GIALLOMBARDO, Peter v R

Grounds of Appeal 9The Grounds of Appeal set out in the Notice of Appeal are in the following terms: (1) The verdicts are unreasonable and cannot be supported by the evidence. (2) The trial judge erred in failing to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant. (3) The absence of both evidence of good character and directions on good character occasioned a miscarriage of justice. 10On the hearing of the appeal in this Court, Mr T Game SC with Mr D Barrow of counsel, appeared on behalf of the Appellant. The Court had the benefit of detailed written submissions on behalf of the appellant dated 29 November 2012 in support of the grounds of the appeal. 11The Crown filed a document, "Crown Submissions Part A - Summary of Trial" ("Summary of Trial") on 9 August 2013. The Crown also relied upon written submissions dated 5 August 2013. 12Ground 1 of the appeal requires a detailed examination of the evidence adduced at trial. I set out below relevant factual matters as conveniently summarised at [7]-[21] of the Crown's Summary of Trial: "7. Due to a stroke suffered at birth the Complainant suffers from cerebral palsy and the side effect dysarthria, which affects her ability to communicate verbally. The Complainant, however, is able to communicate verbally with her sister, [SP], including by talking on the phone. [SP] understands the Complainant's speech, having grown up together [Complainant T4]. 8. The Complainant commenced learning sign language at TAFE in 2009, which studies are ongoing [Complainant T5]. 9. The Complainant has weak nerves due to the stroke, making it difficult for her to close her mouth fully [Complainant T6]. 10. Due to a series of three operations aiming to improve her ability to speak with the assistance of a speech therapist, the Complainant has been in receipt of a Commonwealth disability pension for one year. Following the operations the complainant struggled with saliva control, but she has since regained control of this. Her saliva control in 2010, the year she met the Appellant, was 'fine' [Complainant T6-7]. 11. A statement of agreed facts regarding the Complainant's physical disability was tendered at the trial as Exhibit L. It was agreed that the Complainant suffers from cerebral palsy and that throughout the course of her life she has been treated by various medical specialists for 'velopharyngal insufficiency' (escape of air into the nasal passage) and 'global dysarthria' (difficulties articulating speech, sometimes referred to as slurring of speech). It was agreed that the Complainant's verbal communication impairment since early childhood has been severe to profound. A neurologist reported that the Complainant is unable to close her mouth, resulting in leakage and dribbling of saliva, very little movement of the tongue and reduced movement of the lips and palate. The surgeries that the Complainant underwent [in late 2009, late 2010 and April 2011] were not performed to treat her problem with excess saliva and had no impact on that problem. 12. In cross-examination, the Complainant accepted that in text messages prior to the Appellant's visit on 10 July 2010 [Exhibit C], she referred to having the flu such that 'I can't use my voice, the doctor said I need to rest it' and 'I can't communicate with you. My voice is gone basically'; the Complainant said that she 'wanted [the Appellant] to understand that there would be no communication when I'm ill ... it's very hard to communicate when I'm ill'. The Complainant agreed that there is a difference between having a permanent problem with communications and speech and having a temporary problem due to a sore throat, however 'I said I have speech problems' to the Appellant over the internet before she knew that they were cousins. The Complainant agreed that telephone records [Exhibits B and C] show that the Appellant attempted to call her on the phone as if he could speak to her, but denied that this was because she never told him that she had speech problems: 'No, I said on the computer. Perhaps he didn't know how bad it was. Some people when I say I have speech problems will still phone me'. It was put to the Complainant that in examination in chief she said that [she] told the Appellant she had 'communication' problems rather than 'speech' problems, to which the Complainant replied that it was 'speech problems I said to him ... Not communication. Perhaps that might have been an interpreter error'. The Complainant denied that throughout the entire time of her dealings with the Appellant, she never told him that she had speech problems [Complainant T70-71, 152]. 13. The Complainant denied in cross-examination that in their communication over the internet, the Appellant did not say anything about sex. Rather, he 'just said that you looked hot and he wanted to kiss you or was dreaming about kissing you'. The Complainant maintained that the Appellant mentioned wanting to have sex with her, but clarified that he did not continue to do so after he became aware that they were related [Complainant T71, 73]. 14. The Complainant accepted in cross-examination that when the Appellant sent her a text message on 6 July 2010 that they could be 'kissing cousins' the message including punctuation marks signifying a smiley face with a wink and that her response to it was 'LOL [laugh out loud] u can't have the hots for me we related and you still want to kiss me LOL'. The Appellant replied, 'Why not? I'll pretend I still don't know hehe' [Exhibit C]. When it was put to her that she replied using 'laugh out loud' because she understood the winking smiley face to indicate a joke, the Complainant responded, 'I don't know, I can't remember what I was thinking. I think it's weird, very weird ...because we're related' [Complainant T72-74]. 15. The Complainant accepted in cross-examination that when the Appellant sent her a text message on 7 July 2010 asking, 'Can we lay and hug?' she replied, 'Oh Pete there are millions of girls you can hug and kiss, but cause we're related that will be weird of us. You can hug me but we need to respect that we do share the same family. We can get to know each other as friends, even cousins'. The Appellant maintained that he was 'still curious about kissing you' and that 'I just want to kiss you and now I know you're my cousin it kind of is naughty so it would be good excitement'. The Appellant also told the Complainant, 'I imagine kissing you now and I've had naughty thoughts before about a cousin'. The Complainant agreed with the proposition put to her in cross-examination that she knew at that time the sort of thing that was going on in the Appellant's mind [Complainant T74-75; Exhibit C]. 16. It was put to the Complainant in cross-examination that prior to informing the Appellant of the family connection on 6 July 2010, they had been in communication by text message as recently as June 2010, pausing after 14 June 2010. The Complainant accepted 'That was when I stopped. Sorry. And I remember that I stopped - all I remember that I didn't like him and I was not interested in sex. I don't know how long I stopped but I stopped. I stopped talking to him. And it was not my intention to contact him again'. The Complainant agreed that she was the one to initiate contact again on 6 July 2010 and to ask if he wanted to meet up, also stating 'I can't kiss you' and 'don't try nothing on me' [Complainant T76; Exhibits B and C]. THE OFFENCES 17. At about 8.30pm on 9 July 2010, there was a knock at the Complainant's door. The Appellant, whom the Complainant recognised from his profile picture on Oasisactive.com, was at the door wearing a baseball cap, black jacket and a black t-shirt. The Complainant was wearing a long sleeved silver top with black pants [Complainant T22, Exhibit A, photographs 3-5]. 18. The Complainant led the Appellant to her computer table, where she showed him family photographs and a piece of paper with family details printed on it that accompanied the family DVD [Complainant T23; Exhibit A, photographs 1-2]. 19. After returning the piece of paper to the computer table, the Complainant invited the Appellant to her bedroom to choose a DVD to watch. When the Complainant said, 'You pick' the Appellant replied, 'You pick'. The Complainant and the Appellant both spoke and pointed to communicate. The Appellant appeared to understand what the Complainant was saying [Complainant T23]. 20. The Complainant selected a movie, The Water Boy, and returned to the lounge room where she and the Appellant sat beside one another on the three seater sofa pictured in Exhibit A, photograph 9. The Complainant sat closest to the television, facing her back towards the Appellant on her right-hand side. They both looked towards the television [Complainant T24]. [Based on the positions of the stick figures depicted in the photograph, it appears that the Complainant meant her left-hand side rather than her right-hand side] 21. About 5 minutes into the movie, the Appellant put his arms around the Complainant and touched her breast area on the outside of her clothing. The Complainant pushed the Appellant's hands away and said, 'No'. The Appellant kissed the Complainant's neck. She moved away from the television and the Appellant grabbed her hand and kissed it. She then typed a text message on the screen of her mobile phone which she showed to the Appellant but did not transmit saying, 'Please don't touch me because we are family'. The Appellant stopped [Complainant T24-25, 59]." 13In his Remarks on Sentence, the trial judge summarised the facts of the offences as follows: "The offender arrived about 8.30pm on 9 July 2010. The victim showed the offender the DVD with the picture she had found but said in evidence he exhibited little interest. In her lounge room they began to watch the DVD movie they had chosen. They sat on her lounge. The offender placed his arms around her and hugged her and then kissed her neck and touched her breasts. She said 'no' and pulled away from him. He lay across her as she sat on the lounge and rubbed and sucked her breasts. She protested and made an excuse to get up and get a drink from the kitchen. This conduct gave rise to the first count. She returned to the lounge and the offender took her arm and pulled her down and resumed touching and sucking her breasts. This is the conduct upon which the second count was charged. The victim told him to stop and created another excuse to separate, representing that she would let her cat in. She went to the front door and then returned to sit on another lounge chair. The film ended and she told the offender to leave. As they approached the front door the offender touched the victim's buttocks, told her she was sexy and touched her breasts again and kissed her on the neck. This is the conduct upon which the third count was charged. When they were outside near the front door the offender held the victim by her arm and slid his hand down her pants to place his finger against her vagina. He said, 'Let's go to your room'. She refused. This is the conduct upon which the fourth count is charged": T6-T7, 24 April 2012.

Agreed Facts 14Before turning to the Grounds of Appeal, I note that Exhibit L in the proceedings contained Agreed Facts pursuant to s 191 of the Evidence Act 1995. That Exhibit established that the complainant was born in early 1987. She was therefore 23 years of age at the time of the offences. The Agreed Facts set out in Exhibit L also established that the complainant suffers from cerebral palsy. It is relevant to the proceedings that brief reference be made to the nature of her disabilities. The complainant has had a severe to profound verbal communication impairment since early childhood. That impairment had affected the range, speed and precision of her oral movements and her ability to close off her hypo-pharynx. 15A speech pathologist had expressed the opinion that the complainant has a profound verbal communication impairment and she relies heavily on communicating in the general community by writing and by sign language (Auslan). 16The complainant also has other forms of physical disability. In particular, medical examinations established that she was unable to close her mouth which results in: (a) leakage and dribbling of saliva (but in 2010 she could control it); (b) very little movement of the tongue; and (c) reduced movement of the lips and palate. 17The complainant also had mildly impaired co-ordination of her upper limbs.

Evidence at Trial 18The complainant, as well as her twin sister, gave evidence at trial. 19The Crown also called police witnesses, Mr Mathew Gillett and Dr Alanah Houston. Dr Houston saw and examined the complainant in the early hours of Saturday, 10 July 2010 at Liverpool Hospital. 20The following documents were tendered prior to the complainant commencing her evidence. Exhibit A - a variety of photographs, largely of the complainant's residence and also of her clothing. Exhibit B - call records between the Appellant's and the complainant's mobile phones. Exhibit C - text messages between the Appellant's and the complainant's mobile phones. Exhibit D - call records between the complainant and the police officer Gillett and also between her and her sister (SP). Exhibit E - text messages between the complainant and the police officer Gillett.

Ground 1 - The verdicts are unreasonable and cannot be supported by the evidence 21In the written submissions for the Appellant, eight specific complaints were advanced in support of this ground of appeal. It was therein contended that the jury was wrong in accepting the complainant's evidence upon the basis that she was in fact an unreliable and untruthful witness. 22The test to be applied where a ground of appeal asserts that a verdict was unreasonable and was not supported by the evidence was enunciated by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 as follows: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 23As the Crown observed in its written submissions, the performance of that task is to be undertaken bearing in mind that the jury is the body entrusted with primary responsibility of determining guilt or innocence and the jury has had the benefit of having seen the witnesses: M v The Queen, supra, at 493 per Mason CJ, Deane, Dawson and Toohey JJ; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at 405-406 per French CJ, Gummow and Kiefel JJ. 24In support of Ground 1, the written submissions of the Appellant set out detailed references to the evidence of the complainant in chief and in cross-examination, in relation to the eight specific complaints. Whilst I do not here reproduce the various dot-point references set out in the written submissions to the evidence in support of the eight complaints, I will refer below to their content in summary form. 25In the Crown's written submissions it was observed that the eight matters relied upon by the Appellant in support of Ground 1 were all very much live issues before the jury. They were all issues that the jury heard submissions about. The jury, the Crown submitted, were accordingly in a position to determine those issues in the atmosphere of the trial, having seen the complainant as she described the events of 9 July 2010, and those that occurred on the days that followed: Crown's Written Submissions at [29]. 26The Crown further observed that counsel then appearing for the Appellant at trial relied upon matters the subject of the eight complaints as indicators of the complainant's asserted untruthfulness and unreliability, and invited the jury to consider those matters carefully when reaching its verdict. The Crown's submission was that there is every reason to conclude that the jury did indeed carefully consider those matters, and concluded - contrary to the Appellant's position - that the complainant was an accurate and honest witness in relation to essential matters: Crown's Written Submissions at [30].

(1) The jury did not accept the complainant's evidence about digital penetration of her vagina. Her evidence about this issue was emphatic. She described that it hurt, lasted for five seconds and happened outside on the driveway. 27The complainant gave evidence at trial that the Appellant had digitally penetrated her. However, despite this evidence, the Appellant's submissions contend that she denied penetration when asked about it in a non-leading way by Dr Houston on 10 July 2010. 28The jury provided a note to the trial judge (MFI 19). This was relied upon by the Appellant as material which revealed that the jury did not accept her account. The note said: "We believe that count 4 is more plausibly indecent assault consistent with counts 1, 2 and 3. We don't have sufficient evidence of intercourse. Is it lawfully possible to alter the indictment on count 4?" 29The submission for the Appellant was that the jury's decision not to accept the complainant's evidence must mean that they had doubts about her veracity. 30Dr Houston at trial was examined in chief in relation to the notes she made of her examination of the complainant. Dr Houston used mime or sign language in communicating with the complainant and sought the assistance from time-to-time of the complainant's sister during the examination. An entry in Dr Houston's notes was to the effect that the complainant did not think that there had been actual penetration: T 238:5-10. In evidence in chief the complainant said that when she was asked by Dr Houston if there had been penetration, the complainant said she did not know what that term comprehended. In later evidence the complainant said that she understood that penetration was limited only to penile/vaginal penetration: T 44:1-20, 7 February 2012. 31In the course of his summing up the trial judge told the jury that they were to bear in mind that Dr Houston did not quote verbatim what she heard the complainant say. His Honour also observed, in response to a question put by him to the doctor, that Dr Houston revealed that she had communicated in evidence what her "impression" was of what had been put to her by the complainant. The trial judge reminded the jury that the complainant had communicated to Dr Houston that there was no penetration because she thought it equated to penile/vaginal penetration: Summing Up, T 27, 14 February 2012.

(2) The allegations that the Appellant was asking for sex in the period before they met are inconsistent and unsupported by the evidence. 32This complaint relates to the complainant's evidence that dialogue with the Appellant first commenced in March/April 2010 on the computer and then by way of text messaging (SMS). The complainant had given evidence to the effect that she stopped the contact because, from what the Appellant had said to her, he was too interested in sex. 33In the written submissions for the Appellant, it was noted that there was further text messaging between 3-14 June 2012 between the complainant and the Appellant, well before it became apparent that she and the Appellant were related. 34These claimed inconsistencies, which were the subject of cross-examination and the subject of specific mention in the closing address of counsel for the Appellant, were issues for the jury's consideration.

(3) A number of inconsistencies exist in the complainant's account of what happened between them on the night. 35A number of matters were raised by the Appellant suggesting unreliability in the complainant's evidence. These included her denial that she was wearing a jacket. The jacket, it had been contended by the Appellant, was important having regard to the Appellant's alleged offending actions as described by the complainant in evidence. 36A series of dot-points in the Appellant's submissions make reference to particular aspects of the complainant's account, and were relied upon in support of the submission that her account was inconsistent and difficult to understand. One such matter raised a question as to how, whilst lying on her lap, the Appellant could have reached under her top from above, as the complainant described in evidence. The complaint also detailed aspects of the complainant's evidence as to where she said she was sitting at various times, her account of the actions of the Appellant, and her actions in moving away from the Appellant on a couple of occasions. These matters were the subject of contest at the trial and they were specifically raised for the jury's consideration.

(4) The failure of the complainant to seek help was inexplicable. If the Appellant had acted as alleged, why did the complainant not seek help when there were at least three obvious opportunities to do so? Additionally, the complainant said that she composed three separate text messages to the Appellant during the evening. There seemed to be nothing to stop her sending a message to her sister or even Officer Gillett, seeking help. 37A number of factual matters were raised in the submissions for the Appellant suggesting inconsistency. These included in particular, that no effort was made by the complainant to contact neighbours after the offences and that the complainant gave inconsistent evidence as to why she did not contact them. 38The complainant gave her account as to why she did not contact neighbours. The failure to complain to neighbours was specifically the subject of examination in chief at the trial. The complainant gave her explanation which included that she only knew them on a "bye or hi" basis. As discussed below, she did, however, make early complaint to a number of other people, including police.

(5) The behaviour of the complainant after the incident was inconsistent with what would be expected had the incident occurred. 39A number of matters were raised in relation to this specific complaint regarding the complainant's actions following the assaults she had alleged had been committed upon her. These included the fact that soon after the assaults she alleged had occurred, she spoke to two persons, both of whom had the Christian name "Andrew". She told one about the alleged sexual assaults upon her. She did not, for reasons given by her, tell the other person about them. 40In addition, reliance was placed in the appellant's submissions on the failure of the complainant to tell police that she had reported the assaults on the evening in question to Mathew Gillett, and what he had said to her in response to what she had said had occurred. 41It is unnecessary here to set out the detailed matters in the dot-points in relation to this specific complaint. The Complainant gave evidence as to her reasons for not telling police about her conversation with Mr Gillett until a later point in time. Again, these were matters that were raised in the cross-examination of the Appellant and were therefore left for the jury's consideration.

(6) There was a basis to conclude that the complainant's evidence of first complaint to 'Andrew' on MSN false. 42A number of matters in relation to this issue concerned text messages said to have been sent to the man named "Andrew". It was submitted by the Appellant that the complainant had not initially mentioned these text messages to police. (As to which see discussion below.) 43The complainant in evidence explained that the sender of one particular text came from a person by the name of "Andrew" who was part of the deaf community. He was the person she decided she would not inform about the events of 9 July 2010. 44A question was posed as to whether the complainant's mention of contacting "Andrew" on the internet in her evidence-in-chief was a lie made in knowledge that she had communicated with a different Andrew that night. A series of other questions were posed. Again, these matters were the subject of examination during the course of the trial.

(7) There were problems with the complaint. 45A number of matters were detailed in support of this claim. It was contended by the Appellant that none of those matters were consistent with the complainant's evidence at trial. In other words, the evidence given by others was said to be inconsistent with the complainant's evidence of complaint given at trial. These matters were also the subject of attention during the course of the trial and closing addresses.

(8) The complainant lied repeatedly to the police. 46Reference on this aspect again relates to the fact that the complainant had sent text messages to, and received text messages from, Mr Gillett on the night of the events. She did not mention these to police in her initial statement. 47The complainant also omitted mention of contact over the internet with "Andrew" until her evidence at trial. 48In her second statement to police of 19 July 2010, the complainant did mention the text messaging with Mr Gillett. The submission by the Appellant was that she only disclosed the messages with Mr Gillett because she realised that the police had her phone and could carry out examination of the text messages. It was said that this was not the action of a person motivated to give an honest account. A number of matters were then set out which it was argued established that the complainant had told lies regarding the relationship between herself and Mr Gillett. 49On this matter, the Crown submitted as follows: "47. The final matter raised by the [Appellant] as indicative of the untruthfulness of the complainant was her failure to initially give the police a full account of the role of [Mathew] Gillett. Whilst the [Appellant] relies on this aspect of the evidence as necessarily establishing that the complainant was an unremitting liar, the jury did not so conclude, a conclusion that was entirely open to it. A reasonable view of the whole of the relevant evidence is that [Mathew] Gillett's shame at his relationship with a disabled woman was at the heart of this aspect of the matter, not any conniving and dishonest conduct of the complainant. 48. The jury had a wealth of evidence before it - including information as to the history of the disclosure of this issue to police, and evidence from Mr Gillett - to allow it to assess the complainant's conduct. It is submitted that, in light of the whole of the evidence, this aspect of it was not such as to necessarily detract from the complainant's reliability. Indeed, it may be that the jury (reasonably) viewed this episode as indicative of the ease with which the complainant could be manipulated by others, rather than of dishonesty." 50The Crown in its written submissions drew attention to the text message communications between the complainant and the Appellant. It was noted that the Appellant had contended that these communications are unsupportive of the complainant's assertion that the Appellant had articulated interest in a sexual relationship with her virtually from the start. 51As observed by the Crown, in relation to the communication between the complainant and the Appellant, it is necessary to bear in mind that the evidence of the text messages exchanged between the two are incomplete. The Crown, however, observed that what is interesting about the text messages is the extent to which they suggest that the Appellant's interest in the complainant, a woman he had never met, was overtly flirtatious. Particular matters to which attention was drawn included the following:

• The messages contained in Exhibit C appear to support contact of the complainant by the Appellant on 14 June 2010 in circumstances where she was obliged to ask him who he was. It then appears from the complainant's reply on the same day that he had asked her out, and that her reluctance to go out with a virtual stranger is indicated by a further message contained within Exhibit C.
• That there was then an apparent gap in contact which was consistent with the complainant's evidence, and that the resumption of communications coincided with the complainant discovering or realising that there was a possible familial relationship between the two (text messages 6 July 2010 - Exhibit C).
• In the communication of 6 July 2010 the complainant's messages focused on exploring the familial connection.
• It was the Appellant who introduced the concept of "kissing cousins" (text message 6 July 2010 - Exhibit C).
• In a series of further exchanges the complainant rejected that concept as "weird", while the Appellant continued the concept of "kissing cousins" saying: "I'll pretend I still don't know" (of the family connection) (text messages 6 July 2010 - Exhibit C)
• In subsequent messages the complainant revealed a reluctance to meet the Appellant, following which he offered to "come over and look after" her (text message 7 July 2010 at 11:39:05 - Exhibit C).
• In other messages on 7 July 2010 it was the Appellant who appeared interested in physical contact ("can we lay and hug"; "... still curious about kissing you"; "I just want to kiss you ..."). The Crown observed that whilst the complainant insisted that a physical relationship would be "weird", she also stressed the need to "respect that we do share the same family". 52The Crown submission was that the Appellant was making "unwanted sexual insinuation": at [41]. The complainant's evidence of emphasising the family relationship, it was submitted by the Crown, rather than undermining her credibility, in fact supported it: Crown's Written Submissions at [41]. 53The specific matters raised in support of Ground 1 are to be considered in light of all relevant considerations, including the following: (1) All of the matters relied upon in the Appellant's submissions were, as previously mentioned, the subject of examination and testing at trial. (2) Whatever the claimed inconsistencies or deficiencies in the complainant's evidence, the jury plainly accepted her as both a truthful and a reliable witness. Whatever difficulties or problems may have existed with aspects of her evidence, they were clearly not considered by the jury as significant. (3) The benefit of the jury seeing the complainant give evidence was particularly significant in this case. She has a significant level of disability, in particular, cerebral palsy and global dysarthria (difficulties of articulating speech). Whilst her ability to communicate was significantly impaired, requiring the use of an Auslan interpreter, a reading of the transcript indicates that the complainant had a clear understanding of events and, at times, gave sharp and incisive responses. The jury was in a position to assess the veracity of her evidence in light of (i) the unusual presentation of her evidence due to her disabilities, and (ii) her demeanour. (4) The complaint evidence provides a sound basis for evaluating the accuracy and truthfulness of the complainant's evidence. She was not cross-examined to suggest that she had given to police, or to her sister, a materially different version of what she said had actually taken place. Leaving to one side for separate discussion her failure to immediately call police or initially mention her communications with Mr Gillett, there was no suggestion made to the complainant in cross-examination to the effect that there were significant discrepancies between her statement to police and her evidence at trial. (5) The submissions of defence counsel who appeared at trial, addressed and emphasised the matters relied upon, which are now the subject of the eight specific complaints relied upon. (6) The forensic evidence was important evidence. It provided independent evidence of a corroborative nature. (7) The verdict in respect of Count 4 did not indicate that the jury regarded the complainant's evidence as deliberately untruthful. Rather, the difficulty identified by the jury was its accuracy in terms as to whether there had actually been digital penetration. The incident occurred in circumstances that clearly involved a level of stress that was in turn capable of causing confusion to the complainant as to whether or not there had been penetration. Importantly, the jury were plainly satisfied that an indecent assault of some kind had occurred. This was consistent with what the trial judge said about Count 4 in his remarks on sentence: "The verdict of not guilty to the fourth count on the indictment, but guilty to the alternative of aggravated indecent assault, must have been upon the premise that the jury were not satisfied beyond reasonable doubt that the accused digitally penetrated the victim's vagina, but otherwise accepted her description of the misconduct:" Remarks on Sentence: T 5, 24 April 2012. 54Complaint evidence and forensic evidence (DNA) was adduced in the Crown case. The evidence was plainly significant in the assessment of the complainant's account of events. After the Appellant left the complainant's home, the complainant said she was panicking and walking around the house thinking of what to do. She did not consider going to police at that point as it was very late and she said she was afraid to go outside. She did, however, send a text message to Mathew Gillett who at that time was still an online friend. She knew that he was a police officer and she sought his advice. He told her to report it to police. He told her not to wait as, if police require evidence, they needed to act quickly: (text messages, 9 July 2010 and 10 July 2010 - Exhibit E). 55Also on the night of 9 July 2010, the complainant telephoned her sister and told her that she had been sexually assaulted. The complainant subsequently drove to her sister's house. Her sister said that the complainant appeared scared and she was crying The complainant gave her sister details of what she alleged had taken place and what she said the Appellant had done. 56As a result of a triple-000 call made at 2.08am on 10 July 2010, police attended at about 2.25am at the unit belonging to the complainant's sister. Police subsequently accompanied the complainant and her sister to Liverpool Hospital. Police wrote a report of the matter on the COPS system based on memory and a police notebook. 57The complainant gave Dr Houston at the hospital, with the assistance of her sister, an account of the sexual assaults upon her by the Appellant she alleged had taken place some hours earlier. She marked on a diagram of a female torso the areas she said the Appellant licked or sucked. There was then a discussion of the issue of penetration to which reference has been made above. 58As to the application of the test in the present case, I will address the same in the conclusion expressed below following consideration of each of the other grounds.

Ground 2 - The trial judge erred in failing to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant 59There was no complaint of this kind made at trial. Accordingly, Rule 4 of the Criminal Appeal Rules applies. 60The written submissions for the Appellant set out extracts from the summing up in which the trial judge emphasised the absolute importance of the evidence of the complainant to the Crown case. In that respect: (i) At page 7 of the summing up the jury were instructed that if the conclusion was reached that the Appellant was not guilty of any of the counts, then consideration would need to be given as to how that conclusion might affect the jury's consideration of the other counts. In that context, his Honour stated: "And it is important in this case ladies and gentlemen, because as I will make clear, I hope, the Crown case depends upon the evidence of the complainant, for without her evidence the Crown case must fail. In respect of each count the Crown case depends upon the evidence of the complainant. If you do not accept beyond reasonable doubt her allegations that the accused touched her breasts and sucked her breasts and had sexual intercourse without her consent by digitally penetrating her vagina, knowing that she was not consenting in each case, the accused must be found not guilty": T 7-8, 14 February 2012. (ii) Following reference to the Crown case as relying upon the evidence of the complainant, the presence of the accused's DNA on the relevant swabs, and the evidence of the complainant, the trial judge stated: "The Crown case does depend upon the evidence from the complainant. If you are not satisfied beyond reasonable doubt that she was truthful and reliable in her evidence, speaking to the essential ingredients of each of the charges, you must acquit the accused": T 26, 14 February 2012. (iii) When directing the jury not to simply accept the version of events they preferred, the trial judge stated: "You may return a verdict of guilty in respect of any charge only if you are satisfied beyond reasonable doubt that the complainant was truthful and accurate in her evidence regarding the ingredients of that charge": T 26, 14 February 2012. 61In the submissions for the Appellant it was acknowledged that the trial judge emphasised to the jury that the Crown case depended solely upon the complainant's account. 62It was also accepted in the Appellant's written submissions that the direction set out above did emphasise to the jury the central importance of the complainant's evidence. However, it was contended: "[That] did not amount to a warning. Nowhere in the trial judge's summing up did he direct the jury that before accepting the complainant's account they were required to scrutinise her evidence with great care." Appellant's Written Submissions at [151]. 63In paragraph [154] of the Appellant's written submissions a number of features of the case said to warrant a warning were set out. These included what was termed "the problems in her account", this being a reference to the matters set out in the submissions in relation to Ground 1. Because of these "problems" it was said that the complainant's evidence required, "... the closest scrutiny by the jury": at [154]. These were summarised in dot-point form in that paragraph. 64Finally, it was submitted that the trial judge's failure to provide a warning occasioned a miscarriage of justice. 65The Crown referred to the decisions of this Court which emphasise that Rule 4 of the Criminal Appeal Rules is not to be regarded as a "mere technicality": see in particular Ward v The Queen [2013] NSWCCA 46 at [26]-[28]. 66It was the Crown's submission that trial counsel did not complain about the trial judge's directions because they were perfectly adequate in the context of the trial as it had been conducted before the jury: Crown's Written Submissions at [63]. 67In support, it was emphasised that "there was no mystery that the only evidence the Crown could point to which was capable of proving the charges was that of the complainant": Crown's Written Submissions at [64]. 68The focus of the trial, the Crown further observed, was plainly on the complainant and on the question of her reliability. The trial judge had emphasised on more than one occasion the significance of the complainant's evidence and the fact that the jury had to accept her evidence beyond reasonable doubt before they could convict the Appellant on any of the charges. 69It is plain that the trial judge emphasised the absolute importance of the complainant's evidence. His Honour also emphasised the fundamental requirement of the jury accepting the complainant as being both truthful and accurate in her evidence before the Appellant could be convicted on any of the charges. 70By reason of the repeated and very strong and clear directions given by the trial judge, I do not consider that in the particular circumstances of the present case, having regard to all the evidence adduced in the Crown case, there was the need for a direction as referred to in Ground 2. 71In addition to the above references to the trial direction, the trial judge told the jury: "Where in a case such as this there is evidence from a complainant alleging sexual assault and evidence from the accused denying the offence, your task is not to decide which of the two versions you prefer. You may return a verdict of guilty in respect of any charge only if you are satisfied beyond reasonable doubt that the complainant was truthful and accurate in her evidence regarding the ingredients of that charge. As I explained earlier, even though you might not accept the accused's evidence, he is not to be found guilty unless you are satisfied beyond reasonable doubt of the evidence given by the complainant. If you are not, you are obliged by the law to find the accused not guilty." Summing Up, T 26-27, 14 February 2012. 72I accept the Crown's submission that it could not have escaped the jury, given the directions of the trial judge, that the Crown case rested on the evidence of the complainant and that before any finding of guilt could be made against the accused the evidence had to be carefully examined and accepted to the required standard before they could be satisfied that it proved his guilt. 73I also accept the submission made on behalf of the Crown that whilst his Honour did not employ the specific phrase "scrutinise the evidence with care", ordinarily used in a Murray direction (R v Murray (1987) 11 NSWLR 12 at 19), in the circumstances of this case it was not necessary or essential for the trial judge to have used that phrase. 74The trial judge gave adequate directions including on the claimed inconsistencies in relation to the complainant's evidence which needed to be considered in evaluating the truth and reliability of the complainant as a witness. This was a case in which the complainant's evidence was required to be considered in context, which included her complaints, the evidence of her distressed condition given by her sister, and the forensic evidence called in the Crown case. 75I have concluded that there is no substance to this ground. On that basis, accordingly, Ground 2 should be dismissed.

Ground 3 - The absence of both evidence of good character and directions on good character occasioned a miscarriage of justice 76It was submitted for the Appellant that good character evidence should have been adduced at trial in the circumstances of the case and a good character direction sought from the trial judge. 77It was acknowledged in the Appellant's written submissions that as a direction on good character was not sought, Rule 4 of the Criminal Appeal Rules applies. 78The Appellant was a serving Probationary Constable at the time of the allegations. At a later time, namely on 5 October 2011, a Notice of Order for the appellant's dismissal from the NSW Police Force pursuant to the Police Act 1990 was served on behalf of the Acting Assistant Commissioner of Police. The basis for the dismissal as specified in the Notice was that on 9 July 2010 the Appellant had assaulted the complainant. Consequently, as at the date of the commencement of the trial, namely 6 February 2012, the appellant was no longer a member of the Police Force. 79The Appellant had no prior convictions, and the Crown Prosecutor adduced that fact in the Crown case. 80In the written submissions on behalf of the Appellant, it was stated that five personal references were tendered on the Appellant's behalf at the sentencing hearing. The written submissions contained extracts of the references attesting to the appellant's good character and commenting on his appropriate behaviour towards women. 81In the written submissions for the Appellant it was stated that despite the evidence of an absence of criminal convictions in the Crown case and the existence of material as contained in the personal references, no evidence of the appellant's good character was adduced: at [164]. 82Additionally, the written submissions for the Appellant ... that despite the Crown's apparent concession that the Appellant was a person of prior good character, no good character directions were sought. 83It was further submitted for the Appellant that the Crown case relied entirely on the sworn evidence of the complainant. The Appellant gave sworn evidence denying the allegations. Evidence of good character it was said: "... may have assumed a critical importance": Appellant's Written Submissions at [166]. It was submitted that such evidence would have allowed the jury to contrast the depiction of the appellant by the complainant with the observations and opinions of those who knew him well. 84It was also observed that the jury would have been instructed by the trial judge that the good character of the Appellant could be used both in considering the issue of guilt and bearing on his credibility in considering whether his account in evidence was likely to be true: Attwood v The Queen (1960) 102 CLR 353 at 359. 85In the written submissions for the Appellant at [168], it was contended that no explanation for the absence of the evidence or the directions regarding the appellant's good character appeared from the transcript of the trial: at [168]. Efforts had been made on behalf of the Appellant's current solicitor to ascertain the reason for the omission of the material from the trial, but those attempts had been unsuccessful. The submission in those circumstances was that "... there is nothing to suggest the decision was made for forensic purposes and the actions of the Crown Prosecutor in adducing evidence that the [Appellant] had no prior conviction tends to confirm this" at [168]. 86At the hearing of the appeal, the affidavit of the Appellant declared and affirmed on 7 November 2013 was read. 87The Crown relied upon two affidavits. Firstly, the affidavit of the Appellant's former solicitor Mr Dom Velcic, sworn 21 June 2013. Secondly, the affidavit of Andrew Martin, barrister-at-law, affirmed 7 June 2013. Both Mr Velcic and Mr Martin were extensively cross-examined at the hearing of the appeal. 88There was conflict on some matters between the account given by the Appellant in his affidavit and the evidence based on the recollections of Mr Velcic and Mr Martin. 89The Appellant said that he was charged with the offences concerning the complainant in July 2010 and he then contacted Mr Velcic who then acted for him in the matter: Affidavit of Peter Giallombardo affirmed 7 November 2013 at [3]. 90Prior to the committal the Appellant said he had a meeting with Mr Velcic and Mr Martin. He said he recalled Mr Martin saying something about needing to consider calling evidence or witnesses as to his character. Mr Velcic, according to the Appellant, immediately responded saying words to the effect of "we cannot call evidence of his character because of the previous allegations from his ex-wife": Affidavit of Peter Giallombardo affirmed 7 November 2013 at [6]. 91The Appellant then said in his affidavit that Mr Velcic said that there were similarities between the allegations and that the Crown would call his ex-wife against him: at [6] He added: "... I reminded Mr Velcic, at this time, that my ex-wife had been charged with making a false report to Police and harassment and intimidation against me but Mr Velcic dismissed it and said it doesn't matter because the allegations were still similar": at [6]. 92The Appellant stated that that was the only time he ever recalled any discussion about calling evidence as to his good character being raised at any time throughout the proceedings: Affidavit of Peter Giallombardo affirmed 7 November 2013 at [7]. 93The Appellant further stated: "I informed Mr Velcic that [the Appellant's ex-wife] had been convicted of making a false statement alleging a sexual assault upon her by other people, but not by a police officer": at [8]. 94The submissions for the Appellant proceeded upon the assumption that there was no proper basis for the failure to adduce evidence of his claimed good character at trial. 95As noted previously, Ground 3 raises a complaint that was not made by the Appellant at trial. Accordingly, Rule 4 of the Criminal Appeal Rules applies. The Crown submitted that leave should be refused. 96The Crown submitted that it is clear from the affidavit evidence of trial counsel that evidence of good character, beyond that implicit in the evidence led by the Crown, was not placed before the jury and no direction in respect of good character was sought by the Appellant. This, the Crown observed, was as a consequence of a considered forensic decision by Mr Martin of counsel, after having discussed the issue at length with his client and having obtained those instructions from him: "It is submitted that the evidence disclosed in the affidavits establishes that a legitimate forensic decision was taken in relation to the way the [Appellant's] case would be presented on the issue of his character": Crown's Written Submissions at [90]. 97The Crown additionally submitted that the conclusions reached by Mr Martin as to the prospects of success of any application pursuant to ss 110 and 192A of the Evidence Act were soundly based. The evidence as left to the jury by agreement between the Crown Prosecutor and the legal representatives of the Appellant, it was submitted, meant that the Appellant had some limited benefit of an inference in his favour on the issue of his character: Crown's Written Submissions at [94]. 98The evidence of Mr Velcic on the subject offences, and Mr Martin, established the following matters: (1) Specific consideration was given by each of them to the benefits and possible disadvantages to the Appellant in leading character evidence at the trial. (2) There were two potentially countervailing matters that were considered in determining whether good character evidence should be adduced. The first related to an Apprehended Domestic Violence Order ("ADVO") that had been sought by the Appellant's ex-wife. The second concerned the Appellant's dismissal from the NSW Police Force. (3) As to the first, Mr Martin said his understanding before the trial was that the ADVO was based on an alleged encounter between the Appellant and his ex-wife at a time when he was in the police service. The allegation was that he had indecently assaulted her. (4) Mr Martin said in evidence on the appeal that an officer from the Director of Public Prosecutions, not long before the trial was fixed to commence on 19 September 2011, informed him that if evidence of good character was led by the defence, then evidence of the alleged indecent assault on the Appellant's ex-wife would be called. He said that officers of the Professional Standards Command displayed their knowledge of the facts alleged in support of the ADVO application. (5) Mr Martin said he and Mr Velcic considered at that time, that there was an unfortunate similarity between some aspects of the allegations concerning the Appellant's ex-wife and some allegations raised by the complainant in the trial. (6) As at September 2011, Mr Martin said he had the belief that the Appellant was still a serving police officer though under suspension as a result of the allegations made by the complainant. In oral evidence, Mr Martin stated that he eventually (during the trial) came to an understanding that the Appellant had been dismissed from the NSW Police Force because of the complainant's allegations: T 21:5-10, 28 November 2013. (7) Mr Martin's evidence was that the Appellant's dismissal had caused him concern. Mr Martin said that at the time of the trial there had been publicity in the newspapers about the Commissioner of Police saying he no longer had confidence in certain police officers who had been dismissed. That, Mr Martin considered, had "certain connotations in the context of the trial": T 21:15-20, 28 November 2013. He said in that respect: "I was concerned that if it were revealed to the jury that he'd been dismissed from the [Police Force], that that fact alone might reflect poorly on his character": T 21:15-20, 28 November 2013. 99Mr Martin said that that was his view even though he knew that the Appellant had been dismissed solely because of the complainant's allegations: T 21:20-25, 28 November 2013. Mr Martin said he agreed that he was concerned about the possibility that "people" would speculate about it: T 21:25-30, 28 November 2013. 100In his affidavit, Mr Martin identified the issues that he said presented him with a dilemma. The first was that evidence that may have been led relating to the allegations involving the Appellant's ex-wife appeared to be relevant in reply to evidence of good character "in a particular respect" within the meaning of s 110(3) of the Evidence Act 1995. Mr Martin said he thought this was a sufficiently strong point to render inexpedient, or even futile, the seeking of an advance ruling under s 192A of the Evidence Act. 101The second issue related to the fact that Mr Martin had, up until the time the trial began, believed that the Appellant was a serving police officer. This had led to the position whereby the prosecution had agreed to adduce evidence of the fact that the Appellant had no prior convictions in the Crown case. Until Mr Martin was informed that the appellant had been dismissed, he had been intending to rely on evidence that the appellant was a person generally of good character, rather than a person of good character "in a particular respect". 102The evidence as to character was to include the fact that the Appellant was still a serving police officer, though under suspension, solely as Mr Martin understood it, in relation to the subject matter of the charges for trial. 103Once Mr Martin was informed that he had been dismissed, that, to his mind, raised "other issues". He considered that once that fact became known the jury might, from their own knowledge, be aware that it suggested that the Appellant no longer enjoyed the Commissioner's confidence. It also implied that the Appellant was dismissed for reasons other than the allegations made by the complainant. Mr Martin considered that reply evidence could be called from the officer in charge of the case pursuant to s 110(2) of the Evidence Act without being limited by the hearsay rule, the opinion rule, the tendency rule and the credibility rule to establish that the appellant was not a person of good character. 104Finally, Mr Martin acknowledged in his affidavit that, with the benefit of hindsight, he could see how an application in regard to evidence of good character generally would have been appropriate. He said that he could only assume that he did not consider such an application because he had been distracted by the surprise of discovering that the Appellant had in fact been dismissed from the Police Force. 105Mr Velcic stated in his affidavit sworn on 21 June 2013, that he had had discussions with Mr Martin and the Appellant, together and separately, regarding the evidence of his character being led at trial. He said they discussed the similar factual circumstances of the Appellant's ex-wife's ADVO allegations and the complainant's allegations. He said he provided the Appellant with strategic advice in respect of his character. He said that he was of the opinion that there was evidence available to the prosecution, in the form of the allegations of the Appellant's ex-wife, that would likely rebut any proposition that the Appellant was of "good character": at [15]. 106Mr Velcic further stated that he advised the Appellant that he needed to resist the highly prejudicial and unfavourable ADVO allegations from being presented at trial: at [16]. He said a prudent approach was required to avoid raising the issue of the Appellant's character. 107In addition, Mr Velcic said that the Appellant, Mr Martin and himself were in agreement with respect to these tactical decisions throughout the trial matter: at [16]. 108The evidence, including in particular that of Mr Martin, which I accept, establishes that considerable attention and consideration was given to adducing character evidence at the Appellant's trial. In particular, the ability of the Crown to call evidence in reply to evidence of good character, or at least the possibility of it doing so, was considered having regard to the two issues discussed above. 109In relation to the first issue (the allegations made by the Appellant's ex-wife), it was not unreasonable for the solicitor and counsel for the Appellant, without being in a position to evaluate the actual truthfulness and reliability of the ex-wife's allegations, to have made what was in this case in the nature of a tactical decision. That decision was against calling evidence of good character (and therefore to forego the opportunity of seeking a good character direction) and negotiating a position whereby the Crown agreed to adduce evidence of the fact that the Appellant had no prior convictions. The original intention had been to call evidence as to his position as a serving police officer. 110As to the Appellant's submission that evidence of good character assumed critical importance, it is true that the Crown case depended upon the complainant's credibility. However, the entirety of the evidence in the Crown case must also be brought to account. In this respect, as discussed above, there was strong evidence of complaint and the forensic (DNA) evidence was consistent with certain of the very particular allegations made by the complainant. Taken in combination, the evidence as a whole constituted a strong case for the Crown. 111The factual circumstances in R v D (1996) 86 A Crim R 41, relied upon in the Appellant's written submissions, were very different to those of the present case. In R v D there was no corroboration which implicated the Appellant. In that case, the credibility of the complainant was very much in issue, so much so, that Hunt CJ at CL said that he was satisfied that there was a substantial chance that the jury would have acquitted the Appellant if the available character evidence had been given: at p 44. That is not a conclusion that could, in my assessment, be reached in the present case assuming that evidence of good character adduced at the sentencing hearing had been called at trial. 112I am of the opinion that Ground 3 does not raise a valid ground of appeal. Having considered the evidence of Mr Martin and Mr Velcic, I am satisfied that proper consideration was given to the question of calling good character evidence, and a tactical decision made, and that the Appellant had been apprised of the rationale for that decision. Accordingly, the absence of evidence of good character and directions on good character has not, in my opinion, occasioned a miscarriage of justice.

Conclusion 113Upon consideration of the evidence advanced at trial, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of the offences charged. 114This is a case where there was evidence of a very early complaint by the complainant to more than one person, followed by the medical examination performed the day after the date on which the complainant alleged she had been assaulted. 115This is also a case in which the jury had the benefit of seeing and hearing the witnesses, in particular, the complainant, which is of significance. It is clear that the jury formed a favourable view of the complainant and of the accounts she gave in evidence. 116This is a case that was very much a word against word case, in which the complainant's credibility was fully tested. The various criticisms relied upon in support of Ground 1 were ventilated in cross-examination, and it was the jury's function to determine whether the complainant's accounts established the matters alleged beyond reasonable doubt. Having reviewed the whole of the evidence, this is not a case where, in my assessment, a reasonable doubt has been established. 117I, accordingly, propose that the appeal be dismissed.

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