you like, do you feel that you, um, were never free to leave?” She replied:

“He told me he, um, he wrote down all the addresses of my friends and family anywhere that I can run and he’s told me that if I ever betrayed him“ “or leave him then I will die.”

83. When asked what threats the applicant had made towards her family, the complainant said:

“That if anybody tries to come in between, then he will fuck them up” … “and that he will kill them or seriously injure them ‘cause he won’t let anyone get in his way.”

84. The primary judge also set out the complainant’s evidence that the main reason why she had not left the applicant was, “[b]ecause I fear for my friends and my family’s lives”. When asked whether she believed the applicant was capable of carrying out the threats to her friends and family, she said that she did.

85. In relation to the evening of 1 September 2018, the primary judge stated:

“[973] In terms of the evening of 1 September 2018, the complainant confirmed that she went to a service station at the [applicant’s] request to buy cigarettes. She said that she did not have her phone or her purse with her because she was not allowed to take anything. She gave evidence that:

[974] ‘Before I had left to go get the cigarettes Rahul had told me if I don’t come back he’s going to go and murder my family and all of my friends or he would murder me and anybody that gets in his way. After being abused the way that I just was, I believed that, so I wasn’t allowed to take my phone, I wasn’t allowed to take my purse and on the way back I felt like running. I just wanted to run and forget everything that I even owned and just run but all that was going through my head was if I do that he’ll kill my family, he will kill my best friends, he’ll kill me. So every step that I took it was I’m going back there to get abused for my family because I want my family to live, that’s what the thoughts were going through my head, if I don’t come back somebody’s going to die and that’s going to be on me.’ (Emphasis added.) (T 100)”

86. The primary judge noted that the complainant confirmed that the applicant had the addresses of her family and friends, which had been obtained from her around 31 August 2018 after a conversation with the applicant about sending her family Christmas cards and gifts. An email extracted from the applicant’s computer titled “One Day I Will Need This – Addresses” had been sent on 31 August 2018 from one of the applicant’s email addresses to four of his other email addresses. The complainant confirmed that the email contained the addresses of her family home (where her mother, stepfather, younger brother, younger sister and possibly her older sister were living at the time), her father’s home, and her best friend’s home.

87. In cross-examination, it was put to the complainant that the applicant had always given her the option to leave the relationship. The complainant replied that the applicant had given her the option once, on the day his mother came to Sydney to visit. The complainant maintained that in every other instance, and on multiple occasions, the applicant would say that her leaving would be the ultimate betrayal and that he would have to hunt her down and punish her and hurt anybody in his way.

88. Her Honour also noted that the complainant had given a further reason for why she kept coming back, being that:

“And also I believed that things would get better. He kept tellin’ me that things would get better and that he’s you know um accepting it and that we’ll move on from this and everything like that. He’s very good at manipulating, manipulating people.”

89. The primary judge also set out the answer the complainant gave during cross-examination when she was asked if, after 1 September 2018, the complainant still had hope for the relationship to improve:

“Yeah I did he kept telling me that this would all be over soon that he just needed to release and get all of his frustrations out and be able to forgive me and accept my past and as soon as he could accept my past well then it would all stop and that we could be happy and move on with our lives. Yeah I was still hopeful that it would stop.”

90. When asked to confirm that she believed this, the complainant responded:

“Yeah I genuinely believed I was absolutely terrified out of my mind more than I’ve ever been in my entire life and I had very good reason but you know I’d seen the man once before love me the way that he did and care for me the way that he did and even though he was assaulting me the way that he did he was still dressing my bruises. You know he was a whole big manipulation game and I did believe that it could get better, everyday he was telling me it will get better, this will stop, things will stop and it just never did but I did hold hope because I wanted them to get better.”

91. Her Honour noted that the complainant had given evidence that the shopping trip she went on with the applicant to Coles was the only time she went out of the unit between her trip to the service station to buy cigarettes on 1 September 2018, and the police arriving at the unit on 11 September 2018. The complainant gave evidence that she did not attempt to leave during the trip, but stated:

“I thought about it and I was looking at everyone with a look of like help on my face, I just wanted help but I didn’t know how to go up to someone and hey I’ve just been abused by this man that’s holding my hand, can you help me and I was thinking about like trying to catch a bus or just running but where would I go. I didn’t know my way around Sydney, I didn’t have any money, I was just terrified.”

92. Her Honour set out the complainant’s response when asked whether she thought anything might happen if she left:

“Yeah I did, again I just thought that if I tried to leave well he would track me down and kill me or if not me well then someone, one of my friends or my family, like he had their addresses, so like that it stuck in my head that if I tried to ever leave this man somebody’s going to die so I can’t ever leave.”

93. In relation to the applicant’s movements, the primary judge recounted:

“[990] The complainant stated that the [applicant] was not working in the period between her attending the service station on 1 September 2018 and the police attending the unit. When asked if he left the unit during this period, she said that the [applicant] did go to get high with a neighbour but that this was not often. She wasn’t sure how many times this occurred. She remembered that on the night police arrived, the [applicant] had gone to get high with this person. She did not remember whether the [applicant] left at any other time except for when they went out shopping together. (T 151)”

94. Her Honour noted that the complainant confirmed she had a set of keys to the premises, and that the complainant’s evidence was that, though her phone was always within reach, she was only permitted to use her phone when the applicant gave her permission. Otherwise, if she went to “just grab my phone and use it” she would be punished by being “belted or bashed up”. Her Honour summarised the text messages and calls in evidence that reflected the communications the applicant had engaged in and, according to the Crown, were demonstrative of the applicant controlling her use.

95. The primary judge described the events of 5 September 2018 as follows:

“[1014] In the [applicant’s] brother’s statement that was tendered he nominated having gone around to the Dulwich Hill unit on 5 September 2018 to meet up with the [applicant]. He describes the [applicant] being there with his friend [Mr Bacic] and the complainant. They were all seated in the kitchen/living area of the unit. He describes them all smoking cannabis, drinking alcohol and singing karaoke. He says the [applicant] and the complainant were talking, kissing and hugging. He did not see any injuries on the complainant. Given the photographs that were recovered from the [applicant’s] phone, I know that the complainant had injuries to her back at this time which were likely to have been covered by her clothing. The [applicant’s] brother does not nominate the time that he went to the unit. In terms of how long he stayed he says it was about half an hour to 45 minutes. (see Ex B Tab 22 para 8)

[1015] The complainant confirmed that the [applicant’s] brother, Sahil, and his friend, [Mr Bacic] visited their unit on 5 September 2018. She confirmed that she kissed and hugged the [applicant] in presence of his brother. She was not sure whether they were drinking but recalled that they were smoking cannabis and singing karaoke. When asked to agree that she was happy at this time, the complainant said (T 203-204):

‘No not happy. More so putting on a show. Earlier I’m not too sure when but you know he had hit me before, I was more scared. I wasn’t you know like terrified, I wasn’t super unhappy, probably in that like present moment, when Sahil and [Mr Bacic] were both there and we were doing Karaoke, I could say that I was happy then but generally like overall no I was not happy.’

[1016] The complainant agreed that she still had hope for the relationship at this time and hoped that things could work out between her and the [applicant]. She confirmed that this was the last time she saw Sahil and that the next contact she had with him was when she sent him a message at the police station. (T 204)”

96. The primary judge found that the complainant had been consistent in her disclosures about threats having been made by the applicant to her and her family if she were to leave. Her Honour found “the complainant’s evidence at various different points about the threats having been made to her and her family by the [applicant] to be very forceful. She was able to articulate in detail how the threats were operating on her mind at certain different points, consistent with such threats having been made.”

97. The primary judge concluded that the charge had been made out in respect of the complainant’s detention from her return from her trip to the service station on the night of 1 September 2018 and throughout the events of the rest of the evening of 1 September 2018. Her Honour did not, however, find that the complainant had been detained for the entire period alleged by the Crown. In reaching this conclusion, her Honour’s reasoning included:

“[1041] It stood out to me when the complainant was giving evidence that, to her credit, she was very open about the fact that during the course of the approximately ten day period she had seen different sides to the [applicant] and that despite everything he had done to her, she had still at some points in the relevant period remained hopeful that the relationship would work. She believed that things would get better. She had been prepared to work on the relationship in order for this to occur. Significantly, when giving evidence, she did not always connect this back to the [applicant’s] threats/violence or because she felt like she was deprived of a choice.”

98. Her Honour found beyond reasonable doubt that the threat by the applicant had the effect that the complainant was, for the evening noted above, prevented from leaving the unit if she wanted to do so. In doing so, her Honour made reference to, among other considerations, the incidents the subject of counts 6 and 27.

Circumstance of aggravation for each of the aggravated sexual assaults the subject of Counts 7, 10 and 19

99. As I have explained, the primary judge noted that, given that she had not found that the applicant detained the complainant for the entire period from 1 September 2018 to 11 September 2018, her Honour also did not find beyond reasonable doubt that the complainant’s liberty was deprived for a period before the commission of the offences for which this was relied upon as an aggravating factor. Her Honour therefore returned a verdict of not guilty in the case of counts 7, 10 and 19, but verdicts of guilty to the statutory alternative under section 61I of the Crimes Act of sexual intercourse without consent.

Overall findings on the complainant’s credibility

100. It may be accepted that the complainant’s credibility was a key issue at trial. The primary judge made favourable findings about the complainant’s credibility. Her Honour made the following “general observations about the overall assessment [the primary judge] made of the complainant as a witness”:

“[309] The complainant impressed me as someone who was doing her best to be truthful. She listened carefully to the question before endeavouring to answer it. She did not appear evasive at all. She did not strike me as someone who had any particular agenda. Instead, she appeared mindful of her obligation to the tell truth and this was what she was attempting to do. At one point in her evidence she referred to not even wanting to be in court giving evidence and that she was simply telling her truth. (T 230) This statement had a real genuineness to it.

[310] Whilst attempting to remain composed and focussed when giving evidence, the complainant did at various points display emotion and distress that impressed me as sincere. To my observation, when she described events she appeared to be doing so from genuine recollection.

[311] She was prepared to make appropriate concessions. She was open and frank even when discussing the most intimate and personal of details and was able to describe the very mixed emotions that she was at times feeling. At certain points she even said favourable things about the [applicant].

[312] When challenged that the relevant events the subject of the remaining charges did not occur, the complainant gave strong passionate responses maintaining her evidence.

[313] I found her overall to be generally an impressive witness.”

101. The primary judge made clear that the not guilty verdicts her Honour returned for counts 6, 17, 21 and 25 were not because of doubts about the complainant’s reliability or credibility.

Sentence

102. The primary judge delivered remarks on sentence on 23 September 2022. Her Honour sentenced the applicant to an aggregate term of imprisonment of 12 years and 10 months, with a non-parole period of 9 years. The non-parole period will expire on 10 September 2027. The total term will expire on 10 July 2031.

The application for leave to appeal

103. On 21 October 2022, the applicant filed a notice of intention to appeal. However, a notice of appeal was not filed until 15 January 2026, some years out of time. On 28 May 2026, the applicant filed amended grounds of appeal. In Annexure B to the notice of appeal, the applicant advanced reasons for filing a notice of appeal so long out of time. This was the only material advanced in explanation for why the application was filed so many years out of time:

“1. The transcripts from the district court arrived after the 12 months.

2. Upon receiving the transcripts, there was a period where we needed to investigate and obtain the new evidence (grounds of this appeal).”

104. In written submissions, the applicant proffered the following reasons for his delay:

“Application for Extension of Time

99. The application for an appeal is well out of time. Unfortunately, the applicant could not obtain an affidavit or supporting evidence from [Mr] Bacic.

100. The applicant was only successful in obtaining an affidavit from Mr [Sahil] Bhuller.”

Evidence sought to be led on the application for leave to appeal

105. At the commencement of the application for leave to appeal out of time, the Court ruled that it would permit the reading of affidavit evidence and cross-examination of witnesses for both parties on the voir dire. The Court indicated it would rule about the admissibility of that evidence in these reasons.

106. The applicant originally sought leave to adduce fresh evidence. That ground was abandoned in his amended application dated 28 May 2026. At the hearing before this Court it was made clear that the application was founded on miscarriage within the third limb of s 6(1) of the Criminal Appeal Act, and not upon new evidence that would result in this Court concluding that there was an unreasonable verdict. The applicant read three affidavits on the application:

107. affidavit of Sahil Bhuller affirmed 7 November 2024;

108. affidavit of Rahul Bhuller affirmed 15 April 2025; and

109. affidavit of Rahul Bhuller affirmed 19 August 2025.

Evidence of Sahil Bhuller

107. Sahil Bhuller is the applicant’s brother. He gave a statement to the police on 27 September 2018 which was tendered by consent at the applicant’s trial. His affidavit affirmed 7 November 2024 contained information additional to and inconsistent with the information in the statement he provided to police. Sahil Bhuller’s evidence included, relevantly:

108. on 5 September 2018, “[the applicant], [Mr Bacic] and [the complainant] were all seated in the kitchen/living room, smoking cannabis and drinking alcohol. They were also singing karaoke. [Sahil] didn’t notice any injuries on [the complainant]. [The complainant] and [the applicant] were talking, kissing, and hugging”;

109. he stayed at the unit for 45 minutes to one hour, and the applicant left the unit for “about 30 minutes” “to the petrol station downstairs to buy Cigarettes and soft drinks”;

110. he had a conversation with the complainant while the applicant was away, and the complainant did not show distress or give any indication to him that she was under distress or threats;

111. he provided the above version of events to a Mr Abbas [Soukie], who he understood was representing the applicant; and

112. he never spoke with Ms Sophie Toomey or anyone from her office (whose firm were the solicitors for the applicant at his trial).

113. The key differences between this affidavit and his police statement were that the police statement identified his being at the unit for 30–45 minutes and not “45 minutes to an hour” and his police statement contained no reference to the applicant leaving the unit to buy cigarettes.

114. In cross-examination before this Court, Sahil Bhuller accepted that what he said in his statement to police was a complete and accurate description of what he observed on 5 September 2018, “based on the questions [he] was asked”. He asserted that the police officer did not ask whether the applicant “left the place”. Sahil Bhuller did not accept that there was any material difference between his accounts of being at the unit for “30-45 minutes” and “45 minutes to an hour”.

Evidence of the applicant

110. The applicant’s affidavit affirmed 15 April 2025 stated, relevantly:

111. At trial, he was represented by Ms Toomey and Ms Goodhand, prior to which he was represented by Mr Abbas [Soukie].

112. He made numerous requests from 27 February 2020 until his trial, to be provided with all the brief material. He stated he kept requesting all the missing material from the brief every day during the trial. He stated he received most of the crucial material at trial in small increments and mid-trial, either a day prior, or on the actual day he was required to provide instructions to his solicitors for cross-examination. He stated that this included an extraction report of SMS messages and material from his phone and computer, the bank records of the complainant, and a computer triage report of the video footage of the complainant buying cigarettes.

113. He was concerned with the lack of communication from his lawyers and unhappy with the situation. He said words to Ms Toomey to the effect of, “I want to change lawyers”. Ms Toomey replied with words to the effect of, “I’m all you’ve got. Legal aid won’t fund you another lawyer.”

114. Despite his best efforts, there were persistent issues in communication and follow-through from his previous lawyer. There were multiple emails documenting his requests for crucial material which he did not receive, despite numerous phone calls, emails, and in-person visits.

115. This lack of response “significantly hindered [his] ability to prepare a robust [defence] and provide accurate instructions”. There was a “significant lack of questioning and investigation into the details of [his] version of events”. The applicant stated that the instructions he gave were not used to build a “correct narrative” sequence or to effectively cross-examine the complainant. The applicant stated that being given crucial materials mid-trial at the last minute did not allow him enough time to reflect, and instead he was rushed to extrapolate facts and data to provide instructions.

116. He had instructed Ms Toomey and Ms Goodhand that when the complainant was residing with him, “there were multiple occasions where [he] was not home, and she remained at home or vice versa where [he] had remained home, and she had left to go shopping or for walks”.

117. On 5 September 2018, three persons visited his unit: Sahil, Mr Bacic and a Mr Rajput. After Mr Rajput left, the applicant offered to buy cigarettes and said something to the effect of, “You guys stay here and I am going to buy ciggies”. The applicant stated he went to buy cigarettes at a local service station, leaving the complainant, Sahil and Mr Bacic in the unit. He walked to a nearby service station which took 15 minutes each way. When he returned, he, the complainant and the guests continued to enjoy themselves.

118. He asked Ms Toomey “numerous times” to speak to Sahil, Mr Bacic and Mr Rajput about these events. He understood that Ms Toomey did not approach Sahil at all. When the applicant mentioned this to Ms Toomey before the trial, she brushed it off and said words to the effect of, “we’re the lawyers and we are running it this way”.

119. He had given instructions to his lawyers to cross-examine the complainant about the ripped-up list.

120. His lawyers ignored multiple requests to subpoena video footage at various service stations and from a Coles supermarket, and to obtain an extraction report of the complainant’s phone, Opal card data for him and the complainant, the applicant’s bank statements, and the applicant’s mobile phone data.

121. There had been no line of questioning regarding several purported events of import: a particular Facebook message relating to a “threesome”; the complainant hitting the applicant; the complainant claiming not to have any knowledge of the applicant going to gaol; the complainant having watched a particular pornographic video; a hand-written apology letter from the complainant to the applicant; or that the complainant had booked a visit to see him in gaol.

122. His legal team misled him to believe that during the trial a Legal Aid grant for a psychiatrist to give evidence was rejected.

123. In his affidavit affirmed 19 August 2025, the applicant gave evidence that he had never seen or received any, or much of, the material contained in Exhibits B, G, H, J, N, O, P, Q, R, U, V, W, Z, CC, DD, EE, and JJ “despite numerous requests”. The applicant alleged that he had made repeated requests to Ms Toomey and Ms Goodhand before trial to see the evidence and they would both say to him words to the effect of, “we’ll give it to you next time” or “that’s not important”. The applicant contended that after he questioned and pressed them more about not receiving the evidence, Ms Toomey would get angry and frustrated with him and say words to the effect of, “I’m all you got. You will not get a new lawyer. I will give you what I think you need”. The applicant said that, without seeing the complete evidence against him, he was “unable to give proper instructions to [his] representatives at the trial and [he] felt like [he] was always playing catch up and [he] couldn’t question Ms Toomey”.

124. The applicant gave evidence in this Court. The applicant maintained he was given a “partial version of the brief of evidence” by 11 March 2020. He prevaricated about the number of conferences he had with Ms Goodhand and Ms Toomey’s team. He eventually stated it would be in the range of probably 10 to 15 conferences. He confirmed that the annotated Crown case statement had been prepared including his instructions to his lawyers in it and confirmed it was initialled by him.

125. On the subject of the applicant’s stated desire to change his legal representatives during the course of the trial, the applicant said in this Court:

“Q. And I suggest you also said to [Ms Toomey and Ms Goodhand] that you wanted them to continue to act for you through to the conclusion of the proceedings, correct?

A. No, sir, they gave me no choice. They said that if I vacate them - I mean, sorry, vacate, if I do not continue with them that I’ll be forced to continue the trial and I’ll be under the prosecutor’s and judge’s mercy, that I will be forced to continue the trial without legal representative and then I’ll most likely lose my case. And she said to me that she’s all I got and--

…

Q. Can you just repeat the words that you say she said?

A. That the Court will force me - well, the judge will force me to continue my trial without legal representative and that I’ll most likely lose my case. And [Ms Toomey] said that, she said to me that she’s all I got.”

Evidence led by the Crown

114. On the voir dire, the following evidence was read on behalf of the Crown, without objection:

115. affidavit of Corrie Goodhand affirmed 25 May 2026;

116. affidavit of Daniel Kradolfer sworn 29 May 2026;

117. affidavit of Hazel Pais affirmed 3 June 2026;

118. affidavit of Hazel Pais affirmed 10 June 2026;

119. affidavit of Abbas Soukie sworn or affirmed 10 June 2026; and

120. affidavit of Sophie Toomey affirmed 11 June 2026.

Evidence of Corrie Goodhand

115. In her affidavit affirmed 25 May 2026, Ms Goodhand gave evidence including, relevantly, that:

116. To the extent that it was possible, she spoke to the applicant in the presence of her instructing solicitor at court on most days.

117. She has records of 18 conferences with her instructing solicitor and the applicant, occurring between 3 March 2020 and 6 September 2022.

118. She did not recall ever speaking directly to Sahil Bhuller, the applicant’s mother, Mr Bacic, or the applicant’s former girlfriend. She recalled the applicant’s mother “courtesy [copying]” her into emails to her instructing solicitor.

119. She specifically recalled asking her instructing solicitors to take detailed file notes in this case, because the applicant was very difficult to obtain instructions from. He often did not answer direct questions that sought to elicit instructions responsively.

120. She explained the elements of each offence to the applicant, explained the evidence, and advised him of her assessment of the strength of the Crown case.

121. During the trial, the applicant became increasingly difficult to confer with and obtain instructions from. He would also repeatedly request that a large number of (what she judged to be) irrelevant matters be put to various witnesses. She had started to have concerns as to whether the applicant had lost faith in her and the solicitors’ representation, and whether she consequently needed to withdraw. Given the passage of time since the trial, she could not recall the specifics of her concerns, but her instructing solicitors made comprehensive notes of interactions with the applicant which she expected would document that. Ms Goodhand was able to speak with Senior Counsel and obtain advice. Her instructing solicitor, Ms Toomey, was present with her while she made this call, and Ms Goodhand requested that Ms Toomey ensure she had a comprehensive file note of that conversation.

122. She spoke to the applicant with her instructing solicitor. She asked the applicant if he had lost confidence in her and Ms Toomey. At the conclusion of the conference, the applicant confirmed he had not lost confidence in Ms Goodhand or her instructor and wanted them to continue to represent him.

123. Ms Goodhand’s affidavit also contained evidence in response to the contentions in the applicant’s affidavits as follows:

(a) She did not have any recollection of the applicant raising any concern about late provision of documents; (b) Ms Goodhand recalled cross-examining the complainant with a view to undermining the proposition that she was detained for the whole of the period alleged by the Crown. She also recalled that she had cross-examined:

(i) the complainant, about the ripped-up list, and put to the complainant that the acts referable to the counts on the indictment did not occur, and that her evidence was fabricated because she wanted to send the applicant to gaol for a long time; (ii) the complainant, about the applicant’s ex-girlfriend, including being jealous when the applicant’s ex-girlfriend tried to kiss him on a bus; (iii) the complainant, about a particular pornographic video containing sex acts that the applicant insisted the complainant had seen and then falsely inserted in the narrative of her evidence; and (iv) the officer-in-charge (“OIC”), about the topic of the Tanwar Service Station, the failure by the police to obtain or attempt to obtain the footage from the Coles supermarket, other Facebook messages from the complainant’s phone, and a Cellebrite analysis of the complainant’s phone, all of which were adverted to in the applicant’s affidavit of 15 April 2025 as subjects about which the applicant’s instructions to subpoena or otherwise obtain materials were said to have been ignored.

9. Given the time which had elapsed since the trial, she could not recall the exact circumstances in which she formed the view that it was not necessary to call Sahil Bhuller to give evidence in the trial. However, Sahil Bhuller’s police statement specifically referred to his not observing injuries on the complainant, and of observing talking, kissing, hugging and singing karaoke. That statement was tendered by consent in the trial.

10. Ms Goodhand deposed that she had put to the complainant that no injuries would have been visible in August 2018 in the photographs taken by the applicant, or by Sahil Bhuller on 5 September 2018, to which the complainant agreed, and that there was kissing, hugging, singing karaoke and that she was happy on that occasion. Ms Goodhand stated that it was “likely that these matters informed [her] view as to there being no need to call Sahil Bhuller”.

11. Ms Goodhand stated she did not speak to Mr Bacic or Mr Rajput. Given the time elapsed since the trial, she could not recall the circumstances in which she determined it was not necessary or appropriate to call them in the trial. However, Sahil Bhuller’s statement was tendered by agreement in the trial, and he was present at the same time as Mr Bacic and Mr Rajput. His statement referred specifically to observing no injuries, talking, kissing, hugging and singing karaoke.

12. Exhibited to Ms Goodhand’s affidavit were documents from her electronic records, including her email to the NSW Bar Association dated 10 May 2021 requesting advice from a Senior Counsel, the Crown case statement with typed instructions of the applicant in italics, which had been signed by the applicant, a Word document containing the text of further instructions provided by the client to Mr Woolf (which Mr Woolf sent to Ms Goodhand on 26 April 2021), and a copy of a table that she used to advise the applicant in relation to the elements of each offence, the penalties, and the evidence in the Crown brief that appeared to support those elements.

13. Ms Goodhand was cross-examined briefly. No submission was made that her evidence should be rejected.

Evidence of Daniel Kradolfer

118. In his affidavit sworn 29 May 2026, Mr Kradolfer gave evidence including that he was, at times during the applicant’s trial, part of the team of solicitors at Toomey Defence Lawyers who were representing him. Mr Kradolfer recalled drafting, filing and serving subpoenas, as well as emailing the Crown’s legal representatives in relation to outstanding brief items. He attended conferences in which Ms Goodhand and the applicant were present. He recalled issuing subpoenas to produce on at least one bank and at least one mobile telecommunication provider, though he could not say so with certainty. Mr Kradolfer was not cross-examined.

Evidence of Hazel Pais

119. In her affidavit affirmed 3 June 2026, Ms Pais identified that she is a solicitor employed by the Office of the Director of Public Prosecutions. She set out the procedural history of the applicant’s matter including the circumstances surrounding the vacation of the first three trial listings and details of subpoenas issued by the applicant’s legal representatives around the time of the first and second trial listings.

120. In her affidavit affirmed 10 June 2026, Ms Pais described and annexed the transcript of the mention before Culver DCJ in the District Court on 11 March 2020 in which Ms Goodhand appeared for the applicant. It is clear from that transcript that prior to the trial the applicant had a complete copy of the Crown brief, save for the Crown case statement, which Ms Goodhand told Culver DCJ could be provided to him. As I have said, an annotated version of the Crown case statement, signed by the applicant, was attached to Ms Goodhand’s affidavit. Ms Pais was not cross-examined.

Evidence of Abbas Soukie

121. In his affidavit sworn or affirmed on 10 June 2026, Mr Soukie gave evidence that:

122. He received instructions to act for the applicant on 24 October 2018. In or around September or October 2019, carriage of the applicant’s matter was transferred to another solicitor within the same law firm, a Ms Heathcote. Mr Soukie stated he was not involved in the preparation for the applicant’s trial.

123. During the time in which he acted for the applicant, to the best of his recollection, he did not communicate with Sahil Bhuller; nor was he asked to. On his review of the applicant’s file, it appears there was a communication between Sahil Bhuller and Ms Heathcote on 4 February 2020.

124. Annexed to Mr Soukie’s affidavit was a copy of a file note recording the substance of Ms Heathcote’s conference with Sahil Bhuller on 4 February 2020, and a copy of a communication forwarded by Ms Heathcote to Sahil’s father on 5 February 2020, referring to the conference on 4 February. Those documents make no reference to the events of 5 September 2018 and contain no suggestion that Sahil Bhuller was able to add to what he said about that night or wished to qualify or expand what he said in his police statement. Mr Soukie was not cross-examined.

Evidence of Sophie Toomey

123. In her affidavit affirmed 11 June 2026, Ms Toomey gave evidence including:

124. She is the principal solicitor of Toomey Defence Lawyers, which acted for the applicant in his trial in 2020. She did not personally instruct counsel at the applicant’s trial.

125. Upon receipt of the brief of evidence from Ms Heathcote of Hanna Legal, instructions in respect of a vacation of the trial were sought from the applicant, and the applicant gave clear instructions to vacate the trial after being provided with extensive advice in respect of the need to issue subpoenas, conference him for the purpose of taking instructions, and generally prepare the matter.

126. Between March and October 2020, significant preparation was done for the trial, including issuing subpoenas, conferring with and taking detailed instructions from the applicant, reading the brief of evidence, and liaising with the DPP and police.

127. The applicant’s then partner attempted to pass on instructions from the applicant on several occasions. She was told that Toomey Defence Lawyers would not continue to respond, and that they would confer with the applicant directly.

128. Between the end of February 2020 and the trial, Toomey Defence Lawyers engaged in more than 29 booked gaol conferences with the applicant by telephone, AVL and in person. They also conferred with the applicant in the cells at the Downing Centre court complex on at least one occasion on every day of the trial.

129. The solicitor with carriage of the matter, Mr Hayden Woolf, left Toomey Defence Lawyers under unexpected circumstances. He did not return to Toomey Defence Lawyers and did not complete a file handover. Ms Toomey understands that Mr Woolf is no longer practising law in NSW and that he lives overseas. She has had no contact with Mr Woolf since that time. She does not have access to Mr Woolf’s notes taken during the trial, but has accessed emails from his email account with her firm and is privy to email correspondence between Mr Woolf and Ms Goodhand, and to the applicant’s “extremely detailed written instructions”.

130. When Toomey Defence Lawyers came into the matter, the applicant had been represented by Hanna Legal in a previous trial. Toomey Defence Lawyers were informed by Hanna Legal that the applicant had been provided with the full brief of evidence prior to that trial listing. Ms Toomey noted that the applicant could have, but did not, request a further copy of the brief in any one of the more than 50 conferences conducted with him between the date of Toomey Defence Lawyers initially being instructed and the last day of trial.

131. The applicant was incarcerated at all times during Toomey Defence Lawyers’ involvement. Toomey Defence Lawyers were not permitted to provide him with a computer or to take computers into gaol when visiting him. To Ms Toomey’s knowledge, the applicant was shown all videos relevant to and served in the matter in the Downing Centre cells.

132. All appropriate subpoenas were issued in the matter in accordance with the applicant’s instructions. All material proposed to be and ultimately relied upon was provided to the applicant when it was received. Subpoenas were “duly issued on [Vodafone], Facebook, and St George Bank”. Some of that material was received during the trial and was provided to the applicant in court as it became available.

133. A report was obtained by Professor Duflou to refute some of the complainant’s claims. A request was made to the OIC for all items which the applicant had requested on 19 April 2020 and for the complainant’s criminal history. Two psychiatric reports from forensic psychiatrist Dr Andrew Ellis were obtained for sentencing.

134. On or about 9 May 2020, the applicant signed instructions stating that he wished Toomey Defence Lawyers to continue to represent him. The applicant continued to instruct Toomey Defence Lawyers. At no time did Ms Toomey ever tell the applicant that Legal Aid would not fund another lawyer. At no time was Ms Toomey asked to contact Legal Aid to request the transfer of the matter to another lawyer. At no time did she do so.

135. She denied that the words attributed to her in the applicant’s affidavit of 19 August 2025 were ever said by her. She stated that she made no such representations to the applicant. If the applicant had requested that the matter be transferred to another lawyer, she would have indicated to him that he should contact the Legal Aid Commission to make such a request. At no time did she receive instructions to make such a request and at no time did the applicant indicate to her that he had made such a request.

136. She denied she ever told the applicant that he could not have the evidence. At no time did the applicant request documents that were not then provided. She understood that the applicant was in receipt of the brief of evidence in its entirety. Anything requested by the applicant that it was possible for Toomey Defence Lawyers to provide him with was provided.

137. Ms Toomey was cross-examined in this Court. She maintained that the applicant never asked her to speak to his brother Sahil. She reiterated that she had no recollection of ever saying words to the effect of, “I’m all you’ve got. Legal [A]id [won’t] fund you another lawyer”, and gave evidence that she did not say to Mr Bhuller that Legal Aid would not fund him another lawyer. She remembered “absolutely clearly saying to Mr Bhuller that if he wished to speak to Legal Aid, that the number for Legal Aid was on the phone at the jail”. She also noted that, beyond the 30 conferences which were booked there were “tens” of conferences where she was phoned by the applicant’s mother and his then partner, and thus there were “endless phone calls, text messages and other communications”.

138. Although cross-examination revealed some errors in Ms Toomey’s affidavit (which due to illness had only been completed immediately before the hearing), no submission was made that this Court should make findings about the credibility or reliability of Ms Toomey’s evidence.

Conclusion on admissibility of further evidence on the application

126. As I have noted, the applicant made no credit submission about the evidence of any witness and it is unnecessary that I make any credibility finding in order to address this application for leave to appeal.

Applicant’s submissions

127. The applicant’s chief submission under the sole ground of appeal he sought to advance was that, had the evidence contained in the affidavit of Sahil Bhuller of 2024 (that the applicant had left the complainant at his unit for 30 minutes on the night of 5 September 2018) been led at the applicant’s trial, the credibility of the complainant would, somehow, have been affected.

128. The applicant submitted that his trial miscarried because of conduct of the defence legal team, by, “in particular their failure adequately to present the defence case and failure to adduce evidence capable of significantly undermining the credibility of the Crown’s key witness, the complainant”.

129. The applicant submitted that, “[r]ealistically, the outcome of the applicant’s trial turned on the judge’s assessment of the honesty and reliability of the complainant. The central focus of the trial was her conduct and the circumstances of (and leading up to) her complaint to police.” The applicant argued that the new evidence “goes further” than the statement Sahil Bhuller provided to the police. It was submitted that “the failure to conference the witness and draw the complainant’s attention to the applicant actually leaving the apartment, is … a material issue and central to the assessment of the honesty and reliability of the complainant”. The applicant argued that it was necessary for counsel and the solicitors to bring these matters to the Court’s attention to present the applicant’s defence fully and fairly.

130. The applicant accepted that parties to litigation are generally bound by the conduct of their counsel, but that that principle is not absolute. It was argued that the applicant “could not have gained any forensic advantage from his counsel’s failure to adduce the relevant evidence”.

131. It was submitted that the 2024 evidence of Sahil Bhuller “about a material issue could have given rise to a reasonable doubt, if it had been placed before the trial judge”.

132. The only part of the complainant’s evidence identified by Mr Petrushnko, who appeared for the applicant in this Court, which was allegedly impeached by the 2024 version given by Sahil Bhuller was as follows:

“Q. In that state why didn’t you leave before it happened, before that sexual intercourse took place?

A. Because I didn’t think that I had the chance to. I thought well if he can do this to me there’s like he can go and grab my little sister off the street and murder her. He can go and you know rape my best friends of which he had said previously. Like he had told me that if I had ever left he would go and murder anybody in his way. You know he had on his computer he had my family’s and friends’ addresses and that kind of stuff so I thought like, huh, if I leave he can find them, he’s got, he’s got their information to find them, that’s all that was going through my head, that’s if I leave my friends are dead, my family’s dead, my little sister’s going to be raped, like, I’m sorry, but that’s why I didn’t leave ever because as I said, he didn’t, he didn’t hold me there physically. I could have walked out that door but I knowing that I knew that I wouldn’t be safe ever again, my family would never be safe, my little sister she might not have a life, so that’s why I didn’t leave because I was terrified for my family’s and friends’ safety more than I was my own if I’m honest because I thought if I can stay here and keep him happy then they won’t be touched. If I leave and I anger him or I make him upset in any kind of way I’m dead, they’re dead, and that’s all that was in my head was it was just a survival tactic. It was all a survival tactic.” (Emphasis added.)

133. At the hearing in this Court, Mr Petrushnko was asked to explain how the alleged period of the applicant’s absence of 30 minutes from the unit on 5 September 2018 could have borne upon any of the issues at trial. He said that the applicant’s submission, put at its highest, was as follows:

“RICHARDSON J: So just pulling that together. Given there was evidence below at multiple times when the complainant was in the apartment and the applicant was not there. How does the evidence given today impeach her credibility?

PETRUSHNKO: What was there your Honour is, on this particular occasion, his brother, his family came and he was gone for a rather extensive period of time, 30 minutes. Where it wasn’t a situation where he was with her, which she gives some evidence about when they used to go shopping, that he was always with her, but this was an occasion, we say your Honour, is that he has completely left her and he was with other people. In those circumstances, we said that could have been used in the cross-examination of the complainant and impeaching her credibility about why she maintained why she stayed in that apartment.”

Consideration

Incompetence of counsel

134. The seminal case with respect to incompetence of counsel is R v Birks (1990) 19 NSWLR 677, in which Gleeson CJ said at 685:

“2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

135. The onus is on the applicant to demonstrate the miscarriage of justice, and where it is contended that a miscarriage arose out of incompetence of counsel, the critical issue is not whether counsel erred in some way, but whether a miscarriage of justice has occurred: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79] and Ali v The Queen [2005] HCA 8; 79 ALJR 662 at [18].

136. The High Court did not qualify these principles in its decision in Brawn v The King [2025] HCA 20; 99 ALJR 872. In Smith (a pseudonym) v R [2025] NSWCCA 145 per Stern JA with Cavanagh and Yehia JJ said:

“[99] In Brawn v The King [2025] HCA 20 at [15] the High Court expressly declined to address ‘whether or not the establishment of an error or irregularity that is material in the sense explained above will be sufficient to establish a miscarriage of justice in all circumstances, including those circumstances where that error or irregularity was the product of, or contributed to by, the accused as a result of rational forensic decisions of their trial counsel’. Thus, the High Court did not qualify the principles set out in Nudd v The Queen and TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79]. Consistent with these authorities, whether there is a miscarriage of justice by reason of the conduct of counsel ordinarily depends upon an applicant establishing, in the first instance, that there was a material irregularity arising from that conduct.”

137. To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel’s conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial: Alkhair v R [2016] NSWCCA 4 at [31]. A comparison, between the course of action which the appellant submits should have been taken and the course which was taken, requires an objective inquiry: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [9]-[10] and [27]. There are some limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel’s instructions: Nudd at [10], [17].

138. The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open. Rational forensic decisions or strategies of trial counsel, determined objectively, do not give rise to a miscarriage of justice: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 at [34] and [56].

Ground 1(iii): Failure to conference Sahil Bhuller and adduce the evidence outlined in his 2024 affidavit

139. In Khoury v R [2011] NSWCCA 118; 209 A Crim R 509, Simpson J (with whom Davies J and Grove AJ agreed) said, citing R v Birks, that:

“[104] The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals.”

140. This is not a case in which it is necessary to identify the circumstances in which an allegation of incompetence of counsel affects the admissibility of new evidence: see the discussion in Xie v R [2021] NSWCCA 1; 386 ALR 371, at [432]-[439].

141. Assuming that the new evidence is admissible here, I doubt that had Sahil Bhuller been “conferenced” prior to the applicant’s trial he would have told those “conferencing” him that the applicant had left the unit for 30 minutes on the evening of 5 September 2018. In his statement to the police made on 27 September 2018, he said that he stayed at the unit for about half an hour to 45 minutes. In his 2024 affidavit, he asserted that he stayed for 45 minutes to an hour. The 2018 statement contained observations about the applicant’s and the complainant’s conduct during the visit but made no reference to the applicant leaving the unit at any time. The 2024 affidavit contains a precise account of the applicant leaving the unit for 30 minutes, which surely would have been relevant in recording his observations of the applicant’s and the complainant’s conduct during the visit. It may be, as the Crown submitted, that these inconsistencies, with an affidavit made 6 years after the event, “raise a significant question as to the cogency and reliability of the new evidence”.

142. It is, however, unnecessary to reach a concluded view about this matter. Assuming, favourably to the applicant, that the new evidence is admissible and if Sahil Bhuller been “conferenced” prior to the applicant’s trial he would have said precisely what was contained in his 2024 affidavit, that evidence was not important to any assessment of the complainant’s honesty or reliability. Sahil Bhuller’s new evidence, accepting it at its highest, did not have the capacity to undermine the complainant’s credibility or reliability.

143. The complainant gave clear evidence that:

144. she was never physically detained at the unit (“I could have walked out that door”);

145. she remained in the unit on occasions when the applicant was absent;

146. she was at times hopeful that the relationship with the applicant would work out; and

147. she withheld information about the applicant assaulting her from her own family.

148. To be clear, the complainant did not allege that she was physically detained at the unit on 5 September 2018 (or at any other time). To the contrary, her evidence was clear; she was not physically detained. So much is clear in the only passage of the complainant’s evidence relied upon by Mr Petrushnko quoted at [132] above.

149. Further, in circumstances where the complainant acknowledged that she withheld information about the applicant assaulting her from her own family, I fail to see how it is even arguably a matter affecting her credibility or reliability that she made no complaint about the applicant assaulting her to Sahil Bhuller on 5 September 2018.

150. There is another, fundamental, problem with this aspect of the applicant’s case. The trial judge did not find the circumstances of aggravation, being detention of the complainant, proven beyond reasonable doubt about the evening of 5 September 2018. Her Honour found that, with respect to 2–11 September 2018 (including 5 September 2018), the complainant at some points remained hopeful that the relationship would work and was prepared to work on it. That is, her Honour was satisfied that there was a reasonable possibility that the complainant remained in the unit during that period of the ten days (including 5 September 2028) for a reason not materially connected with the threats and violence.

151. Ms Goodhand persuaded the primary judge of the existence of a reasonable doubt about that issue. Having considered the trial transcript and all of the evidence sought to be led on this application, I find that Ms Goodhand did so courteously and competently. I reject the suggestion, made in writing in this Court but not repeated orally by counsel for the applicant, that Ms Goodhand’s representation fell in any way short of that expected of competent counsel.

152. If it were necessary to go further, I would conclude that Ms Goodhand’s decision to consent to the tender of Sahil Bhuller’s statement was a reasonable and forensically sound decision on the information available to counsel, falling well within counsel’s broad discretion. This was because:

153. the table created by Ms Goodhand for the purposes of advising the applicant demonstrated that consideration was given to adducing evidence from Sahil Bhuller and others from the applicant’s family;

154. on the basis of the information available to trial counsel, considering the real issues at trial, there was no forensic benefit to calling Sahil Bhuller as a witness. His statement was favourable to the applicant’s case and was admitted into evidence without challenge. The statement described Sahil Bhuller’s interactions with the applicant and complainant on several occasions, including noting where the applicant was affectionate towards the complainant, and that they appeared “inseparable” and in love;

155. the fact that Sahil Bhuller did not observe injuries on the complainant on 5 September 2018 did not undermine the complainant’s credibility, as there was no dispute that the applicant had assaulted the complainant on at least two occasions before that day and, at that time, the complainant still had injuries on her back from being whipped by the applicant, which would not have been observed by Sahil Bhuller.

156. calling Sahil Bhuller to give evidence also carried the risk that his evidence would be discredited. The stark contrasts between the versions in each of his statements may have been able to be exploited by cross-examination by the Crown (as a s 38 Evidence Act application almost certainly would have been made and may have succeeded). There was thus a forensic risk that calling Sahil Bhuller to give evidence could have rebounded against the applicant’s interests.

157. I would dismiss Ground 1(iii).

Ground 1(i) and (ii): Failure to investigate the matter; failure to take proper instructions from the applicant

150. The applicant’s new evidence was replete with exaggeration and hyperbole. His essential complaints were inconsistent with, and contradicted by, contemporaneous documentary evidence and the trial record. I would not accept the evidence of the applicant unless it was corroborated in some particular respect by independent evidence.

151. On all of the available evidence I have concluded that the applicant’s defence was conducted competently in the face of a strong Crown case and that the applicant has failed to demonstrate any irregularity in his trial. I have gathered the disparate complaints into separate groups.

Complaints about communications with legal representatives

152. The applicant’s complaints about difficulties in communications with his legal representatives lack precision and are contradicted by the available documentary evidence. None of the contemporaneous documents support the applicant’s submission that there was any delay in the provision of material to him, any unmet requests by him to be provided additional material, or any difficulty faced by him in providing instructions.

153. The records indicate that Ms Goodhand and her instructing solicitors had at least 18 conferences with the applicant before the start of the trial. Ms Goodhand’s evidence, which I accept, is that she also spoke to the applicant in the presence of her instructor on most days during the proceedings.

154. As noted above, an annotated copy of the Crown case statement was annexed to Ms Goodhand’s affidavit. This is an important contemporaneous document, obviously the product of many conferences with the applicant. The applicant made detailed comments on the statement and signed a final version. A table Ms Goodhand prepared is another important document showing her close attention to the issues in the case and the evidence and submissions which could be marshalled in the applicant’s defence.

155. It is clear that the applicant’s trial lawyers ensured he had a detailed understanding of the allegations made against him and the evidence which was to be led in the trial. I find that the applicant was able to and did give effective instructions to his trial lawyers.

156. I accept Ms Goodhand’s evidence that the applicant was “very difficult to obtain instructions from” and became increasingly so during the trial, and repeatedly requested that a large number of matters, which she judged to be irrelevant, be put to witnesses.

157. I accept that towards the end of the trial Ms Goodhand became concerned that the applicant had lost confidence in his legal representation, and that she obtained advice from Senior Counsel on 10 May 2021. Ms Goodhand gave evidence that she then spoke to the applicant, with Ms Toomey, and the applicant confirmed he had not lost confidence in them and wanted them to continue to represent him. I accept that evidence. It is fanciful to suggest that Ms Goodhand would have taken all of the steps she took only to ignore Senior Counsel’s advice. The trial transcript also supports Ms Goodhand’s evidence.

158. Ms Toomey’s evidence was prepared shortly before the hearing in this Court and apparently under some health challenges. Her affidavit contained some obvious errors in referring to relevant annexed documents. No submission was made that a credit finding should be made about Ms Toomey’s evidence and I do not propose to make such a finding. In truth, although she was the principal of the firm, Ms Toomey did not instruct in the trial and there were few genuine contests between her evidence and that of the applicant. By reason of the errors in the affidavit and the admitted heath challenges which Ms Toomey faced in preparing her evidence I nevertheless approach that evidence with some caution.

159. In cross-examination a number of issues of detail were raised with Ms Toomey. There is no occasion to determine all of those issues raised but one stands out. If, late in the applicant’s trial, Ms Toomey had said words attributed to her by the applicant, to the effect that Legal Aid would not fund another lawyer and that she was “all [he’s] got”, that would have been non-negligent advice in all the circumstances. That is, even if the conversation the applicant alleged happened between him and Ms Toomey did take place, this would not demonstrate a miscarriage of justice.

160. As to the other issues explored by counsel in this Court in cross-examination of Ms Toomey:

161. The trial record, including transcripts of directions hearings before the commencement of the trial, is inconsistent with the applicant’s assertion that he received “most of the crucial material used in the trial” for the first time the day before, or on the day, he was to give instructions. At the mention before Culver DCJ on 11 March 2020, the following exchange occurred between her Honour and Ms Goodhand appearing for the applicant:

“HER HONOUR: Let’s turn back, then, to subpoenas. Sorry, before I do, has the accused now received a complete copy of the brief in custody?

GOODHAND: Yes, your Honour. Sorry, excuse me. Yes, your Honour, except he doesn’t have the Crown case statement in the brief but he has the material.

HER HONOUR: But, that’s a matter that could be provided to him?

GOODHAND: Yes.” (Emphasis added.)

2. I reject the submission about no available evidence in relation to the NAB bank record (part of a defence exhibit). The applicant did not assert that there was any relevant aspect in the bank statement (apart from the cross-examination of the complainant about transactions recorded on 6 and 11 September 2018, which occurred at trial) that could have been deployed in support of his defence.

3. The applicant’s complaints about communications with his legal representatives do not establish a miscarriage of justice.

Material which the applicant says he has never seen

162. I reject the applicant’s assertion in his first affidavit that he received “most of the crucial material” during the trial, and his second affidavit that he has “never seen or received” a significant number of exhibits. Those assertions are inconsistent with the record of the trial. As noted at [120] and [160(1)] above, the applicant had the entire Crown brief long before the trial. To state the obvious, given the exhibits were tendered at trial, the applicant’s assertion to never have seen them cannot be correct.

163. In any event, the applicant has failed to demonstrate how any alleged lack of access to material adversely affected his ability to provide instructions, in circumstances where his legal representatives were able properly to deal with each piece of evidence the applicant alleged he did not receive. His counsel advanced no oral submission in this Court in support of any adverse effect on the defence case. The applicant’s complaints regarding the non-provision of materials are inconsistent with the contemporaneous documents and the record of the trial.

164. Even if I were to accept the applicant’s claims about the late provision or non-provision of materials, the applicant has not demonstrated how this adversely affected his case at trial. No miscarriage of justice was established.

Assertion that instructions were not followed

165. The applicant complained about a “significant lack of questioning and investigation” into his “version of events”. No real attempt was made by the applicant or his new advisors to identify in evidence or submissions any of these alleged failures or to explain how they possibly occasioned a miscarriage of justice.

166. Where an applicant alleges incompetence of counsel, attributing blame for a failure of trial counsel is pointless unless it can be related to a miscarriage of justice. As was observed in Nudd:

“[12] The reluctance of courts of criminal appeal to enter upon an assessment of the performance of trial counsel is well-founded in considerations both of principle and of pragmatism. That reluctance is reflected in the way in which courts respond to an argument that there has been a miscarriage of justice arising from the incompetence of counsel. Such arguments are becoming increasingly common. Nowadays, when most criminal trials and appeals are funded by legal aid, appellants are often represented by counsel who did not appear at the trial. By hypothesis, trial counsel lost; an appellant supported by legal aid will often want new counsel to conduct the appeal. The client may well be dissatisfied with the performance of trial counsel. Appeal counsel will have his or her own ideas about the way the defence case should have been conducted. Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice.”

167. The record of trial here demonstrated that Ms Goodhand’s cross-examinations were courteous, competent and obviously informed by instructions. They were often successful in the face of a strong Crown case.

General complaints about cross-examination and failures to “investigate”

168. The applicant’s claims about cross-examination and failures to “investigate” lack specificity. A number of them appear to be misconceived. None were addressed orally or in writing by the applicant’s counsel in this Court. I reject the allegations made by the applicant. Only some need be specifically addressed:

169. in relation to the applicant’s reference to his instructions to the effect that the complainant had hoped to “heal [their] relationship”, it is clear that this topic was pursued at the trial with success by Ms Goodhand. The complainant agreed that she had, during the period 1–11 September 2018, hoped their relationship would improve. This evidence caused the primary judge to have a reasonable doubt as to the complainant having been detained for that entire period, and the aggravating element of the sexual assault offence (that the complainant was deprived of her liberty) was not found to have been made out in relation to counts 7, 10, and 19;

170. in relation to the applicant’s complaint that subpoenas for a number of CCTV recordings were not issued, the applicant provided no evidence or argument as to how those recordings would have assisted his case. In any event, the OIC was cross-examined about the police’s failure to obtain the CCTV recordings, and Ms Goodhand made submissions about the inadequacy of the investigation in that regard being forensically advantageous to the applicant;

171. in relation to the applicant’s contention that his and the complainant’s Opal card data or “Bank Statement Records” would have assisted his case, the applicant failed to demonstrate how this was so;

172. in relation to the applicant’s complaint that the complainant was not cross-examined about a Facebook “threesome message”, Ms Goodhand’s omission of the topic from cross-examination was clearly appropriate given the matter was the subject of pre-trial submissions regarding s 293 (now s 294CB) of the Criminal Procedure Act and the primary judge ruled that she did not consider that material relevant; and

173. in relation to the applicant’s suggestion that there should have been “extensive” questioning about a graphic pornographic video, the complainant was cross-examined about this topic, and gave evidence that it was the applicant who “had actually wanted to do it, [she] did not”. The applicant had not pointed to any material to contradict the complainant’s responses.

174. The applicant did not demonstrate any miscarriage of justice.

Allegation relating to psychiatric funding

170. In response to the applicant’s claims that he was “misled” about the status of his Legal Aid funding to adduce psychiatric evidence at trial, the applicant did not explain how this evidence was even arguably admissible, let alone how it was crucial to challenge the complainant’s evidence.

Admissibility of evidence led on the voir dire

171. Although, as I have said, this is not the case to determine the circumstances in which an allegation of incompetence of counsel permits the tender of new evidence, the better course here is to admit the evidence, on the basis that I have taken it all into account as potentially relevant to a ground of appeal. Having done so, I have determined on the merits to reject the grounds of appeal which were advanced.

Conclusion and orders

172. From an examination of the record of trial, determined from the objective circumstances, the applicant has had a fair trial. Considered separately or together, the complaints advanced by the applicant do not demonstrate a miscarriage of justice. For the foregoing reasons, I propose the following orders:

173. Grant leave to appeal out of time.

174. Leave to appeal granted.

175. Admit the evidence led on the voir dire.

176. Appeal dismissed.

177. DHANJI J: I agree with Payne JA.

178. RICHARDSON J: I agree with Payne JA.

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