Elmowy v R [2015] NSWCCA 85 | Case summary

Court of Criminal Appeal (NSW)|2015-03-13|Before: Macfarlan JA, Simpson J, Schmidt J, MacFarlan JA

The applicant's evidence

The applicant gave evidence that when the complainant was asked to move out of his family home in about November 2011, she became hysterical, screaming "no". He said that when she moved into her Bondi apartment he spent two nights a week there but the relationship was disintegrating. In about August or September 2012 they broke up but continued to have sex once or twice a month on average. He said that the sexual encounter the subject of count 1 in the Indictment was consensual and in fact initiated by the complainant (transcript p 184). He also said that on the occasion in June when he collected the dress from the complainant that they did not have any physical or sexual contact.
In cross-examination, the applicant gave evidence of an occasion in early April 2013 when he and the complainant had sexual intercourse. He said that the complainant's observation of a mark on his neck obtained during recent sexual intercourse with another woman led to the complainant saying that she did not want to have sexual intercourse with him anymore. His evidence of the timing of this conversation (early April 2013) indicated that it occurred some weeks before the occasion the subject of count 1 which the applicant accepted occurred "[t]owards the end of April, 2013" (transcript p 163).
The applicant accepted in cross-examination that he knew that when the complainant changed her mobile phone number (on 12 June 2013) that she did not want him to contact her but that he obtained her new number from a mutual friend and sent her a text message on 29 June 2013 (exhibit 3).

Character evidence

Three persons gave character evidence on behalf of the applicant.

RESOLUTION OF THE APPEAL

In support of his submission that the jury verdicts were unreasonable and his convictions should be set aside, the applicant relied upon the following passage from the judgment of the plurality in M v The Queen [1994] HCA 63; 181 CLR 487 at 494: "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence".
The applicant submitted that, to aid its independent assessment of the evidence, the Court should view the audio visual recording made of the complainant's evidence. As pointed out in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [31], reference by an appellate court to the transcript of evidence is sufficient in the absence of particular circumstances requiring a different approach. There is nothing of that character in this case as there is no basis for thinking that the written transcript does not adequately reflect the complainant's evidence. Moreover, as is also apparent from SKA v The Queen (at [29] and [30]), the viewing of a video of the evidence of one witness only (no video being available in this case of the evidence of other witnesses) might well result in an undue focus upon the evidence of that witness, to the possible detriment of the accused person. For these reasons, I have not viewed the recording.
The applicant relied upon some 13 matters to support his contention that the jury verdicts were unreasonable. I deal with these as follows.
First, the applicant relied upon inconsistencies between the complainant's and Senior Constable Cook's evidence of what the complainant said to the latter on 30 June 2013. However, such inconsistencies as there are are minor, and the substance of the complainant's evidence concerning Counts 1 and 2 is reflected in Senior Constable Cook's evidence of what the complainant said. As a result Senior Constable Cook's evidence provides evidence of complaint, supportive of the prosecution's case.
Secondly, the applicant relied upon two changes made by the complainant to a statement she signed on 1 July 2013. However in my view the changes were minor and not of present significance.
Thirdly, the applicant submitted in relation to the late April incident that it "is difficult to appreciate how penetration could have been effected if the [applicant] did not take his pants completely off". However the jury was well able to form a view about the practicality of what the complainant described. I do not consider that any impracticability has been demonstrated by the applicant.
Fourthly, the applicant relied upon a difference between the evidence of the complainant and that of Mr Williamson to the extent that Mr Williamson did not recall being given any particulars of the April incident. This is consistent with a simple difference in recollection and is of no present significance. What is of more importance is that Mr Williamson confirmed that the complainant had told him that she had been sexually assaulted by the applicant.
Fifthly, the applicant submitted that the fact that the complainant let the applicant into her apartment prior to the 10 June incident suggested that the late April incident had been consensual. However, this does not follow. On the complainant's evidence, the applicant suddenly and unexpectedly arrived at her door. To give him the dress that he wanted returned, rather than sending him away, was a not obviously unnatural reaction to his arrival. In allowing the applicant to enter the apartment, the complainant was not admitting a stranger but someone with whom she had cohabited for a substantial period of time. Whilst he had sexually assaulted her on an earlier occasion, she was "embarrassed, ashamed and … confused" by the event and had not decided to report it to the police (transcript p 20). She admitted the complainant to her apartment merely to enable her to return to him the dress that he had given her.
Sixthly, the applicant relied upon differences between, on the one hand, the complainant's evidence of the 10 June incident and her description of what she told Ms Saunders and, on the one hand, Ms Saunders' evidence of what the complainant told her. Ms Saunders accepted the proposition when it was put to her in cross-examination that the complainant told her that the applicant had in effect "hassled" her for sex when he arrived at the apartment whereas this did not form part of the complainant's evidence. Indeed, the complainant denied that this occurred. Nevertheless, Ms Saunders' evidence provided significant support to the prosecution's case as it was evidence of a contemporaneous complaint by the complainant of a recent sexual assault of her by the applicant in her apartment (as well as of the earlier sexual assault). Most of the details were consistent although there was the discrepancy just referred to. That could well have come about as a result of a misunderstanding or misrecollection by Ms Saunders of a description by the complainant of her resistance to the applicant's repeated attempts to have sex with her by inserting his penis into her vagina. In any event, the discrepancy is not of such significance as to cast doubt on the complainant's credibility or reliability.
Seventhly, the applicant relied upon the complainant's evidence that she had also told another work colleague, Ms Hayley Osbourne, of the 10 June incident and the fact that the prosecution did not call Ms Osbourne as a witness nor explain her absence. It may be that Ms Osbourne could not recall the conversation or that the complainant was simply mistaken about speaking to her. The point is of limited significance but the trial judge in any event brought the point to the jury's attention by giving it a Jones v Dunkel direction concerning Ms Osbourne.
Eighthly, the applicant submitted that it was "astonishing" that in light of the complainant's description of how the applicant held her down during the 10 June incident that there was no evidence of bruising or injury occasioned to her. However there was no evidence that any of the witnesses at the trial, other than the police, would have been in a position to observe any such injury and, so far as the police were concerned, they did not first see the complainant until some three weeks after the incident. Moreover, it is by no means clear that bruising would have resulted from the incident, particularly in light of the complainant's description of what she meant by the applicant having his hand on her throat or neck. She said that his hand moved from her throat to her shoulders. The trial judge and counsel described her demonstration in the witness box as indicating places on her upper chest at the base of her throat and between her throat and her sternum (transcript pp 99-100).
Ninthly, the applicant relied upon the complainant's answer of "I didn't know what would happen" to a question put in cross-examination to the effect that when she said in her police statement that she was willing to attend court if the matter should proceed that far "did you think that this matter would not end up in court?" (transcript p 105). Why this answer was said to be of significance was not explained. In my view it was not significant.
Tenthly, the applicant pointed out that the trial judge gave to the jury a Jones v Dunkel direction in relation to a doctor that the complainant said that she consulted prior to her attendance on the police. However the only evidence of the consultation was that Senior Constable Cook had recorded in her notebook that the complainant had said she had seen a doctor because she could not sleep and was depressed, and that the doctor had referred her to a psychologist. There was no basis for inferring that the doctor would have been able to provide relevant evidence concerning the sexual assaults or evidence of complaint. Neither party suggested at the trial that the doctor might have been able to do this.
Eleventhly, the applicant referred to the complainant's comment to Ms Fletcher recorded in exhibit 1, that the applicant was "the scum of the earth" and Ms Fletcher's comment in the same exhibit that the applicant should be reported "so it's on his records". Assuming the truth of the complainant's allegations of sexual assault, these were hardly surprising comments to be made in the course of the communications with Ms Fletcher. They do not therefore conflict with the complainant's evidence.
Twelfthly, the applicant submitted that he "was not in any way embarrassed or contradicted by cross-examination". This is a factor to be taken into account although it is difficult to reconcile his evidence, on the one hand, that the complainant was upset in early April 2013 when she found out that the applicant had recently had sex with another woman and that the complainant told him that she did not want to have any further sexual intercourse or "physical closeness" with, on the other hand, his evidence (denied by the complainant) that later in the same month she initiated and consented to the sexual intercourse the subject of count 1 in the Indictment. Moreover, in assessing the significance of this factor, account must be taken of the advantage which the jury had, but this Court did not have, of seeing and hearing the witnesses, including the applicant, give their evidence.
Finally, the applicant referred to the complainant having on five occasions requested a break during evidence. It is clear from the transcript that the complainant was upset whilst giving evidence and found the experience stressful. Her requests for breaks did not reflect adversely on her credit or her reliability. They were understandable reactions to her upset and stress.

Conclusion

Having conducted an independent assessment of the evidence at the trial, my view is that the prosecution proved its case beyond reasonable doubt and that the applicant's convictions are not unsafe, unsound or unreasonable. For the reasons that I have given above, none of the points made by the applicant on appeal, either in isolation or in combination with the other points, raise any doubt about the soundness of the verdicts of the jury which had the advantage of seeing and hearing the evidence of the witnesses whose credibility and reliability was in issue. There was no suggestion on appeal that the jury was not properly instructed as to onus of proof and all other relevant matters.
The following matters are strongly supportive of the verdicts: 1. The complainant's evidence of events was, on my reading of the transcript, sensible, logical and credible. Her cross-examination by the applicant's counsel did not raise doubts as to the credibility or reliability of her evidence. In particular, the complainant adequately explained such delays as there were in complaining of the sexual assaults. 2. The record in exhibit 1 of the text messages passing between the complainant and Ms Fletcher was compelling contemporaneous documentary evidence of a complaint by the complainant that strongly supported the prosecution case. The messages were expressed in understandably colloquial terms, having a ring of credibility to the information and sentiments conveyed. Exhibit 1 was admissible not only to support the credibility of the complainant but to prove the truth of the facts which she asserted in the text messages and repeated in her evidence (s 66 of the Evidence Act 1995 (NSW)). 3. The prosecution case was likewise supported by the complaint evidence given by Mr Williamson and Ms Saunders. Differences between their evidence of the complaints and that given by the complainant were not of a marked or unusual character. They did not detract from the clear evidence of those persons that the complainant complained to them of her sexual assault by the applicant.
For these reasons, whilst I would grant leave to appeal, I would dismiss the appeal.
SIMPSON J: I agree with Macfarlan JA. Having considered the whole of the evidence, I am satisfied that the applicant was rightly convicted of both offences.
SCHMIDT J: I agree with Macfarlan JA.
At trial the jury did not accept the applicant's case that the complaints against him had been made in the aftermath of the breakdown of his former relationship with the complainant, who had used sexual allegations as a weapon against him; that their relationship had broken down after the complainant had learned of his infidelity, even though she had later contacted him again; that after she had changed her phone number, he had obtained the new number from a mutual friend, in order to contact her about the debt she owed him; that there were various problems with the complainant's evidence, including discrepancies between her evidence and that of other witnesses; and that that he was a truthful witness, who had given believable evidence which the jury would accept, that the intercourse the subject of count 1 had been consensual and that the events the subject of count 2 had never occurred.
The applicant also submitted that it was relevant that while the complainant had needed various breaks, while giving her evidence, she had needed none when being cross-examined about photographs of her home. This was submitted to have revealed that her demeanour and evidence were not convincing or reliable, with the result that he was entitled to the benefit of the doubts which arose from the complainant's evidence.
The jury, nevertheless, preferred the complainant's evidence over that of the applicant.
In those circumstances, for the reasons given by Macfarlan JA, I, too, take the view that the video of the complainant's evidence should not be viewed on appeal, notwithstanding that the complainant required five breaks while giving her evidence.
Having considered the evidence, I also agree with the conclusion which his Honour has reached on the conviction appeal, that the verdicts were not unreasonable, for the reasons given. The question is whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt (see Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]). The evidence did not require the jury to have necessarily entertained a doubt about the applicant's guilt.

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Judgment

MACFARLAN JA: In 2014 the applicant, Alexander Elmowy, was convicted after trial of two offences alleged in the Indictment in the following terms: "1. Between the 15th day of April 2013 and the 30th day of April 2013, at Bondi in the state of New South Wales, [Alexander Elmowy] did have sexual intercourse with [the complainant] without her consent and knowing that [she] had not consented to the sexual intercourse. 2. On 10 June 2013 at Bondi in the state of New South Wales [Alexander Elmowy] did attempt to have sexual intercourse with [the complainant] without her consent and knowing that [she] had not consented to the sexual intercourse."
The applicant seeks leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the ground that the jury's verdicts are unreasonable (see s 6(1) of the Act). In determining such a ground of appeal, this Court must make "an independent assessment of the evidence, both as to its sufficiency and its quality" and determine "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" (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] and [14]). The "central question" to be answered in making such an independent assessment is whether the court is satisfied that the applicant was guilty of the offences (ibid at [20]).
Having made such an assessment, I am, for the reasons stated below, of the view that the Crown proved its case beyond reasonable doubt and that it was therefore open to the jury to convict the applicant.

Elmowy v R

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