El-Ali v R [2015] NSWCCA 300 | Case summary

Court of Criminal Appeal (NSW)|2015-09-07|Before: Ward JA, Adams J, Hulme J, Mr P

Solicitors: Kings Law Group Solicitor for Public Prosecutions File Number(s): 2010/230286 Decision under appeal Court or tribunal: District Court Date of Decision: 27 July 2012 Before: Sweeney DCJ File Number(s): 2010/230286

Judgment

WARD JA: I have had the opportunity of agreeing with R A Hulme J's comprehensive reasons, with which I agree. I also agree with the orders his Honour has proposed.
ADAMS J: I agree with R A Hulme J.
R A HULME J: Houssam Khaled El-Ali ("the applicant") was found guilty by a jury in a trial before her Honour Judge Sweeney on 31 May 2012 of an offence of having sexual intercourse without consent in circumstances of aggravation (the victim was under the age of 16, namely 13).
The offence is contrary to s 61J(1) of the Crimes Act 1900 (NSW). There is a maximum penalty of imprisonment for 20 years and there is also a standard non-parole period of 10 years.
The applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years dating from 31 May 2012. The non-parole period expires on 30 May 2018 and the total term expires on 30 May 2021.
The applicant seeks to appeal against conviction on the following grounds (grounds 2 and 4 were abandoned at the hearing): 1. The verdict was unreasonable within the meaning of s 6(1) Criminal Appeal Act 1912. 3. In determining that the probative value of the tendency evidence substantially outweighed its prejudicial effect, as required by s 101 Evidence Act 1995, her Honour erred in concluding, without further analysis, that the risk of the jury using the evidence improperly or unfairly would be small, if the jury were to be given the "usual directions". 5. Her Honour erred in failing to provide reasons for refusing the application to discharge the jury.

Overview of the competing cases

The Crown case was that on a day between 1 January and 30 May 2005 the applicant, a man then aged 34, took the complainant, a school student aged 13, to a motel room and provided her with alcohol. He then had anal intercourse with her without her consent.
The Crown relied upon evidence given by a number of other women, who had been teenagers at the time, who had been "groomed" and/or sexually assaulted by the applicant. This was said to establish that he had a tendency "to have a sexual interest in young girls aged about 12 to 15 years old; to ingratiate himself with such young girls by giving them compliments, cigarettes, alcohol or gifts as part of a process of grooming them for his attentions; and then, with each young girl, to test how she reacted to his comments, conversations or acts to see if he could pursue taking advantage of them" (SU 18).
The applicant's case was that he knew the complainant and her group of friends but not well. He did not take her to a motel and he did not give her alcohol. He did not have sexual intercourse with her and had never had sexual intercourse with an underage girl. He denied being sexually interested in young girls and disputed all of the tendency evidence.

Procedural history

On 1 May 2012 the Crown presented an indictment against the applicant containing nine counts relating to five complainants. The applicant sought separate trials, arguing that the evidence of the complainants, and the evidence of other witnesses, was not admissible as tendency evidence. The trial judge refused the application.
The applicant filed an application for leave to appeal to this Court pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). The application was later withdrawn but in the meantime the Crown determined to proceed with the trial with just one complainant, GM. That trial commenced on 14 May 2012 but the jury was discharged without verdict on 21 May 2012 for reasons which are of no present relevance ("the first trial").
A second trial commenced before her Honour and a new jury on 22 May 2012. The recorded evidence of the complainant from the first trial was played before the jury (Ch 6 Pt 5 Div 3 of the Criminal Procedure Act 1986 (NSW)). As indicated earlier, the jury returned with a verdict of guilty on 31 May 2012.

The complainant, GM

The complainant, GM, said that she met the applicant through a friend when she was aged 13 and in Year 8 at school. She was introduced to him by a 13 year old female friend, KN, at a tobacconist shop in Katoomba. GM had attended the store for the purpose of purchasing cigarettes. The applicant gave her a packet without her having to pay.
GM met the applicant again about a week later in the late afternoon of a school day. The meeting was arranged by KN. GM and her sister, KM (a year older than GM), went to the vicinity of the car park of a supermarket and waited for the applicant. GM said that they met with the applicant and he drove to a motel in Blackheath. The applicant was accompanied by a friend, Dean Boyd, who the complainant guessed was in his twenties. She said that KM knew Mr Boyd but she had not met him before herself. GM said that her friend, KN, was supposed to be coming to the motel, but did not.
When they arrived at the motel, the applicant went into the office and booked a room whilst the complainant and KM waited in the car. When he returned they all went to the room. GM described the motel room as being "small". On the way to the room the applicant said that they should go "quietly and quickly" so that they were not seen. Once in the room they sat around and started to drink alcohol. GM thought the alcohol was bourbon and said it was mixed with coca cola. The applicant was drinking the soft drink, not the alcohol. GM said KM was drinking alcohol and she could not remember whether Dean Boyd was.
After being in the room for some time the four left and the applicant drove them to Mr Boyd's father's house. By this stage GM said she had had about two drinks and felt "a little tipsy". Mr Boyd left the car when they arrived at his father's house and was absent for a short time. They all eventually returned to the motel.
GM said that in the course of the night she had four or five drinks altogether. They were just "drinking, talking, and smoking cigarettes". GM said she felt tipsy, sick and very hot. She went to use the bathroom but the applicant came in so she returned to the room and lay on the bed because she wasn't feeling well. She was under the covers but still dressed. The applicant got under the covers with her and was trying to undress her but she kept moving away. At this point she could not remember where her sister and Mr Boyd were. She could not recall whether the lights were on or off but she remembered that the television was on.
GM was asked to clarify what she meant by the applicant trying to undress her and she said that he was trying to pull her pants down. She was trying to push him away but he ended up getting her pants off. She said that she could not remember all of the details but that she ended up on her back and he was entering her from behind. When asked to clarify she said "his penis" entered "my bum" and that it hurt. She said it probably felt like it lasted five or ten minutes. She was telling him not to do it; she did not want him to; and she kept trying to push him away but could not. (In cross-examination she said that at the time he entered her she was on her stomach and he was behind her (see below at [37]).)
At some stage the applicant stopped and GM grabbed her clothes and went into the bathroom. She went to the toilet and got changed before returning to the room. The applicant said to her, "you're lucky I let you keep your virginity". Mr Boyd and KM were "just sitting around". The applicant gave GM money for herself and KM to get a train home. He told them to stay the night at the motel and leave in the morning without being seen.
The next morning GM and KM went to the train station and went home. GM did not talk about what had happened. She was asked whether the next day was a school day and she said it was. She did not go to school because she felt sick.
GM was asked about another occasion on which she had been at a motel with the applicant. She could not recall when it was in relation to the incident she had just described. She said it "could have been up to a year" (presumably later). She said there were "a few of us there and we were all going there to drink". The others comprised KM, KN, EH and a male friend known by the nickname "Shorty". This was at a motel on the highway at Katoomba across from the hospital. (The evidence of other witnesses indicates that this was the G'Day Motel.) GM understood that KN had organised this with the applicant. GM had walked to the motel with her sister (KM) and friends. It was late in the afternoon although she could not recall whether it was a school day. There was alcohol in the room but no food. She said that the applicant and KN were outside talking in his car whilst the rest were in the room drinking. She said EH was drunk. EH became very upset; she ran off and said she was going to kill herself. GM said that she was drunk as well. There was quite a deal of noise and the applicant said that it was getting too loud and they would have to keep it down or they would have to leave.
GM was asked about speaking to the police some time in December 2006. She said she could not recall when it was but she spoke to a female police officer (Constable Moir) at Katoomba Police Station who was writing notes or making a statement. She did not remember reading what the officer had recorded.
GM agreed that she made a statement to police on 8 January 2009. A detective from Springwood had telephoned and asked her to do so.
The complainant said that a short time after she had first been to the police she saw the applicant in a shopping centre car park at Katoomba. He called her over and he asked if she had told anyone what had happened. She said she lied and told him that she had not told anyone. He replied that it had all been "a bit of fun".
In cross-examination, GM agreed that in a statement she had made in November 2011 she had said in relation to the second occasion of being at a motel with the applicant that she could not recall how it was organised and how everyone got there. She agreed that this was different to what she had said earlier in her evidence. She denied that it was because she had spoken with KM about how they got to the second motel.
GM also accepted that in her statement made in January 2009 she had not mentioned going to another motel.
She said that when she first met the applicant she was at the tobacconist's shop for between 10 and 20 minutes. She repeated that KN was present. She said that they went "into the back bit". She could not recall the conversation that took place, explaining that "this was years ago". She disagreed with a proposition that the applicant had never provided her with cigarettes.
GM agreed that the first time she had told anyone in authority about what the applicant had done was when she spoke to the police officer in December 2006. She could not remember the name of the officer but agreed that the events in question would likely have been much fresher in her mind at that time.
GM was cross-examined about what she told Constable Moir on that occasion. She said that she could not recall saying that KN had been in the motel on the night in question. She suggested that the officer could have got it wrong and that she could not remember reading over what the officer had written. She agreed that KN was a friend who lived above a music shop on Katoomba Street. She said that she could not recall saying to the officer that when they returned to the motel after going for a drive that KN fell asleep. She suggested "the police officer could have got [KN] and [KM]" mixed up.
GM was asked whether she had said in 2006 that the assault occurred at the High Mountain Motor Lodge. (The cross-examiner was wrong to suggest this - she had only described the location and Constable Moir had worked out and written down that it was this particular motel.) She explained: "I know I got it wrong, but I can't exactly remember the name that I had told them". She was reminded that in her 2009 statement she had referred to the Bells Motel. She explained that there were a few motels along the highway so she must have got them mixed up or been confused. She agreed that when she made her statement in November 2011 she said that it happened at the High Mountain Motor Inn and that she had taken a detective there and pointed it out.
GM said that she had consumed about two cans containing alcohol by the time they had left the motel for a drive. She repeated that it made her feel tipsy and very hot. She had four to five drinks from the time she first arrived at the motel to the time that the applicant got in bed with her. She was intoxicated but she did not know how drunk she was.
GM recalled that it was mentioned that Mr Boyd was getting cannabis when they went to his father's house. However, she did not see anyone smoking cannabis in the motel room.
After GM had been cross-examined for some time it appeared that she became frustrated as is indicated by the following passage: "Q. Ma'am, do you accept that when you spoke to the police in 2006, you made no mention at all of Dean Boyd, firstly, being in that motel room that night. Do you accept that? A. I'll accept anything, I really don't care. Q. Do you accept that you made no mention of Dean Boyd being in the car when you went for the drive? A. Yes, whatever. Q. Do you remember saying to the police in 2006 that you don't remember anyone getting out of the car during that drive? A. I don't remember. Q. You didn't tell them in 2006 that Dean Boyd went to his father's house and got cannabis? A. I don't know. BREEZE: Does your Honour want me to press on? HER HONOUR: It's quarter past 11. Yes, why not? BREEZE Q. Do you know why you didn't tell the police in 2006 that Dean Boyd was there? A. No, I don't know why. Q. Do you know why you didn't tell the police in 2006 that your sister was there? A. I don't know why. Q. Was [KN] ever asleep on the floor in the motel room? A. The first time, are you talking? Q. At all yes, the first motel room? A. Beg your pardon? Q. The first time? A. Yeah, she wasn't asleep anywhere. Q. Do you remember telling the police in 2006 that Sam El-Ali lied on top of you and pulled your pants down, and you said no? A. I don't remember. Q. Is that how it happened? A. I don't remember."
The trial judge then called for a break and in the absence of the jury there was the following exchange: "CROWN PROSECUTOR: I'm sorry, your Honour. Just in relation to the last answer, it was put to her about the assault and she says, "I don't remember." Now, in my view she was sort of shutting down and I thought it may be appropriate for a break, your Honour. HER HONOUR: It did appear that way, that she was perhaps getting - well, yes. Well, how do we communicate to her - if we take the break now, …"
GM's evidence thereafter in response to the cross-examination included a significant number of answers comprising, "I don't remember" or similar.
She agreed that in her 2009 statement she said, "He rolled me over onto my tummy". Initially, she could not recall whether that was different to what she had said in her evidence in chief. She then agreed that she had said earlier that she ended up on her back and the applicant was entering her. When asked whether that was different to what she had said to the police in 2009 she replied: "A. At some point, I would have been on my back. I would have, you know, been in all different positions. I don't remember how every little thing led to it. That's what I'm trying to say. I could have been in any position but I can't remember exactly, you know, what position I was in when. So -- Q. So do you tell us that at the moment that you say Sam El-Ali entered you, you don't know whether you were on your tummy or your back? A. I was on my stomach. He was behind me."
She was further pressed about this: "Q. You were mistaken yesterday about saying you were on your back when he entered you? A. I - I think I've gotten confused, cause I know that I was on my stomach and he was behind me on the bed. So obviously I've gotten confused and that's all I can say."
She said she was crying, softly, when this was occurring.
As to the presence of Mr Boyd and KM in the room at the time of these events she gave the following evidence: "Q. Do you say that Dean Boyd and your sister were in the room at the same time that he was trying to undress you and you were trying to push him away and move away from him? A. Yes. Q. You were crying? A. Yes. Q. Did Dean Boyd do anything to stop what was happening? A. No. He was too busy trying to fuck my sister. Q. How do you know that? A. Good guess. Q. Did your sister try to stop Sam El-Ali from trying to take your clothes off? A. No. Q. But they were both right in a room a couple of metres away from you, weren't they? A. Yeah. Q. Did they say anything? Did they say, leave her alone, stop? A. No. Q. After it happened did you go into the bathroom? A. Yes. Q. When you came out was everyone sitting around talking as if nothing had happened? A. Yes. Q. You say that Sam El-Ali sexually assaulted you and you went into the bathroom and you came out and neither your sister or Dean said anything. Is that right? A. That's right."
She agreed that when she came out of the bathroom after the incident she did not say anything to Mr Boyd or her sister about the applicant having just raped her. She said that the applicant and Mr Boyd left, "not very long after". She did not complain to her sister after they left the motel about having been assaulted by the applicant.
GM said that she next saw her mother the following afternoon after school had finished. She did not tell her mother about what had occurred, "because I wasn't supposed to be where I was".
GM was then asked how long after the assault occurred that she told anyone. The complainant said she could not recall even whether it was days, weeks or months later.
The complainant's frustration with the cross-examination appears to have continued. She was asked about something she had said in her 2009 statement about having not had anything further to do with the applicant or Mr Boyd after the incident. This was contrasted with her earlier evidence about the applicant having asked her on a subsequent occasion whether she had told anyone. GM's answer to that question and the balance of the cross-examination was follows: "A. Well, I don't care, whatever. I don't care if you believe me. I just want you to finish your questions so I can go home. Don't find him guilty. I honestly don't care. I just want to go home. I haven't had a shower in four days. I have no hot water. I want to go home. I don't care if you don't believe me. I am done. Q. Why did you say to the police I've had nothing further to do with either Dean Boyd or Sam El-Ali when it wasn't true? A. Because I wanted to get out of the police station. I had had enough of sitting there. I wanted to go home like now. I will say anything to go home. Q. Sam El-Ali didn't assault you that night at the motel did he? A. If that's what you're saying, whatever. Q. Do you agree? A. No, I do not agree with that. Q. Sam El-Ali wasn't at the motel that night with you was he? A. Whatever. Q. Sam El-Ali didn't pick you up in a car earlier that afternoon did he? A. Whatever. Q. He didn't drive with you or Dean Boyd or [KM] or anyone else after you had got to the motel? A. All I have to say is Sam, be a man, tell the truth. Stop putting everyone through this. You know what you did, just admit it. Grow some balls. Q. Sam El-Ali was never at a motel on a second occasion was he? A. Yes, he was."
In re-examination the complainant agreed that she had spoken with a friend, SF. She could not recall when it was but she had told him what had happened.

Constable Janice Moir

Constable Moir (as she then was) was called upon to speak to GM on 28 December 2006 when GM attended the Katoomba Police Station at 9pm. Constable Moir was a general duties officer and explained her role as taking a basic report, enough to establish what needed to be done next, and not to probe the victim. At that time of night there were no detectives available and she was obtaining a general report that would be handed to detectives the following day.
Constable Moir said she had not seen GM again after that evening until just prior to the trial. She wrote notes during the course of the conversation on a scrap piece of paper and she later transferred the information to her notebook. She did not read back to GM her notes or offer her the opportunity to read them.
There was mention of going for a drive to Katoomba after having arrived at the motel at Blackheath. There was no mention of Mr Boyd. GM told Constable Moir that she did not report the matter to police at the time because she was afraid she would get into trouble for drinking. She said that she had since told a friend who had told another friend and through this process she had been encouraged to notify the police. She had not told her parents about the incident and did not want them to know.
The overall tenor of the notes was that it was KN rather than KM who was present with the complainant in the motel room with the applicant, and no other person.

Complaint witness - SF

SF said that his mother was in a relationship with the applicant's brother, Michael. He knew GM and had met her, he thought, in Year 5 in 2005. The complainant had told him that she and her sister used to get cigarettes from the applicant who SF knew to own a tobacconist shop.
At some time, which the Crown Prosecutor put to him was between 2005 and 2007, SF had a conversation with GM at school. She said that over the weekend that had just passed she had been sexually assaulted by the applicant. She said they had been smoking and drinking in a hotel room when it occurred. He described her demeanour as very emotional at the time she told him this. He told her to report it to police. He said he was not sure whether she did so; "she seemed a little bit scared".
In cross-examination, SF confirmed that the conversation occurred on a Monday and concerned events of the weekend just passed. He was pressed as to when this was and he was unsure. By a process of elimination, based upon what year of high school he was in, he narrowed it down to 2005 and 2006.
SF said that he was first asked to make a statement recalling these matters a month before he gave evidence in the trial.

KM was the complainant's older sister. She met the applicant sometime in the middle of about 2004 when she was in Year 9. She met him through a friend, KN, at a tobacconist store. They went there to get cigarettes. They did not have to pay. She said she went there once or twice a week for that purpose. She would go with her friend KN, or with her sister or with other friends. She said the applicant initially acted friendly towards her but then, "he got more sleazy". On one occasion, "he asked me to give him a hand job". She did not do that and did not think he was really serious.
There was an occasion when she said the applicant invited her and her sister and other friends to the G'Day Motel in Katoomba. She said that she assumed that they would have walked there because it was not very far from where she was living. She said the applicant was present as well as another man. There was no food but there was alcohol. She had one or two drinks herself. She was not very drunk. She was 14 or 15 years old at the time. She recalled a friend, EH being upset and intoxicated. She recalled other details that coincided with the evidence of the complainant.
KM gave evidence about another occasion when she was at the tobacconist shop. There was another man there and her friend KN was there as well. The other man gave KN a shoulder massage while the applicant took KM to a back room and pulled her onto his lap, unbuttoned her pants and put his finger into her vagina. She asked him to stop but when he did not she just got up.
KM said she knew a man by the name of Dean Boyd who she had met through school. She recalled an occasion where she arranged to meet him at the Franklins car park in Katoomba with her sister and with KN, however KN did not show up. The applicant arrived in his car. Mr Boyd suggested they go for a drive. They first went to a park at Leura where they consumed some alcohol and then went to a motel on the highway at Blackheath. She said that she felt disoriented, weird and tired which she attributed to the alcohol. Mr Boyd was smoking cannabis from a bong. He offered KM some but she declined. At one point she recalled that her sister was laying on the bed and "I think I passed out on the floor". At this time the applicant was either sitting on the bed or was near to it.
KM said that she did not really know what happened during the course of the evening. When she woke up in the morning she was on the bed with her sister. She was asked whether she knew how she got to be on the bed and she said: "I think I - I was woken up and they said that they were going and that we would be staying the night there, and I think I got - I think I put myself on the bed." She had no memory of what time it was. It was just herself and her sister on the bed and the applicant and Mr Boyd said that they were leaving.
When they woke in the morning she and GM were concerned about having to get to school. They caught a train to Katoomba and went home and got dressed. Their mother was at work.
KM said that GM did not say anything to her about what had happened.
In cross-examination KM said that she did not discuss private things with her sister and they had only discussed their feelings and thoughts when their parents broke up.
KM denied that after arriving at the motel there was an incident where the four had left to drive somewhere else before returning.
She maintained that she had only had one drink before she fell asleep. She confirmed that she was not suggesting either of the men had put something in her drink. The last thing she remembered was being offered some marijuana when GM was laying on the bed and then she, KM, passed out on the floor.
At no time did she hear GM say anything to the applicant like, "don't" or "don't do it" or similar. She confirmed, in effect, that the room was quite small. She did not see her sister moving her arms around or trying to push anyone away. At no point did she see her sister go into the bathroom. She did not hear the applicant say, "You are lucky I let you keep your virginity". She did not hear her sister crying.

Tendency witness - KN

KN said that she lived in Katoomba above a music store with her mother. She commenced going to the applicant's tobacconist shop when she was 13 years old. She went with a friend, KM. On the first occasion the applicant asked for identification and when they were unable to produce any he declined to sell them cigarettes. However on subsequent occasions he did provide KN with cigarettes, only requiring her to pay on some occasions.
KN said that conversations with the applicant were "pretty much sexual and alcohol wise". She said he would ask her for sex and say that she looked pretty. He asked her if she had pretty friends that liked sex as well. She said that she did. He also asked her if she and her friends liked to drink and she said that they did.
KN gave evidence of an occasion of going with KM to Lithgow McDonalds with the applicant. He was accompanied by his friend, Abdulla, who was sitting in the front of the car and KN and KM sat in the back of the car. They were provided with alcohol to drink on the journey. KN said that she became "quite drunk". After consuming some food at Lithgow they returned to Katoomba. She was 13 years old at the time. On the way back to Katoomba the applicant said he and Abdulla would like to have sex with her and KM. They declined. She said that his behaviour changed; he took all the alcohol back and did not want to talk to her and KM anymore.
KN said that she continued going to the applicant's tobacco shop every day or second day. Sometimes she paid for cigarettes but not always. On occasions she would go into the back of the shop with the applicant and he would ask her to sit on his lap. This occurred, "nearly every time". Other teenage girls would be present when this occurred. The applicant would rub his hands on her leg. She said that he would say that if the other girls saw him do it to her then they would let him do it to them.
KN spoke about a party at the G'Day Motel at Katoomba on her 14th birthday. Those present included KM, GM and two other young girls as well as the applicant and Dean Boyd. All of the girls were aged 13 and 14. A lot of alcohol was consumed; it was provided by the applicant. The applicant paid for the accommodation. KN spent the night at the motel but when she woke in the morning the applicant was not there.
There was another party a few weeks later at the G'Day Motel. Present were KM, GM, two more of their friends, a man known as "Shorty" as well as the applicant and Abdulla. Alcohol was consumed on the night, enough to make KN fall asleep intoxicated. She said that the applicant asked her for sex that night because he had supplied all the alcohol and cigarettes. She told him that she was too drunk. In cross-examination, KN agreed that at that party the applicant had said, "You're my favourite" and "you're the prettiest".
There was another occasion when an arrangement was made to go to a motel in Blackheath but KN's mother did not allow her to go out that night. KN had spoken with KM, GM and two other friends about it.

Tendency witness - AM

AM was in Year 7 and was 12 years of age in 2005. Her brother worked for the applicant in his trolley business. Her brother had a partner at the time who worked for the applicant in his tobacconist shop. AM first met the applicant near a supermarket when he was working in his trolley business.
AM recalled an occasion in 2005 when the applicant offered a lift to her and her brother's partner, Tara. AM and Tara had been walking to the home of a friend, LN. The applicant drove them to LN's house and picked her up. He drove them to his shop. While they were in his car she recalled the applicant asking if age mattered when you like somebody. He then told AM that he was 20 years of age.
When they were at his shop, AM was asked by Tara to meet the applicant out the back of the shop. AM went out to the back where she had a conversation with the applicant. He told her that he would "buy me stuff and I could have my freedom and things like that". She also said that the applicant wanted to have children with her one day. She did not think that she responded. She said the applicant tried to kiss her and did give her a peck on the neck. He then asked her to go back inside and get his cigarettes and lighter from Tara. When she got up to do so "he touched me on the bum". She said that the applicant also gave her $20 to catch a taxi to his house the next day because he wanted her to go and have coffee with him.
AM said that she was upset about what had occurred. She told Tara about the applicant's request for her to go and have coffee the next day and that she did not want to go. She gave the money to Tara to give back to the applicant. On a subsequent occasion she answered a telephone call at home which she said was from the applicant who was asking for her brother. During the course of the conversation the applicant referred to his girlfriend and was complaining about some aspect of their relationship. He also asked AM if he could ask her a personal question and when she agreed, he asked her if she was still a virgin. She responded in the affirmative and he replied, "That's good because not many girls my age were".

Tendency witness - LN

LN said that when she was 13 or 14 she met the applicant when she was in the company of a friend in the car park of a supermarket where he was doing trolley collection work. She recalled that a woman walked past and glared in their direction. The woman was identified to LN as being the applicant's partner, Felicia. She said the applicant waved it off and said, "don't worry about her, she's being a bitch" or similar.
LN also spoke about an occasion when she was alone with the applicant at his home unit. She described him as continually moving closer to her prompting her to move away. He continued trying to get close to her, but nothing happened. The applicant told her that he was aged 21. She doubted that but had no reason not to trust what he said. The applicant said that he wanted to be with her and wanted to spend time with her.
LN also spoke about an occasion at the applicant's tobacco shop where a friend of hers, AM, was asked by the applicant to speak with him out the back. LN stayed in another part of the store and sometime later AM returned and was in tears. She left with AM who disclosed to her that the applicant had tried to kiss her. She said thereafter the two of them tried their best to avoid him.

Tendency witness - KW

KW had known the applicant for some time. When she was aged 14 she frequently went to his tobacconist shop to buy cigarettes. He would also give them to her. She did this over a period of two years. She also gave evidence of the applicant taking her and friends for drives to places like Lithgow, Penrith or Springwood. On one occasion he provided alcohol for them to drink in the car. She was 15 years old at the time. On these occasions the applicant purchased clothes for her and her friends in the price range of $200 to $300.
KW said that on one occasion he asked her to set up one of her friends for a date and he offered her $500 to do so. She declined. On another occasion he offered her $1000 to set up a date with another one of her friends. KW said that she was aware that the applicant had a partner at the time, Felicia Edgecombe.
At some stage KW stopped seeing the applicant. She said it was, "because I just got sick of what he was trying to do to us". KW was 16 years old at that time.

Isobel Gooby

Ms Isobel Gooby worked at the G'Day Motel on the Great Western Highway at Katoomba. Her niece was at some stage in a relationship with the applicant's brother. She knew the applicant and his brother had a trolley business in Katoomba. She also knew of a tobacco shop that they had.
Ms Gooby recalled an occasion on 1 August 2003 when the applicant booked a room at the motel. She said he picked up the key and then got back into his car. The next morning when she cleaned the room it appeared not have been used. She saw a red cloth in the room with rose petals sprinkled on it. There were also bottles of vodka, orange juice, gin and tonic and other alcohol. There were also some plates of cheese and biscuits. From what she could see, none of the food and drink had been touched and the bed did not appear to have been used. She rang the applicant who told her that he thought he had the room for 24 hours. She told him that checkout time was 10am. He came to the hotel and collected the things he had left in the room and returned the key. (The Crown Prosecutor argued that this was another occasion of the applicant arranging a party at this motel which did not proceed for some reason.)
Ms Gooby recalled another occasion about a month later when the applicant checked into a room at the motel and paid cash. She later noticed that there was a young girl in his car who only looked to be about 14 and who looked "very frightened". Ms Gooby was concerned to the extent that she returned to the office and got the money that the applicant had tendered as payment and returned it to him. She asked how old the girl was and he replied, "none of your business". In giving him the money back she told him to "piss off and don't come back or else I'll ring the police". The applicant then left.
In cross-examination it was put to Ms Gooby that she was mistaken about the applicant having been present on the second occasion. In the course of her evidence she spoke of various occasions upon which she had seen the applicant around the township of Katoomba. Although she had not had any interaction with him she had sufficient familiarity to recognise him. She insisted that she was not mistaken about him being at the motel on the second occasion.

Detective Senior Constable Dianne Erhardt

Detective Erhardt was the officer-in-charge of the investigation. She said that the applicant was arrested on 9 July 2010. He told police that he knew AM and her brother. He did not know KM or EH. He was not sure if he knew GM.
The applicant also told police that in 2010 his partner was Felicia Edgecombe and he had been to the G'Day Motel with her for her 18th birthday. She was born on 1 August 1986.
The applicant denied that he had ever had sexual intercourse with a girl under the age of 16 and that he had ever inappropriately touched or kissed a girl. He had no prior criminal convictions.
Detective Erhardt said that during the course of her investigation she tried to obtain statements from a number of potential witnesses including Dean Boyd but she was unable to.

The applicant

The applicant gave evidence and was the only witness in the defence case. He was taken through the detail of all of the allegations by the complainant and all of the tendency witnesses. He denied being at motels with them and supplying them with alcohol and cigarettes. He denied any form of misconduct as they had alleged. The general effect of his evidence was that such acquaintance as he had with the complainant and the tendency witnesses was quite minimal, and certainly innocent. The applicant also disputed the evidence given by Ms Gooby as to the extent of alcohol that he had taken to the room at the G'Day Motel on the occasion of what he understood to be his girlfriend's 18th birthday. He explained that he did not end up taking Ms Edgecombe to the room that night because he had found out earlier that she was in fact turning 17 and not 18 as he had been previously led to believe. He said they had a fight and so the evening's events were cancelled.

Ground 1 - the verdict of guilty is unreasonable within the meaning of s 6(1) of the Criminal Appeal Act

The principles governing the determination of a ground such as this are not in dispute. It is convenient to refer to the succinct summary recently provided by Bathurst CJ in Agius v R [2015] NSWCCA 200: "[1000] The principles governing the question of whether a verdict should be set aside as unreasonable are well established. In SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14], the High Court stated that the approach to be adopted was that laid down by it in M v The Queen [1994] HCA 63; 181 CLR 487 at 492-494. The Court is required to make its own independent assessment of the evidence. If, after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury of having seen and heard the witness, the Court is left in doubt as to the reasonableness of the verdict, the doubt in most cases is a doubt that the jury should have experienced. [1001] For a verdict to be unreasonable, it is not enough that a review of the evidence shows only that it was possible for the jury to have reached a different outcome. As was stated by Hayne J in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], Gleeson CJ and Heydon J agreeing, for the verdict to be set aside as unreasonable, the jury must have had, as distinct from might have had, a reasonable doubt."
Mr Lange, counsel for the applicant (who did not appear at the trial), emphasised that it was necessary for the jury to be satisfied of the essential aspects of the evidence of GM before a verdict of guilty could be returned. That may be readily accepted but it is important to bear in mind that her evidence did not fall for assessment entirely on its own. It was supported significantly by the evidence of KM when regard is had to the defence case that the applicant was never at a motel in Blackheath with GM.
Moreover, the tendency evidence provided further support in that it showed that the applicant was a person who was sexually interested in girls of GM's age. It also showed that he gave vent to that inclination by ingratiating himself with such girls in various ways as part of a "grooming" process, including by the provision of cigarettes and alcohol. Mr Lange did not suggest that this evidence did not have significant probative value. On my own assessment it certainly did.
I propose to deal in turn with each of the points raised in support of the ground.

Evidence of GM of being sexually assaulted not supported by either KM or Dean Boyd

It was argued that the assault was said to have taken place in a relatively small motel room in the presence of the complainant's sister, KM, and Mr Dean Boyd, yet neither of those two observed anything let alone did something to assist GM.
The point about Dean Boyd may be immediately rejected. He was the applicant's friend and it was said that he was consuming cannabis. It is unsurprising in these circumstances that he might not have intervened. In fact, it was GM's perception that Mr Boyd was "too busy trying to fuck my sister".
The fact that Mr Boyd was said not to have observed the assault is speculative. Mr Boyd did not give evidence. Detective Erhardt said that she had tried to obtain a statement from him but had not been able to do so. Accordingly, it is unknown whether he saw anything or not.
KM was overcome by intoxication and was either asleep or unconscious. This is capable of having been accepted by the jury as a rational explanation for her not seeing or hearing anything.
The complainant's evidence is not rendered less credible for the absence of support from either KM or Dean Boyd. The result, however, is that her account of the sexual assault stands alone.

Delay and inconsistency in complaint

GM did not make any complaint to her sister the next morning when the pair woke and left the motel. She did not complain to her mother either. She did not complain to anyone in authority until December 2006.
No explanation was sought from GM as to why she did not complain to her sister. She said she did not tell her mother "because I wasn't supposed to be where I was". Constable Moir gave evidence that GM told her that she did not report the matter to the police at the time because she was afraid of getting into trouble for drinking.
There was evidence that GM did complain to a friend, SF. She did not recall when that complaint was made, saying that she could not even say whether it was days, weeks or months later. (It must be remembered that she was giving evidence in May 2012 when she was aged 20 of an event which was said to have occurred 7 years earlier when she was 13.)
Mr Lange submitted that the complaint to SF was not made until a significant time later (AWS [15]). The best SF could recall as to when the complaint was made was to say it occurred in 2005 or 2006. However, SF's recollection was that it arose in the context of a conversation with GM at school on a Monday about their respective weekends. He recalled that she told him that over the weekend she had been raped by the applicant in a hotel room in the Blue Mountains where they had been smoking and drinking. SF recalled that she was "very emotional".
It used to be thought that delay in making a complaint about a sexual assault adversely affected a complainant's credibility: see for example, Kilby v The Queen [1973] HCA 30; 129 CLR 460 at 465 (Barwick CJ). That is no longer the presumption and is the reason why trial judges are required to warn juries that the absence of complaint, or delay in complaining, does not necessarily indicate that the allegation is false: s 294(2)(a) Criminal Procedure Act. Judges are also required to inform juries that there may be good reasons why a victim of a sexual assault may hesitate or refrain from making a complaint: s 294(2)(b).
Mr Lange also identified an inconsistency between the evidence of GM and SF as to when the incident was said to have occurred. SF said that he was told by GM that the event occurred on a weekend whereas GM said that it was a school day. To my mind, such a matter of detail, bearing in mind the period of time that had elapsed, is of no consequence.
There was also inconsistency between GM's evidence and what Constable Moir recorded in her notes of their conversation in December 2006. Constable Moir's notes were to the effect that GM said that there was only one other person in the motel room aside from the applicant and herself and that was KN. It was submitted that this was no mistake by way of the officer writing KN's name instead of KM's. There was other information recorded in the notes which supported the proposition that GM was speaking about KN - for example, that she lived above a music shop.
In my view the evidence of Constable Moir's notes is an unsatisfactory basis to think that GM's account cannot be accepted. She was not afforded an opportunity to review the correctness of what the officer had written. It is conceivable that KN would have been mentioned in GM's account because the original intention was that KN would accompany the others on the trip to the motel. It is not implausible that Constable Moir confused the reference to the two young girls, both with a first name commencing with "K". Given the conversation with Constable Moir was in December 2006 and they were giving evidence about it in May 2012 it is unsurprising that neither of them had any real recollection of what was said independent of the officer's notes.
None of these matters required the jury to doubt the accuracy and reliability of the evidence of GM.

The complainant's recollection of events was "not impeccable"

Mr Lange referred to a number of passages of transcript in support of the proposition that GM's recollection of events was imperfect. The following evidence was referred to.
GM said that the applicant spoke to her when she went into the bathroom in the motel room but she could not "exactly remember" what he said.
She could not remember what position he was in compared to her as he was removing her pants and she could not remember all that happened after her pants were removed: "I don't, like, remember all the little bits of like what happened and all that, like, all I remember is, you know, I ended up on my back and he was entering me, like, that's all I remember, like, I can't tell you how it led up to that or anything."
GM was cross-examined about her evidence that she felt "tipsy". She also said she felt "sick and very hot". She agreed that it was the alcohol that made her feel sick and hot. She was then asked if she was sure she was just tipsy. She replied that she was aged 13 and "wouldn't have a clue". There was then this evidence: "Q. Looking back on it now are you sure that you were only just tipsy? A. I don't remember. Q. Why did you say yesterday that you were tipsy? Why didn't you say I don't remember? A. I don't know."
Counsel also referred to a portion of the passage I have previously quoted where GM appeared to become frustrated in the course of the cross-examination and was, by the Crown Prosecutor's description, "shutting down" (see above at [34]). Just before the judge called for the morning adjournment, GM said that she did not remember telling police in 2006 that the applicant lay on top of her, pulled her pants down and she said to the applicant, "No". She was asked whether that was how it happened and she said she did not remember.
After the break, the cross-examiner returned to the issue and asked whether it was true that she "did not remember" and she replied: "I don't remember all of the little bits of it, no."
A few questions later, GM was asked for detail about how she said that her pants had been removed by the applicant and she was unable to give a precise account.
A short time later she was asked about giving the answer in her evidence in chief I have set out above (at [111]) which included her saying, "I don't, like, remember all the little bits of like what happened and all that" and that all she remembered was ending up on her back and he was entering her. She said she did not remember saying that and she did not remember that this is in fact how it happened, that she was on her back.
She was pressed on her earlier evidence that she ended up on her back: "Q. That's different to what you said to the police in 2009, isn't it? A. At some point, I would have been on my back. I would have, you know, been in all different positions. I don't remember how every little thing led to it. That's what I'm trying to say. I could have been in any position but I can't remember exactly, you know, what position I was in when. So - -"
I note that the submissions failed to include reference to the succeeding questions and answers: "Q. So do you tell us that at the moment that you say Sam El-Ali entered you, you don't know whether you were on your tummy or your back? A. I was on my stomach. He was behind me. Q. You were mistaken yesterday about saying you were on your back when he entered you? A. I - I think I've gotten confused, cause I know that I was on my stomach and he was behind me on the bed. So obviously I've gotten confused and that's all I can say."

Inconsistencies in the evidence of GM

Mr Lange argued that the credibility of GM's evidence was reduced on account of inconsistencies between her testimony and what she had said in police statements.
At the beginning of the cross-examination, GM was asked about her evidence that she got to the second motel where she had been with the applicant (the G'Day Motel) by walking (see above at [22]). In her statement of November 2011 she said she could not remember "how we all got there". In earlier police statements she had not mentioned going to this motel at all.
GM was asked about a passage of a police statement dated 8 January 2009 in which she had said "I remember that I met El-Ali a few days later" and she then described the Blackheath motel incident. She was asked whether she was conveying that this was the first occasion she had met the applicant. She maintained that she had previously met him at the tobacconist shop. I note that what was said in the statement prior to her saying "a few days later" was not disclosed.
I will not repeat passages of the evidence where attempts were made to compare what was said to Constable Moir with the evidence given by GM in the trial.
GM was cross-examined about not mentioning in her statement of 8 January 2009 that the applicant followed her into the bathroom at the Blackheath motel. She explained that she did not mention every detail; she "just wanted to get out of there".
It was said in GM's statement of 8 January 2009 that the applicant "rolled me over onto my tummy". It was asserted by the cross-examiner that this was different to what she had said in her evidence the previous day. She could not remember.
She denied that reference to the applicant saying "You're lucky I let you keep your virginity" was not in her 8 January 2009 statement was because he did not say that.
Finally, counsel took GM to her 8 January 2009 statement in which there was no mention of the applicant having asked her whether she had told anyone (see above at [25]). This is what led to her apparent exasperation, saying she did not care if she was believed and that she just wanted to go home (see above at [44]).

Consideration

Some of the above matters identified by the applicant may be thought to raise real questions about the reliability of GM's evidence. However, as the Crown submitted, it is important in determining a ground asserting the unreasonableness of a verdict to have regard to the evidence as a whole.
It is also important to have regard to the advantage of the jury in seeing and hearing the witnesses; an advantage denied to this Court. For example, in his closing address to the jury the Crown Prosecutor invited the jury to recall "the tone of her voice during cross-examination" in relation to one witness and "the inflection that she gave to her answers" in relation to another. Trial counsel for the applicant invited the jury to have regard to the manner in which GM gave her evidence. It is, of course, impossible to take such matters into account when assessing the evidence from the printed pages of the transcript.
This consideration has significance in relation to the complainant's evidence, in particular her evidence in cross-examination where it reached a point that prompted the Crown Prosecutor to describe her as "shutting down"; a description with which the judge appeared to agree.
The task of determining the present ground of appeal is similar to the task that recently befell the Court in Shamoun v R [2015] NSWCCA 246. I have substituted the details of the present case in the following passage from the judgment of Hoeben CJ at CL: "[92] No Crown case is ever perfect and there are often unanswered questions. An important factor here is the amount of time which had elapsed between the [alleged sexual assault] and the trial. That of itself provides a reasonable explanation for why, not only in relation to [GM's] evidence but that of other witnesses, there were inconsistencies and differences between the evidence at trial and statements made many years earlier. [93] Most particularly, however, this was a case where the jury had a very significant advantage over this Court in assessing the credibility of [GM]. This case provides a good example of the qualification expressed by the plurality in M that when considering a ground asserting the unreasonableness of a verdict, 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'. (M at [7] and SKA at [15]). In this case, the assessment of the credibility and reliability of the evidence of [GM] was quintessentially one for the jury to determine."
It must be remembered that the primary issue in the trial was whether GM was being truthful in saying that she had been sexually assaulted by the applicant. The defence case, implicit in the applicant's evidence, was that she had made it up; he was never with her in a motel room in Blackheath, let alone did he sexually assault her. Accordingly, the primary issue for the jury was whether they were satisfied beyond reasonable doubt that GM was being truthful. Putting it another way, they had to consider whether it was a reasonable possibility that she was being untruthful.
Matters that on their own might seem quite peripheral provide considerable support for the proposition that GM was a truthful witness. The applicant's evidence was that he knew her only by virtue of her being one of a number of young people who used to congregate in the area where he did his trolley collection work at a supermarket. He said he had never spoken to her and did not even know her name. If this was true, it is highly unlikely that GM would have any knowledge as to whether the applicant drank alcohol or not. But part of GM's evidence was that whilst the applicant provided alcohol for her and her sister to drink at the motel in Blackheath, he was drinking coke and did not drink any alcohol himself. This is an unlikely thing to be included in a fabricated story. But it was supported by Detective Erhardt's evidence which was that the applicant said that he did not drink alcohol. The qualification of that assertion the applicant sought to make in his evidence to the effect that he did drink alcohol but only modestly does not, in my view, detract from the point.
Cannabis was said by GM and KM to be present in the motel room but there was no suggestion by either of them that the applicant possessed it or used it. That is unlikely in a story fabricated in order to inculpate him.
GM first went to the police about 18 months after the assault was said to have occurred. There is no suggestion of her having had any contact or communication with the applicant in the immediately preceding period. It is therefore difficult to imagine a possible explanation for GM going to the police at that point to advance a false allegation against the applicant.
According to Constable Moir, GM was not able to provide the name of the motel at Blackheath; she was only able to describe its location. It would seem improbable that a person would go to the police to falsely allege that they had been sexually assaulted in a motel in Blackheath but not provide a name for the motel.
KM's evidence supported that of her sister. She confirmed that there was the occasion at the motel in Blackheath and the limited detail she was able to provide of events before and after she passed out were broadly consistent with her sister's account. She included in her evidence that when she and GM left the motel in the morning they were intending to walk to the railway station but accidentally started walking in the wrong direction before the mistake was realised and they turned around. That is a most unlikely detail to include in a made up story.
The foregoing are not exhaustive but are indicative of it being open to the jury to accept that GM and KM were truthful witnesses.
The same can be said in respect of the tendency witnesses. There was a general consistency in their accounts where they spoke of the same event: for example, the description of parties at the G'Day Motel; and descriptions of the back of the tobacconist shop (a place the applicant said they had never been).
Once it is acknowledged that it was open to the jury to accept the evidence of the prosecution witnesses, particularly GM, as being truthful, it remains to consider whether there should nevertheless have been a reasonable doubt about the applicant's guilt on the basis of inaccuracy or unreliability. In my view, the inconsistencies and failings of memory are readily explicable on the basis of GM's age and experience and the substantial period of time that had elapsed. The matters raised by the applicant, individually or in their total effect, are not such that the jury ought to have had a reasonable doubt.
My overall assessment of the evidence leads me to conclude that it was well open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. This ground must be rejected.

Ground 3 - error in concluding that the risk of unfair prejudice in admitting tendency evidence would be "small" if the "usual directions" were given

The Crown gave notice of its intention to adduce evidence of a tendency of the applicant pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW). As I indicated earlier, the tendency asserted was summarised by the trial judge in her summing up: "[T]he Crown says it shows the accused had a tendency to act in a particular way, which is to have a sexual interest in young girls aged about 12 to 15 years old, to ingratiate himself with such young girls by giving them compliments, cigarettes, alcohol or gifts as part of a process of grooming them for his attentions and then, with each young girl, to test how she reacted to his comments, conversations or acts to see if he could pursue taking advantage of them."
Trial counsel objected to the admissibility of the tendency evidence. A number of witnesses gave evidence on the voir dire, three of whom gave evidence at the second trial (KW, KN and LN) and one who did not (RH).
Trial counsel for the applicant submitted that the probative value of the evidence was low because of the risk of contamination. Alternatively, it was submitted that if the evidence had significant probative value for the purposes of s 97, it did not substantially outweigh its prejudicial effect (s 101).
The "prejudicial effect" identified in written submissions by trial counsel was described as follows: "11 … The Crown seeks to adduce a very large body of tendency evidence, which if accepted by a jury, would ensure that the tribunal of fact could form a very detrimental view about the character of the accused."
Another matter relied upon, albeit in the context of submissions concerning severance of counts in the original indictment, was that: "the jury may determine guilt on the basis of an impression that the applicant had a general sexual interest in young females rather than focusing on the necessity for proof of each actual count on the indictment."
The oral submissions of trial counsel were principally focussed on the question of probative value, it being contended that this was low because of the risk of contamination. The submissions concerning s 101 were confined to a bald assertion that the probative value did not substantially outweigh the prejudicial effect with reference made later to the quantity of evidence rendering it more onerous for the applicant to respond.
Her Honour ruled on 7 May 2012 that the tendency evidence was admissible (and that the severance application should be refused). She referred to the relevant statutory provisions. She noted that "prejudicial effect" has been held to involve consideration of whether admission of the proposed evidence would risk an unfair trial: R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [58] (Campbell JA). She also noted that "potential prejudice involves improper use of the evidence other than for its rational effect on the probability of a fact in issue" (see, for example, R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at [47] (Simpson J (as her Honour then was)).
It is unnecessary to refer to her Honour's detailed analysis of the evidence and her reasoning in relation to the arguments advanced on the applicant's behalf concerning the risk of contamination. Her Honour concluded that the evidence had significant probative value for the purpose of s 97 and such conclusion was not challenged in this Court.
After stating that conclusion, her Honour continued: "In my view [the] significant probative value of each proposed witness's evidence substantially outweighs any prejudicial effect the evidence may have. In my view the risk of a jury using the evidence improperly or unfairly is small if they are given the usual directions appropriate for their dealing with such evidence. Therefore the evidence of each complainant and of each of the other witnesses nominated in the Crown's tendency notice is admissible… ."

Submissions in this Court

In written submissions in this Court it was contended that "there was a risk that the jury would not assess [the uncharged acts] thoroughly according to the criminal standard before taking the allegations into account" and that this was a case in which "there was a plethora of acts which might give rise to confusion or distraction from the primary issues". (Counsel was drawing from the judgment of Basten JA in Saoud v R [2014] NSWCCA 136 at [59].)
Counsel for the applicant referred to the discussion of the assessment of "prejudicial effect" in s 101 in the judgment of Hoeben CJ at CL in Sokolowskyj v R [2014] NSWCCA 55 at [52]-[56].
It was submitted that the prejudice in this case was "quite substantial". It was insufficient to merely say that the usual directions would be an adequate cure. Here, the trial concerned an allegation of a single sexual assault offence but there were a significant number of tendency evidence witnesses who spoke of various forms of misconduct spanning a period of time. In other words, it was the volume of evidence and the number of witnesses that was the primary concern. The jury could have been distracted from the obligation to consider the single charge by a general impression created by a multiplicity of allegations.
The Crown submitted that the nature of the prejudice identified by trial counsel was of the usual type associated with tendency evidence; namely that it strengthened the Crown case. This was not "unfair prejudice" in the sense described in the authorities. The written submissions for the Crown also cited authority for the proposition that it is legitimate, indeed appropriate, for a trial judge to have regard to the ameliorating effect of directions that may be given to a jury concerning the prejudice inherent with tendency evidence: DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at [172] (Simpson J (as her Honour then was)); Regina v PWD [2010] NSWCCA 209; 205 A Crim R 75 at [90] (Beazley JA (as her Honour then was); and RH v R [2014] NSWCCA 71 at [176] (Ward JA).
In response to the applicant's submissions in this Court concerning "distraction" and "general impression" being the principal bases of the prejudicial effect of the evidence, the Crown submitted that such matters were adequately catered for by the usual directions given in such cases.

Consideration

The starting point for an assessment of this ground is to identify what "the usual directions" are that her Honour had in mind. It may be taken that they are those suggested in the Criminal Trials Bench Book published by the Judicial Commission of NSW (at [4-227] and [4-232]) and this is confirmed by the fact that there is a close correlation between the suggested directions and those that the judge in fact gave. After summarising the evidence of the tendency witnesses, her Honour directed the jury as follows: "The Crown presented the evidence of those witnesses to you because the Crown says it shows the accused had a tendency to act in a particular way, which is to have a sexual interest in young girls aged about 12 to 15 years old, to ingratiate himself with such young girls by giving them compliments, cigarettes, alcohol or gifts as part of a process of grooming them for his attentions and then, with each young girl, to test how she reacted to his comments, conversations or acts to see if he could pursue taking advantage of them. The Crown seeks to rely on that evidence as evidence you can use to consider whether you are satisfied beyond reasonable doubt that the accused committed the offence he is charged with. You can only use the evidence of the accused having the tendency the Crown says he has on the question of his guilt of the charge on the indictment if you make two findings beyond reasonable doubt. The first finding you must make is that you are satisfied beyond reasonable doubt that one or more of the acts referred to in the evidence of those witnesses occurred. If you cannot find any of those acts proved beyond reasonable doubt, you must put aside any suggestion that the accused had the tendency asserted by the Crown. If you do find beyond reasonable doubt that one or more of those acts occurred, then you go on to consider the second finding you must make which is whether, from the act or acts you found proved, you can conclude beyond reasonable doubt that the accused had the tendency the Crown alleges, that is to have the sexual interest in young girls and to act on it in the way I have referred to. If you cannot draw that conclusion beyond reasonable doubt you must put aside any suggestion that the accused had the tendency alleged, but if you find one or more of the acts alleged by any of those witnesses to have been committed by the accused proved beyond reasonable doubt, and second you can conclude beyond reasonable doubt from the proved act or acts that the accused had the tendency to act in the way the Crown alleges, you may use the fact of that tendency in considering whether the accused committed the offence he is charged with. However, you must not substitute evidence of one or other of those acts from those other witnesses for the act the subject of the charge, that is the act complained of by [GM]. In order to convict the accused of the offence on the indictment you must be satisfied beyond reasonable doubt that the act alleged in that charge occurred. Secondly, you must not reason that if the accused committed one or more of those acts alleged by the tendency witnesses that he is therefore generally a person of bad character and so he must have committed the offence charged. Whatever you decide about the tendency evidence, that is whether you find it proved beyond reasonable doubt or not, you must still be satisfied beyond reasonable doubt of each element of the offence charged in order to find the accused guilty of that offence. That means you must be satisfied beyond reasonable doubt of [GM's] evidence." (Emphasis added)
I do not see any concern that these directions were inadequate in dealing with the asserted prejudice. The jury were directed in clear and emphatic terms (and terms about which there is no complaint) that it was necessary to consider the evidence of other acts of the applicant and determine whether any or all of them were proved beyond reasonable doubt. The concern that because there was such a volume of evidence, the jury might have simply formed a "general impression" that the applicant had a sexual interest in young girls aged in their early teens is not realistic in the light of this direction. The concern that the jury might have been "distracted" because of the volume of this type of evidence is also not realistic in the light of the directions in the emphasised portions above. The point was confirmed later in the summing up when her Honour said, "You can only find the accused guilty if you believe [GM's] evidence beyond reasonable doubt".
The underlying rationale of the applicant's submissions is that the jury might focus upon the evidence given by the tendency witnesses and be unable to properly consider the limitations on the use of that evidence as explained in the trial judge's directions. This is similar to the reasoning of the primary judge in R v PWD, about which Beazley JA said (at [90]): "This reasoning fails to recognise the intelligence and focus with which juries go about their deliberations".
Sokolowskyj v R, to which the applicant made reference, provides a useful contrast. In that case the appellant had been charged with indecently assaulting an 8 year old girl in a parents' room at a shopping mall. The prosecution alleged that he had "a tendency to have sexual urges and to act on them in public in circumstances where there was a reasonable likelihood of detection". It based this upon evidence that five to eight years earlier he had exposed himself in public places on three occasions, on two of which he was masturbating.
It was held that the evidence did not have significant probative value due to the generality of the tendency and the dissimilarity between the conduct alleged and that which had occurred in the past. It was also held that the prejudicial effect was not outweighed. It was said that the jury could have misused the evidence, for example by thinking that it showed that the appellant was "a sexual deviant" and therefore was a person likely to have committed the offence alleged. The trial judge had erred by making no assessment of the risk of misuse at all, simply stating: "Having regard to the judicial directions that will be given its probative value substantially outweighs any prejudicial effect".
Hoeben CJ at CL explained the necessity of weighing up the probative value of tendency evidence against the risk of unfair prejudice: "[53] This approach involved two errors of principle. The first and most obvious was a failure to carry out the weighing exercise required by s101. The second was of the kind identified by Giles JA (with whom Hulme and Hislop JJ agreed) in R v GAC where his Honour said: '87 The Crown further submitted that the judge was in error in not proceeding on the assumption that, if appropriate directions were given, the jury would act in accordance with the direction. It referred to McHugh J's emphasis in Gilbert v The Queen [2000] 201 CLR 414; 109 A Crim R 580 at [31] - [32] that the fundamental assumption of a criminal trial is that the jury acts on the evidence and in accordance with the directions of the trial judge. Prejudicial effect, however, is to be evaluated without such a foreclosing assumption, and his Honour's remarks were not directed to the present situation. ... 89 It was well open to the trial judge to see a real risk of unfair misuse of the tendency evidence, and to conclude that directions could not be given which would satisfactorily prevent it. ....' [54] In Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463 McClellan CJ at CL (with whom Howie and Latham JJ agreed) said at [80] that "prior illegal acts by the accused, especially where the charges relate to alleged sexual acts ... would inevitably be prejudicial". In DJV v R [2008] NSWCCA 272; 200 A Crim R 206 (which involved evidence of uncharged acts of child sexual abuse) McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) said at [31]: '31 ... The risk in a particular case of an impermissible course of reasoning by the jury which cannot be averted by directions must be a consideration when determining whether the evidence should be admitted.' [55] In Patel v The Queen [2012] HCA 29; 247 CLR 531 the plurality (French CJ, Hayne, Kiefel and Bell JJ) said: '113 Despite the fact that the trial judge gave careful and succinct directions as to some of the most prejudicial evidence, such as evidence of errors in surgery, it cannot be concluded that the directions were sufficient to overcome the prejudicial effects of the evidence, individually and collectively, upon the jury. The misgivings his Honour recorded in his ruling on the application to discharge the jury were well-founded. ... 128 ... In the present case, no weight can be given to the verdicts of guilty for the reason that so much irrelevant or unnecessary and prejudicial evidence was before the jury. The miscarriage of justice was grounded in the nature, significance and extent of the evidence to which the jury had been exposed. It would be expecting too much of a jury to attend to its task of determining the appellant's guilt on the four charges on the basis only of the appellant's judgment about whether to operate, putting to one side all that it had seen and heard concerning his competencies in other areas and his deficiencies as a person. ... 129 ... However, any consideration of the effect upon the jury's ability to undertake its now more confined task must take account of the evidence as a whole. The sheer extent of the prejudicial evidence in the context of a wide-ranging prosecution case is likely to have overwhelmed the jury. The jurors were not given directions that they must exclude much of it from their minds. In practical terms any such directions would have been useless.' [56] A further consideration is this. An assumption that a judicial direction to the jury designed to minimise the risk of unfair prejudice will be completely effective would effectively prevent s 101(2) operating as a safeguard against the potential risk of miscarriages of justice arising from the admission of tendency evidence. In the present case there was a real risk that, notwithstanding directions to the jury, the jury would see the appellant as a sexual deviant who had no credibility in denying the allegation against him, was not deserving of the benefit of any reasonable doubt and was the sort of person who was likely to have committed the offence alleged against him. [57] Members of the jury might have so proceeded subconsciously, even accepting that they would have tried to follow the directions given to them. Had his Honour carried out the weighing exercise required by s101, he should have concluded that the probative value of the evidence was not high and that it was substantially outweighed by the risk of unfair prejudice. In that regard, the observations of McHugh J in Pfennig v R [1995] HCA 7; 182 CLR 461 at 528 - 529 are pertinent: '39 ... the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term "outweigh" suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. ... If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.'"
The trial judge in the present case did not repeat in her judgment what had been submitted to her was the prejudicial effect of the evidence. But it cannot be inferred that she was unaware of it, or had ignored it. Moreover, the fact that her Honour stated that "the risk of the jury using the evidence improperly or unfairly is small" indicates that she did engage in the task of weighing the probative value on the one hand with the potential prejudicial effect on the other.
I am not persuaded that error in the manner in which the judge approached her task has been established, or that the conclusion she reached was one that was not open to her. This ground must be rejected.

Ground 5 - failure to provide reasons for refusing application to discharge jury

The Crown Prosecutor's cross-examination of the applicant included questioning him about Ms Gooby's evidence of finding various bottles of alcohol in the room at the G'Day Motel on the occasion when he had booked a room but not used it. In the course of these questions the applicant said that he occasionally drank alcohol but only to a modest extent ("like one beer or one glass of wine, that's all"). The prosecutor reminded him that he had told Detective Erhardt in the interview that followed his arrest that he did not drink alcohol. He responded to the effect that he was not drinking at the time of that interview.
This ground is concerned with the following exchange which occurred a short time later in the cross-examination: "Q. I suggest you told the police, "I don't even drink alcohol", would you agree you said that to them? A. I said that in that time I didn't drink alcohol, no. Q. Well I suggest that you said to them-- A. She asked me if I drink alcohol. I said, "No I don't drink alcohol". But that doesn't mean she asked me about ten years ago if I was drinking alcohol or not. Q. Well I suggest to you that she didn't ask you if you drank alcohol; she asked you if you sold drugs and you said-- HER HONOUR: Sorry? BREEZE: Your Honour, I object to this line of questioning. HER HONOUR: I don't know whether I misheard. Members of the jury I feel I have to ask you to go out for a few minutes while I have a discussion with counsel. Mr El-Ali if you'd step down and go back to the dock first before the jury go out."
The trial judge sent the jury out and in their absence clarified with the Crown Prosecutor that there would be no suggestion of the applicant having anything to do with drugs. The question Detective Erhardt asked in the interview does not appear in the transcript but the applicant's response to it was: "I don't sell drugs, I don't take drugs, I don't even drink alcohol". The judge identified a concern: "[B]ut but the problem is if a police officer says to someone do you sell drugs a juror might think, well, why are they asking that if they didn't have information. It just opens up a whole can of worms."
It appears to have been common ground from that point that the question would not be pressed and that the jury be asked to disregard it. The judge did so when the jury returned a moment later.
The following day there were a number of questions from the jury, one of which is presently relevant: "Were drugs involved according to the Crown?"
The Crown Prosecutor informed the judge that the Crown case was that the applicant was not involved in drugs. It relied upon this as supporting the credibility of the complainant, GM, and her sister, KM. They had spoken of Dean Boyd using cannabis and if they were minded to make up a story about the applicant supplying them with alcohol they might be expected to have inculpated the applicant in relation to the cannabis as well.
Counsel for the applicant made an application to discharge the jury. He contended that "there is a risk of prejudice in that the accused won't receive a fair trial". He said that an important part of the defence case was the applicant's prior good character which would be relied upon as supporting his credibility as well as the improbability of him committing the offence. He said that the Crown Prosecutor's question "cuts across both of those defences or issues".
It was also contended that the fact that the prosecutor had asked the question would raise the issue in the minds of the jury about whether the applicant was involved in the supply of drugs. This was evident from the fact that the jury had asked the question. He submitted that nothing the judge could do in responding to the question could cure the risk of prejudice.
The judge did not call upon the Crown Prosecutor to make any submission. The transcript simply records that at the conclusion of the applicant's counsel's submissions her Honour responded: "HER HONOUR: Well that application is refused."
Discussion of housekeeping matters ensued before the jury were brought in. Her Honour responded to the jury's questions and in relation to the one concerning drugs she said: "The first question was were drugs involved according to the Crown? So far as the accused is concerned no. It is not the Crown case that the accused had anything to do with drugs. The only evidence about drugs in the trial has been [GM's] evidence that Dean Boyd went to some place and collected what she thought was cannabis. So, hopefully, that answers that question for you."
Counsel for the applicant raised no issue about that direction. There was no mention of drugs thereafter.
Counsel for the applicant in this Court described the judge's response as "curt". Counsel at trial had advanced a "considered argument" which warranted explanation as to why the application was refused.
Various matters were raised in the written submissions as to why the jury should have been discharged. The matters relied upon at trial were reiterated. It was also submitted that the jury might have thought that the complainant's description of feeling sick and very hot in the motel room where she said she was assaulted might have been a result of being stupefied by a prohibited drug. The judge's intervention to send the jury out was described as "abrupt" which would only have served to highlight the impugned question. The fact that the trial had almost reached its conclusion was not a significant matter to weigh in the balance. Finally, it was contended that the direction given by the judge in answer to the jury's question was not capable of curing the prejudice because the jury had disregarded the direction she had previously given.

Consideration

It would have been preferable for the trial judge to have articulated, even if briefly, her reason for refusing the application to discharge the jury: Harris v R [2005] NSWCCA 432; 158 A Crim R 454 at [22] (Studdert J); Evans v R [2006] NSWCCA 277; 164 A Crim R 489 at [271] (James J). But the fact of the matter is that it was open to trial counsel for the applicant to ask her Honour to provide reasons. No such request was made; and if she had been asked, it is reasonable to expect that she would have obliged. Accordingly, a complaint made now about a failure to give reasons on an issue like this loses much of its force.
I am not persuaded that the trial judge should have discharged the jury. The directions given by the judge, in their combined effect, were sufficient to allay any concern about potential prejudice. I am not prepared to infer that in the face of those directions the jury might have engaged in the type of speculation the submissions in this Court suggested.
In his closing address to the jury the Crown Prosecutor made it abundantly clear that there was no suggestion of the applicant supplying drugs to any teenage girl. He reminded the jury that the only mention of drugs was in the evidence of KM and it was confined to Dean Boyd having cannabis. There was no suggestion of the applicant using either cannabis or alcohol.
The primary concern of trial counsel was about the impact upon the applicant's reliance upon his prior good character. The jury were given directions on that subject. They included that the Crown did not challenge the evidence that he was of prior good character and had no prior convictions (SU 20). There is no basis to think that the jury might not have assessed the applicant's character in the manner her Honour directed.
This ground must be rejected.

Conclusion as to conviction

The applicant required leave to appeal in relation to ground one. I am of the opinion that he should have such leave.
However, I am also of the opinion that each of the grounds fail and that the appeal against conviction should be dismissed.

Sentence

The sole ground upon which leave is sought to appeal against sentence is: Her Honour erred in concluding that the offence was aggravated by the presence of Dean Boyd at the time of the commission of the offence, when no cogent evidence of that fact was present.
This ground concerns the following passage of the judge's sentencing remarks: "I take into account that the act occurred in the presence of Dean Boyd, which adds to the humiliation of the act. I do not take into account that the act occurred in the presence of her sister, because [KM] was asleep or unconscious, due to the effects of alcohol, and so did not witness the act. Although she has since become aware of what happened, she was not traumatised by witnessing the act, which is what I construe the legislative provision as intending to address."
It was the evidence of both GM and KM that Dean Boyd was present in the motel room at all relevant times. There was no evidence that he was incapacitated and might not have been conscious or that he might have been asleep (as KM appears to have been) when the assault occurred. Whether he witnessed the assault, or was focussed upon his own activities (GM said "he was too busy trying to fuck my sister") is beside the point. The matter was aggravating in the sense that Mr Boyd's presence exacerbated the humiliation of the complainant.
There is no merit in this ground.

Orders

I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2015

Crimes Act 1900(NSW)s 61J

Criminal Appeal Act 1912(NSW)ss 5F, 6(1)

Evidence Act 1995(NSW)ss 97, 101

El-Ali v R

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