6(1)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Chamberlain (No 2) v The Queen (1984) 152 CLR 521
[1984] HCA 7
Ganiji v R [2019] NSWCCA 208
Hocking v Bell (1945) 71 CLR 430
Source
Original judgment source is linked above.
Catchwords
328578A
Criminal Appeal Act 1912 (NSW), ss 5(b)6(1)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Chamberlain (No 2) v The Queen (1984) 152 CLR 521[1984] HCA 7
Ganiji v R [2019] NSWCCA 208
Hocking v Bell (1945) 71 CLR 430[1945] HCA 16
Jones v The Queen (197) 191 CLR 439[1997] HCA 56
KBT v The Queen (1997) 191 CLR 417[1991] HCA 54
Keen v R (2020) 102 NSWLR 178[2020] NSWCCA 59
KRM v The Queen (2001) 206 CLR 221[2001] HCA 11
Libke v the Queen (2007) 230 CLR 559[2007] HCA 30
M v The Queen (1994) 181 CLR 487[1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348[1996] HCA 35
MFA v The Queen (2002) 213 CLR 606[2002] HCA 53
Morris v The Queen (1987) 163 CLR 454[1987] HCA 50
Pell v the Queen (2020) 268 CLR 123[2020] HCA 12
The Queen v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
R v Markuleski (2001) 52 NSWLR 82
Cullen v R [2022] NSWCCA 63 | Case summary | Zoe
[2001] NSWCCA 290
R v Stone, (unreported, 13 December 1954)
R v TK (2009) 74 NSWLR 299
[2009] NSWCCA 151
Raspor v The Queen (1958) 99 CLR 347
[1958] HCA 30
SKA v The Queen (2011) 243 CLR 400
Judgment (15 paragraphs)
[1]
Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter which could identify the complainant is prohibited.
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 24 July 2020
Before: Norton SC DCJ
File Number(s): 2017/339025
[2]
Judgment
SIMPSON AJA: The applicant seeks leave to appeal against his conviction in the District Court at Grafton on a count of aggravated sexual intercourse without consent. Leave is required because the proposed grounds of appeal involve questions of mixed fact and law: Criminal Appeal Act 1912 (NSW), s 5(b). By s 6(1) of the Criminal Appeal Act, an appeal against conviction is to be allowed if (relevantly) this Court is of the opinion that the conviction "is unreasonable or cannot be supported, having regard to the evidence", or that, "on any other ground whatsoever there was a miscarriage of justice".
As the relevant evidence is comprehensively set out in the judgment of Rothman J, which I have had the advantage of reading in draft, I am able to state the reasons for my conclusions more briefly than I otherwise would. I will confine my references to the evidence to such as is necessary to explain my conclusions.
The applicant stood trial on an indictment that contained seven counts of offences alleged to have been committed against the same complainant. Count 1 was of an offence of assault occasioning actual bodily harm, alleged to have been committed on or about 18 August 2017. Count 2 was of intimidation, alleged to have been committed between 1 July 2017 and 6 September 2017. The applicant was convicted of each of these offences, and he does not seek to appeal against either conviction.
Counts 5 and 6 respectively charged the applicant with sexual intercourse without consent in circumstances of aggravation, and assault, each offence alleged to have been committed on 7 November 2017. Count 7 charged the applicant with assault, alleged to have been committed on 8 November 2017. The applicant was acquitted on each of these counts.
Counts 3 and 4 are central to the proposed appeal. Each charged an offence of sexual intercourse without consent in circumstances of aggravation, alleged to have been committed in the course of a single episode on 6 November 2017. The circumstance of aggravation alleged in each case was that the applicant intentionally or recklessly inflicted actual bodily harm on the complainant. In the case of Count 3 the allegation was that actual bodily harm had been inflicted on the complainant immediately before the commission of the offence; in the case of Count 4 the allegation was that the actual bodily harm had been inflicted at the time of the commission of the offence.
The jury returned a verdict of not guilty to Count 3, and a verdict of guilty to Count 4. Bearing in mind that the applicant does not seek to appeal against the convictions on Counts 1 and 2, and that he was acquitted of Counts 3, 5, 6 and 7, it is only the conviction on Count 4 that is in issue in this application. Nevertheless, given the manner in which the grounds of appeal are pleaded, it will be necessary to say something about the nature of the case in relation not only to Count 4 but also in relation to the remaining counts.
By his grounds of appeal the applicant contends that the verdict of guilty on Count 4 is (i) "irrational and inconsistent with the verdicts on Counts 3, 5, 6 and 7, in particular Count 3" and (ii) unreasonable and unable to be supported having regard to the evidence.
As Rothman J has shown, the evidence established, uncontroversially, that the complainant and the applicant were, at the relevant times, living in a domestic relationship. The applicant was the owner, or part owner, of a café in which the complainant was employed. The applicant and the complainant were joint lessees of the unit in which they lived.
[3]
The Crown case
The assault the subject of Count 1 was committed when the complainant told the applicant that she did not want to live with him any longer and that she was looking for somewhere else to live. The applicant pushed the complainant across a table, punched her in the face and right eye with a closed fist, put his foot and knee on her back while she was on the floor, and pulled her hair. The complainant suffered bruises and a black eye as a result of the assault. She took photographs of the bruising, which she later showed to police.
During July and August the applicant told the complainant that he was her boss, that she could not leave because she would not get a reference for another job, and he would make sure she did not get another lease, and she could not go anywhere because if she did his friends would find her. This conduct was the subject of Count 2, intimidation.
The Crown case was that the offences the subject of Counts 3 and 4 were committed during the morning of 6 November 2017 (a Monday, when the café was closed). The complainant was in bed. The applicant demanded sexual intercourse with her, which she refused. The applicant punched the complainant in the leg (causing bruising sufficient to amount to actual bodily harm) and then sexually assaulted her, by inserting, in close temporal proximity, his fingers and a pencil into her anus.
The offences the subject of Counts 5 and 6 were alleged to have been committed the following evening, 7 November 2017. The Crown case was that the applicant pushed the complainant against a wall and pushed her over, causing her to hit her head on the bed frame railings. The applicant then removed the complainant's pants over her objection and penetrated her vagina with his penis, without her consent (Count 5). He then put his foot on the complainant's chest and stamped on her (Count 6 - assault).
Count 7 alleged assault. The Crown case was that, the following morning (8 November) the complainant feigned illness to avoid going to work in the café. The applicant tied a piece of fishing rope around the complainant's neck, tied it loosely to the bedhead, and spat on her.
The Crown alleged that, after the applicant left the house, the complainant untied herself and contacted Mr David Short, who was a customer of the café and who had previously offered her support. Mr Short picked the complainant up from the house and took her, first, to a real estate agency where the complainant transferred so much of the lease that was in her name to the name of the applicant (how this was done unilaterally was not explained), then took her to his home and telephoned police. Police attended and conducted an interview with the complainant, which was video recorded. The complainant was then taken by police to Maclean Hospital. At the Maclean Hospital the complainant was examined and assessed by a registered nurse, Melissa Chard. On 10 November Mr Short took the complainant to the Lismore Hospital where a routine sexual assault investigation was conducted by Dr Michael Douglas. On the same day the complainant made a statement to police.
[4]
The trial
The following is not intended to be a complete resume of the evidence in the trial. As indicated above, it is my intention to confine the evidentiary references to those necessary to an understanding of the arguments advanced and my resolution thereof. Full details can be found in the judgment of Rothman J.
As is conventional, the Crown prosecutor opened to the jury by outlining the case she proposed to make in respect of each count. With respect to Counts 3 and 4, she said:
"Starting with the Monday, which are counts 3 and 4 in the indictment, I anticipate [the complainant] will give evidence about how in the morning of 6 November 2017, which was a Monday, she was at home. Her and the accused don't work Mondays at the café.
It is alleged the accused wanted to have sexual intercourse with [the complainant]. I anticipate [the complainant] will give evidence that she told the accused to leave her alone and she didn't want to have sex. At that, it is alleged, the accused pushed and hit [the complainant] a number of times, injuring her and bruising her. [The complainant] told the accused to stop. The accused forced [the complainant] to the bed and forced [the complainant's] legs open. She resisted. The accused turned [the complainant] over on to her stomach and the Crown case is that the accused jammed his fingers into her bottom and she was in a lot of pain and also at this time that the accused put a pencil up her anus and she cried. During the penetration of her anus with the pencil the accused hit [the complainant] on the legs. She was saying, 'please don't.'"
The complainant then gave oral evidence from a remote location. She gave an account of how she came to be living with the applicant and of the assault by him on her on 18 August 2017 (Count 1). She said that she had attempted to terminate the relationship but that the applicant told her that she could not leave because she would not get another job and could not get another lease and could not go anywhere because his friends would find her (Count 2 - intimidation).
The complainant then gave an account of the events of 6 November 2016 when the offences the subject of Counts 3 and 4 were alleged to have been committed. It is necessary to record precisely what the complainant said of these events, which was as follows (as it appears in the transcript):
"I woke up in the room [bedroom] on Monday, and Luke came into the room and … smiled and [sic] me said I have got to give it to him sometime. [She understood this to mean that the applicant would like her to have sex with him].
When he took his pants off, I told him, 'I don't want to. Just please, I don't want to' and then …I started to cry and I said, 'I don't want to'. … He smiled and he came on to the bed and he tried - I pulled my legs together, 'cause I knew what was going to happen, and he tried to pull my legs apart with his hands and his elbows. And when I wouldn't open my legs, he started punching me in the leg. And he pulled my arm and turned me around and he pulled down my pants and he stuck a pencil up me anally. And then he stuck as many fingers as he could …
I kept asking him why, why would he do this, and he said I have to give it to him sometime and that's - and he told me I am pathetic and he tried - sorry. Yeah."
[5]
Ground 1
By ground 1 the applicant asserts that the verdict of guilty on Count 4 is "irrational and inconsistent" with the acquittals on Counts 3, 5, 6 and 7, particularly Count 3.
[6]
Inconsistency
A ground of appeal asserting miscarriage of justice by reason of what are said to be "inconsistent" verdicts (by which is sometimes meant a mixture of convictions and acquittals) is, essentially, a complaint that the verdict or verdicts of guilty is or are unreasonable and cannot be supported having regard to the evidence: MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at CLR p 365. The mere fact that a trial results in a mixture of guilty and not guilty verdicts is not sufficient, of itself, to demonstrate inconsistency. Unreasonableness in the case of a verdict or verdicts by reason of inconsistency with another or others must be said to derive from incompatibility of the verdicts with one another. As is well-known, unreasonableness of verdicts is to be determined by the application of the test stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. Verdicts of guilty asserted to be unreasonable because of inconsistency have, however, generated their own line of authority.
On behalf of the applicant reliance was placed on the judgment of the plurality in the High Court (Gaudron, Gummow and Kirby JJ) in Mackenzie at pp 366-368. It is necessary to divert for a moment to understand the background to the appeal in MacKenzie. Mr MacKenzie was a solicitor who had given evidence in the criminal trial of a client. As a result of the evidence he gave he was charged under s 328 of the Crimes Act 1900 (NSW) with two offences of perjury with intent to procure an acquittal, and, in the alternative, with two offences against s 327 of the Crimes Act of perjury simpliciter. An offence against s 327 consists in the making, in or in connection with any judicial proceeding, of any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true. Section 328 creates a more serious offence of perjury, the elevating factor being an intent to procure the conviction or acquittal of any person of any serious offence. The jury acquitted Mr MacKenzie of the more serious charges (under s 328) and convicted him of the less serious charges, under s 327. In the circumstances of the case, it was difficult to see how, if all of the elements of a s 327 offence were made out, intent to secure the acquittal of his client did not follow.
[7]
Ground 2: unreasonable verdict
The principles upon which a verdict of guilty will be set aside as unreasonable are well established. The starting point is invariably the decision in M v The Queen (referred to above) in which the following appears in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (Internal citations omitted)
The High Court has repeatedly returned to this statement of principle: see, for example MFA; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 23; Baden-Clay at [65], extracted above. As a result of observations made by Kirby J in Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21 at pp 147-150, adopted by all five members of the Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [10]-[12], the "unsafe and unsatisfactory" test applied in M is now more accurately formulated in the language of s 6(1) of the Criminal Appeal Act as "unreasonable or [unable to] be supported having regard to the evidence": MFA at [68]; SKA at [12]. The variation in language has not diminished the reliance on the seminal passages of M, which are not limited to the single paragraph extracted above.
A delicate balancing task is to be performed by a Court of Criminal Appeal confronted with a ground of appeal that asserts that a verdict of guilty is "unreasonable and cannot be supported having regard to the evidence".
On the one hand, as stated explicitly in the extract from M above, the test is whether the appellate court thinks (on the whole of the evidence) that it was open to the jury to be satisfied of the guilt of the accused. On the other hand, as also stated in the same extract, full regard must be paid to the role of the jury as "the body entrusted with the primary responsibility of determining guilt or innocence", and the advantage the jury has in seeing and hearing the witnesses.
[8]
Following the verdict of the jury of guilty on Counts 1, 2 and 4, the learned trial judge sentenced the applicant to an aggregate sentence, being a head sentence of 6 years and 6 months, with a non-parole period of 4 years, 2 months and 21 days. The non-parole period is exactly 65% of the head sentence, which was imposed after having found special circumstances.
The sentence was backdated approximately 10 months to take into account the period of time which the applicant had spent in custody. It commenced on 24 September 2019. The applicant's earliest release date is 15 December 2023.
The applicant does not appeal the sentence imposed. The appeal relates only to the verdict of guilty on Count 4, which is the second of the sexual assault charges that occurred on 6 November 2017.
[9]
Grounds of appeal
The grounds of appeal upon which the applicant relies in both the application for leave to appeal and, if leave be granted, the appeal itself, are:
1. Ground 1: The verdict of guilty on Count 4 is irrational and inconsistent with the verdicts on Counts 3, 5, 6 and 7, in particular, Count 3.
2. Ground 2: The verdict of guilty on Count 4 is unreasonable, and cannot be supported, having regard to the evidence.
The application for leave to appeal and the appeal were heard concurrently.
[10]
Evidence at trial
The complainant gave evidence in part through a video recording, being the Domestic Violence Evidence-in-chief (DVEC), which was recorded on 8 November 2017. That evidence was tendered without objection and became Exhibit A in the proceedings. There is also an aide memoire, which is the transcript of Exhibit A (hereinafter "aide memoire to Exhibit A").
Apart from the DVEC, the complainant gave evidence-in-chief orally. Some of the submissions in relation to the grounds of appeal relate to an alleged inconsistency between the evidence given orally and that given in the DVEC.
It is also suggested that there is an inconsistency in the complainant's evidence-in-chief, given orally, in and of itself. As a consequence of the provisions of s 578A of the Crimes Act 1900 (NSW), publication of the complainant's name or anything identifying or potentially identifying her is prohibited. I will not, therefore, summarise the evidence relating to her age, origin or current employment.
It is sufficient for present purposes to understand that the complainant originates in Queensland and moved to Yamba where she, for a while, lived alone. It was then necessary for her to move home, within Yamba, as a consequence of an issue with the rental accommodation in which she was then living. Ultimately, she moved into the residence then occupied by the applicant and his wife, together with their son who was approximately 9 or 10 years old, and the applicant's parents.
In early 2016, shortly after moving into the applicant's home, the applicant's father asked the complainant to leave the home because she was "destroying his family". The complainant moved into a motel. At the time the complainant was friends with both the applicant and his wife, who were also her employers at their café.
After a couple of weeks at the motel, the applicant came to stay with the complainant, saying his wife had kicked him out and he had nowhere to go. At first, the complainant slept on the floor because she had felt bad for the applicant. When the applicant's son came to stay at the motel, the applicant would get a separate motel room for himself and the son.
Because neither the complainant nor the applicant could find suitable rental accommodation, they decided that they would rent a place together. They moved into a furnished three-bedroom unit so there could be separate rooms for each of them and one for the applicant's son. Each of their names was on the lease. Their relationship became closer and they had an emotional connection.
[11]
Ground One
The applicant summarised the evidence upon which the Crown relied at trial in relation to Counts 3 and 4 as:
1. Oral evidence of the complainant given during the trial relating to each of the essential elements;
2. Parts of the complainant's statement made four days after the alleged offences read out in re-examination; and
3. Supporting evidence of other witnesses, mostly as to complaint and the existence of injuries, being the witnesses Mr Short, Ms Kenworthy, Ms Marambio, Dr Douglas and Senior Constable Hancock, summarised above. This evidence was either or both evidence as to complaint and evidence of injury.
According to the applicant, the Crown presented its case at trial "in a conjoined way, meaning it was potentially confusing and led to the irrational result returned by the jury". [35]
During a Voir Dire, the Crown tendered a bundle of documents, including the Crown Case Statement, which became Exhibit 2 on the Voir Dire. The Crown Case Statement alleged the fingers in the anus related to Count 3 and the pencil in the anus related to Count 4. [36] While the Crown Case Statement is not before this Court on appeal, that summary of the Crown Case Statement is not contested.
There is also no doubt that the Crown treated the penetration by the pencil and the penetration by the fingers as part of the one course of conduct. If each occurred in the manner described by the complainant, then unarguably they were part of the one course of conduct. The applicant complains that this conflated the two charges.
Notwithstanding that submission, the effect of the guilty verdict on Ground 4 and the not guilty verdict on Ground 3 discloses that the jury did not treat each offence, being Counts 3 and 4, as one offence or conflate the two. Nor did they fail to deal with each offence separately. The applicant concedes that whatever distinction occurred in relation to the timing of the infliction of actual bodily harm, under the case presented and determined by the jury, it was irrelevant. It was the same harm inflicted in relation to both Counts 3 and 4.
On the other hand, the applicant relies upon what is alleged to be an inconsistency in the evidence as it was presented. The applicant submits that the complainant gave evidence in relation to Counts 3 and 4. [37] The applicant submits that the evidence of the complainant was to the effect that the applicant was drunk; he demanded sex; and, when she refused, he hit her legs and penetrated her with a pencil and then digitally with his fingers. The complainant, on the summary provided in the submission provided by the applicant, then described the applicant punching her thigh again.
[12]
Ground 2; unreasonable verdict
Effectively, the applicant relies on the submissions advanced in relation to Ground 1 in support of Ground 2; the unreasonable verdict ground. Over and above those submissions, the applicant points to a number of other features of the Crown case that cast doubt on the verdicts in relation to Counts 3 and 4. These included:
1. No mention by the complainant of the acts charged in Counts 3 and 4 during the DVEC video made on 8 November 2017. [46] The applicant submits that the account given in the DVEC conflates the allegations of physical assault in Counts 1 with Counts 3 and 4; and makes no mention of anal penetration.
2. The applicant also relies upon the complainant's denials during the triage at Maclean Hospital. In examination in chief, the complainant stated there was blood coming from her anus after the incident. However, the complainant denied any bleeding to nurse Chard when in triage on 8 November 2017. [47] This, however, was limited to "recently", which may explain the difference.
3. The applicant also relies upon the complainant's denials of the nature of the relationship with the applicant. In cross-examination, the complainant consistently denied being in a "romantic relationship" with the applicant in 2016 and 2017, notwithstanding the numerous references to romantic acts, messages and sentiment.
4. The complainant, on the submission of the applicant, admitted to writing false claims in her journal about the applicant sexually abusing her since November 2015. It is submitted by the applicant that this casts further doubt on her credibility.
5. The applicant relies upon the text messages sent by the complainant on 7 November 2017. The complainant sent two text messages to her mother on 7 November 2017. Those text messages are referred to earlier in these reasons and the applicant submitted that the content of the text messages are inconsistent with the events recounted as having occurred on 6 November 2017. Particular reliance was placed upon the reference to a job interview on 8 November 2017.
6. The applicant relied upon the reasonable hypothesis that explains the injuries sustained by the complainant. In that regard, the applicant relied upon the evidence of the applicant's mother as to the manner in which the injuries occurred, being, in relation to the eye, falling off the toilet and hitting the toilet roll; and, in relation to the legs, bruises resulting from a table falling on the complainant's leg. These accounts were, the mother said, given by the complainant to her.
[13]
Applicable principles
There is no contest between the parties as to the principles to be applied in determining each of the grounds of appeal. Whether a verdict is unreasonable depends upon whether the Court, on appeal, determines that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [48]
The foregoing is not to be applied formulaically and depends not upon whether, as a matter of law, there was evidence that could satisfy each of the elements of the offence. Rather, it depends upon whether on the whole of the evidence there should have been a doubt of the kind that would give rise to an acquittal. That question is answered where, bearing in mind the advantage that the jury has in observing the evidence adduced, the appeal court has such a doubt.
Bearing in mind all the evidence in the trial, the question that this Court must answer is whether the jury must have entertained a doubt about the applicant's guilt. In expressing the test in that manner, it must be borne in mind that the question is not whether the jury could have entertained a doubt but whether it was required to have entertained a doubt. [49]
In arriving at the answer to the foregoing question, the Court is required to undertake its own independent assessment of the evidence and determine for itself whether a doubt should have existed. [50]
Inconsistency of verdicts is generally expressed more strictly, but given the nature of the test the Court needs to apply in determining unreasonable verdict, the existence of not guilty verdicts in relation to some of the charges is a matter that the Court is entitled, and required, to take into account in determining whether the other charges are such that there should have been a doubt as to the guilt of the accused/applicant.
In the classic expression of the principle for inconsistent verdicts, the High Court expressed the view that, in the circumstances before it, the verdicts were not so inconsistent "as to render the convictions unsafe and unsatisfactory". [51] In Mackenzie v the Queen, the High Court said:
"The argument that two or more jury verdicts are inconsistent (or, as sometimes described repugnant or illogical) ordinarily arises, in the context of criminal trials, when it is suggested that a conviction resting upon one of the verdicts is thereby demonstrated to be unsafe or unsatisfactory."
[14]
Application of principles to appeal
At its kernel, the applicant relies upon confusion in differentiating between Counts 3 and 4 and the alleged inconsistency between the verdicts. Essentially, the applicant submits that if the complainant were not to be believed in relation to Count 3, then, given that it was part of the same course of conduct, the complainant ought not to have been believed in relation to Count 4.
I accept that in opening the Crown put the timing of the insertion of the pencil and of the fingers on the basis of the statement provided by the complainant to police on 2 November 2017, which was in the reverse order to that put, in closing. In and of itself, such a misstatement of the timing, in opening, compared to the closing address, which was based upon the evidence of the complainant at trial, does not give rise to confusion.
There is no suggestion that there was a denial of natural justice or that there was a departure by the Crown from the allegations that were made in the charges. The applicant faced the same charge at the end of the trial as he did at the beginning of it.
If there were confusion in the opening address, such confusion was not, in my opinion, in existence at the time that the jury was required to deliver its verdict.
First, the Crown, in its closing address, made clear that Count 3 related to the insertion of the pencil and Count 4 related to the insertion of the fingers. Of necessity, some description of the elements associated with each of Counts 3 and 4 were combined as a result of the fact that they were each part of one course of conduct. Nevertheless, the Crown was clear in the closing address as to the facts upon which the Crown relied for Count 3 and the facts upon which it relied for Count 4.
Even if, contrary to the view I take as to Crown's closing address and its clarity, there was some confusion, any such confusion was expressly and clearly overcome by the clear and precise directions in the summing-up by the learned sentencing judge. The learned sentencing judge went to some lengths to ensure that the facts upon which the Crown relied and upon which the jury were to determine guilt or otherwise, in relation to Count 3, were set out. Those facts related to the insertion of the pencil. Quite separately, the learned sentencing judge set out the facts upon which Count 4 relied and upon which the jury were to determine guilt in relation to Count 4 and it related to the insertion of fingers.
[15]
Endnotes
Appeal Book, p 156-157; Tcpt, 26 February 2020, p 7-8.
Appeal Book, p 157; Tcpt, 26 February 2020, p 8(38).
Appeal Book, p 157; Tcpt, 26 February 2020, p 8(48-49).
Appeal Book, p 159; Tcpt, 26 February 2020, p 10(49-50).
Appeal Book, p 160; Tcpt, 26 February 2020, p 11(10-11).
Appeal Book, p 160; Tcpt, 26 February 2020, p 11(18-26).
Appeal Book, p 160-161; Tcpt, 26 February 2020, p 11(49-50)-12(1-3).
Appeal Book, p 161; Tcpt, 26 February 2020, p 12(7-8).
Appeal Book, p 161; Tcpt, 26 February 2020, p 12(38).
Appeal Book, p 162; Tcpt, 26 February 2020, p 13(32-33).
Appeal Book, p 162; Tcpt, 26 February 2020, p 13(47-48).
Appeal Book, p 163; Tcpt, 26 February 2020, p 14(47-48).
Appeal Book, p 165; Tcpt, 26 February 2020, p 16(22-25).
Text message sent on 7 November 2017 at 6.48.18 (am), Appeal Book p 609.
Appeal Book, p 224; Tcpt, 27 February 2020, p 75(17).
Appeal Book, p 230; Tcpt, 27 February 2020, p 81(38).
Appeal Book, pp 645-660.
Appeal Book, pp 662-670; Exhibit 4.
Appeal Book, p 672; Exhibit 5,
Appeal Book p 302(4-11); Tcpt 28 February 2020, p 153.
Appeal Book, p 309; Tcpt, 28 February 2020, p 160().
Appeal Book, p 331; Tcpt, 2 March 2020, p 182(4-5).
Appeal Book, p 332; Tcpt, 2 March 2020, p 183(14-19).
Appeal Book, p 334; Tcpt, 2 March 2020, p 185(40).
Appeal Book, p 337; Tcpt, 2 March 2020, p 188(30-31).
Appeal Book, p 351; Tcpt, 2 March 2020, p 202.
Appeal Book, p 425; Tcpt, 3 March 2020, p 276(14).
Appeal Book, p 431; Tcpt, 3 March 2020, p 282(23).
Appeal Book, p 435; Tcpt, 3 March 2020, p 286(38-39).
Appeal Book, p 443; Tcpt, 3 March 2020, p 294(36-37).
Appeal Book, p 463; Tcpt, 3 March 2020, p 314(42-43).
Appeal Book, p 464; Tcpt, 3 March 2020, p 315(7).
Appeal Book, p 464; Tcpt, 3 March 2020, p 315(18-19).
The complainant said that the applicant was punching her on the thigh "over and over with his fist". She said:
"And then when I - after he did that to me with his fingers and the pencil, he turned me back around and started punching my leg again and again because I kept trying to keep them closed …
He said I should just give him sex, and I said I told you I don't want to have sex. I'm sorry, I don't want to."
Asked whether anything happened after the applicant started hitting her legs, the complainant answered:
"My pants were down and his pants were off and he tried to, he tried to put his penis inside me. And he got frustrated again when nothing was happening and he punched me again on the leg, over and over."
The complainant said that the applicant slammed the door so that it jammed and she was unable to get out of the room until, after a couple of hours, the applicant let her out. She went to the bathroom where:
"I cleaned up some blood that had come out from behind."
The complainant then gave accounts of the offences the subjects of Counts 5, 6 and 7. The substance of the complainant's evidence in respect of these counts is set out above at [12] and [13] and need not here be repeated.
The offences the subject of the indictment were, within the meaning of s 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), "domestic violence offences". The video recording of the interview of the complainant by police at Mr Short's home on 8 November was a "recorded statement" within the meaning of s 289D of the Criminal Procedure Act 1986 (NSW) (commonly referred to as a "Domestic Violence Evidence in Chief - 'DVEC' statement") and was, without objection, admitted into evidence pursuant to s 289F of the Criminal Procedure Act. At the conclusion of the complainant's oral evidence recounting the circumstances of the offences she alleged had been committed, the DVEC recording was played to the jury and the jury was given, as an aide memoire, a copy of the transcript thereof. In that transcript, with respect to the events of 6 November, the following is recorded:
"Q64: Do you agree you've got a large bruise on your left arm?
A: Yes.
Q65: Do you agree you've got large bruising on your left, upper thigh?
A: Yes.
Q66: OK. Can you tell me how you obtained those bruises?
A: He raped me and then beat me up.
Q67: When was that?
A: On Monday [6 November]
Q68: Can you tell me what happened?
A: He had a few drinks, it would have been about 8 o'clock. Monday is the day we don't go to work.
…
A: And he wanted sex, and I didn't, didn't want to, and he didn't take to that kindly. He accused me of cheating on him, and …
… He just kept hitting. He kept pushing and he kept hitting.
Q 72: Whereabouts did this happen?
A: In the bedroom.
…
Q90: And I think you were saying that he wanted to have sex. Do you agree with that?
A: Yes. He's already been drinking.
Q91: Yep.
A: And I didn't want to, and he was angry because I hadn't wanted to for a while, and he just, he just hit me. He started hittin' me in the leg, tryin' to force my legs open. He pushed me against the wall and he just kept pushin' me over, and he keep beatin' me in the same spot, the same spot, until I just gave in.
Q92: When you say, Gave in, what, what do you mean by that?
A: Just gave him what he wanted, ok.
Q93: And what was that, [first name of complainant]?
A: Sex, ok.
Q94: You're right, mate, just take, take a breather.
A: I don't want to think about it any more."
Of the events the complainant alleged took place on 8 November, the following is recorded:
"Q129: ... And anything happened last night at all?
A: I, kind of, I have been planning to leave and I, kind of, know today was going to be the day, so I tried to just make everything seem as normal as possible.
Q130: … Yep.
A: This morning he didn't like that. I said, told him I'm not comin' to work. Told him I don't feel well.
Q131: Yes.
A: And so he grabbed the rope that he uses for his fishing line and he put it around my neck and he tied it to the bed, and he said you can't move now, so your gonna have to say here. I'll be back at 11.00. I don't think he expected me to go. I'm tellin' him I want to go, but I don't think he, he never thought I would …"
It may be noted that, in this recorded statement, the complainant did not say anything about the events of 7 November, when the offences the subject of Counts 5 and 6 were alleged to have been committed. Nor did she expand on her allegation that, on 6 November, the applicant "raped me and then beat me up"; specifically, she made no mention of anal intercourse or assault.
The statement made by the complainant to police on 10 November was not in evidence in documentary form. However, following cross-examination of the complainant, the Crown Prosecutor was permitted, pursuant to s 108(3) of the Evidence Act 1995 (NSW), to adduce parts of the statement in re-examination, including those parts in which she recounted what she said had taken place on the morning of 6 November.
From that re-examination it can be seen that, in that statement, the complainant said:
"[15] Luke came back into the bedroom at about 7 am and he wanted to have sex with me but I did not want to have sex with him. I just didn't want to, I was crying because I know what was going to happen, as it was not the first time. That is when I told him to stop. He got angry and he started hitting me and he just kept hitting me on the same leg, my left leg. I did not have any bruises there before Luke hit me. He just didn't listen to me.
[16] Luke forced me down on the bed we were in, and he tried to open my legs. He did that with his hands and his elbow. I was wearing a pair of Luke's boxer shorts at the time, as he liked me to wear those. I did not have a top on that time. I was wearing a bra like sports bra, Luke wasn't wearing anything.
[17] I just cried and I tried to push him off. I tried to keep my legs together. He turned me over and he jammed as many fingers as he could in my bottom. I felt a lot of pain and I started bleeding. He had a pencil, I don't why he had a pencil, and he put that up me anally. I was just crying and I didn't know what to do and I just laid there and cried."
The re-examination shows that, in the statement, the complainant went on to give an account of subsequent events, including what she said happened on 7 November.
Nurse Chard, who examined the complainant at the Maclean Hospital, recorded that she was:
"… emotional, teary and easily frightened and fidgety. Curled up into herself and unwilling at first to talk to staff".
Nurse Chard recorded that the complainant told nursing staff that there had been no recent sexual assault, and that she had had no rectal bleeding "for a while". Nurse Chard noted bruising to the complainant's right arm, left arm, left breast, left thigh and scratches to the left abdomen.
There was significant evidence from other sources (specifically, from Mr Short and his partner Ms Kenworthy) that the complainant had been observed at times to have had injuries, including a black eye and bruising.
A police officer (Detective Senior Constable Scott) gave evidence that, on execution of a crime scene search warrant on 9 November, blood staining was located on the sheet of the bed on which the complainant said that the assaults of 6 November had been committed, and on the wall against which the complainant said that the applicant had pushed her in the incident of 7 November. Uncontested evidence of a forensic biologist established, to a high degree of probability, that each blood stain originated from the complainant.
During the course of the evidence of Detective Scott (who was the last prosecution witness) the jury sent a note asking whether a pencil had been found. Detective Scott gave evidence that a second crime scene search warrant, in which one of the items specifically mentioned was a pencil, had been executed on 15 November. No pencil was located. Forensic analysis of the rope the complainant said had been used in the commission of the offence the subject of Count 7 disclosed DNA consistent with that of the complainant, but not that of the applicant.
After the Crown Prosecutor's final address, and in preparation for her summing up, the trial judge raised some issues for clarification. One of these concerned the manner in which Counts 3 and 4 were to be put to the jury. The Crown Prosecutor confirmed (without dissent from counsel for the applicant) that Count 3 concerned the allegation of penetration of the complainant's anus with a pencil; Count 4 concerned the allegation of penetration of the complainant's anus with the applicant's fingers. The trial judge so instructed the jury in clear directions, both oral and written. It is therefore apparent that the jury found the applicant guilty of the allegation of sexual intercourse by penetration with his fingers, and not guilty of the allegation of sexual intercourse by using a pencil.
Mr MacKenzie appealed against the convictions, one ground of the appeal being that the convictions on the less serious charges were inconsistent with the acquittals on the more serious charges, there being no basis on which it could reasonably be said that the evidence given by him satisfied all of the requirements of s 327 without also satisfying the additional requirement of intent, to constitute more serious charges under s 328.
In that context, the plurality in the High Court dealt, in more general terms, with "inconsistency" of verdicts. Their Honours drew a distinction between cases of "legal or technical inconsistency" on the one hand, and cases of "suggested factual inconsistency" on the other. Their Honours pointed out that "factual inconsistency" may be suggested as between different verdicts affecting the same accused, and different verdicts affecting co-accused or persons tried separately in relation to connected events.
I do not understand the applicant to contend that the inconsistency on which he relies is "legal or technical" inconsistency. Rather, he suggests "factual inconsistency". With respect to "suggested factual inconsistency" Gaudron, Gummow and Kirby JJ stated 6 general propositions derived from a review of the relevant cases, including:
"3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness." (p 366)
Their Honours cited the decision of Devlin J in R v Stone, (unreported, 13 December 1954), to the effect that the test is whether an appellant can:
"… satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
Their Honours also recognised "a residue of cases" where different verdicts returned by the jury represent, on the public record,
"… an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law."
Their Honours added:
"It is only where the inconsistency arises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends on the facts of the case'." (proposition 5, p 368, internal citations omitted)
Their Honours then noted that the obligation to establish inconsistency rests on the person making the submission, and that, where inconsistency is found between a verdict or verdicts of acquittal and a verdict or verdicts of guilty, the appellate court may not (statute apart) disturb the acquittal, and concluded, that in such a case:
"It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case." (proposition 6, p 368).
A countervailing consideration, stated in proposition 4, lies in the respect for, and general satisfaction with, the function of juries, leading to a reluctance to attribute inconsistency to different verdicts. Their Honours said:
"… Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count, a function which has always been open to, and often exercised by, juries. … In R v Kirkman [(1987) 44 SASR 591 at 593], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic to the verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'" (pp 367 - 368, internal citations omitted)
Gaudron, Gummow and Kirby JJ endorsed those remarks as "practical and sensible".
As was recognised in proposition 4 of MacKenzie, juries are regularly, and properly, directed that each count must be considered separately and with respect to the evidence that supports (or otherwise) that count: see, for example, KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [36]. Juries are also routinely, and properly, directed that it is open to them to accept some parts of a witness's evidence and to reject other parts: KBT v The Queen (1997) 191 CLR 417; [1991] HCA 54.
The jury in this case was appropriately directed as to each of these well-established principles. There is no reason to doubt that this jury properly adhered to those directions. Before disposing of this ground of appeal however, I should say something about the submissions made on behalf of the applicant.
Those submissions included:
"[68] Regrettably, the Crown presented the case against the applicant in relation to counts 3 and 4 in a conjoined way, meaning it was potentially confusing and led to the irrational result returned by the jury.
…
[70] In the opening address the Crown Prosecutor foreshadowed it would ask the jury to accept that the two acts constituting sexual assault without consent occurred during the same course of conduct and referred to both counts as though they occurred almost simultaneously, conflating the two charges.
…
[82] Despite the trial judge separating the elements of count 3 and 4, the result of the imprecise way in which the evidence relating to counts 3 and 4 was presented and the way in which the Crown referred to them, mean that the only logical verdicts could have been not guilty of both, or guilty of both. The jury's decision is not rational. It is inconsistent and 'strongly suggests a compromise of the performance of the jury's duty'.
[83] The doubts maintained by the jury in relation to count 3 ought to have caused the jury, undertaking its task properly, to have doubts about count 4: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186]-[188].
…
[85] In all the circumstances, it is not easy to see a point of rational differentiation between the acquittal on Count 3 and the conviction on Count 4." (Italics in original).
Paragraphs [68] and [70] are, to say the least, puzzling. The Crown case was, indeed, that the two offences charged by Counts 3 and 4 had been committed, not simultaneously, but in quick succession. There was no conflation of the charges; nor was there any confusion about what the Crown alleged. Any confusion over which count on the indictment related to which allegation was resolved by the trial judge's clear directions, about which no complaint was, or is, made.
The submissions also appear to assert that variations in the evidence and the way the Crown had explained the case it made denoted confusion. For example, reference was made to a Crown Case Statement, which, it was said, had identified Count 3 as the count alleging digital penetration and Count 4 as the count alleging penetration by the use of a pencil (the reverse of what was finally put to the jury). The Crown Case Statement was not in the materials provided to this Court, and no attempt was made on behalf of the applicant to make it available. Accepting, for present purposes, that the Crown Case Statement did identify the counts as asserted, there is no reason to think that the reversal of the sequence in the manner in which the counts were presented to the jury caused any confusion. The Crown Case Statement was not before the jury; the jury were told, clearly, that Count 3 related to the allegation of penetration by a pencil, and Count 4 to digital penetration.
Attention was also drawn to what was said to be a reversal of the sequence of events in the complainant's own accounts. In her oral evidence she said that the applicant "stuck a pencil up me anally" and "then he stuck as many fingers as he could". This, it was submitted, was a reversal of the sequence she had given in a statement of 10 November. That is incorrect. Although, in [17] of the statement, she first mentioned the digital penetration, and then the use of the pencil, her account is not properly interpreted as sequential.
In any event, even if the statement should be construed as intended to state a sequence of events, the sequence is of no importance. What is important is that the jury were left in no doubt as to which count on the indictment related to which allegation. Which happened first was immaterial.
The proposition, in [82] of the submissions, that "the only logical verdicts could have been not guilty of both, or guilty of both" was not developed and has no rational foundation. While the two counts were of offences said to have been committed as part of a single course of conduct, they were separate and distinct, and were clearly put to the jury as such.
There was no inconsistency in the verdicts, and nothing irrational about the jury being satisfied, to the criminal standard, of the guilt of the applicant on one but not the other.
Although no reference was made in the submissions to the 1997 decision of the High Court in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, it is apparent that pars [83] and [85] were intended to invoke the reasoning in that case.
Mr Jones was charged with three counts of sexual intercourse with a child who was a pupil at a gymnastic academy at which he was an instructor. He was convicted of the first and third counts and acquitted of the second. The prosecution depended significantly, if not entirely, on the evidence of the complainant. In a joint judgment Gaudron, McHugh, and Gummow JJ observed that there was nothing in the evidence of the complainant or the surrounding circumstances that gave any ground for supposing the complainant's evidence to be more reliable in relation to Counts 1 and 3 than it was in relation to Count 2. Their Honours found it difficult to see how it was open to the jury to be convinced beyond reasonable doubt of the guilt of Mr Jones with respect to Counts 1 and 3 but not to Count 2. The appeal was upheld and the convictions quashed.
A number of decisions that followed Jones appeared to reflect a view that that case decided that the rejection by the jury of a complainant's evidence in relation to counts that resulted in acquittal involved "a fatal diminution in the complainant's overall credibility", thus requiring the Crown on appeal, if it were to maintain the guilty verdict or verdicts, to point to circumstances that could positively restore the complainant's credibility on the counts that resulted in conviction, or to identify some rational basis for the jury having distinguished between the counts that resulted in conviction and those that resulted in acquittal: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [204].
That perception of the decision in Jones was put in perspective in Markuleski, in which both Spigelman CJ and Wood CJ at CL closely examined, not only Jones, but a series of cases in which it had purportedly been applied. This is not the occasion to repeat what said in that exercise. The conclusions of Spigelman CJ and Wood CJ at CL will be sufficient. Spigelman CJ said:
"[31] Nothing in Jones casts any doubt on the appropriateness of a jury accepting a witness's evidence in one respect, while retaining a reasonable doubt about the commission of the events about which that same witness is the only substantive witness.
[73] The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant's evidence on one count, ought to have had such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case.
[74] It is not, however, easy to formulate principles as to when a jury should conclude that a reasonable doubt on any count, notwithstanding the complainant's evidence in that matter, means that the jury ought to have a reasonable doubt about other counts, about which the only evidence is from the complainant.
…
[78] There are cases in which nothing at all appears to differentiate the complainant's evidence, which the jury accepted beyond reasonable doubt, from the evidence which the jury did not so accept. In such a case the MacKenzie test of 'logic and reasonableness' is not satisfied."
Wood CJ at CL said:
"[233] … I am of the view that the fact of differing verdicts is but one aspect of the review which an appellate court must conduct, and that it should take its place alongside all the other circumstances of the case.
[234] There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness."
His Honour gave examples of a number of circumstances in which it may be thought that the jury "looked with real disfavour" upon the evidence of the complainant or central witness, followed by a number of examples where, conversely, it may be possible to identify a possible basis for differentiating between verdicts.
It may be observed that [186]-[188] of Markuleski, relied on by the applicant in [85] in support of the proposition that the doubt maintained by the jury in relation to Count 3 ought to have translated into a doubt in relation to Count 4, say nothing about that issue. That passage in Markuleski is concerned with directions that should be given to the jury. No ground of the proposed appeal challenges the adequacy of the trial judge's directions in this, or any other, respect and, indeed, the trial judge gave a direction of the kind proposed in those paragraphs.
By majority, the appeal in Markuleski was dismissed and the verdicts of guilty upheld. A contention put to the High Court in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 that Markuleski was wrongly decided was rejected: at [32].
MFA was a case in which the accused was charged with nine sexual offences against a male juvenile complainant, the offences allegedly having been committed on four separate occasions. The accused was acquitted of 7 counts and convicted of two.
Invoking what were said to be the Jones principles, it was argued on behalf of MFA that the verdicts of guilty were inconsistent with the verdicts of not guilty and were therefore unreasonable. I extract, from the joint judgment of Gleeson CJ, Hayne and Callinan JJ, a lengthy passage which is pertinent to the present case:
"34. Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but requires something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman [(1987) 44 SASR 591 at 593], and referred to in later cases [including MacKenzie]: it may appear to a jury, that although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
35. It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on others, is unreasonable, or cannot be supported, having regard to the evidence."
Since publication of the decision in MFA s 55F has been introduced into the Jury Act 1977 (NSW), permitting, in some criminal cases, majority verdicts. The amendment does not affect the reasoning in [34] of MFA; even in a case where a majority verdict is permitted, each juror participating in the majority verdict must be satisfied beyond reasonable doubt of every element of the offence.
Gleeson CJ, Hayne and Callinan JJ in a joint judgment, and McHugh, Gummow and Kirby JJ in a separate concurring joint judgment, found that the different verdicts were adequately explained by the existence of some supporting evidence for the counts that resulted in conviction and the absence of such supporting evidence for the counts that resulted in acquittal: [36], [87].
More recently, in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court (constituted by French CJ, Kiefel, Bell, Keane and Gordon JJ in a joint judgment) emphasised the importance of the role of the jury in determination of criminal charges and restated the importance of adherence to the principle that jury verdicts are not lightly to be disturbed. Specifically, their Honours said:
"65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E (1) of the Criminal Code [the Queensland counterpart of s 6 of the Criminal Appeal Act] is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. …
66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" (internal citations omitted)
As a result of the searching analysis by Spigelman CJ and Wood CJ at CL in Markuleski, and the passage from MFA extracted above, it is now accepted that, even in a case where proof of all counts depends on the evidence of one witness, conviction on one count (or more than one count) accompanied by acquittal on one count (or more than one count) does not, without further analysis, demonstrate inconsistency: Ganiji v R [2019] NSWCCA 208 at [13] per Basten JA with whom Button and Lonergan JJ agreed, quoted by McCallum JA in Keen v R [2020] NSWCCA 59 at [9] (Wilson and Cavanagh JJ concurring).
As I suggested in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128], an apparently inconsistent conviction may be explained when a basis for an acquittal is understood. In a separate but concurring judgment in TK, McClellan CJ at CL said:
"6. It seems to me that there are problems in an appellate court concluding that because a jury does not convict on one or more counts any conclusion as to the general credit worthiness of a complainant can be drawn. As the judgments in R v Markuleski point out there may be many reasons why a jury does not convict on a particular count … . It is a very significant step to conclude that the reason for the jury's decision to acquit on any count is that they were so unable to accept the complainant's evidence on that count that her evidence was not capable of founding a conviction on another count. The consequence of such a decision by an appellate court is that the jury has not been faithful to the fundamental directions from the trial judge, namely that the Crown must prove its case beyond reasonable doubt on each count. As the law presumes that the jury has been faithful to a trial judge's direction (HML v R [2008] HCA 16; (2008) 245 ALR 204 per Kirby J at [52]; Gilbert v R (2000) 201 CLR 494 at 420 per Gleeson CJ and Gummow J), the starting point for any analysis must assume that this is so … ." (italics added)
Examination of the verdicts on all counts suggests that the jury was, indeed, interested in the existence of some external evidentiary support for the complainant's allegations. There was, for example, considerable evidence supporting the verdict of guilty on Count 1 (assault in August 2017). The complainant had taken photographs of a black eye and bruising to her back, which she had sent to her mother and shown to police officers during the interview of 8 November and to the police officer who took her statement on 10 November. (The photographs were subsequently deleted, and were not copied or saved by the police officers). The black eye had been witnessed by four witnesses. Although there was no explicit evidentiary corroboration of the intimidation offence the subject of Count 2, the evidence strongly supported the existence of a violent and controlling relationship. By contrast, there was little, if any, evidence corroborating the complainant's allegations with respect to Counts 5, 6 and 7. The DNA evidence concerning the rope (Count 7) may explain the verdict on that count.
There was, however, support for an offence of the nature alleged by Counts 3 and 4 in the blood stains on the sheets of the complainant's bed disclosed by forensic examination, supporting her evidence that the assault the subject of those counts had caused bleeding. That was sufficient to support at least one of the charges. The search of the premises produced no pencil that could have been used as the complainant claimed. Given the unusual nature of the allegation, it may well have been that the jury considered that the complainant, in her no doubt traumatised state, was mistaken in that assertion.
I am satisfied that there was no lack of rationality, nor any "factual inconsistency" in the verdict of guilty on Count 4, even taking into account the acquittals on Counts 3, 5, 6 and 7.
Far from casting doubt on the verdict on Count 4, the acquittal on Count 3 provides a basis for confidence that the jury has done precisely what it was instructed to do: to consider each count separately and reach a verdict on that count, on the evidence relevant to that count: AH v R [2019] NSWCCA 152 at [62], approved by Basten JA in Ganiji at [18].
The function of determining that it was, or was not, open to the jury to convict is not discharged by a Court of Appeal simply concluding that there was a sufficiency of evidence. More is required. In performing its function, the court is required to make its own independent assessment of the evidence: Chamberlain (No 2) v The Queen (1984) 152 CLR 521; [1984] HCA 7 per Gibbs CJ and Mason J; Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50. The assessment must be made both as to the sufficiency and the quality of the evidence: Morris at p 473, per Deane, Toohey and Gaudron JJ. In making that assessment the court is deciding a question of fact; it is "supervising or reviewing the findings of a tribunal of fact": Morris at 462, per Mason J, citing Raspor v The Queen (1958) 99 CLR 347; [1958] HCA 30 per Dixon CJ, Fullagher and Taylor JJ, and Hocking v Bell (1945) 71 CLR 430 at 497; [1945] HCA 16. At the same time, the court must pay due regard to the constitutional role of the jury in determining criminal guilt, a point upon which significant emphasis was placed in Baden-Clay.
Any notion that the joint judgment in Jones established a different principle in relation to cases where a mix of guilty and not guilty verdicts has been returned was disavowed in MFA at [35].
In order to cast doubt on the verdicts reliance was placed on the submissions advanced in relation to ground 1, together with specific reliance on some additional circumstances with which I will deal briefly.
The first point made was that, in the interview of 8 November (the "DVEC") the complainant did not "allege the acts in Counts 3 and 4". This is not quite correct. The complainant said that the applicant "raped me and beat me up". She did not, it is true, give any specifics of the nature of the rape and did not mention anal penetration, but that is to be explained by two things: first, she was not expressly asked, and second, she was, as she explained in cross-examination, anxious to get away. That is clearly correct; she is recorded as saying "I don't want to think about it any more".
The second matter relied upon was that, at McLean Hospital when she was examined by Nurse Chard on 10 November, the complainant denied any "recent assault" and also denied "any rectal bleeding for a while".
The complainant had no recollection of going to McLean Hospital or being examined by Nurse Chard. As mentioned above, Nurse Chard recorded that the complainant was:
"… emotional, teary, and easily frightened and fidgety. Curled up into herself. Unwilling at first to talk to staff."
The complainant's denial of "recent" sexual assault and recent rectal bleeding may be explained by her obvious reluctance to engage with what had occurred. She said in her evidence that, on 8 November:
"I didn't want even to report. I just wanted to leave him."
One circumstance which was pointed to as casting doubt on the reliability of the complainant's evidence was a text message to her mother, early on the morning of 7 November. The complainant told her mother that, on the previous day (6 November, the date of the Counts 3 and 4 allegations) she had a job interview arranged for the following night at a restaurant, and that she had met the owner yesterday "while Luke was passed out". It was argued that the "buoyancy" exhibited in the message was inconsistent with the sexual assault the complainant alleged had taken place earlier that day. The complainant said in evidence that she could not recall the name of the friend she mentioned (in the text message) had arranged the job interview.
Another such circumstance lay in the complainant's evidence concerning the nature of her relationship with the applicant; the complainant denied that the relationship was, in 2016 and 2017, a romantic one, denials which were apparently contradicted by text messages, letters to the applicant, and photographs. The complainant said that the applicant had asked her to write the letters.
Finally, reliance was placed on an alternative explanation proposed by the applicant's mother for bruising and other injuries observed on the complainant, who gave evidence. The explanation was that the complainant had attempted to move a heavy table and had fallen, causing bruising to her leg.
The Crown acknowledged that there were some issues relating to the complainant's credibility. No doubt the jury were aware of those issues. What the outcome suggests is that, perhaps conscious of the credibility issue, the jury looked for external support for the complainant's allegations, and was particularly cautious in following the directions concerning the onus and standard of proof. That does not render the conviction on Count 4 unreasonable or unable to be supported.
I have carefully considered the whole of the evidence. Notwithstanding that there are some anomalies in the complainant's evidence, and some unsatisfactorily explained discrepancies (such as the complainant's denial of a romantic relationship in 2016-2017), I am satisfied to the requisite standard that the evidence established the guilt of the applicant on Count 4 on the indictment.
I would, accordingly, grant leave to appeal, but dismiss the appeal.
ROTHMAN J: The applicant, Luke Cullen, seeks leave to appeal against his conviction in the District Court on 24 July 2020, following a jury trial at Grafton in February and March 2020. On 9 March 2020, on the third day of deliberations, the jury unanimously found him guilty of Counts 1, 2 and 4 and not guilty on Counts 3, 5, 6 and 7.
The charges arose from conduct in the context of a domestic relationship. The applicant and the complainant, SH, lived in a de facto relationship in the suburb of Yamba, New South Wales, for a period of time. The complainant alleges that the applicant became abusive and that she was subject to numerous instances of domestic violence, which escalated to sexual abuse in November 2017. She complained to the police on 8 November 2017 and the applicant was charged on the basis of that complaint.
As is obvious from the foregoing, the applicant was arraigned on 7 counts before her Honour Judge Norton in the District Court at Grafton. The easiest way to summarise the different counts is in accordance with the following table:
Count Crown case Verdict Indicative sentences
On or about 18 August 2017, at Yamba in the state of NSW, did assault SH thereby occasioning actual bodily harm (Count 1). The applicant punched the complainant to the face in August 2017, causing her a black eye. Guilty 12 months
Between 1 July 2017 and 8 September 2017, at Yamba in the state of NSW, did intimidate SH with the intention of causing the said SH to fear physical or mental harm (Count 2). The complainant alleged that the applicant said she could not leave otherwise his friends would find her. She was intimidated and feared leaving as her name was on the lease of the unit. Guilty 9 months
On 6 November 2017, at Yamba, in the state of NSW, did have sexual intercourse with SH, without the consent of SH, knowing she was not consenting and in circumstances of aggravation, namely, that immediately before the commission of the offence, he did intentionally or recklessly inflict actual bodily harm on SH (Count 3 and Count 4). In November 2017, it was alleged that the applicant's drinking had escalated and on the morning of 6 November 2017, he demanded sex from the complainant. When she refused he punched her to her thigh, turned her around and forced his fingers into her anus before putting a pencil in her anus and continuing to punch her thigh. These allegations were Count 3 in relation to pencil and Count 4 in relation to fingers. (Delineation of Counts disputed.) Not guilty to Count 3. Count 4:
Guilty to Count 4. 6 years, with a NPP of 3 years 10 months and 24 days
On 7 November 2017, at Yamba in the state of NSW, did have sexual intercourse with SH, without the consent of SH, knowing she was not consenting and in circumstances of aggravation, namely, that immediately before the commission of the offence, he did intentionally or recklessly inflict actual bodily harm on SH (Count 5). The Crown alleged that on 7 November 2017, the applicant again demanded sex from the complainant. Count 5 alleged that he engaged in penile-vaginal sex with the complainant without her consent and, when he could not maintain an erection, he walked away, returned and stamped on her chest (Count 6). Not guilty --
On 7 November 2017, at Yamba in the state of New South Wales, did assault SH (Count 6). Not guilty --
On 8 November 2017, at Yamba in the state of New South Wales, did assault SH (Count 7). Before the applicant left for work on 8 November 2017, he put a length off rope around the complainant's neck and tied it to the bed. Not guilty --
Between June 2016 and the end of 2016, the complainant noticed that the applicant changed and became angrier and more frustrated, which she associated with his drinking. [1]
At first, the complainant told the applicant that she did not want a relationship and that she felt that neither of them was ready for that. The complainant told the applicant that she would like to live as friends, but he did not want that arrangement. This was a matter discussed often.
At about the end of July 2017, the applicant told the complainant that he was her boss and that, even though she did not know it, she, the complainant, liked him. Further, the complainant gave evidence that the applicant told her that she, the complainant, could not leave "because his friends will find [her]". [2] He also informed her that she would not be able to obtain a reference nor obtain another lease.
On 17 August 2017, these issues were raised again by the applicant with the complainant with the result that "things got physical". [3] Photos were taken of the bruising. Those photos were taken on 18 August 2017. They were shown to police at the time of the interview on 8 November 2017 and, initially, were sent to the complainant's mother. They were not available for tender, but were described in evidence.
The physical altercation occurred in circumstances where the complainant had been working in the kitchen, and was having a conversation with the applicant to the effect that they should each look for different places to live. The complainant commenced to leave the kitchen and move into the lounge room. The applicant pushed the complainant who fell over the table; and the complainant rolled over and the applicant put either his foot or knee into the complainant's back and pulled back the complainant's hair. The applicant punched the area of the complainant's right eye. This is Count 1.
The photographs shown to the police on 8 November 2017 were date stamped 18 August 2017. The complainant had taken the photographs in the bathroom on the day after the assault and had, as earlier stated, sent them to her mother.
The threat of the applicant to the complainant that she could not leave and that his friends would find her, which caused the complainant to feel scared and lost, is the basis of Count 2.
The café owned by the applicant's family does not, or did not, open on Mondays. On Monday 6 November 2017, the complainant was at home and not working in the café.
The evidence that was adduced through the complainant was that on Monday 6 November 2017, the complainant woke and the applicant came into her bedroom. He told her that she had "got to give it to him sometime". [4] The complainant understood that to mean that the applicant wanted to have sex with her and she did not want that.
The applicant took off his pants and the complainant said to him "I don't want to. Just please, I don't want to". She repeated over and over to him: "I don't want to". [5]
The complainant then gave the following evidence in answer to a question as to what the applicant did after that statement by the complainant:
"He smiled and he came onto the bed and he tried - I pulled my legs together, 'cause I knew what was going to happen, and he tried to pull my legs apart with his hands and his elbows. And when I wouldn't open my legs, he started punching me in the leg. And he pulled my arm and turned me around, and he pulled down my pants and he stuck a pencil up me anally. And then he stuck as many fingers as he could … in me anally." [6]
The foregoing evidence is the basis for Counts 3 and 4, for which the jury returned verdicts of not guilty and guilty respectively.
Because of the concentration on Counts 3 and 4, it is appropriate to point out that in the course of the examination-in-chief the following exchange occurred:
"Q. Whereabouts on your legs was he hitting you?
A. It was on my thigh. He was punching it over and over with his fist. And then when I - after he did that to me with his fingers and the pencil, he turned me back around and started punching my leg again and again because I kept trying to keep them closed." [7]
Given that this recounts the one course of conduct, it is not necessarily appropriate to rely upon this evidence as, itself, particularising the order of events.
During the incident, the applicant continued to tell the complainant that she should "just give him sex" to which she responded "I told you I don't want to have sex. I'm sorry, I don't want to". [8] At that point the applicant tried to engage in penile/vaginal intercourse, but the complainant kept her legs tightly closed and he was unable to effect his intention.
The complainant did not remember for how long the applicant punched her. The applicant left the room and slammed the door, which then jammed shut and the complainant was unable to leave the room. Eventually, the applicant opened the door from the outside as the complainant kept saying that she needed to use the bathroom.
The complainant went to the bathroom and "cleaned up some blood that had come out from behind". [9]
On Tuesday, 7 November 2017, the complainant went to work at the café, as did the applicant. The café closed at about 3:30 PM or 4:00 PM and they went home together. The complainant went to her bedroom when they first arrived.
The applicant was angry about a matter about which they had spoken earlier. The applicant told her to go into the bedroom so they could talk.
The applicant grabbed the complainant's arm; and pushed her against the wall. The push was in the chest. The wall was rough and it cut into or across the complainant's back.
The applicant was trying to tell the complainant not to interfere with things. He punched the complainant in her arm against the wall, then pushed her down and she hit her head on the bed railing and ended up on the floor.
The applicant pulled down the complainant's pants and then pulled down his own pants. Again, according to the complainant, the applicant put his penis inside her and kept trying to thrust angrily. The complainant told him to stop; and told him to leave her alone, to which he responded, "You don't give it to me, what I want, bitch." [10]
According to the complainant, the applicant got angry; pulled out of her, kind of growled and walked away. The complainant was crying on the ground and when she tried to get up, the applicant came back and put his foot down on her chest. The applicant spat in the complainant's face and told her stay there. The applicant said words to the effect that she was pathetic and that she never loved him enough to give him what he wants.
The applicant had, some months before, taken the credit and debit cards and Medicare card belonging to the complainant because he had said it was easier if he kept it all. After this event, the complainant crept out of the bedroom and grabbed her cards from the applicant's wallet.
The complainant then crawled into the bathroom; "chucked [the cards] in the clothing there"; [11] and curled up in the bathroom. The next morning, she woke up in the bathroom and crawled back into the bedroom. The events of 7 November were the subject of Counts 5 and 6.
Initially, when the complainant came out of the bathroom on the morning of 8 November 2017, the applicant was in the lounge room. The applicant noticed the complainant and the complainant told the applicant that she was not feeling well. The complainant crawled back into bed and told the applicant that she would not be able to go to work.
With this, the applicant became angry and yelled at the complainant that she was useless. He said he would return in a couple of hours by which time she should be ready. To make sure that the complainant knew that the applicant was serious, "he grabbed some rope and pulled it around [the complainant's] neck against the bedframe". [12] This took away the breath of the complainant a little and the applicant loosely tied the complainant there and again spat in her face. That last incident was Count 7 on the Indictment.
There is a photograph of the rope, which the applicant described as camping rope.
After the applicant left, the complainant untied herself, threw some of her clothes and her cards into a bag and called a person she had met at the café, Mr David Short, from her mobile. Mr Short collected her, took her to the real estate agency, where she explained what was happening; and the real estate agency allowed her to sign over the lease to the applicant.
The complainant had rung Susan ("Susie") Kenworthy, whom the complainant also knew from the café and who was the partner of Mr Short. Ms Kenworthy met the complainant at the real estate agency. Mr Short then took the complainant back to his house and called the police.
When the police arrived at Mr Short's house, they asked the complainant a series of questions. The complainant described her emotional state at the time in the following terms:
"I couldn't believe that I was out and I knew it would be a matter of time before he got back and noticed that I wasn't there and he'd start looking for me. I just couldn't believe I was gone. I didn't think I'd be gone. It just felt surreal." [13]
Thereafter, apparently, the complainant was taken to Maclean Hospital, but she remembers nothing of what happened thereafter. She stayed at the house to which Mr Short had taken her with Mr Short and Ms Kenworthy.
The complainant barely remembers going to Lismore Hospital on 10 November, but recalls that Mr Short took her.
The interview by police at Mr Short's house on 8 November 2017 was recorded. That is the DVEC, which was in evidence as Exhibit A and was part of the complainant's evidence-in-chief. The Transcript of the DVEC was Marked for Identification 2 in the proceedings.
Exhibit B in the proceedings was a bundle of 21 photographs taken on 9 November 2017; Exhibit C was a photograph of the lounge kitchen area of the residence at which the events were said to have occurred; Exhibit D was a copy of text messages between the complainant and her mother through which the complainant was taken in evidence; Exhibit E was a copy of text messages between the complainant and Ms Kenworthy, through which the complainant was also taken; Exhibit F was a call log between the complainant and Mr Short; Exhibit G was a copy of two photographs of the café; Exhibit H, which was made available during the course of the appeal in colour, was a set of five photographs taken by Ms Kenworthy on 9 November 2017 of the bruising to the complainant as were Exhibits J, K and M.
Exhibit A was played to the jury and was available in the jury room. The questions and answers were taken at a time when the events of 6 and 7 November were fresh, but at a time when the complainant was plainly distressed. The complainant does not give evidence in the DVEC dealing with the events of 6 November. However, on 10 November 2017, the complainant provided a statement to police in which she detailed the events she described in her evidence-in-chief as occurring on 6 November 2017.
It is unnecessary at this stage to detail any further evidence-in-chief of the complainant. The complainant was cross-examined.
During the course of cross-examination, the complainant agreed that the applicant had been a nice, kind person during the period up to June 2016, when they first moved into the unit. In the course of cross-examination, the complainant testified that, during the time that she lived with the applicant and his wife, both of them talked to her about their marriage falling apart. The complainant confirmed that it became uncomfortable at times.
The applicant agreed that she had lied to people about what was happening in the house and maintained that she did not know why it was that she lied about those matters; or about going to hospital for her gallbladder. The cross-examination dealt at length with the complainant's credit, including whether the complainant drank alcohol and whether she had been admitted for alcohol poisoning, which she denied.
The applicant's son was staying at the house on 6 November, because the applicant's ex-wife was away.
During the course of cross-examination, it was put to the complainant, in this order, that she had said that the complainant had "put as many fingers as he could into [her] bottom" and "stuck a pencil into [her] bottom", which she confirmed. The complainant testified, during the cross-examination, that she could not remember the rest of the day.
The complainant was taken to a text to her mother, being text 934, [14] which is in the following terms:
"I also have a job interview tomorrow night at a restaurant. My friends don't mess around apparently! It's an Italian restaurant, I met the owner yesterday while Luke was passed out. Just wanted you to know. I'll let you know how it goes!"
It was suggested to the complainant that if the thing she described happened to her on 6 November did, in fact, occur, she would not have gone out and met an owner of a restaurant. The complainant did not remember meeting the owner of a restaurant; and did not remember having a job interview or meeting that person. No evidence was adduced that such an interview occurred or that there was, in truth, any such meeting.
The complainant was cross-examined about the circumstance that, in the DVEC video, she did not mention the insertion into her anus of the fingers or the pencil.
The complainant accepted that she did not mention either penetration in the course of the recorded interview and made it clear that she had not wanted to have the interview; she only wanted to get out of the house and the relationship.
Further, while agreeing that the police officer specifically directed her to the events of 6 November, she made clear that she "got out" whatever she could "before [she] shut down". [15]
The complainant was cross-examined about the events on 7 November, during which she maintained that she had been assaulted and sexually assaulted on that date. She had worked that day and, when she came home from work, the events occurred. The complainant reiterated that which has already been described in the summary of the evidence-in-chief.
It was put to the complainant that, at the time of the DVEC interview, the events of 7 November were fresh in her mind, as it had been less than 24 hours since they had occurred. The complainant, to that suggestion, maintained that immediately upon her departure from the household she "started to shut down". [16]
The complainant was then cross-examined in relation to questions-and-answers 120 and 124 to the effect that the complainant had said that she pretended everything was fine, that the applicant drank and he goes through about a carton a day. In answer to question 129, being what happened on the night of 7 November, the complainant said in the interview that she had been planning to leave and she tried "to make everything seem as normal as possible".
The complainant's explanation for the failure to mention the physical and sexual assault on 7 November in the DVEC was that she did not want to talk to the police and had not wanted to do the interview. Her evidence was that she had trouble talking to the police officer.
The complainant did not recall whether the applicant's son was at the house on 8 November 2017 when she awoke. Otherwise, a number of matters were put to the complainant in cross-examination, which the complainant denied or did not recall.
There was a reference in cross-examination to the complainant not "acting romantic" in public and not holding hands or hugging. Photographs were shown to the complainant, [17] being photographs of the complainant and the applicant acting "romantically", some photographs including the applicant's son. Some of those photos had messages. The complainant gave evidence that the photographs were "staged" so that the applicant's son would have normal family photos for an album. It would be something for the son to look at and be happy.
The complainant was taken to a number of text messages, which the complainant denied writing, even though they came from her telephone. The complainant maintained that this was not the way she spoke in text messages. The complainant denied giving her phone to anyone else but said that the applicant had use of her phone and had access to her phone.
The complainant was taken to handwritten notes, approximately nine pages, [18] which the complainant identified as having been written by her. The complainant testified that these notes were something that the applicant had asked her to write to prove that she loved him and the applicant had sat with her and requested her to write the reasons that she was happy. The complainant did not remember when this had occurred.
The complainant was cross-examined about text messages to her mother relating to children that she had decided to have with the applicant and the name of a boy that might be born. There were also text messages relating to the complainant having struck the applicant; how kind he was; the applicant cooking romantically; and other messages that it was suggested to her showed a romantic relationship from very early in the time that they were cohabiting.
Other notes were the subject of cross-examination. One related to a note in which the complainant addressed the applicant with the words "I don't love you anymore. I'm sorry. Take care of yourself." [19] The complainant testified that this had been written a few weeks before 8 November.
Other notes were the subject of cross-examination, relating to the complainant suggesting that all she had done growing up was to hurt people; nominating people that she had hurt; and destroying people.
In re-examination, the complainant was taken to a statement given to the police on 10 November 2017, which detailed all of the events of 6 and 7 November to which the complainant had testified in her evidence-in-chief. Further, that statement refers to the penetration on 6 November having occurred in the order of the fingers, then the pencil. [20]
The statement given to police on 10 November 2017 provided more detail than had been given in the evidence-in-chief and also gave details of the tying of the applicant with a piece of rope around her neck and pulling it tight enough to take away her breath. It also mentions the spitting, to which earlier reference has been made.
When questioned about her time at the hospital at Maclean, the complainant once more referred to the emotional state from which she suffered at the time and when asked details of that emotional state, the complainant said:
"I remember shutting down after giving the statement with [sic] police. I didn't want to go anywhere; I didn't want to do anything. I don't remember going there. I had counselling which helped me talk through things and memories came back, but I can't help when things come and go. I've spoken with that in counselling and why that happens, because of the trauma." [21]
The complainant's mother gave evidence and was asked about the text messages between the complainant and her. The complainant's mother confirmed the text message concerning the black bruise on her back, which included photographs of the eye and the back, believed to be taken in the bathroom. The mother was also asked about messages sent to the complainant, being messages forwarded that she had received from the applicant.
In cross-examination, the complainant's mother was asked about providing money to the Cullen family for investment in and/or work on the café. The witness denied ever intending to be an investor in the business.
The witness was asked about the text in which the complainant said she hurt everybody and hurt three people. The witness identified that as being at a time when the complainant was about 14 years of age.
The witness statement given by the witness was given on 14 March 2018, at which time she had not yet seen the complainant. The witness had informed the complainant that she could move back home and that there was a room for her, but she had not done so. The witness thought that the first time she saw the complainant was when the witness brought her home in February 2019.
Next, Mr Short was called as a witness. He was a customer at the café and first met the complainant at the café in or about late 2016. He described her as friendly, attentive, good with customers and always having a bit of a laugh.
Mr Short noticed a change in her demeanour in or around February 2017, when the complainant became withdrawn about which both he and his partner remarked at the time.
In about April or May 2017, Mr Short had a conversation with the complainant about the chef and was introduced to the chef, who was the applicant, a few weeks later. When he spoke with the applicant, the complainant was present and he observed that the complainant was "apprehensive"; "appeared withdrawn"; "appeared a bit scared, generally scared". [22]
On one occasion after this event, he noticed the complainant had bruising on her arm, which was yellowish-black in colour. He asked her what she had been doing to herself and the complainant replied, softly, that the accused beat her. [23] The timing of this conversation was June or July 2017, after which he did not attend the café as regularly.
On another occasion after the conversation to which reference has just been made, Mr Short noticed that the complainant had bruising around the eye, across the face, almost to the nostril. Again, he asked the complainant what had happened to her and she replied, "I had a skateboard accident". He did not continue the conversation because another staff member was close to them. He understood that the staff member was the applicant's mother. Mr Short estimated that the bruising to the eye was noticed in about August 2017.
From about September 2017 onwards, Mr Short had conversations with the complainant about the complainant's concerns regarding her lease, as a result of which he gave the complainant the personal mobile phone number of his partner, Ms Kenworthy. He thought that his partner could assist as she worked in the real estate agency.
Mr Short saw the complainant on 6 November 2017. The complainant was with a friend Klaus, whom he had met. He described the complainant's demeanour as "distraught, hysterical, crying, shaking". [24] The complainant had bruising on her arm again and the complainant indicated bruising on her thigh as well.
The complainant told Mr Short that "he did this … and lots more".
He noticed the bruising on her leg, as the complainant was wearing shorts. The complainant told him that she was ready to leave the applicant and Mr Short told her that when she was ready, she should call them.
He then received a call two days later, on 8 November 2017. Mr Short received a text message, then a phone call, after which he went to collect the complainant. He described her demeanour on that occasion in similar terms to earlier: hysterical, distraught and shaking.
Mr Short took the complainant to the real estate agent, after which he drove the complainant to his home. They discussed what had happened and the complainant was becoming increasingly distraught and Mr Short called the police.
Mr Short gave evidence relating to the police taking the complainant to Maclean Hospital, while he travelled in his own car with the third police officer. The complainant stayed with Mr Short and his partner for the next few days and he attended with the complainant on 10 November 2017 at Maclean Police Station, as a support person. Mr Short described the complainant's demeanour on 10 November 2017 as "totally distraught, recounting the details. Upset her to the extent that she walked out." [25]
Mr Short was cross-examined, during the course of which he reiterated that he had not known the complainant before they had met at the café; did not know her history; her medical history or what sort of friends she had.
When he was at Maclean Hospital, the examination of the complainant took a while. He was not present during the examination, but his partner was. He left the hospital at some point and his partner took the complainant back to their house.
Mr Short also agreed that he provided the complainant with a spray jacket and sunglasses in order to cover up the tattoos on her arm and back because the complainant had expressed disquiet that somebody may see her, particularly when they drove past the area containing the café.
Next, Ms Kenworthy was called. As already explained, she was Mr Short's partner and had been since 2014. She worked at a real estate agency.
She had breakfast nearly every Sunday with Mr Short at the café at which the complainant worked. She recalled a particular incident when it was clear that the complainant had been crying and was clearly upset. She was unaware as to why that was the case, but she and Mr Short bought her some flowers.
She also recalled an incident when the complainant had a black eye. She thought it may have been in the winter of 2017. She asked the complainant what she had done to herself and the complainant said that she had hit her head and said that she was so clumsy.
Ms Kenworthy had conversations with the complainant about the complainant getting out of her lease and they exchanged phone numbers so that the complainant could communicate with her.
Ms Kenworthy gave the complainant information as to how the complainant could remove herself from the lease and its obligations. On 1 November 2017, Ms Kenworthy sent a text message to the complainant that made clear that Mr Short would drive the complainant to leave the premises and anywhere else and that he was on call for her 24/7. It indicated that Mr Short would pick her up and bring her to sign the papers and take her from there.
The complainant came to the real estate agency on 8 November 2017 and signed the documents with the property manager and the owner of the business. Ms Kenworthy recalled the complainant trembling. She described the complainant as tearful and extremely anxious. Mr Short then took the complainant back to their house while Ms Kenworthy stayed at work.
Ms Kenworthy took photographs of the complainant's bruises. This was done on 9 November 2017 in the spare room of the house in which Mr Short and Ms Kenworthy were living.
Evidence was also given about an occasion on which Ms Kenworthy noticed a bruise on the complainant's lower leg, which the complainant informed her was caused by a skateboarding accident.
Ms Kenworthy was taken to and described the photographs in Exhibit H.
The cross-examination of Ms Kenworthy was to similar effect as that for Mr Short in relation to the knowledge of Ms Kenworthy as to the complainant's history. When Ms Kenworthy was at Maclean Hospital as the complainant's support person, the complainant was having "a bit of a meltdown"; was emotionally very fraught; and part of the reason she was there was that the police did not have a female officer handy and they needed someone there, a female, to be with the complainant. [26]
The next witness was Mr Klaus Kwast. Mr Kwast was 62 years of age at the time that evidence was given. Mr Kwast used to live on a boat and he had purchased a fresh seafood business, which is the reason that he met the complainant and the applicant. Only the complainant would come into the business.
Mr Kwast recalled one occasion when the complainant had a black eye and a swollen cheekbone. Makeup was used to cover the bruises, but it wasn't totally effective. Mr Kwast does not recall the date, but it could have been around January or February 2017.
He considered that he had a close friendship with the complainant. On one occasion the complainant came to his boat on the marina uninvited; she was upset; and, on enquiry, she said she needed to talk to someone. This occurred about 10:00 or 11:00 at night and he was already asleep, and the complainant had woken him up.
She had come on a couple of occasions. On one occasion, she was very drunk, and the complainant wanted to have a shower so Mr Kwast gave her the key to the shower block for the complainant to use.
At the time he noticed black bruises down the right side of the complainant's body.
On another occasion, at Maclean Showground, he was with the complainant and was introduced to Mr Short.
On one of the occasions when the complainant came to the boat, she told Mr Kwast that she wanted to leave the applicant.
In cross-examination, Mr Kwast confirmed that he had been sent a message that the complainant had gone to Maclean Hospital, the day after she spent the night at the boat, for alcohol poisoning about which he was not surprised.
The next witness was Dr Michael Patrick Douglas, who is a medical practitioner in the Lismore region, working with the sexual assault service. He has worked for that service for approximately 18 to 20 years. Dr Douglas examined the complainant on 10 November 2017 at about 5:30 PM.
Dr Douglas filled out the sexual assault investigation kit while examining the complainant and then generated an expert certificate. There was a counsellor in the room during the examination and they obtained a history from the complainant in order to give context to the examination which was recorded in the kit.
His notes recorded that the complainant disclosed she had been hit in the leg. At least two digits had been inserted into her anus, which had caused discomfort and subsequent bleeding, which had ceased prior to the examination. She also indicated that a pencil was inserted into her anus and that she had diarrhoea since that episode. The complainant disclosed to Dr Douglas that there was penile penetration of her vagina but that it was not forceful, as the applicant could not achieve a full erection and she did not believe that the applicant had ejaculated.
Dr Douglas described the examination as "an intrusive investigation". Swabs were taken of surfaces for the purpose of collecting any DNA that might be extraneous to the person being examined.
The report records that the complainant was tearful and that she remained that way throughout the examination. At times she was mistrustful and fearful and at times drew away from the examination.
Dr Douglas described the injuries to the complainant's body. There were 8 to 10 scratches in several regions of the left abdominal wall, said to have been sustained when pushed against a wall in an earlier assault; two small areas of clustered scratches in each on the left aspect of the complainant's back and trunk, each 3 x 4 cm and 5 x 4 cm, some having scabs; numerous bruises in the left upper limb; four pale purple small round bruises on the anterior left forearm; and a large purple bruise in the bicep region measuring 6 x 10 cm.
There were two yellowing bruises on the complainant, each about 3 cm x 3 cm, on the left anterior chest in the sub clavicular region (just below the collarbone). On her left lower limb there were large bruises, purple yellow in colour, measuring 33 cm x 11 cm. There was a faint yellowing bruise on the lower leg in the pretibial region (the shin); two or three fading bruises on the right anterior thigh; a small abrasion on the upper surface of the left foot; and a small scratch on the upper surface of the left hand. Exhibit L is two diagrams of the injuries taken from the completed kit.
Dr Douglas was asked to explain whether the state of the bruising and/or scabs could provide a timeframe during which the injuries may have occurred. He testified that if a scratch is very fresh one may notice crusted blood or something of that nature on it. The note as to a scab on a particular scratch provides information that that scratch is a little bit older than something in the recent hours. It could be as much as a day or two old if there is a scab forming.
Dr Douglas also gave evidence as to the colour of the bruises, which he described as an imperfect science. Yellowing does not usually occur in the first 18 hours, although there is some doubt about the timing. However, for anything older than 18 hours, one would expect to see some yellowing. It is very difficult to age a bruise.
Dr Douglas referred to the bruising on the anterior left thigh being of an unusual pattern and the bruising on the left forearm being a pattern consistent with a grip mark.
No internal examination of the anus or the vagina occurred, because the complainant was uncomfortable about that process. An exterior physical inspection was taken and there was no bruising or laceration of the skin in either region, nor in the perineum, being the area of skin between the anus and the vaginal surface. Dr Douglas made clear that the presence or absence of injury does not indicate anything about whether contact in that area was consensual or non-consensual.
Evidence was also adduced from the nurse unit manager at Maclean Emergency Department, Melissa Chard. Nurse Chard worked in triage. She attended on the complainant and triaged her in the second highest category based upon her presentation. Presentation included what the complainant was telling her, what the nurse observed, what injuries were described and what injuries she might have.
The triage note in relation to the complainant was that she was "anxious and emotional". She was prescribed diazepam because she was emotional and quite upset, and it is prescribed for such people in order to help them relax.
The progress notes, made immediately after the triage, record that the complainant was emotional, teary and easily frightened, and fidgety. The complainant curled up into herself, unwilling at first to talk to staff.
Ms Chard had one-on-one time with the complainant. The progress notes record that the complainant stated to nursing staff that there had been no recent sexual assault. This was a comment made to nurse Chard. Police had informed nurse Chard that there was an allegation of sexual assault in the last couple of days prior to the triage session.
The complainant stated that she had not had rectal bleeding for a while; she denied any recent head injuries, and nurse Chard noted physical injuries on the complainant, which included bruises on her lower right arm, upper right arm, upper left arm, and lower left arm. She also had bruises over her left breast, on the left lateral thigh and scratches on her left lateral abdomen.
Evidence was also adduced from the police as to the taking of the DVEC and some aspects of the investigation. In cross-examination, which occurred after the interposition of witnesses, senior Constable Hancock said that the complainant wanted to do the DVEC and he did not coerce her into doing the interview.
He was cross-examined about a text message in which the witness indicated to her mother that the police had found blood on the wall, but Senior Constable Hancock did not recall telling her that there was blood on the wall and agreed that it was possible that, were the complainant provided that information, it could contaminate the statement to be given on 10 November 2017.
One of the witnesses who was interposed after the examination in chief of Senior Constable Hancock was a senior forensic biologist at the Forensic and Analytical Science Services, Clayton Walton. His responsibilities included the analysis of DNA results. He obtained swabs taken from the crime scene examination; a buccal swab of the applicant; and swabs of the complainant.
No semen was present in any of the smears or swabs taken in the sexual assault investigation kit. However, a shower after the sexual intercourse would affect or may affect the result of any swab, except those in the high vagina area, which is near the end of the cervix. As earlier stated, no internal swabs from the complainant's vagina or anus were taken.
Mr Walton testified that, absent a douching process, the higher vaginal swab should detect semen, if there were any, usually up till two or three days but can be as much as seven days after intercourse. The semen deteriorates over time.
Mr Walton confirmed blood swabs taken from the bedroom wall had the same profile as the complainant. Similarly, a blood swab from the base of the bed sheets recovered DNA with the same profile as the complainant.
The bed sheet blood swab sample also contained a trace amount of DNA from at least one male, but the sample size was too small to undergo more interpretation. As a consequence, they could not compare it with the buccal sample of the applicant.
There was a third blood swab from the upper bed sheet. DNA was recovered from that swab and it had the same profile as the applicant.
A test was also taken of the rope that was found in the bedroom. The DNA that was recovered from the rope was a mixture that was unsuitable for comparison because of the low amounts of DNA and the complex mixture. The DNA from the rope was a mixture from at least three individuals, at least one of them was a male. Assuming there were three individuals then it was greater than 100 billion times more likely that the complainant was also a contributor to that DNA. If the complainant were the contributor, then the two other contributors would be unknown, unrelated individuals.
By unrelated, in the foregoing, it was intended to be unrelated to the complainant. The minor contributors' samples were unsuitable to be compared to anyone or to each other.
The witness, Mr Walton, gave evidence as to the transfer of DNA. It is a "very variable aspect".
In cross-examination, Mr Walton confirmed that if there were to have been a male profile on the rope that could be compared, it would have been possible to compare it with the applicant's DNA, of which they had a sample. It is also possible that the last person to touch the rope, pick it up or put it under the bed would leave DNA. It depended upon the degree to which someone sheds DNA.
Mr Walton made clear that semen would only be detectable if the man ejaculated. Sometimes, when a man is excited, he can release pre-ejaculation which is secretions from the various glands and will not generally contain semen.
Lastly, Mr Walton confirmed that it was impossible to tell how long a blood spot had been in place from the DNA. It is only possible to see who contributed to the DNA mixture.
The applicant's son was made available for cross-examination and gave no evidence-in-chief. In cross-examination, the son said he was 13 at the time and that his father was the applicant. He lived with the applicant and his former wife before they separated. They were his mother and father.
He described the address and the school that he attended. He also described the breakdown of time between living with his mother and the applicant.
The last time he saw the complainant was on a Monday morning at about 8:30 AM. She told him, and his father, that she was sick.
At the time that he heard that, he was saying goodbye to the complainant and he was with his father. She was lying down in the bedroom and he said to her, "goodbye; I love you".
Nothing happened thereafter, except he had a shower, had his breakfast and then went to work with his father at the café. He did not see the complainant get out of bed. From the café, he was taken to school by his grandparents.
The next witness was Louise Marambio, who is a photographer, lives on a boat, is in her 50s, and has a partner.
Two weeks after she moved into the marina, late May or early June 2017, she noticed the complainant working at the café where she regularly bought her morning coffee. They had met there before. The complainant had a black eye, covered with makeup, but still very noticeable.
Ms Marambio requested the complainant to walk with her to the women's bathroom, which was a short distance from the café. They had a conversation in which Ms Marambio asked her if she would come into the bathroom.
She asked the complainant what happened to her eye to which the complainant responded "nothing, don't, it's okay, okay, it's okay" and, when Ms Marambio persisted, the complainant said that "she had been hit by her partner, [the applicant by name]." The complainant also pulled up her T-shirt and showed bruising down her side. It was large bruising down one side and her rib cage, but the witness could not recall which side of her body. The witness touched the bruising and the complainant flinched and the witness drew the conclusion that it was obviously quite tender.
Ms Marambio described the complainant as scared; very nervous, very scared.
The witness informed the complainant that this was not acceptable, and the complainant requested the witness not to say anything to anyone. When she was making that request, she was adamant, shaking and very upset. Ms Marambio gave the complainant her telephone number and sent her a text message on the next day. That text message invited the complainant for lunch on the boat. The lunch occurred.
During the lunch they spoke about the situation in which the complainant had found herself. The complainant told her that she could not use any of the money out of her key card. The complainant did not have a Medicare card and all the cards were being held by the applicant. The complainant said she was quite trapped. She also said that the applicant was drinking "quite heavily".
After Ms Marambio was provided that information, when she attended the café, she made a point of noticing that she smelt alcohol on the applicant's breath. On that occasion Ms Marambio noticed that the complainant was having trouble, described as "struggling", when she was working and, in particular, leaning over to give food to customers. It looked like the complainant was in pain.
Once more the witness, Ms Marambio, invited the complainant into the bathroom and, once there, the complainant again showed severe bruising and a boot print on her stomach. She also had bruising around her neck and scratches around her neck and upper arms. On enquiry as to what happened, the complainant told Ms Marambio that she had been attacked by her partner, the applicant.
Ms Marambio noticed bruising on the complainant on a number of subsequent occasions when Ms Marambio visited the café.
About a week before Ms Marambio heard that the applicant had been charged, she visited the café and, for a third time, took the complainant to the toilet. On that occasion the complainant had bruising all down her side, which the witness noticed because it was so dark that she was worried there may be blood clots. On that occasion, the complainant told Ms Marambio that the applicant had forced her to have sex.
The witness described the bruising on the side and a major bruise on her thigh. She also described bruises on the complainant's neck and upper part of her arms and some scratches on her neck. The complainant told Ms Marambio that the applicant had caused the bruises.
The witness was cross-examined about the timing of the observation of the bruises and the conversation with the complainant on the basis that it had occurred a week before the applicant was arrested. The applicant was arrested on 9 November 2017. When particulars were sought as to why the witness was "fairly sure" of the timing, the witness replied that "it was a week before I knew that [the applicant] had been charged." [27]
The cross-examination was based on the earlier general comment as to the date of his arrest, rather than the date that the witness learnt of his arrest. In re-examination, there was one question which asked when Ms Marambio found out about the applicant being arrested to which the answer was: "probably about a week after I last saw [the complainant]." [28]
Evidence was adduced from Senior Constable Jeffcoat, who, with another Constable, arrested the applicant. Senior Constable Jeffcoat warned the applicant and told him he was under arrest for assault of the complainant. The applicant did not respond to the caution but did say "I wouldn't hurt her, I love her".
Detective Senior Constable Douglas Scott was called. He was the police officer who took the written statement from the complainant on 10 November 2017. This was after Senior Constable Hancock had recorded the DVEC video. Detective Scott described the complainant as quite upset during the interview, agitated and emotional at times. [29]
Detective Scott made the arrangements for the complainant to go to Lismore Hospital and photographed the complainant's injuries when he took a statement on 10 November 2017.
A number of photographs were tendered through this witness. During the course of a break and in the absence of both the jury and the witness, the Court below received a note from the jury which, in part, asked whether the police looked for the pencil as evidence. [30]
The detective described the bloodstain on the wall, the taking of swabs, and the bloodstains on the sheet.
The witness was asked about a further crime scene warrant issued on 15 November 2017. On 15 November 2017, police searched for a pencil and did not find one. That was six days after the arrest of the applicant and nine days after the alleged incident with the pencil. Detective Scott was the last witness called in the Crown case.
The defence called one witness, being the mother of the applicant. The applicant did not give evidence. The applicant's mother gave evidence as to the workings of the café and when the complainant started work there in late 2015. Prior to that the workers were the witness, the applicant and the applicant's then wife.
The applicant moved out of the marital home because he and his then wife "thought it would be better for [their son] that [the applicant] move out and that things would calm down a bit". [31]
When the applicant moved into the Star of the Sea Motel, or shortly thereafter, he and the complainant were "cuddly and a bit close" and they said they were in a relationship.
In the final months before the complainant left, even though she was required to work only 23 hours a week, she worked every day because she said she liked "being with [the applicant]". [32] At times, while working, even though the complainant was very good in certain things, when she wasn't feeling very well, "she was quite upset a lot to the point that she [would] just switch off". [33]
As to bruising, the applicant's mother testified that the complainant told her that her black eye and bruising to her face was caused by her hitting a toilet roll holder when she fell off the toilet and the bruising to her leg was caused by carrying the big table during which the complainant fell.
The applicant's mother went to the Gold Coast with her daughter and her husband on the Friday before Melbourne Cup Day, which was 7 November 2017. She stayed with her daughter on the Friday, Saturday, Sunday and Monday. Her husband picked her up from the Gold Coast on Tuesday, being Melbourne Cup Day, 7 November 2017. The applicant's son was in the car with the applicant's father.
They dropped the applicant's sister at the Gold Coast airport and then drove back to Yamba and returned home about 5:00 in the afternoon. The applicant and the complainant arrived at the place at about 5:30 PM or 5:45 PM.
She described the complainant on 7 November 2017 as "very happy, very bright". [34] The applicant and the complainant were holding hands, everything seemed to be okay, and the complainant gave the applicant's son a cuddle. They were there for about 15 or 20 minutes.
The applicant's mother was cross-examined suggesting that the witness saw other bruises, which she confirmed. The witness said they were caused by bumping into the refrigerator in the café.
The applicant refers, in his submissions, to the leave granted to the Crown prosecutor in re-examination to read passages of the complainant's statement of 10 November 2017 to re-establish credibility. In the relevant part, the account given by the complainant was that the applicant used his fingers to penetrate her first and then used a pencil to penetrate her anus before again repeatedly hitting her.
The applicant submits that the Crown prosecutor's closing address at trial was not clear in distinguishing the acts that constituted Count 3 from those that constituted Count 4 and again reversed the order of the acts, for which the applicant relied upon the trial transcript. [38]
According to the applicant's submission, the trial judge sought clarification of the acts that were relied upon to constitute Count 3 and those relied upon to constitute Count 4. Relevantly, the exchange is in the following terms:
"CROWN PROSECUTOR: For counts 3 and 4 they're both the punching to the leg. The punching to the leg which occurs immediately before, on [the complainant's] evidence, the pencil is inserted into her anus, there is evidence of the punching before, and then --
HER HONOUR: So that's count 3.
CROWN PROSECUTOR: Yes, and then the punching during the incident of the jamming of the fingers as well as just after it which, in law, if it's close to the time of the sexual intercourse it does still amount to at the time." [39]
The foregoing exchange occurred in the context of a discussion as to whether her Honour should give directions as to alternative verdicts, based upon a lack of actual bodily harm. Her Honour did not seek clarification of the acts of penetration that gave rise to Counts 3 and 4.
Given the complaint of a confusing closing address, it is appropriate to recite the relevant passages upon which the applicant relies for the submission of confusion. The first passage is in the following terms:
"Counts 3 and 4, these are the incidents on 6 November 2017 and they're both allegations of what we call in law in shorthand aggravated sexual assault, essentially sexual intercourse without consent, knowing someone doesn't consent, in circumstances of aggravation and in this case it's that actual bodily harm was intentionally or recklessly inflicted. It's a mouthful. You'll hear from her Honour about that. The two counts here, this is the incident where [the complainant] alleged that in the morning the accused came to the bedroom intoxicated. He took his pants off. She understood he wanted sex. She said she didn't want to. She started to cry. He came onto the bed. She resisted, put her legs together. He tried to pull them apart with his hands and elbows. He punched [the complainant] to the leg repeatedly.
He then turned [the complainant] over, stuck a pencil up her anus and put as many fingers as he could into her anus and then he punched her leg again because she cried to keep them closed, repeatedly punched her leg. The accused could not get an erection. He got frustrated and continued to repeatedly punch her leg. Again, ladies and gentlemen, if you find those incidents occurred, if you find beyond reasonable doubt those incidents occurred, I suggest there is no issue to find that counts 3 and 4 have been met." [40]
Almost immediately after the foregoing recited passage, the Crown prosecutor continued in the following manner. Some words have been relied upon by the applicant in what is said to be confusion. The passage, in its full context, is in the following terms:
"I mentioned there are four elements before. Sexual intercourse can include penetration with fingers, an object, no consent by the complainant as indicated by words and conduct, that the accused knew or was reckless as to whether she consented. Again, derived from the circumstances, you could probably rely on the same evidence of the complainant's words and conduct, and that actual bodily harm was occasioned either at the time, and at the time can include moments before or moments after and also just before. So in that description that I've provided, which the Crown says sustains the offences, they do amount to counts 3 and 4 as alleged." [41]
The last passage, upon which the applicant relies as confusing the order in which the different penetrations occur, relates to whether the cross-examination and/or inconsistency in the order in which the events occurred or were retold, were material. The Crown prosecutor said:
"Senior Constable Hancock was there for the physical assaults because that's what the first disclosure was. So I invite you to look at the re-examination, read it. Her evidence was consistent with the oral evidence she gave you about what she said. There was one small difference, the fingers in the anus and the pencil are the other way around according to her oral evidence but it's consistent evidence, the surrounding circumstances, the punching of the thigh, the door jamming. I suggest the different order of the pencil and fingers does not negate the fact that it occurred. It does not suggest she made it up." [42]
These reasons for judgment have already recited the passages from the evidence-in-chief and cross-examination in which the complainant described the penetrations that she says occurred.
The learned sentencing judge, in her summing-up, gave directions as to those matters related to Counts 3 and those related to Count 4. First, her Honour describes Counts 3 and 4 as the counts that relate to the events which occurred on 6 November 2017. Her Honour then recited the charge on the Indictment in relation to Count 3, which does not expressly differentiate between penetration with a pencil or with fingers.
Her Honour then described four elements, about which there is no complaint, being: that sexual intercourse occurred with the complainant; that it occurred without consent of the complainant; that the [applicant] knew or was reckless as to the lack of consent of the complainant; and that the sexual intercourse occurred in the circumstance of aggravation, being that there was an intentional or reckless infliction of actual bodily harm on the complainant. Her Honour then said:
"For this count, the Crown relies on the complainant's evidence that the accused [in these reasons referred to as the applicant] inserted a pencil into her anus and that was done without her consent. Again, if you want to make a notation of that on your elements sheet it might be of some assistance." [43]
There is no confusion, in my view, in that which the learned sentencing judge required the jury to decide and the basis upon which they were to decide it. Count 3 was the insertion of the pencil. After explaining each of the elements of the offence her Honour expressly said that we have then concluded that which refers to Count 3 and we will next deal with Count 4. [44]
After that comment, her Honour read out the charge on the Indictment and, again, explained the elements of the offence. After recounting the elements of the charge, her Honour said:
"In count 4, the Crown again relies on the complainant's evidence, but this time the evidence that the accused inserted his fingers into her anus and her evidence that this was without the consent of the complainant." [45]
The applicant submits that the foregoing Crown address and her Honour's summing-up meant that the only logical verdicts could have been not guilty of both charges or guilty to both charges.
The doubts maintained by the jury in relation to Count 3, on that submission, ought to have caused the jury, undertaking its task properly, to have doubts about Count 4. It also confused the two counts.
Essentially, for those reasons, being the reasons relied upon in relation to Ground 1 and the additional material, which the complainant alleged casts doubt on the credibility of the applicant, the verdict is unreasonable and ought to be overturned.
Of course, the term "unsafe or unsatisfactory" has been replaced by the more appropriate expression, contained in the Criminal Appeal Act 1912 (NSW), of an "unreasonable verdict". The tension in the policy considerations underpinning the approach of appellate courts to inconsistency in verdicts was expressed in the following passage:
"Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the "constitutional" tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law." [52] (References omitted.)
The Court then set out a number of general propositions in relation to determining whether inconsistency arises. It is a classic and well-rehearsed passage, in the following terms:
"[1] A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.
[2] Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of 'differences in the evidence presented at the two trials' or 'the different views which the juries separately take of the witnesses'.
[3] Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'
[4] Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation (36). Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
'(J)uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'
[5] Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'.
[6] The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case." [53] (Footnotes omitted.)
It was immediately after referring to those general propositions that the High Court determined that, in applying the foregoing principles to the facts of that case, they were not "convinced that the verdicts returned by the jury in the trial of the appellant are so inconsistent as to render the resulting convictions of the appellant unsafe or unsatisfactory." [54]
The foregoing principles are to be applied in determining Grounds 1 and 2 in this appeal.
Upon that direction, about which no complaint is made, the jury had clearly and expressly before them the different aspects relating to Count 3 and to Count 4. In my view, no reasonable confusion could have arisen after the summing-up.
I have noted that no complaint is made as to the content of the summing-up. That summing-up included the usual direction, given to juries in circumstances where more than one charge has been preferred and is before them, that each offence must be considered separately. Further, the learned sentencing judge directed the jury that it was required to determine each charge beyond reasonable doubt and each of the members of the jury were required to determine whether each charge had been proved to the requisite standard.
The summing-up directed the members of the jury, in accordance with the usual practice, that they were able to believe the whole of the evidence of a particular witness, or they may disbelieve the whole of the witness's evidence, or they may believe part of it and disbelieve another part. Further to the foregoing direction, the learned sentencing judge gave a Markuleski direction [55] to the effect that the jury were entitled to bring in verdicts of guilty on some counts and not guilty verdicts on other counts, if there is a logical reason for that outcome. [56] Her Honour went on to say:
"If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant, then you would have to consider how that conclusion affects your consideration of the remaining counts. But again, each count must be looked at individually. You must look at all the evidence, which relates to each count, which includes evidence called 'corroborative evidence' and 'tendency evidence', which I will give you some directions about shortly."
In other words, the members of the jury were expressly directed that, if they were to find the complainant unreliable in relation to her evidence on some counts, they should consider how that conclusion affects the consideration of the remaining counts.
Is there a rational basis for the differing verdicts? Given that the jury were directed that they were required to find the events described by the complainant happened and they were required to find that beyond reasonable doubt, it is understandable if, in those circumstances, the jury looked for and determined their verdict on the basis of independent evidence supporting the version of events given by the complainant. This is so, even in circumstances where it is the only version given of the events. The starting point of the consideration is the innocence of the applicant and it is for the Crown to prove, beyond reasonable doubt, each of the aspects and satisfy the jury of them all.
In this case, there were some different versions. First, the applicant said that he would not hurt the complainant, because he loved her. Secondly, there is the explanation said to be given by the complainant to the applicant's mother as to the existence of the black eye and bruises.
Nevertheless, the charges upon which the applicant was found guilty are those charges that have the greatest independent corroboration.
In relation to Count 1, which was the assault occasioning actual bodily harm said to have been committed on 18 August 2017, the following corroboration existed: the text message sent by the complainant to her mother on 26 August 2017 with photographs of the injuries; the description of the photographs by the complainant's mother, being a black eye and bruise to the complainant's back; contemporaneous complaint, albeit with a different cause; contemporaneous complaint to Ms Marambio, recited above; and the witnessing of the injuries by the witnesses Mr Short, Ms Kenworthy, Ms Marambio and Mr Kwast.
In relation to Count 2, which is the count on intimidation, the independent evidence corroborative of the complainant's version of events included: the general nature of the relationship between the complainant and the applicant and that it included domestic violence and control; the possession by the applicant of the complainant's credit, debit and Medicare cards; text messages from the complainant to her mother and Ms Kenworthy; and complaints to Ms Marambio, Mr Short and Ms Kenworthy about the nature of the relationship between the complainant and the applicant.
Further, there was the evidence in relation to the nature of the lease and the fear and concern as to the consequences to the complainant were the complainant to leave. This evidence included the text messages to, and evidence of, the complainant's mother; the evidence and messages to Ms Kenworthy; the nature of the change in the lease; and the evidence from Ms Marambio.
On the other hand, in relation to Counts 5, 6 and 7, the learned trial judge directed the jury that these charges were quite separate from the charges preferred under Counts 3 and 4. There were issues associated with the timing of these counts, particularly given the evidence of the applicant's son.
Moreover, the medical evidence was that the "injuries" sustained and described by the complainant were "scratch abrasions". If, as is suggested, there was blood on the wall belonging to the complainant, it is not immediately apparent that the only reasonable explanation for that bloodstain is the injury said to be sustained during the commission of the offences said to have been committed in Counts 5, 6 and 7.
Further, in the context of evidence of significant continuing violence, scratches of that kind could have been caused at any time during the relationship. On the other hand, the black eye and the bruising to the legs are clearly depicted in the photographs; were the subject of immediate or contemporaneous complaint; and there is no other explanation that is reasonable for the existence of the injuries. As a consequence, it was open to the jury, notwithstanding their findings of guilt on Counts 1, 2 and 4, not to be satisfied, beyond reasonable doubt, of the events in relation to Counts 3, 5, 6 and 7.
I turn then to the difference between Counts 3 and 4. As already stated, there was no confusion that Count 3 related to the insertion of a pencil and Count 4 related to the insertion of fingers. During the trial, [57] the jury asked of the Court whether the police looked for the pencil as evidence. As a consequence of that question, Detective Senior Constable Scott was asked whether the apartment was searched for the pencil and the evidence he gave was that the apartment was searched and no pencil was located. [58]
Having made that comment as to the inability to find the pencil, the search, as has been recited earlier in these reasons, occurred on 15 November 2017, some seven days after the departure from the unit of the complainant and eight days after the alleged incident. Nevertheless, no pencil was found.
In his closing address, trial counsel for the applicant, made the following submission to the jury:
"The pencil, we know Detective Scott went into that house to look for the pencil, couldn't find it in any of the rooms. He was there to look for the pencil. He couldn't find it. The same point arises.
If we're now saying [the applicant] disposed of the pencil then he would have got rid of the rope as well. It's got to be both. He wouldn't put one clumsily under a bed and get rid of something else. What really is the likely inference you can draw from that? There was no pencil. There is no pencil. The Crown said that he didn't know what pencil he was looking for. Granted, but he would have grabbed every pencil had he seen one in there of course. He was there to find a pencil. He was hardly going to see a pencil and say, 'That may not be the pencil. I won't bother about that.' He saw no pencil. There was no pencil." [59]
The reference in the foregoing submission to "rope" is a reference to the conduct alleged in Count 7. In relation to that count, rope was found under the bed in the room occupied by the complainant, and on which was found the DNA of the complainant, but not of the applicant.
Because of the foregoing and believing that the complainant was both assaulted occasioning actual bodily harm and penetrated anally, the jury could not be satisfied, beyond reasonable doubt, that the penetration included penetration with a pencil. Alternatively, given that it was one course of conduct, the jury may have considered that a guilty verdict in relation to one only of the counts would be sufficient and the jury took a "merciful" view of the facts. [60]
In my view the jury has done precisely what the judge has asked it to do. It has examined each charge separately and determined whether it was prepared to be satisfied, beyond reasonable doubt, that each of the allegations of conduct occurred. The verdicts of not guilty do not depend upon disbelief of the complainant; they depend upon the jury taking the view that it would not be satisfied, beyond reasonable doubt, without some independent evidence corroborating the allegation.
I turn then to the issue of whether the verdict is unreasonable. I take account of the fact that the jury had the benefit of being able to observe the witnesses. The alleged inconsistencies in evidence arising from circumstances where the applicant told her mother and the applicant's mother versions that were inconsistent with assaults by the applicant is not a matter that is beyond common experience and understanding in relation to domestic violence. Nor is it beyond common experience and understanding that perpetrators of domestic violence attest to their "love" of the complainant.
The version of events given by the complainant as to those matters upon which the jury found the applicant to be guilty are wholly believable. The transcript, which is, of course, not the best way to judge the truthfulness or reliability of a witness compared to seeing and hearing the evidence, does not reveal any basis upon which the complainant would not be believed.
In relation to each of the counts upon which the applicant has been found guilty, I have no doubt, on my assessment of the evidence, that would allow the Court to intervene to quash the verdicts on the basis that they are unreasonable. On the contrary, on my reading of the evidence, I would have come to the same conclusion.
As I have already expressed, I do not consider that the verdicts of guilty are inconsistent with any of the verdicts of not guilty. In particular, I do not consider that the verdict of guilty on Count 4 is inconsistent with the verdict of not guilty on Count 3. Moreover, I do not consider that the verdicts of not guilty render unreasonable any of the verdicts of guilty.
For the foregoing reasons, I would dismiss each ground of appeal and I propose that the Court make the following orders:
1. Leave to appeal be granted;
2. Appeal be dismissed.
IERACE J: I agree with the judgments of Simpson AJA and Rothman J.
Appeal Book, p 467; Tcpt, 3 March 2020, p 318(44).
Applicant's Written Submissions, at [68].
Crown Case Statement, at [17] and [18]; Exhibit 2 on the Voir Dire.
Appeal Book, p 159; Tcpt, 26 February 2020, p 310.
Appeal Book, p 487-488; Tcpt, 4 March 2020, p 7-8.
Appeal Book, p 504-505; Tcpt, 4 March 2020, p 24(50)-25(1-9).
Appeal Book, p 487; Crown Prosecutor's Closing Address, Tcpt, 4 March 2020, p 7(19-37).
Appeal Book, p 487; Crown Prosecutor's Closing Address, Tcpt, 4 March 2020, p 7(39-47).
Appeal Book, p 488; Crown Prosecutor's Closing Address, Tcpt, 4 March 2020, p 8(31-48).
Appeal Book, p 19; Summing-Up, Tcpt, 5 March 2020, p 13.
Appeal Book, p 23; Summing-Up, Tcpt, 5 March 2020, p 17.
Appeal Book, p 24; Summing-Up, Tcpt, 5 March 2020, p 18.
Exhibit A.
That evidence is also referred to earlier in these reasons for judgment.
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 23.
Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30; Pell v the Queen (2020) 268 CLR 123; [2020] HCA 12.
SKA v the Queen, supra.
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 365 (Gaudron, Gummow and Kirby JJ).
Ibid.
Mackenzie, supra, at 366-368.
Mackenzie, supra, at 369.
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290.
Appeal Book, p 12; Summing-Up, Tcpt, 5 March 2020, p 6.
Appeal Book, p 443; Tcpt, 3 March 2020, p 294.
Appeal Book, p 449; Tcpt, 3 March 2020, p 300(30-40).
Appeal Book, p 511-512; Tcpt, 4 March 2020, p 31(43-50)-32(1-4).
Mackenzie, supra, at 367 and the reference to R v Kirkman (1987) 44 SASR 591 at 593.
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Decision last updated: 30 March 2022