Glenn (a pseudonym) v R

Court of Criminal Appeal (NSW)|2020-09-02|Before: Hoeben CJ, Button J, Adams J

Judgment

HOEBEN CJ at CL: I agree with the judgment of N Adams J and the orders which her Honour proposes. In particular I note that in relation to Ground 3, I have listened to the audio of the cross-examination of the applicant and I agree completely with the conclusions of N Adams J in regard to the conduct of the Crown Prosecutor.

The issues at trial

The evidence was that the complainant and the applicant had been in a relationship that had ended in 2013, although the complainant's initial evidence was that it had ended in 2008. In the weeks leading up to the offences, the complainant had posted photos of a new relationship on Facebook. The applicant had contacted her and told her to pull them down. At that stage, he lived in Wellington and she lived in Whalan, a four-hour drive away. After a series of texts, he arrived at her home at 5am intoxicated and attempted to sexually assault her and then later did so.
It was common ground that the complainant did not offer physical resistance or protest to the sexual activity. On the contrary, with respect to the second count, her evidence was that she feigned enjoyment so that the act would end more quickly. After the assaults, she left to go shopping and called police on a recorded triple-0 call. The complainant's position was that she did not consent to the sexual activity and only submitted to the applicant because she was in fear of serious violence. That fear was based on the fact that 17 years earlier the applicant had kidnapped her at gunpoint, involved her in a police chase, and crashed his car causing her injury. I propose to refer to this as "the 1998 incident".
The defence case at trial, was that the complainant had invited him over to collect some tools in her shed, that the sexual intercourse was consensual and that he had been "set up" by the complainant.

Pre-trial application before Norton SC DCJ

The trial was first listed to commence before Judge Norton SC on 4 November 2018.
Before the trial commenced, the Crown made application to adduce evidence of the 1998 incident at the trial to explain why the complainant did not resist the applicant on 2 April 2015. The 1998 incident had occurred after the applicant and the complainant had been in a relationship for about 9 months. He became jealous of her and believed that she was having affairs with other men. She became concerned after an argument and telephoned police. When the police arrived, the applicant left. Later that day, he followed the complainant and her friend to her house. After a confrontation he dragged the complainant into his car at gunpoint and drove away. His vehicle eventually collided with a police vehicle which resulted in a car chase which only ended when the applicant's car crashed causing the complainant to receive fractured vertebrae.
The applicant pleaded guilty to the offences and in 1999 was sentenced to a term of imprisonment of 5 years with a minimum term of 2 years and 6 months. The complainant visited the applicant in custody "numerous" times and the relationship resumed upon his release from custody on 11 January 2001. The complainant's evidence was that the relationship lasted until 2008 and was "on and off again". From 2013, she had irregular contact with the applicant. There was a factual dispute at the trial about when the relationship ended.
I pause here to note that what was known to counsel and the trial Judge, but was not in evidence, was that the applicant had spent a significant time in custody from his release in 2001 until his arrest for the present offences in April 2015. The Corrective Services print-out, which formed part of the Appeal Book, reveals that he was in custody from 5 December 2005 until 3 June 2007 and again from 7 February 2009 until 6 February 2013. Throughout the trial, the date "2008" was raised as a time the applicant was not living with the complainant. That is in fact a reference to early 2009.
At the pre-trial application before Judge Norton the Crown tendered two statements from the complainant dated 4 April 2015 and 16 July 1998 as well as the transcript of the triple-0 call of 2 April 2015. The significance of the triple-0 phone call was that the complainant explained her conduct on 2 April 2015 by reference to the 1998 incident. A relevant extract of this is as follows: "THE COMPLAINANT: Someone's following me, someone's following me and he has got a background with me, he has nearly killed me before, he's threatened me with a gun in his hand and he is back here, and I'm at McDonalds at Mt Druitt, I need to talk to a policeman really urgently please. POLICE OPERATOR: ...whose the person following you? THE COMPLAINANT: [The applicant]...I need to speak to a policeman... ... POLICE OPERATOR: What's your relationship with him? THE COMPLAINANT: Ah my he is my ex. But I told you he has kidnapped me before and wrapped me around a tree and it's all on record and I woke up this morning and he was in my bedroom and I just tried to get out of the house, tell him I was going shopping and… ... POLICE OPERATOR: Has he got any weapons on him? THE COMPLAINANT: I don't know, last time he had a gun, I don't know. ... POLICE OPERATOR: ....He is not in the car park? THE COMPLAINANT: No he is not in McDonalds car park but he is up behind the Aldi's car park, like I said, I just thought he was going to kill me. I just made excuses up to get out of the house. I just tried to be nice and whatever. I sucked him in and said I was going to Aldi's to get a few things and when I pulled into Aldi's car park I know was behind me, I know he was behind me, so I just walked across to the McDonalds, maybe he's thinking I'm just getting some breakfast or something, but I need the police, I need the police badly, because I know what he is capable of. I know the last time he nearly did something to me he was on drugs but I know he has been drinking. As I said I woke up this morning and my bedroom light switched on and he's standing above my bed. We have been separated for years and years and he won't let up, he just won't leave me alone. He rang me last one time [sic] and said he was going to put a knife through my head." (Emphasis added.)
Police also obtained an additional statement from the complainant to clarify what she meant at [14] of her original statement when she said, "[o]ver the next couple of years [from 2001] [the applicant] would continue to be verbally and physically abusive towards me." She provided details of this alleged violence in a statement dated 14 November 2016. I shall refer to this evidence as "the interim events".
The Crown submitted to Judge Norton that the 1998 incident was relevant on two bases. Firstly, it was relevant to the element of consent: R v Fordham (1997) 98 A Crim R 359; that is, the complainant only submitted to the applicant because she was in fear for her life. It was submitted that the text of the triple-0 call in 2015 demonstrated that the 1998 incident "was very much at the forefront of her mind and very much informed her decision-making on the occasion."
The second basis upon which it was submitted that the 1998 incident was relevant was as to the applicant's state of mind in 2015. It was submitted that it was necessary for the jury to place the alleged sexual assault in the context of the previous kidnapping and violence. The Crown submitted that any potential prejudice in the form of the jury engaging in tendency reasoning could be mitigated by directions.
The application was opposed. On behalf of the applicant it was submitted that the evidence should be rejected under s 137 Evidence Act 1995 (NSW). This was because the probative value of the evidence had been lessened by the passage of time, especially as the relationship between the applicant and the complainant had resumed after the 1998 incident. It was also submitted that there was significant prejudice occasioned by the use of a firearm in the 1998 incident when there were no weapons used in 2015. As to the interim acts contained in the 14 November 2016 statement, the following submission was made by the defence counsel: "I appreciate that the Crown's entitled to lead evidence that is relevant. I concede that but my concern is on the basis that an assertion - other assertions that there has been violence which obviously, there's no independent evidence of. We're not going to hear any evidence from any other civilian witness in support of there being other violence during the course of the relationship as they observed. My concern is that the need to put some context to her behaviour on 2 April does not necessarily entitle the Crown to lead any suggestion of any past violence whatsoever. You haven't seen it yet but she, today, made a supplementary statement just touching on other incidents she can remember. There aren't many but they include things like 'he once threw a can at my head, he once punched me in the leg and he once spat in my face'. Now, for instance, I'm not saying the Crown's necessarily trying to lead that but that's just by way of example, I don't think the jury would better understand her behaviour on 2 April 2015 on the basis that he once threw a can at her head but also--"
When her Honour then enquired whether the Crown would seek to lead this additional material, the (then) Crown Prosecutor responded as follows: "….I will not seek to lead that evidence in chief because it's not as germane to the context on 2 April as the 1998 incident is. I will say this though, I can see that that evidence may be relevant in re-examination, depending on the nature of the cross-examination. But certainly in chief, I would not seek to lead details of other isolated and, in the scheme of things, relatively less serious accounts of violence. What I would seek to lead is, in paragraph 12 she describes why after the 1998 incident, she got back with him and I say that that is relevant to why she did resume a relationship after 1998 and I would submit that it is also relevant on a context basis as well, he has, in fact, made threats against her life and the life of her family but other than that, the Crown would simply seek to lead that, following the July 1998 incident, after they resumed a relationship but continued in an on and off sense until the end of 2008, and whether or not incidents within that broad timeframe of other physical or verbal violence become relevant will depend upon the cross-examination, I suspect." (Emphasis added.)
In a judgment dated 15 November 2016, Judge Norton ruled that the evidence of the 1998 incident was highly relevant as to the complainant's state of mind and why she did not resist the applicant. As for the relevance of the same evidence to explain the applicant's state of mind she observed: "It was further submitted that it is relevant to the state of mind of the accused as he would have no doubt recalled the events and it is necessary for the jury to have that evidence to place the events of 2015 in the context of the relationship."
Her Honour addressed the question of admissibility in this way: "As outlined in Fordham, there are three questions to be asked when considering admissibility: (1) is the evidence relevant? Mr Johnson has conceded that the evidence is potentially relevant. (2) What is the purpose for which the evidence is being led? Firstly, it is being led to show the nature of the relationship between the two parties and, secondly, to establish possible intimidation of the complainant and explain why she submitted to the acts. It is therefore relevant to her state of mind. The third purpose is it is said to be direct evidence of the accused's state of mind. I note the Crown indicated they will not be relying on the evidence as tendency evidence. (3) The question therefore becomes whether it would be unfairly prejudicial to the accused to admit this evidence, and this involves weighing the probative value against the danger of unfair prejudice to the defendant." (The reference by her Honour to "Mr Johnson" should have been a reference to Mr Williams who appeared for the applicant at that time).
Her Honour was satisfied that the evidence was "highly probative", despite having occurred 17 years earlier and the fact that the applicant pleaded guilty to them, and, thus, the events are accepted. After noting that the relevant question is the danger that the jury may use the evidence to make the decision on an improper basis logically not connected with the issues in the case, her Honour went on to state the following: "I accept that references to a gun may invoke an emotional response in jurors. It is necessary, however, to consider the evidence in the light of other evidence which is to be led. That other evidence includes the continuation of the relationship after the events of 1998."
After this judgment, the applicant withdrew his instructions from his lawyers and the matter had to be adjourned.
A new trial was listed to commence on 31 July 2017 before Judge Culver. It was not reached until Thursday 3 August 2017 due to a delay in her Honour's then trial in which the same Crown Prosecutor was briefed. The applicant was still represented by Mr Williams, but different counsel had been briefed for the Crown.

Trial before Culver DCJ

The trial before Judge Culver began late on Thursday 3 August. As is the usual practice, it commenced as soon as the jury in the previous trial conducted by her Honour had retired to deliver its verdict. After a brief discussion with counsel about timing and the pre-trial ruling concerning the 1998 incident, her Honour interposed another matter. When the trial resumed, the jury was empanelled and her Honour commenced her opening remarks to the jury before adjourning the trial for the day.
Her Honour continued her opening remarks the following day, 4 August 2017, and then the Crown Prosecutor opened to the jury. In doing so, he averted to the 1998 incident and stated the following in relation to it: "...She will give evidence that not only touches on events of 2 April - and you'll see that's the essential date - but going back quite some years, she knew [the applicant] since they were approximately 13 or 14 years of age. So there's a fair bit of history there. Part of that history, ladies and gentlemen, will centre on 1998 and events in that year and events going up until around about 2008 because, from 1997 to 2008, so around about 11 years, [the complainant] will say there was an on-and-off relationship/partnership with [the applicant]. Ordinarily, not relevant. There will be specific reference made to events on 8 July 1998. Those events, in rough essence, was [the applicant] being armed with a pistol, detaining [the complainant] firstly at her house and then taking her in a motor vehicle, being pursued by the police, a motor vehicle crash then occurring, holding [the complainant] in the vehicle using the gun to prevent the police from coming and arresting him. He was charged with a number of serious offences, including detain for advantage, kidnapping, use weapon to avoid apprehension, that's using the gun on [the complainant]. Other matters were taken into account, possessing an unauthorised pistol and an assault occasioning actual bodily harm on [the complainant]. [The complainant] received significant injuries in that motor vehicle crash that hospitalised her for a number of weeks. That evidence is not led - and I'll make it so plain now - to suggest, 'Well, [the applicant] is a bad man. He's done bad things. Therefore, he has done what's in that indictment'. That is not the purpose of that evidence. That would be highly improper and is not the purpose for which the Crown is leading that evidence. That evidence - and particularly 8 July 1998 - is led on this basis: it goes to the state of mind of [the complainant] on 2 April 2015 when she is confronted by [the applicant] in her house. It goes to what was going through her head and why she didn't do certain things that you might expect someone would do, being confronted by a person uninvited in your house at 5am in the morning. The issue is, quite simply: she tried to placate [the applicant], even though she didn't want him there, and she will say that she certainly didn't want the attempted sexual intercourse nor the eventual sexual intercourse. She was not consenting, yet she will tell you of things that she did that might give the opposite impression. Why would she do that? She says because foremost in her mind was this matter going back to 98 and what happened to her on that occasion, and subsequent episodes which she will give evidence of, of bad physical behaviour by [the complainant] (as said) against her, which, in essence, made her very scared of him in certain situations where she perceived that he had lost control. It's very important for that defined and limited basis. It's not just to throw mud at this accused person. That is not the purpose of this evidence at all. I just want to say that again, reinforce. So there will be that evidence, but as I said it is of very, very limited and defined purpose because the Crown will say not only was [the complainant] scared; the Crown will play you a triple-0 call that she got to make at McDonald's when she got out of her house on somebody else's phone, where she is asking - begging - for the police to attend McDonald's to pick her up because she thinks at that stage that [the complainant] is still in the vicinity of Mount Druitt and she wants the police to come and, in essence, rescue her. She's put herself at the counter of McDonald's, where there's lot of people around, so that she's in a very, very public situation and you will hear, ladies and gentlemen, what the Crown says is the palatable fear in her words. Foremost in her mind - and you will hear her speaking to the triple-0 operator ‑ is the events of 1998, being threatened with a gun, being kidnapped. Listen to her then and, ladies and gentlemen, the Crown would say, relate what you hear in the triple-0 call back to how she must have felt in the house. Ladies and gentlemen, I'll give a concise run down of the history that I envisage that she'll give. [The complainant] met the accused when they were respectively around 13 or 14. They both lived in the same area. They had a teenage boyfriend and girlfriend relationship for about a year. They didn't see each other then for quite some years until 1997. She met up with [the applicant] again. They formed a relationship. As I said, that relationship was interrupted with the events of 8 July 1998. I've already told you about them. I won't repeat it. The result of those events is that, obviously - well, not obviously, but I can tell you - [the applicant] was arrested. He participated in what's called a record of interview. He told his side of the story and, in essence, admitted the core matters that had happened on that day. He pleaded guilty in the District Court at Penrith on 29 March 1999 and he received a non-parole, that's an in-gaol, period of two and a half years. So he was absent from society until about 8 January 2001. You will hear evidence, and it's not in dispute, on a number of occasions whilst he was in prison [the complainant] went to visit him and she will provide you with an explanation for that. You will hear upon his release there was again and on‑again, off-again relationship between the two. You will hear that on occasion, which is not saying 24/7, sporadically, there was episodes of him being physically and verbally aggressive to her. She will say the relationship proper ended in 2008 and there was very, very little sporadic contact between the two of them after that date. There was contact, there were meetings, but not very many, and she will say certainly by 2014 he had moved away and she had considered that there was no relationship between them and, indeed, she commenced a relationship with another man."
After the Crown opening address, the jury was sent out of court for morning tea. After morning tea, the trial stood in the list so that her Honour could deal with her previous trial. The complainant commenced her evidence just after midday.

The complainant's evidence

The complainant's evidence was that she met the applicant in 1980 and they dated for around a year. The relationship ended when the complainant met another person, whom she eventually married in 1990. The complainant's marriage ended in 1997 and the complainant became involved with the applicant later that same year. The complainant gave evidence of her relationship with the applicant up until the 1998 incident. She was then asked to describe the 1998 incident. When she got to the stage about him coming to her house and pulling out a pistol, she stated: "WITNESS: Just a little pistol. Yeah. And yeah things just - he - he had - I don't really know where to start because I - he had a drug problem. Everywhere he, everywhere he looked in the house, even got to a stage where I think they said he was drugged something - like he - "
Defence counsel then asked to raise a matter in the absence of the jury. Complaint was made about the complainant's references to the applicant's drug problem. There had been no reference to that in any of her police statements so a short voir dire was conducted with the complainant. The complainant gave evidence on the voir dire that the applicant did not have a problem with drugs after he was released from custody in 2001. It was impressed upon her the need to make no mention of the fact that the applicant had been in gaol or took drugs.
Defence counsel pressed his application to discharge the jury which was refused.
The jury were then returned to court and her Honour directed the jury that the trial was not about illegal drug use and it could not be used by them to inform whether the Crown had proved the elements on the indictment. The complainant's evidence then continued. She was asked to describe the 1998 incident in some detail, which she did. The transcript records that she became tearful whilst recounting the details of the ordeal. The Crown Prosecutor adduced from her that the applicant had pleaded guilty to the offences and been imprisoned.
The complainant gave evidence that she had visited the applicant in prison on "numerous times". Her explanation for this was as follows: "Q. Why did you see him? A. Because I just - he just - I just did what I - I was scared. He was always - I was with him and that was the way he is and if I was to leave him, that he would cause harm to myself and my family and I just - it was just somewhere I just - I had to, I had to be with him, I had no way out. I was scared, I've just been through hell with him and he told me I'd never leave him. Q. When did he say the words, 'You will never leave me.' A. From the day I first visited him after the accident he just told me that, 'I knew you'd come and see me' and, yeah, if he - if I ever left him, he'd hurt me in a way that - through my family to hurt - get to me, yeah, and that was pretty much from the beginning of the, yeah, visiting and stuff, yep."
The Crown Prosecutor then returned to the 1998 incident and the following exchange took place: "Q. On the actual day, I think you've told us but by the time you were in the car, how did you feel? A. From 98 you're talking about? Yes? Q. Yes, I am. A. Yes. Scared, scared for my life. I thought this was - I, I thought this was the end, I thought I'd never see my parents, my - that was - I was finished. Q. How did you feel when you saw him whilst he was in custody? A. Still - still - he, he just - he used to scare me. Like, it was just the way it was. He had me up where he wanted me and that's - there was no way I was - I got out of something so close in all the years of my life and I just - I don't know, he - I was just under his - I don't know, I was just too - whatever he said, whatever he wanted, he got, it's as simple as that. Q. Whether you wanted to do it or not? A. Yep. When you're in fear for your life, you do what you have to do. Q. Upon his release in, I think it was 8 January 2001, did he come and live with you again? A. Yes. Q. Now, you would say, would you not, that as far as you were aware, there were no further problems with him and drugs, is that a fair statement? A. Yes. Q. What about his alcohol use? A. He liked, he liked his drink. Q. Were there problems with his alcohol use following his release in 2001? A. I wasn't - probably, he just - like, he'd, he'd have a drink every day, it wasn't - yeah."
The Crown Prosecutor then asked the complainant whether she remembered any "unpleasant events" after the applicant's release from gaol in 2001. Mr Williams objected to the "generality of the question". The trial was then adjourned for the weekend to resume on Monday 7 August 2017. The Crown Prosecutor indicated that he would "talk to my friend, we can work this out". Before the jury left court her Honour gave them a direction about the 1998 incident and the limited use it was admitted for.

The context evidence

On Monday, 7 August 2017, the Crown made application to lead the evidence of the interim acts of violence said to have been committed between 2001 and 2008 when the applicant and the complainant were in a relationship as context evidence. Mr Williams objected to the evidence on the basis that the previous Crown Prosecutor had indicated that he would not lead the evidence. The jury were given an extended morning tea break whilst this argument took place. The matter was again interposed after the lunch adjournment. During the argument the following exchange took place: "HER HONOUR: Will you be cross-examining in a way which will draw out the significance of those details? WILLIAMS: I could say that I won't be cross-examining much about the kidnapping for obvious reasons. I will be putting to her that the relationship was ongoing between 2001 and 2013 with gaps. as it were, but not spelling out what they were, and that there were arguments but just normal, everyday argument, nothing specific. HER HONOUR: Insofar as para 14 of MFI 2, the first statement of the complainant, refers to there being physical abuse towards her, and assault, and that your client continued to tell her that he would kill her and her family, would you be challenging her? WILLIAMS: Yes. If she were to say that, yes. HER HONOUR: Does that not then draw out the likelihood that, in accordance with the previous Crown's indication, re-examination would refer to the detail of those incidents, in which case would you rather that detail come out in chief? WILLIAMS: I certainly would, if that were to be the case. If the Crown were - I object to the Crown leading that evidence whatsoever, anything about verbal and as in para 14. HER HONOUR: I see. So there was no ruling by her Honour or arrangement between the parties regarding the para 14 and MFI 2. Is that right? CROWN PROSECUTOR: It was raised, as my friend said, and then it took a subsidiary position because the principal argument was whether the events of 1998 would be admissible, and that's what her Honour focused her judgment on. So it sort of fell by the way. HER HONOUR: If it's going to be a principal issue in this trial, that the complainant offered no physical resistance at the time of the alleged offences on the indictment, then in order for the jury to understand her evidence doesn't there arise a significant probative value in these interim events? l understand you dispute that they occurred. But they appear to bear a significant probative value. Because if the jury, for example, were to only hear evidence that the 1998 incident occurred, your client went to gaol for that, upon release - or after release at some stage - the relationship continued on and off, and then suddenly in 2000 and - is it 15-- WILLIAMS: 15, yes. HER HONOUR: --the alleged offences occurred. Isn't there an artificiality that would arise? WILLIAMS: That might be the case if these other instances of aggressive behaviour, if I could put it like that, were something that were continual, but she's asked to nominate four times that she could remember when something happened. One of them is calling her a name; another one was spitting - which I concede is, at the very least, aggressive - and these two other isolates instances in a span between 2001 and 2013. She's not able to say when they occurred. All she does is just nominate them. If she were to say 'It was an ongoing thing where he was forever assaulting me,' or things like that, it might be different, but she is just asked by the police on that day 'Can you nominate any domestic violence-type offences,' and that's the answer. She doesn't say there that they are weighed on her mind in 2015. She makes no mention of that. In fact, when she makes the 2000 - the triple 0 call, which the jury will hear, she refers to the kidnapping in 1998. HER HONOUR: But isn't para 14 of MFl2 salient insofar as the capacity of that evidence is it could provide a context to the complainant not offering physical resistance at the time of the alleged offences. But then if you challenge her generalisation under para 14, doesn't it then fall naturally that the Crown ought be committed to extract from her what she is saying occurred, to flesh out of that generalisation? Now, it may be that those incidents referred to in MFI 3 are good for the defence, because it may be your submission to the jury would be 'Well, is that really enough to sustain a level of fear?' WILLIAMS: Yes. HER HONOUR: I don't know, and that could be a forensic decision. WILLIAMS: No. I understand what your Honour is saying, yes. HER HONOUR: Can I just check with you, though, one of the points you made was you're not clear as to whether or not the complainant's evidence would be the that incidents referred to in MFI 3 - the smaller incidents, if I could call them that; those isolated incidents - you're not sure if she would give evidence that they were isolated and the only incidents, or whether there was a continuing abuse of which they are merely examples. Is that your concern in part? WILLIAMS: In part. I have discussed this with my friend, and we spoke about it on Friday. Before I looked at it more over the weekend we came to a, as I understand it, an agreement that my friend would lead from her those four instances. HER HONOUR: But you could be caught by surprise if she says there was a lot more. Do either of you want a very limited voir dire to just check the extent of her position in that regard so that the defence is not caught by surprise and I can finally rule on the admissibility? CROWN PROSECUTOR: I think that would be an excellent idea. HER HONOUR: Mr Williams, you would like that course? WILLIAMS: I'm happy with the course that if it were to go in that the Crown just lead these instances that she nominated."
A voir dire was then conducted in relation to the proposed context evidence. After further argument her Honour ruled that the Crown was permitted to adduce five discrete incidents of violence that occurred in the relationship between 2002 and 2007 as context evidence. Her Honour was satisfied that the events had probative value because the defence had properly advised the court that it was intended to challenge her evidence as to why, after receiving a threatening phone call from the accused on the night of the offences, she nonetheless went to bed without calling the police. Her Honour was satisfied that the interim events had the capacity to put in context the complainant's evidence in this regard and further they explained her state of mind. Her Honour went on to state the following: "It is a matter for the jury, but it has got the capacity to explain a state of mind, in so far as we are all aware that she is likely to say she offered no resistance to the alleged offences as outlined on the indictment, and that will be a material issue for the jury's resolution."
Her Honour later observed that: "...I must bear in mind that prior to my involvement in the proceedings, a judge has given a ruling…..of which I am so far bound to allow the Crown to adduce evidence of the very serious matters in 1998, the same sort of warnings to apply. I am of the view that these interim matters not bear any additional impact of the accused and suppose prejudice might arise. In terms of any prejudice to the defence in being caught by surprise, I am told that there was no forensic decision which was acted upon on the earlier presentation by the Crown, that those matters would not be relied upon. I am of the view that the cure is available to allow the defence time to get complete instructions, which I will certainly allow, and if I'm told any further enquiries need to be made for the accused, either with the Crown with anyone else, that I can afford that time."
The complainant on resumption continued her evidence. She agreed that for the first 12 months after the applicant's release from custody in 2001 "things" were "all right" but that things went downhill from 2002. She then gave the context evidence the subject of her Honour's ruling.
The first incident was when she was sitting on the lounge and the applicant walked past her, spat in her face and said something "in the line of" "[y]ou putrid dog". She stated that when the applicant was in a cranky mood "everything was her fault" and he used to always take his temper out on her.
The second incident was in 2003. The applicant had been drinking and became angry. It was late in the afternoon, early evening and the complainant took her seven year old son outside. The applicant locked them outside for an hour or two until he was ready to let them back in.
The third incident occurred when the complainant was standing in the lounge room and the applicant turned around and "out of the blue" punched her in the thigh. She gave evidence that it was so hard, her legs nearly went from under her.
The fourth incident occurred when the applicant became angry about something and threw a full can of Black Douglas scotch across the other side of the lounge room, where the complainant was standing. He threw it so hard that it went past her head and smashed the mirror behind her.
The complainant agreed that those were the four incidents she had told police about in her statement but indicated that she had recalled a fifth incident that day. She gave evidence that once when she was having a shower, the applicant came into the shower, pulled the shower curtain across and punched her a couple of times. She recalled she slipped when he hit her. He also verbally abused her.
After she gave evidence of these five instances, the Crown Prosecutor asked her the following questions: "Q. Just yes or no, you're not saying these are the only instances of violence and abuse? A. No. Q. But they're the ones that come clearly to your mind? A. Yes Q. Did you tell the police about any of these events? A. No. Q. Why didn't you tell the police? A. I never, ever got the police involved because it will just - no. Made the situation a whole lot worse. Q. Why do you say that? A. Because [the applicant] has no respect for the law and I don't know - but always used to say, 'What's the police going to do to me?' Q. Did you tell any member of your family about this? A. No. Q. Why didn't you? A. Because he always told me to not to get the family involved. It was one way he was going to get - anything was ever to go wrong, he would hurt me by hurting my family first. So, I just never - I never got my family involved. I was too scared to, of consequences." (Emphasis added.)
The complainant went on to agree that the relationship was on and off to about 2008 and there was no regular contact with the applicant from 2008 until 2012 although she saw him on two occasions during that time. She learned in 2012 that he intended to move to the same country town as his family and bought him a ticket to move there. She saw him once in 2013 when he stayed at her house for a couple of days. On occasions he would telephone her to say he wanted to pick up some of his tools from her house but she told him there were none to collect. She agreed that from questions he had asked her as to where she had been, that she believed that he had been tracing her on his phone.
In 2014, the complainant formed a new relationship. She gave evidence that in March 2015 she placed a photo of herself and this new partner on Facebook. Shortly after this, she received a telephone call from the applicant "abusing" her and telling her to remove the photo from Facebook, which she did after a few days. She received a number of calls from him at this time. During these calls, he told her that she still loved him and that he wanted to attend her property to get his tools.
The complainant was shown a document which became Exhibit A including calls and texts between her and the applicant from 1 April 2015 to 2 April 2015.
The complainant gave evidence that on 1 April 2015 she received a call from the applicant relating to the Facebook picture, with the applicant threatening to put "a knife through her head". On the same day, at 21:01:24, the applicant sent her a text message that said "[i]f u keep playing the victim in all of this. I am going 2 out u. Let it go. U say u have moved on fine. Don't dwell on the past. U fuked up not me. All i wanted 2 do was sit on the verender & watch the sun set with you."
The applicant called the complainant at 23:49:44 and the call lasted for 2:44 minutes. Following his four attempts to call the complainant at 23:52:33, 23:55:32, 23:56:13 and 23:57:54, the applicant made a call at 23:58:28 that lasted 5:34 minutes. That call was followed by his message to the complainant at 23:59:55 that said, "[a]nswer me so we can fin here & now." His call to the complainant at 00:04:09 went answered.
At 00:10:04 on 2 April 2015, the complainant sent a message to the applicant that said, "[i]t's fixed We are finished". At 00:11:15, the applicant responded, "I'm sorry" and then sent another message at 00:12:01 that said, "I said I'm sorry" and another at 00:16:08 that said, "[o]k. I'm sorry." At 00:36:11, the applicant sent a message that said, "[c]an i get rod or ray 2 pick some stuff from there on Thursday before they come up. Yes or no" and at 00:37:37 a message saying, "[s]ome tools I want. Can they?" The applicant sent another message at 00:41:37 that said, "[y]es" and followed it by another message sent at 00:46:45 that said, "[y]es or no there my tools."
After the luncheon adjournment some other matters were interposed and the trial then resumed. The complainant gave evidence that at around 5am the following morning, the complainant woke up to her bedroom light being turned on. The applicant would appear to have entered her house by using a spare key that she had placed in the back yard for her sons. She said that he was holding her keys in his hand. He said to her "[a]re you going to be fucking nice to me now, are you? I'm not a fucking dog no more."
The complainant gave evidence that he asked her for the pin number for her phone and that she was afraid of him reading her messages because this would provoke violence. In the absence of the jury, Mr Williams complained about the complainant's evidence that she thought, as her Honour put it, "if the accused saw the text messages from her new partner, she would kill her partner". Whilst this discussion took place a jury note was received (MFI 4) in these terms: "Question 1, Since 2 April 2015, has the accused been in gaol or otherwise in detention, house arrest etc out on bail?" Question 2, confirmation on 22.50.03 call and what was discussed? Question 3, confirmation on 22.58.28 call and what was discussed? Question 4, confirmation that 23.59.55 text was sent whilst on call?"
After discussion of these questions, her Honour directed the jury that there was no evidence as to the first question and as for the remaining three questions, there would be further evidence about those matters. The complainant then continued her evidence.
The complainant stated that she told the applicant not to worry about the phone and either put it under a pillow or threw it down the side of a bed. According to her evidence, the applicant told her that he had been on Google and that he was entitled to "break up sex" and said that "he had been waiting two years for this". He then got on the bed next to her and took her pants off.
She said to him "[l]isten I haven't had a, I haven't had a shower since I got home from work last night, just let me get up and have a shower." The complainant said that the smell of his breath indicated to her that he had been drinking.
She described how the applicant then lay on top of her but could not achieve an erection, rubbing his penis around her vagina. She gave evidence that she told him that she wanted a shower, "just anything to try and get out, out of there to stop this". She then suggested that she and the applicant go and get cigarettes. She noticed on the way out that he had locked the back screen door.
When the applicant and the complainant travelled to the petrol station, the applicant stated that he would buy the cigarettes and took the keys from the complainant's car. The complainant acknowledged that she could have fled at this point but stated that the thought in her mind was "[h]e will catch me, he will catch me."
The complainant's evidence was that they both then returned to the house and the applicant guided her to the bedroom, pulling her pants off. She said that he started to fondle her breasts and touch her vagina and he had an erection. He then had penile-vaginal intercourse with her and she submitted "because I know if I didn't do it I didn't want the whole situation to get abusive or out of control because I was scared of that's when he'd get very violent." She pretended to climax and then went to the toilet.
She was asked by the Crown Prosecutor why she did not tell the applicant that she did not want to have sex with him and she replied: "A. Because, as I said, I know [the applicant], and if I had - if I had tried to prevent anything that happened - all I ever kept thinking was 'He's going to get me again. He's going to take me' - just terrible thoughts, just being violent to me, either killing me, taking again my car, going through all that drama again. There's no way in the world that I was going to do anything to start anything like that. 'Just do what you have to do, [the complainant], to survive, and do what he wants, and go along with it'." (Emphasis added.)
The complainant told the accused she needed to buy food and went to ALDI, which was not open, and then went to McDonalds. The manager was a girl she knew from school and the complainant asked her for her phone and called police. She then made the triple-0 call I have referred to above which was marked Exhibit B and played to the jury.
Exhibit A shows that the applicant made five attempts to call the complainant after she left: at 08:16:01, 08:20:43, 08:25:24, 08:28:57 and 08:42:23, and then sent the following message to the complainant at 08:42:50, "[h]ow long u going 2 be" followed by another one at 08:46:37, "[h]ow long u gunna be." At 08:48:41, the applicant sent a message saying, "[i] don't sitting here someone mite come around. Gunna head back home." Then at 08:51:11 he wrote, "[m]ate i know your scared i am gunna say something 2 the boyfriend but i swear i won't." Following two attempts to call the complainant, at 09:35:28 and 10:13:48, the applicant sent a message at 10:18:23, saying, "[r]ing u wen i get home."
When the complainant was examined at Westmead Hospital on 2 April 2015 a swab was taken from her vagina in which semen was detected with a DNA profile matching that of the applicant. On 4 April, she made a statement to police at Mt Druitt Police Station.
After giving this evidence the jury retired for the day. Her Honour then called them back to give them a direction that although the complainant overheard a police officer upon approach say something to the effect of, "[h]e has had a gun", there was no gun used in the charged offence, only in the 1998 offence.
On 8 August 2017, the complainant finished her evidence. In her cross-examination it was put to her that she had been in an on-off relationship with the applicant until around 2013. She agreed with this statement. It was also put to her that the applicant had not taken the key to get into her house. It was also put to her that the alleged conversation on 1 April 2015 and the threat by the applicant that he would "put a knife through [her] head" did not happen because at that time she was having a smoke with her neighbour, Sonya. She disagreed.
It was further suggested to the complainant that the applicant had come down on the night of the offending because they were having a "blue" and she had threatened to throw out his tools. Furthermore, when he did so she invited him to "jump into bed and get a couple of hours sleep". It was put to her that after going to the service station, she "jumped on top of him". This was all denied.
The jury was sent home early because of other matters that her Honour had to deal with in the afternoon. On that day, Mr Williams indicated that due to a family tragedy he would be unable to attend court for two days, on 10 and 11 August. The jury was informed that it would not be sitting for those two days.
The following day, 9 August 2017, Mr Williams withdrew from the matter. New counsel had to be found to appear for the applicant. Her Honour directed the jury as to the use of the context evidence. The matter came before her Honour the following day for mention and the jury returned on the following Monday. The matter was again delayed because of other matters that her Honour was hearing earlier in the day. She later indicated to counsel that the matter might be further delayed due to a lengthy list she had the following day.
On 14 August 2017, Mr Niven of counsel came into the matter to appear for the applicant for the remainder of the trial. Her Honour later stated the following to the jury: "HER HONOUR: Good morning ladies and gentlemen. I know you've been kept waiting and I'm sorry for that, as you can probably see from files and whatever on my desk, I have a lot of matters in the courtroom today that are not related to the accused in any way. The intention was to continue with the trial today. The circumstances are that Mr Niven and his instructing solicitor now represent [the applicant]. Mr Niven, could I just invite you to stand for the jury? So, ladies and gentlemen - thank you - do not speculate about that, it's something that occurs from time to time in trials, so you can't in any way, use that adversely against the accused, it would be illogical to do so. It's a change in circumstance, and as a matter of fairness I have to give Mr Niven, his instructing solicitor and [the applicant] the chance today to get on top of the matters, but the trial will continue. Now, tomorrow - that is the trial will continue tomorrow. Tomorrow, I'm going to ask you to come in at 11am, I'm the list judge at this Court for this week, which means I am juggling all these unrelated matters, it's just part of the busy nature of the courts, I know it keeps you waiting, I'm sorry for that. It is unavoidable, but I'm doing everything I can to be mindful of your convenience."
On 15 August 2017, a delay was caused by technical difficulties. Mr Niven then cross-examined the complainant. Once again, it was put to the complainant that the applicant had come to her property to collect her tools. It was also put to her that, even though the applicant had made serious threats to her in calls on 1 April 2015, she had not taken the opportunity to call police. It was put to her that she must not have taken the threats seriously if she did not respond in that way. She denied that the relationship had resumed in 2013. The cross-examination then finished in the following way: "Q. It's true to say, isn't it, that so far as it goes, on the occasions that you had intimate relations with [the applicant] in the morning of 2 April that certainly, so far as you were concerned, you were doing your very best to give [the applicant] the impression that the sex that he was having with you was consensual. Isn't that right? A. I just did what I - he asked me to do. Q. You did everything in your power to give [the applicant] the impression that you were having consensual sex with him on the morning of 2 April. Isn't that right? A. It was only a thing to make me feel safe and be able to get out of that house safe."
Detective Senior Constable Ari Barr then gave evidence. Through her the CCTV footage of the applicant at a service station was tendered (where it was asserted that the applicant could be seen holding the complainant's car keys). So too was the CCTV footage of the complainant at Mt Druitt McDonald's where she made the triple-0 call. Evidence was also adduced that a mixed DNA profile of the complainant and the applicant was extracted from a vaginal swab taken by Ms Ashton.
There was material in the prosecution brief which showed that the applicant had telephoned police and given his account of what occurred on 2 April 2017. Counsel for the applicant indicated to the Crown Prosecutor that he wanted that evidence before the jury as it was conduct consistent with innocence. The evidence was that the applicant's mobile phone called the Mount Druitt Police Station on four occasions, three in the morning and one in the early afternoon of 2 April 2015. He spoke to Detective Sergeant Kylie Evans.
When the Officer in Charge ("OIC") gave this evidence the Crown Prosecutor asked this: "Q: My friend may ask you some questions of some of the things that [the applicant] said in the course of that telephone call, but that's the only one of duration that will be consistent with the conversation with Detective Sergeant Evans. A: That's correct. Q: From that can we conclude that [the applicant] rang back two further times, he rang back the police station after that? A: Yes."
In cross-examination, Mr Niven asked the following: "Q. So far as you are able to ascertain, the defendant did make contact with police? A. Yes. Q. And I think you understand that at some point when, I think it was Officer Kylie Evans-- A. That's correct. Q. --was talking on the telephone to the defendant the telephone dropped out? A. At the end of - yes, at the end of the conversation, yes. Q. As far as you can ascertain, at least from the records that Mr Crown has showed you, that there were what appears to be attempts to contact or ring back to the police station? A. Yes. Q. Unsuccessfully as it transpires? A. Yeah. Yes. Q. And so far as it goes, at that point that Constable Evans was discussing a matter with the accused the precise details of the complaint as it transpires were not known to Constable Evans, is that right? A. That's correct."
Following the next adjournment, the jury wrote a note that included the following two questions: "(5) Was [the applicant] aware that [the complainant] had contacted police prior to him calling them? (6) Is the jury going to be provided with an audio of the phone calls [the applicant] made to Mount Druitt Police Station?"
In relation to (5) and other questions in the note, her Honour informed the jury that it was anticipated that the applicant would be giving evidence and that they would hear his account. In relation to (6), Detective Senior Constable Barr was recalled and informed the jury that phone calls to police stations are not recorded.
Mary Ashton also gave evidence that day. She is a specialist forensic nurse who worked at Westmead Hospital and examined the complainant. She made detailed notes of what she was told by the complainant and this evidence was adduced as evidence of fresh complaint. That account was generally consistent with what she told police.
On the following day, 16 August 2017, the matter began after noon because her Honour was required to deal with other matters in the same courtroom. That occurred again after the luncheon adjournment. The complainant was recalled on the application by the Crown and the Crown case then closed.

The applicant's evidence in chief

The applicant's evidence commenced on 16 August 2015. He gave evidence that in the weeks leading up to the incident he was in contact with the complainant. She rang him and "told me to come down and get my tools". When he told her he would come on a weekend she told him that he could not come then because she would not be there. His evidence was that she swore at him and told him that if he came to her house when she was not there she would call the police.
His reason for attending her home was because she had told him to. She also told him that if the shed was locked, he was to get the key from the pot plant and get the keys to the shed from the hook in the kitchen.
He explained that when he arrived at her home at 5am in the morning he parked around the corner because "she didn't want me to park at the front of the house" because "she didn't want the neighbours to see. She was a bit of a prude. She don't like people thinking she's having an affair."
His evidence was that when she first saw him in the house she swore at him and then told him to make a coffee. After a brief discussion she suggested to him to "jump in" her bed and get a few hours' sleep. The applicant gave evidence that: "...I thought about it and I didn't want to do it. I could feel something in the back of my head saying, 'No, don't do it,' but I was a tired I just went and did it."
The applicant said that the complainant led him to the bedroom because it was dark and he did not have his glasses. He said that she got into bed and then he got into bed. He started fondling her and she started fondling him. He said he got between her legs, she put his penis in her and they had sexual intercourse but he lost his erection. He said that the complainant then swore at him and said, "[g]et the fuck off. You can't even keep an erection or hard on." He said that they then got dressed and went into the kitchen. It was then that they discussed about getting cigarettes and whether he knew her boyfriend and whether she had seen a picture on Facebook. He said that he told the complainant that he did not know the new boyfriend.
The applicant suggested that they share a can of Jim Beam that was in the fridge. His evidence was that the complainant said, referring to the can, "[g]et the fucking thing out" and then told him they were going to the shops for cigarettes and that he had to come with her. They went to the service station (this corresponds with the CCTV footage where he can be seen entering with car keys in his hand).
When they arrived back at the complainant's home the applicant went back to bed and the complainant came in and told him to move over. His evidence was that she put her head on his chest, started talking about her bills, all the problems she had. She was "telling me what an arsehole I was again". The applicant then gave evidence that the complainant initiated sexual intercourse again. She got on top of him and they had penile-vaginal intercourse until he ejaculated. He described how after this she went to the bathroom and told him to get her a towel. He did so and she wiped herself. She told him to put the towel in the basket, which he did. He then went to sleep.
The next thing the applicant recalled was being awoken by the complainant calling to him from the laundry. His evidence was that she was "telling me I'm a fucking idiot" because he put the towel in the wrong basket. She then told him to bring his car down and park it outside under the awning. He agreed. They walked to his car. He had a cigarette, moved his car and returned to the house. When he did he saw that the complainant was getting dressed. He described what happened next as follows: "I might add, while she was getting dressed that just because she's got a boyfriend doesn't mean me and her can't see each other once a month and I laughed and said, 'You're a fucking idiot. Why would - why would I want to come down all this way to see you?' and then she got the shits and walked out. ... ...she left with the shits and when she dropped me off at the car, she done a burnout, which she never does, so I knew she had the shits and I sent her a text message, thinking she had the shits, thinking I'm going to say something to the boyfriend."
He said that he never got the tools from the shed. Earlier, at the house, the complainant had told him to wait until her son came home and she would cook them a meal. He said, "[i] knew she was being too nice to me, that something is wrong." At this point in his evidence, the applicant was developing the theme that he had been the victim of a "set up". Although he did not use that expression (but later adopted it when it was put to him in cross-examination), that was the effect of his evidence in chief.
The applicant was shown the summary of calls (Exhibit A) from the evening to the morning. He said that in one of the calls the evening before they were arguing and he called her, "[a]n old drag queen". That was why he later sent her a text saying he was "sorry".
He was also shown Exhibit D (stills from the service station) and stated that the keys shown in his hand were his. He explained that, as he was leaving the house, the complainant had asked him to move his car so he collected his keys. He stated that the complainant changed her mind and instead they went to the service station in her car.
The applicant was asked whether at some time during the morning of 2 April he become aware that the police were interested in talking to him. The following exchange then took place: "Q. At some time during the course of the morning of 2 April, after [the complainant] had left, did you become aware that the police were interested in talking to you? A. Yeah, I think a couple hours later, or, three or four hours later. Someone had told one of my friends that the police car were there, or four police cars. Q. Where were you at this time? A. I was at a friend's house. Q. Did you make some attempts to contact police regarding that? A. I rang the police, I asked what was going on at [complainant's address], they asked me what and I said tell them your name, and he said, 'Police want to speak to you about domestic innocent at [complainant's address] with [the complainant], we'll put you through to detectives.' The put me - they rang a couple of times, and then the phone went dead. Then I rang back and I spoke to some detective."

The cross-examination of the applicant at trial

The cross-examination of the applicant is the subject of ground 3. It is necessary to extract parts of it in order to understand the complaints made about it. I propose to summarise it under the same relevant headings as they were addressed in the applicant's written submissions. Under ground 3 the applicant relied not only on the transcript of the cross-examination but also the "tone and manner'' of it and audible "laughter'' and "sighs" at various points in the cross-examination.
It was the joint position of both the Crown and Mr Carroll that this was one of those appeals where it was appropriate for the court to listen to the audio recording of the Crown Prosecutor's cross-examination. The Crown noted the following passage in Pell v The Queen [2020] HCA 12 at [36], (footnotes omitted): "...In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court". (Emphasis added.)
In accordance with the joint application to do so, I have listened to the full cross-examination of the applicant by the Crown Prosecutor. I propose to insert additional sounds on it that I could detect where relevant.
I note at the outset that the cross-examination only went for one hour and 10 minutes, including two breaks, and no objection was made to any of it by the second counsel for the accused.
It commenced with this exchange: "Q. Let's talk about tools. A. Let's talk."
The first topic of cross-examination was to challenge the applicant's evidence that he had gone to the complainant's home that morning to collect his tools. After the applicant described the tools he had stored there and described the size of the shed, the Crown Prosecutor asked him: "Q. Must've been packed to the rafters with your items? A. Yeah, it was."
The Crown Prosecutor then sought to cross-examine the applicant to suggest that he had had plenty of time to collect those tools since he had moved out. The following exchange then took place: "Q. Now, you haven't lived at that house full time for about seven years, when you came down on 2 April 2015, am I correct? A. How, how long did you say? Q. Seven years? A. I hadn't lived there for seven years? Q. You hadn't lived there full time. You had gone there and spent a couple of nights, about two nights [sic years] before you came down, but for the five years before that-- A. No, no, no, no. Q. --you hadn't lived there, had you? A. Well, our relationship didn't end till the end of 2015. [Crown cut in quickly] Q. Not interested in relationships, I'm asking you a question. A. I come down just every fortnight and stayed there. Q. Talking about two years, right, takes you back to 2013, 2012. A. 2013, it would have been, yeah. Q. She put you on the train to Wellington, do you agree with that? A. No, I got on the train to Wellington [interruption by Crown], she slept in the car park, I had a smoke and she drove off. " (Emphasis added.)
I pause here to note that the Crown Prosecutor was aware that the applicant was in custody from early 2009 until 2013. It is clear that the applicant was trying to explain that he was not physically at the house from 2008 until 2013 because he was in prison but he considered it to still be his home and the relationship to be ongoing during that period. The complainant had conceded in cross-examination that they were still in an on and off relationship until 2013. The cross-examination about when the applicant resided with the complainant continued as follows: "Q. I take you back to about 2008, 2007? [when he went into custody] A. Yeah. Q. You did not live at that house, am I correct? (This was asked very slowly and in a tone to suggest that the witness was being evasive) A. Technically, I probably, no. You're probably right. Technically, I probably didn't. Q. Technically, or? A. I think I was away somewhere. Q. Yes, you were. A. I work on a railway, and I go away a lot. Q. Sure, doesn't matter where you were, I'm not asking where you were, right? Let's make that clear. A. Okay. Q. I'm just putting to you, that you weren't living at that house in that five years? Do you agree? A. I still lived at that house, I just wasn't there, is that what you're trying to say? So, if you go away somewhere, you didn't live in the house, you went away from, is that what you're saying? Q. Well, you don't go to bed there, every night there, do you? You, in that five years, did not go to bed there every night? Not one night. A. Nothing when I didn't live there. [the audio of this reveals that the answer should be "Doesn't mean I didn't live there] Q. Look, we're at odds A. I know we're at an odds. Q. You physically were not present in that house for those five years, do you agree with that? (slightly raised voice) A. I agree I wasn't there every night, yes. Q. You weren't there any night in that five years, do you agree with that proposition? A. No, but that wasn't you, you said I didn't live there. HER HONOUR Q. Now, hold on a minute. Don't get caught up on whether you want to put a label on it-- A. I can see where he's going. Q. No, no, no, no, let me speak. Don't get caught up on whether you want to put a label on it, or not. Listen to the Crown's question, because I think the Crown's question is very clear. If you have any difficulty understanding it, let me know. HER HONOUR: Thank you, Mr Crown, could you repeat your question please? CROWN PROSECUTOR Q. For that five year period, you did not physically attend that house at any time, do you agree? A. Yes, I agree."
I pause here again to note that the Crown had repeatedly put to the applicant that he didn't live at the house from 2008 until 2013 whereas the applicant considered that he did still live there but was in prison. As I will explain further below, the suggestion by the trial judge that the Crown's question was "clear" does not mean that it was fair in the circumstances.
The cross-examination then returned to the topic of tools and her Honour adjourned for lunch. During this time the audio reveals that there was some muttering by the Crown and the tone used was as if speaking to a child. When her Honour adjourned for lunch, she indicated that she would be hearing some unrelated matters from 1:45pm before they returned. After the jury left the court room, it would appear from the transcript that the applicant was distressed about being cross-examined about the time he was in gaol. The transcript reflected the following: "WITNESS: Sneaky - you're very sneaky, I can't bring up me - I'm in gaol, and you're going to let him-- HER HONOUR Q. No, no, no, no, wait a minute. No, no, no, wait a minute. I'm going to let your lawyer have an opportunity - it's cross-examination, what's going to happen is this-- NIVEN: If my friend lets me just have a word with him about administrative matters, not to do with the trial, as it were. HER HONOUR: I don't think that's what your client wants to talk about, I think he wants to talk about the evidence. Q. I want to be very clear with you, okay, just one moment. A. How do I answer something like this, that's put to me? Q. No, no, no, no, hold on. Hold on, my turn, and then you'll have a turn. There is a reason Mr Crown has not turned to your other periods in gaol, because Mr Crown is trying to be fair, so that this jury is not at risk of thinking, 'Well, hang on, [the applicant's] been in gaol time and time again, we're a bit shaky about [the respondent].' Hold on. Now, you're raising the issue of how can you answer that question, without referring to the fact that you weren't living there, or staying there, because you were in gaol, is that what you're asking me? A. He's trying to imply that we weren't in a relationship. Q. No, no. What I'm-- A. No, that's what he's trying to imply, that I didn't live there, we-- Q. No, no, no, no, hold on. Let me tell you two things. First of all, Mr Crown said, 'I'm not talking about relationships, I'm talking about whether you were there.' You need to keep close to the microphone for the moment. The second thing is, when Mr Crown has finished his cross‑examination of you, I'm going to give Mr Niven and his solicitor a chance to chat to you, to see if you want to clarify anything in your re‑examination. But let me assure you, I do not see anything sneaky going on. I can assure you that Mr Crown and Mr Niven and Mr Williams before Mr Niven were communicating with each other and me in order to try and ensure you have the fairest possible trial. So, you'll have a chance to speak to Mr Niven when Mr Crown has finished his questions. (Emphasis added.)
With respect to her Honour, it was not to the point that the Crown was using the word "live" rather than the word 'relationship" in circumstances where the applicant was trying to explain that he still lived there because he considered himself to still be in a relationship with the complainant; the only reason he was not physically there was because he was in custody. In these circumstances, I am unable to agree with her Honour's classification of this questioning as being done to ensure "the fairest possible trial".
When court resumed after lunch, the applicant was cross-examined about arriving at the complainant's home so early in the morning to collect his tools. He agreed he got off the telephone at about 1:00am and drove for four hours from Wellington to Whalan. The applicant repeated his evidence in chief that the complainant had asked him to park around the corner because she did not want the neighbours (the applicant's nephew and his girlfriend) to know "she was having an affair". During this questioning, there are a number of occasions where the Crown expresses surprise and makes some noises of either agreement or disagreement not apparent on the transcript.
Her Honour asked the applicant to keep his voice up and the cross-examination continued: "Q. Well, parking the car 20 metres up the street isn't really going to solve that problem, is it? A. Dave's my nephew. He knows what the car looks like, so does Sonia. Q. Yes [Yeah, laughter], 20 metres up the street isn't going to help that situation, is it? It's still in the street? A. No, it wasn't in the street; it was around the car. Q. [Sigh, hopeless] So it wasn't 20 metres up the street; it was up the street and around the corner. Is that right? A. 20 metres away from the house. ... Q. [unintelligible whispering Ooh?] There was nowhere to park, that was the reason, was it? [surpised tone] [pause] [Was it?] A. Right."
After suggesting to the witness that the reason he went to the house pre-dawn and parked his car around the corner was because he did not have permission to enter the house, the following exchange then took place: "Q. You've come to this court to make up a litany of lies to explain circumstances that you cannot get out of. Isn't that the case? A. No. Q. You know for a fact that the Crown can prove that you had sexual intercourse with [the complainant] on 2 April. You know that, don't you? A. Yes. Q. DNA doesn't lie, does it? A. No. Q. So you have come to court with a pre-rehearsed sequence of events to try and explain matters that surround matters that you cannot challenge. Would that be fair to say? A. No. Q. Even the events of the - I just want to get this right. The events of the night before, what did you call her, you called her an 'old drag queen'? A. A drag queen, yeah, an old drag queen. Q. (laughter OK) That's not particularly nice, is it? A. No. Q. [No. pause] You say that, what, less than five hours later she wants to jump on your penis. Is that right? A. Yes. Q. A sudden change of mind? A. Yes."
After some further cross-examination suggesting it would be difficult to pick up tools if he was parked around the corner, the applicant explained that that is what the complainant had asked him to do. The following exchange then took place: "Q. Did you say to her, 'Well, that's the silliest thing that you've said tonight?' A. No, I told her I wasn't walking up the street, carrying tools. She said, 'No, dick head, bring the car - bring the car down once you get the tools out of the shed and then you can pack them in the car and go.' Q. So is that the way she addresses you, 'dick head'? A. She - pretty much, yeah. Q. Pretty much? What else does she call you? A. A whole - a whole list of names. Q. A whole? Well, come on, give us the list? A. She swears a lot. Nothing like the person you see on the screen. Q. She's a consummate actress, is she? A. She definitely is. Q. Tell us some of the other derogatory names that she would call you in and around April of 2015? A. Of the top of my head, dick head, fuck face, stupid cunt. I could go - there's probably a few more there. Q. No, that's enough. A. But they're the one she stays with. Q. Highly offensive phrases? A. Yes. You know, I'm used to them, so-- Q. You're used to it? A. Yeah. Q. Water off a duck's back? A. Water off a duck's back."
The applicant then repeated his evidence about losing his erection when he and the complainant first had unsuccessful sexual intercourse and the following exchange took place: "Q. Got it. You lose the erection? A. I lose the erection and she tells me to get the fuck off, 'Can't keep a hard on.' Q. (laughter) That's what I was coming to. A. 'Get the fuck off.' Q. That's what I was coming to. Her response, she told you to fuck off because you couldn't keep a hard on? A. That's right. Q. So she's the last of the true romantics, is she? A. I suppose you could say that. Q. Well, she's pretty earthy when it comes to sexual discussion. She says it how it is? A. I suppose, I suppose she's upset I can't keep an erection. You know, I did drive 450 ks(as said). I can't even keep an erection. I suppose women get like that, I don't know. Q. So she's certainly quite prepared to abuse you in the most personal way and did so in that bedroom on 2 April 2015. Is that correct? A. Yes. Q. What did you do? A. Nothing. Q. Nothing? A. Just let it go. Q. You see, she's given - we'll come to 1998, but she's given six other examples of your bad treatment of her. A. Yeah, I know. Q. They're all fairy tales, are they? A. Yes. Q. Absolute utter lies? A. Yes. Q: What about 1998? Was that a fantasy, or was that real? A: 1998, I'd taken methamphetamine-- Q: I'm just asking, did it happen? A: I'm just telling you the story. I'm sure the jury want to know. Q: We'll get to your drugs." (Emphasis added.)
The Crown Prosecutor then commenced lengthy cross-examination in relation to the 1998 incident. The applicant gave an overview of that incident as follows: "Q. We'll get to your drugs. A. And I'd taken methamphetamine and ended up with psychosis, and which I thought she got - she was having an affair, I got jealous, I got out of control, I got a gun, I kidnapped her, I pistol whipped her, I put her in a car, I got into a car chase, I hit a tree, she got hurt. Q. [Oh!] She got more than hurt, didn't she? (sligtly menacing tone) A. She did. Q. She broke her back? A. She didn't break her back. Q. Cracked vertebrae? A. Cracked vertebrae, yeah. Q. Broken ribs? A. Look, it's not pretty, I know. You don't need to tell me about it. I've lived with it every day. Q. Have you? A. Yeah, I do. Q. Really? [surprised voice] A. Yeah. Q. Well, why didn't you just leave the poor woman alone? A. As in - what are you saying, I raped her? Q. No, what I'm saying is: why didn't you just let her get on with her life, serve your time, move on? A. She come and got me. We were in a relationship. Q. She came and got you? A. We were in a relationship. Q. Yes, she saw you a couple of times in gaol and you told her that she was yours and if she ever left you would hurt her family? A. Yeah, I know she says that now, funny that. She also said I abused her during our relationship. She come up with [6] instances. [the applicant had trouble pronouncing this word] Q. Instances? A. Yeah, of where I was having a bad day. Q. Yes, and you certainly-- A. Six times I had a bad day in 12 years? Really. Q. You were having a bad day on 2 April, weren't you? A. No, not at all. Q. See, [..let's go back to..] you want to brush over 1998? A. No, I don't. You can go on there as long as you want. I'm not going to hide the truth." (Emphasis added.)
The Crown Prosecutor then returned to the subject of the 1998 incident. When the applicant came to the topic of the gun the following exchange took place: "Q. You bought a gun, a pistol, with you? A. Yeah, that's right, yeah. Q. Loaded? A. No, it wasn't. Q. It wasn't? (expression of surpise) A. No. Q. You certainly didn't tell her that, did you? A. She knew it was unloaded. About 20 minutes into it she knew it was unloaded. Q. In that house, before you did any of this pistol whipping, you threatened to shoot her friend, didn't you? A. Yes, I probably did, yes." (Emphasis added.)
There was no evidence the gun had been loaded in the 1998 incident. Nor had the complainant given any evidence of the applicant threatening to shoot her friend. The Crown Prosecutor continued to cross-examine the applicant about the 1998 incident in some detail. During this questioning the Crown suggested to the applicant that whilst the complainant was driving around with him she "acted as if she still loved you, didn't she?" to which the applicant replied, "[t]hat's right, yeah, yeah, wasn't an act". When the Crown Prosecutor reached the point when police arrived, the following exchange took place: "Q. I suggest that you held a gun to her head, and you told those two policemen to back off. What do you say to that? A. At some point, I held a gun to her head, but when I hit that police car, I told her to get out of the car, and she said, 'No, [the applicant], they'll shoot you.' And she stayed. Q. Well, I suggest to you that she stayed because you held a gun to her head, and told those two police officers to back off, they got back in their car, reversed it out, and you drove away at high speed? A. I probably hold a gun to her head, but not at that point. Might have been before that, might have been after, at that point, I told her to get out of the car. Q. Well, come on. Let's look at it. How would you get two police officers with their revolvers fully drawn to back off? How would you do it, [the applicant]? You put a gun next an innocent person's head, and say, 'Back off or I'll blow her brains out.' A. [The complainant] was lying underneath the front." (Emphasis added.)
When the Crown Prosecutor got to the point where the car crashed the following exchange took place: "Q. Unfortunately, lost control? A. Unfortunately, a car pulled out in front of me, and the brakes didn't work so I hit the handbrake, it slid, and it hit a tree. Q. So, it's-- A. I did it, I kidnapped her, I took the drugs. Q. Yes. It's all the fault of the silly car that pulled out in front of you while you were speeding away, to avoid-- A. You're asking me what happened, I'm telling you what happened. Are you going to sit there, and go, 'Nah, this didn't happen'. You don't need to remind me [……..]. Q. What happened is - [although the transcript suggests that the applicant spoke over the Crown here the audio confirms that the Crown actually spoke over the applicant] A. I was there, I lived it. Q. You put that car into a tree, and you put the passenger side into the tree. A. That's right, then you hit a tree. She got injured. Q. Yes, she did, didn't she? A. Yes, she did. Q. No, her injuries were that - of course, she recovered, but remained, for the rest of her life. A. That's right, yeah. Q. How did you feel about that? A. The same as I feel right now. I don't like it. It's not something I'm proud of, it's something I owe her, I don't owe you. Q. You never did say sorry to her, did you? A. 'Course I did. Q. Really? [tone of surprise] A. What, she's saying now I didn't? Surprise. Q. So, you do understand that fear that would have been in her that day, 19 years ago? A. Absolutely. Q. [And] You regret that you were the person that caused that fear? A. That's right. Q. What, not a day's gone by that you don't feel bad for what you've done? A. Of course."k(Emphasis added.)
The following exchange then took place: "Q. This is a summary of telephone calls taken from your phone, and also text messages from [the complainant's] phone downloaded by the police. Are you able to read that? A. Yep. Q. Are you sure? A. Yes. Q. Why haven't you got your glasses with you? A. I've got them here, I can read it. Q. I'd ask you to put your glasses on. I want you to fully understand what I'm pointing you to. It's the third entry down. It's a text message that you sent to her on the evening of the first of April 2015 at around."
The Crown Prosecutor went on: "Q. What you wrote to her, was: 'If you keep playing the victim in all of this, I'm going to out you. Let it go. You say you have moved on, fine. Don't dwell on the past. You fucked up, not me. All I wanted to do was sit on the verandah and watch the sunset with you.' You wrote that? A. Yes. Q. You didn't give a rat's ass about how she felt, when you wrote that, did you? A. That's in relation to me having an affair, it's got nothing to do with the past. The past is me having an affair, three or four years before. And to sit on the verandah, that's what she used to write to me, and I'm repeating it. Q. 'You keep playing the victim in all of this.' A. That's right. Q. Well, she was back in 1998, wasn't she? A. We're not talking about 1998 in this, we're talking about three or four years before, when I had an affair. Q. Well, wasn't she the victim, if you had an affair? A. Not the way I see it. Q. Not the way-- A. The way I see it, she had an affair on me first, I can go into that if you want. Q. No. A. No, let's not. Q. I suggest to you, that you never expressed any concern for what you did to her in 1998, what do you say to that? A. I disagree with you. Q. It's fine. In fact, you used it to your advantage, didn't you? A. Not at all. Q. You knew that she, at heart, was scared of you? A. Not at all. Q. You knew that she would be compliant to avoid being physically abused by you? You knew that, when you walked into that house on 2 April 2015, didn't you? A. No. Q. You knew that from those past events? She would avoid anything to stop you being angry? You knew that, didn't you? A. No. Q. You knew that if you became angry, she would try and placate you, to act nice, as you say? A. (No verbal reply)"
The trial judge again asked the applicant to keep his voice up. The Crown Prosecutor then put the complainant's evidence to him in some detail. When asking about how the complainant acted during the 1998 incident the following question was asked: "Q: When you had her in this situation, you knew she was scared. You knew she was being too nice for all the things you'd done. You knew that you had her. You had her there just like you had her in 1998 when you were travelling around in that car? A. No." (Emphasis added.)
The audio records that the Crown Prosecutor sounding incredulous at some of the answers given by the applicant during that time and on a few occasions he interrupted the answer. He also ended many questions by addressing the applicant as "Sir" or "Mr Glenn" in a faux polite manner. The following extracts give an idea of the nature of this aspect of the cross-examination: "Q. (Right! laughter). So, you were the reluctant participant? A. Yes, you could say that. Q. She threw herself upon you, not once, but twice? A. I wouldn't say she threw herself, but yes. Q. Well, the second time, you say, she mounted you? A. She told me to go and jump in her bed, I thought that's what she wanted, was sex. Q. She just couldn't keep her hands off you, is that what you're saying, A. Second time, yes. Q. It's a fairy tale, isn't it? You knew that she - when you were in a certain mood, she became very, very scared of you. You knew that, didn't you? And you knew that when she had that fear, she would do anything you told her even though she did not want to do it. You knew that, didn't you? A. No."
The Crown Prosecutor soon afterwards cross-examined on the question of knowledge of lack of consent: The following exchange took place: "Q. Did you ask her a single question - did you say, 'Look, do you really want this or are you just presenting, what's going on. This is weird'-- A. Who asks someone that? Q. Reasonable people, I would suggest, [the applicant], would ask that-- A. So, are you saying - so I'm having sex with my missus and before I have sex, do I go, 'Do you really want this?' Nobody does. Q. She's not your missus? A. Yeah, but I'm saying-- Q. No, no, no-- A. For an example-- Q. She's not your missus? A. For an example, so who says that? Q Do you agree as of April 2015, she was not your missus? (Some speaking over witness) A. That's right. Q. But you still treated her as if she was? A. No, I didn't. Q. She was your-- A. We'd been split up for over a year, 18 months. Q. Two years? A. It wasn't two years, she lied to you and then she changed her story. She said we split up in 2008/2009 and then she agreed - hang on, 2013. Q. She said that she saw you occasionally after that? A. No, she said we'd split up in - read her facts - the sheet. We split in 2008/2009 after she found a - something on my phone. She found out I was having an affair, that's her words. And then she agreed that - no we split up in 2013. Q. She agreed that she saw you for a few days and then ended up taking you to the Penrith railway station-- A. I was there for three or four days. Q. --so that you could to Wellington. I was there for three or four days. Q. Three or four days? A. Yeah. Q. [Ok. That's fine ] Give a week, let's round it up? A. I went back to Wellington and I come back a week later and stayed for a week. I went back and come back a week later. This went on till October. Q. [But] You say for at least 18 months, it was over, done and dusted? A. That's right, yes. Q. [Right]. She was not your missus as of April 2015? A. No, it was - till about October. That's the last time I seen her was in October and I agreed. You know, October okay I haven't seen you for that long, it's over. Q. You still thought of her in April 2015 as your missus, didn't you? A. No. Q. That's why you answered that question initially that way, wasn't it? A. What question? Q. About whether you make inquiries before you have sex with someone. You answered - [frustrated tone] A. Who does that? Q. Well, if I'm with my missus-- A. Who asks-- Q. Do you remember? [pause] A. I'm asking, do you say that to your missus? Does anyone say that to their missus or their girlfriend? Enquire whether it's-- HER HONOUR Q. [The applicant], sometimes when you're giving your answers, you're saying it at the same time as the Crown Prosecutor is speaking and it's very hard to be able to record that and transcribe it. So, please try and wait till the end of the question and then give your response, okay. A. Sorry."
The applicant had in fact waited until the Crown had finished to answer the question. He is clearly trying to explain his answer but after this interruption the Crown moved on to another topic.
After further cross-examination about the accused's evidence that he thought that the complainant was 'acting nice' to him, the topic moved on to the triple-0 call and the following questions were asked: "Q. You heard that triple-0 call, didn't you? Do you remember the call that she made? A. Yes, yeah. Q. Do you remember the things that she said? Do you remember the things that she said? A. Yes, yep. Vaguely, yes. Q. Do you remember how she said them? A. Yes, vaguely I remember, yes. Q. Vaguely? It was only a week ago that it was played? (sound of frustration/surprise) A. Yeah."
The Crown then indicated that he proposed to play the triple-0 call to the applicant. There was an objection by defence counsel and the jury were sent out of the courtroom. The objection had been on the basis that the new counsel Mr Niven had never heard it as he came into the matter after it was tendered. It was played on the voir dire and the jury returned to the courtroom. It was put to the applicant that the reason that the complainant referred to the 1998 incident in that call is that she had never got it out of her mind since that time. The following exchange then took place "Q. Because you can really, really scare her, can't you? A. No. Q. No? A. Not since that day. Q. Not since that day. So the other six instances are all part of her imagination? A. Yes, they are." (Emphasis added.)
The Crown Prosecutor went on to ask the applicant whether he could hear the complainant's fear in the triple-0 call and he agreed that he could. The following exchange then took place: "Q. We've dealt with that. We can move on. Did you hear the fear in her voice? A. Yes. Q. She had that fear because she was scared of you; true? A. No. Q. So she had that fear because she's a consummate actress? A. She's good. Q. She's good? A. Very good. Q. And she's setting the scene to set you up? A. It seems that way. Q. That's the way you see it, is it? A. Well, it seems that way. Q. We'll come back to that. Would you be so good to go to page 5 for me. Yes, glasses, please. [laughter] The big one down the bottom, starting about halfway through the page. Do you see that? A. Yes."
The cross-examintion continued in relation to the triple-0 call and the Crown Prosecutor suggested to the applicant that the first thing the complainant mentions is the 1998 incident. The following exchange then took place: "Q. I mean, you see in that phone call, the first thing that she mentions is 1998. She doesn't call it 1998. A. She knows 1998 is going to get a reaction. Everyone is going to take her side. She's not stupid. Q. So you really are the victim in all this, aren't you? A. I'm not a victim. Q. Hey? A. I'm not a victim. I am this time. She's saying I raped her, of course I am. Q. [Ahhh - surpise] She set you up? A. Well, you know, if you make me go and get my car when you should be just getting your car and going, obviously you're setting me up for something. It stands to reason. She made me go and get a car. Q. You're a bit-- A. Anyone else would have jumped in their car and left. She didn't. Q. [under breath -'right yeah!'] How about the fact that you've got a car just around the corner? A. Gee, I must be a fast runner. What, she's going to drive off and I'm going to catch her? Q. I don't know. [How about..How about.. ] There's a little bit of a variation here. She says she wants cigarettes to try and get out of the house, just in case the opportunity arises to escape. You heard her say that, didn't she? A. Yeah, and she also said that she took me with her because she wanted me at the house. Q. No. No, she said-- A. She says in her statement she wanted me at the house. Q. She said that you insisted on going with her. A. No, I didn't. Q. That's what she said. A. Read her statement. Q. We have a transcript of her evidence, so-- A. Yeah, I know what she says now, but you should read her statement. Q. I'm not interested in the statement. It's not in evidence." (Emphasis added.)
There was then cross-examination about the CCTV stills taken at the service station where the applicant can be seen with the keys in his hand. There are expression of "really" etc that are not recorded. When asked why he did not have them in his pockets, he explained that he had loose cargo pants and they would fall down if he put something heavy in them. The following exchange then took place: "Q. That is just patently ridiculous? A. Well, I drove there in a car. It makes sense that I've got car keys. Q. I agree with that [sarcastic tone]. The fact that are set of car keys would make your pants fall down in public is just a convenient - [sarcastic tone] A. Unfortunately, they did. Q. Sorry? A. Unfortunately they did, weighted down with my wallet, which is my other pocket, yes. Q. It's too much? The straw that broke that camel's back? [sarcastic tone] A. Yeah, it does happen. Q. It does happen. They're her keys because you weren't going to leave them in the car because she might have just done what you suggested and that's drive off in a hurry-- A. Unfortunately she made me go with her. Q. --and escape? A. Why would I take the car keys? Q. She made you go with her, and because she had a pair of shorts on, she didn't want to be seen in public in a pair of cut-off jeans, so you had to go in and buy the cigarettes? A. She went and got dressed up to report she was raped, so yeah, she don't like to being seen without being dressed up. That's just who she is. Q. She don't like to be seen in cut-off jeans at the Whalan 7-Eleven? A. Yes. Q. Seriously? [sarcastic tone] [seriously] A. That's who she is. Q. Are you serious? A. But that's who she is. Q. So she's an extremely well-groomed woman, is she? A. She - yes, she very neat and tidy. Q. Capable of using the C word and other expletives when it suits here, according to you? A. She swears like a sailor. Q. Sorry? A. She swears like a sailor. Q. So she acts in public like one thing, but you know the real [the complainant]? A. Unfortunately, you don't know her; I do, and so do her friends and family, no-one else knows her. Q. It's story of woe from you, isn't it? A. I'm just telling you the truth. Q. No, you're not. You cause her, every time you get in a bad mood, to fear for her life and you know it, don't you? A. No. Q. True? A. No. Q. So why did you want to spend the rest of your life on a verandah with a woman that treats you so appallingly? A. Actually, that's something that she writ (as said) to me a couple of weeks before. Q. Well, you wrote it back to her. It's your writing. I've shown it to you. A. Yeah, I just - I just repeated it. Q. You thought it was a good one line? A. (No verbal reply) Q. What's that mean? A. It means yeah, probably yeah. Q. Seems like a good idea at the time? A. Just repeating back what she wrote to me. Q. She would not have written anything like that to you in 2015, what do you say to that? A. Yes, she did." (Emphasis added.)
The applicant was then cross-examined about not having permission to go into the house and his reason for arriving so early. He was then shown Exhibit A and his attention was drawn to a text he sent after the sexual acts as follows: "Q. Now, I need you to go to page 2, and it's the - not the last message on that page, but the two that are up from that. 'Mate, I know you're scared, I'm going to say something to your boyfriend, but I swear I won't. I know I said I'm going to say something to the boyfriend, but I swear I won't.' Do you see that? A. Yes. Q. That's your attempt at emotional blackmail, isn't it? A. No. Q. In other words, 'I'll keep my mouth shut that we had sex, as long as you keep your mouth shut'. That's what you're saying there, isn't it? A. What are you saying, there's no rape now? Q. Yes, 'You go to the police, and I'll tell your boyfriend that you wanted it'? A. No. Q. That's exactly what you've told this Court? A. No. Q. She was dying to have you, she got on top of you and mounted you? [sarcastic tone] A. The woman had to - no. Q. Mounted you like - well, we won't even go there. A. We won't go there, no. Q. That's just the furthest thing from the truth? A. No. Q. You've made that up, to make it sound like she was some wanton female that could not keep her hands off you, just could not. Tricked you to go to bed to have a sleep, 'cause you were so tired and then came in had her way with you. Your version? That's what you said, isn't it? A. No. Q. She hates you? She hates your guts-- A. Apart from loving me, she hates my guts. Q. She hates your guts and there she is jumping on your erect penis, how does that work? [laughing] A. Yeah, I know it sounds strange. She wouldn't even-- A. Yeah, I know it sounds strange. She wouldn't even-- Q. Well, I'm sorry-- A. She wouldn't even admit the first time we had sex. Q. Call me somewhat naïve, but that's your story, is it? That you knew that day, when you were in that room, that she hated your guts? A. It is, it's the truth. She didn't hate my guts. We were-- Q. No, no, just when you were in the room. When you're in that bedroom, you knew she hated your guts. A. Yes, yes. Q. The reason she hated your guts, is that you almost killed her 19 years ago, isn't it? A. No, because I had an affair on her. Q. Well, we don't really need to know why she hates your guts, if she does. A. I just told you. Q. If she does. But, in your mind, on 2 April 2015, your mind, your way of thinking, you knew this woman hated you. A. Yeah. Q. What were you doing there? A. I was there to pick up me tools. Q. Well, that's not what you were doing in the bedroom.[laughing] A. Who would think that someone would try and set someone up with rape? Q. You weren't picking up in the tools in the bedroom, were you? A. Nope, I sure - I certainly wasn't. Q. Yes, well, I won't make any-- A. Let's not go there. Q. No, I'm not going to. But, it so implausible. [isnt it?] A. Yeah, I know it's hard to believe that someone would do that, but unfortunately, she always told me, if I ever played around on her, she'd make me pay, and she has." (Emphasis added.)
The cross-examination then concluded with the following exchange: "Q. But your version isn't what happened at all, is it? A. My version is what happened. Q. I'm going to suggest that your version is just a pack of lies conveniently put together, because you cannot get out of the fact that there was sexual intercourse. You disagree with that? A. It was consensual sexual intercourse, yes. Q. That's what you say [but].. A. It was. Q. You knew it wasn't. You knew she was scared of you, you know that, don't you? You know she was being way too nice, that's not the normal [the complainant] who stands up for herself, because she stand up for herself when you're in one of your angry moods. She becomes very scared, because she remembers a day, 19 odd years ago, when she almost died. True? A. Wrong. Q. You heard her give evidence about that day, vague recollection? [sarcastic tone] A. Yep. Q. Seriously. You heard her on that screen last week? A. Yes. Q. She gave evidence of what happened 19 years ago like it happened yesterday, didn't she? A. Yes. Q. Because that's something - you understand this - that someone in that situation would never forget? A. That's right, yes. Q. You use that to your advantage, don't you? A. No, she used it to her advantage. Q: [Oh! sarcastic surpised tone] She's turned the tables and uses that to hurt you. A. Sure has. Q. [Yeah] So, you really do feel like you're the victim in all of this? A. I'm not the victim. Q. Sorry? A. I'm not the victim." (Emphasis added.)

Closing addresses

On Thursday 17 August 2017, the trial commenced late because of other matters her Honour had to attend to. Her Honour apologised for the delay and the following exchange took place: "HER HONOUR: We're back to [the applicant's] matter, I'm sorry, we've had quite a day waiting. Are we ready? All right, just whilst Mr Crown's coming in, I will just need one minute. Could the accused please wait, I will only be one minute, thank you. What I'd like to do is confirm - Mr Crown, I'm just going to take one minute. What I'd like to do is confirm that we will continue until 3 today because we've lost time already in this trial. Now, what I'll do, is I'll see how far we get with both of your addresses, before I finally decide that, but I'd like to get to both addresses completed today, in a timeframe where neither of you are rushed. CROWN PROSECUTOR: Yes, your Honour. HER HONOUR: Are both of you ready to proceed? NIVEN: I am, your Honour. HER HONOUR: My further difficulty is, I've not given anyone who assists me and who've been here since 9.30 a break, I need to just give them a moment to breathe. Can you just resolve any other issues that might need discussion, because I anticipated you need to discuss something, is that right? CROWN PROSECUTOR: No. NIVEN: No. We're sweet, I want to discuss something with you. CROWN PROSECUTOR: Doesn't want to talk to me, your Honour. HER HONOUR: I need to give people a break, because otherwise their fingers will drop off."

Crown closing address

The Crown commenced his closing address by outlining the burden and standard of proof, the role of the jurors and the elements of the offence. He then said this: "The Crown says because of the past history - and I'll come to this in much greater detail - [the applicant] had known [the complainant] for many years, going back to teenage years. He had been involved in some pretty heinous events in 1998. He conceded yesterday that whilst she was in the car with him all those years ago she wasn't ranting, raving, screaming. She was quiet. She was calm. She was taking the course of least resistance. Why? Because she was in fear of her life. Ladies and gentlemen, the Crown likens it to the rabbit in the spotlight, or the mouse that's cornered by the cat. He would have known that in a situation of violence or threatened violence from him she would acquiesce to just about anything to get out of there in one piece. That's what the Crown says happened."
As the elements of consent he said: "Did she consent? He says, 'Oh, yes, she did.' On his version she's the instigator of the episode. She climbs on top of him. That's pretty good evidence of consent if you accept it. Obviously the Crown submission is that you would reject it. It's just one of the litany of lies that he told you yesterday." (Emphasis added.)
The Crown Prosecutor then invited the jury to assess the applicant's evidence and demeanour including the following statements: "...Is it plausible? Is it logical? Is it consistent with surrounding evidence, or is it, as the Crown would submit, a convenient recreation in circumstances where the accused can't or cannot avoid one immutable fact, and that is that sexual intercourse took place. That's the Crown position. In relation to his evidence, you would look at his demeanour. The Crown says that on occasions in cross‑examination he was belligerent, he was somewhat arrogant, and the Crown would further say that he availed himself of every opportunity to slander and criticise the complainant. He wanted you to accept - and it's in the cross‑examination - that how she is in real life was not reflected in how she appeared on the screen. You might remember him saying that. The Crown asked him 'Are you saying that she is a consummate actress?' He said 'Yes'."
Later he returned to the 1998 incident and stated: "The events of 1998, the Crown says, are critical, and the events thereafter, when they resided with each other from 2001 to about 2007, the Crown says are important also. Her Honour has given you directions on two occasions about how to use that evidence, and her Honour will, again, give you a direction on that."
The Crown then referred to the warning not to misuse the 1998 incident and then spent considerable time going through the details of it: "But, when you look at the big picture, and as the Crown says, when she freezes and she goes into survival mode - and that's what the Crown says, it's happened in the past, it happened on this day - it makes sense. So, without that contextual evidence, you wouldn't have the complete picture, it would be artificial. It would be surreal, because you would expect someone to at least manifest some sign of not wanting these acts. Yet, on her own evidence, she did not, and the Crown says the reason she didn't is because of the state of fear she's in, and that state of fear - is, you go through those events of 1998 and they were pretty horrific. Right from the time that he came into the house with the pistol, threatened her and threatened her friend. Out on the street when he hit her with the butt of that pistol, and dragged her and laid her in his car. To the point where she's driving around with him, like he's still her best friend. Why's she doing that? Because she's scared witless. To the point, when the police blocked the car, and here we have a divergence of evidence, but the Crown would say you'd accept the complainant. He used her as hostage. Think of it logically, [the applicant's] is this gun has no bullets. So, he's got a pistol in his hand, and he's confronted by two armed police officers, and you can readily assume that their pistols had bullets in them. Well, holding that gun in your hand, when it's not going to do anything, is almost suicidal. So, he points it at her head and tells those officers to back off, and they're in a very insidious position because a life, an innocent life, is in immediate threat. What do they do? They do back off. Really, what choice did they have? Then he speeds off, and manages to put the passenger side into a tree or telegraph pole, which results in serious injuries. He conceded in cross‑examination, 'Yes, she recovered.' But, the physical consequences were there, and remained, and would remain. So, you have the mental overlay and the physical consequences, on any account must have been one of the most frightening experiences that a person could go through. So, that context evidence becomes very important. Same as the six demonstrated episodes of bad behaviour, spitting at her, throwing things at her, punching her in the shower. All show a state of mind that would cause fear in [the applicant]. Would cause a lot of fear, you might think. Like a rat in a trap, stuck. How do I get out? Ladies and gentlemen, as I said, that's what it's there for. It's not there as a substitute. In other words, I don't know about his state of mind in 2015, but he was such a bad person before, I'm going to find him guilty anyway. It's not a substitute. It's got the very limited purpose of going to her state of mind, why she didn't resist, and to his state of mind, that he knew, yes, she wasn't resisting, but she didn't want, but he was going to do it anyway. Because he had her in his control. Ladies and gentlemen, sometimes, in evidence, there's an unguarded moment. A moment when something is said that makes everything clear, and it's the Crown's submission that that happened yesterday. The Crown was asking [the applicant] why he didn't ask anything when the sexual intercourse was taking place. 'What inquiries did you make, [the applicant]?' His answer was this, and I'd ask you to remember this, because it's telling, because it goes to his state of mind. 'So, you're saying, so I'm having sex with my missus, and before I have sex I go, 'do you really want this?' Nobody does.' 'Having sex with my missus.' That's his state of mind. As far as he's concerned, he owns [the complainant]. Doesn't matter if they're apart two years, five years, she's his property. For him to do with as he pleases. So, despite all his, 'Yes, I knew the relationship was over. You know, we hadn't been together for 18 months.' Deep down, core, 'my missus.' Well, she wasn't his missus. But deep down, in his mind, she was. To be dealt with as he felt fit, and that's what he did on 2 April 2015. He dealt with her, as he wanted. He did not care, one way or the other what she wanted. Irrelevant, and that's recklessness. Ladies and gentlemen, there's some very, very interesting, very interesting, supportive evidence in this trial. Evidence that, when [the complainant] made her statement on 4 April may not been readily apparent to her. But it is to us now. She says, that when there was this interlude, in other words, the journey down to buy the cigarettes. He accompanied her. His version is, 'She made me do it.' Really, okay. She just couldn't, couldn't let, [the applicant] out of her sight. Well, that's the antithesis of what [the complainant's] saying. She would have readily and happily have left that house on her own and gone anywhere. Gone to the gates of hell, you might think, in preference to being with that man." (Emphasis added.)
When he referred to the applicant's evidence about going there to collect his tools he said: "Why did it have to be 5 o'clock in the morning? 'Oh, because Mum needed the car back.' Really? And then you hear that his - I think it's his nephew, lives around the corner and his brother lives down the street. Anyone could have gone and gotten those tools. But the tools, I mean, they're hilarious enough. Packed to the rafters in a two by two shed. Been there for years, apparently. What's the urgency? There is none. It's a fairy tale." (Emphasis added.)
Some other comments were: "Once you start looking at some of these surrounding circumstances, if it was all fine and everything was good and she invited him there, he wouldn't have her keys. It just starts to erode. It just starts to peel away to reveal the rotten core. Look at that state of mind and what she did. She would have to be Machiavellian, she would have to be the femme fatale to be so diabolical to set up a situation. Well, [the applicant] says on one hand that he knows that she hates him. She hates him, she denigrates him constantly, calls him a dickhead, something 'face', the old C-word thrown in there. And he just endures it. He's a pretty laid-back chap. He wasn't too laid back there yesterday afternoon, was he? She hates him, she loves him, what is it? Well, it's nothing. It's just rubbish." (Emphasis added.)
After referring to the text message from Exhibit A which read "[d]on't dwell on the past. You fucked up, not me." The Crown Prosecutor commented: "How's that? I suppose a very cruel person could say she fucked up because she actually met him." (Emphasis added)
When describing the complainant's fear when he arrived at her home that morning (after a telephone call in which he threatened to put a knife through her head) the Crown Prosecutor went on as follows: "She'd had threats before. She'd been through enough to know, 'Going to the police is not going to help me on this.' It wasn't as if she went to the police in 1998. They came upon her mangled in a wrecked car. She wasn't making any complaints then, and when these other six matters happened from 2001, she didn't make any complaints because she told you clearly that when she saw him in gaol for that two and a half years, she went and saw him a couple of times, he said, 'I knew you'd come. I knew you'd come.' And when she wanted to end it, he said, 'I'll get back at you through your family.' And she's got two little boys. As I said, like a rat in a trap or like a mouse cornered by a cat, can't get out. In each of these six instances that she said happened thereafter she didn't make any complaint to the police. 'What's the point? What's the point?' So ladies and gentlemen, the dynamics, the context evidence gives the backdrop, the big picture, and it's not a very nice picture."
The Crown Prosecutor relied upon the calls by the applicant to police that day as follows: "Ringing up the Mt Druitt police station. 'Yeah, she hasn't come back after several hours.' He says he's around at one of his relative's places and there is a presence of police cars. Stop and have a little think about that. A person you're fond of, a former partner, you're not in a relationship but you hear through the grapevine there's police cars. Your first thought 'Oh my god, what's wrong?' What happened? I'll ring [the complainant]. Is she alright?' No. He's ringing the Mt Druitt police station to put his side of the story. Why? Because he doesn't want the police to accept what she will say happened at the house. He wants to get in first." (Emphasis added.)
When the Crown referred to the applicant's evidence about thinking that the complainant was being nice to him at the time he stated: "That reference that she made that he said 'I've looked up Google and I can have break‑up sex.' That's indicative of the state of mind of somebody that treats another human being like a piece of property."
Finally, the closing address was finished off in this way. "So the Crown says he knew that she was not consenting. And even if he didn't, just for one millisecond he thought that he was God's gift or, you know, just women fell at his feet, the Crown says that is rubbish. He didn't care one way or the other. He was going to do what he eventually did, and on the Crown's submission you should be satisfied in relation to those counts. Thank you." (Emphasis added.)
After the Crown closing and in the absence of the jury, her Honour explained the timetabling in the court as follows: "HER HONOUR: The timing of the matters before the court is this: we have a part heard sentence matter of some antiquity in this court. That was listed at 2. I'm going to try and push that back to 3. I don't want to unduly rush you, Mr Niven. If It looks like you're going to go after 3 then I can hold it over until tomorrow morning for your continuation. NIVEN: I don't think so, your Honour, but if it becomes - I mean, you know how these things are. HER HONOUR: Yes. I just don't want to artificially limit you, so I'll be in your hands, but I do need to get back to that other matter at 3. There were some matters, too, that I'm hopeful of sending through to Judge Williams' court. So I'm hopeful that we'll be able to continue to that timetable."
When the jury returned the applicant's counsel delivered his closing address

Defence closing address

Defence counsel dealt with the 1998 incident in this way: "[The applicant] conceded to you here in court that during that period of incarceration suffered by [the applicant, [the complainant] was a regular visitor to him in prison. In fact, the evidence was, as I recall, [the complainant] picked him up from prison on his release. In the context, if I can use that expression, of the assertions that what happened in 1998 was affecting [the complainant's] mind in 2015 I say to you to bear that in mind, because after [the complainant] picked [the applicant] up from gaol the evidence was that they cohabited together at that address of [complainant's address]. That's putting it into context. That's putting the state of mind of [the complainant] into context. As much as the Crown would say you would disregard those factors, it is nevertheless the case that's what happened. That is conceded by [the complainant]. The duration of the relationship after that not exactly conceded. … He gave extensive explanations under what I put to you was a rigorous and extensive cross-examination of the accused. You had the benefit of seeing him. You had the benefit of seeing the directness of his answers to the Crown."
The defence counsel then put the defence case: that the complainant had a motive to lie and may have set him up. He also referred to the complainant's evidence that the neighbour Sonya was said to be present for the threatening call by the applicant the night before the alleged offences but was not called as a witness. Finally, that: "The accused, as his representative, submits to you that you won't be satisfied beyond a reasonable doubt as to the guilt of the accused, that you'll accept the evidence that was given by the accused in the witness box, that he withstood the continued cross‑examination by the Crown about his bona fides, if you like, that he was concocting a story, building a story."

The summing up

There are no grounds of appeal concerning the summing up but there are two aspects of it that are relevant to some of the complaints made.
The summing up commenced at the conclusion of the addresses until 3:00pm at which time the trial was adjourned so her Honour could deal with other matters including a sentence matter.
On 18 August 2018, before the trial continued her Honour indicated that the jury had requested a copy of the applicant's evidence but no other evidence in the trial. She indicated she would give it to them after her summing up had finished. The matter stood in the list whilst counsel checked the errata. There was also discussion about the elements document to go to the jury.
Her Honour then resumed her summing up. Midway through the summing up her Honour had to stop her summing up to sign a document on the bench for which she apologised. All of the standard directions were given and the jury was provided with a document setting out the elements of the offence. There is no complaint about any of these directions. In particular, the following direction was given about the context evidence: "In addition to the evidence led by the Crown specifically in relation to the counts on the indictment, the Crown has led evidence of this context evidence. As I have said, the accused denies that the six incidents occurred but agreed that the 1998 matters occurred. It is important that I explain to you the relevance of this evidence of the context matters. I have done so earlier in the trial, but we have all now heard the evidence and I am able to better put that in context. It was admitted solely for the purpose of putting [the complainant's] evidence towards proof of the charges into what the Crown says is in a realistic and intelligible context. By, 'context', I mean the history of the conduct by the accused towards the complainant as [the complainant] alleges it took place."
Her Honour went on to recount the evidence and, in particular, that whereas the 1998 incident was not disputed, the other six (sic five) incidents were. Otherwise, no distinction was drawn in the direction between the 1998 incident and the interim incidents. Having explained the limited purpose for which the context evidence was lead, her Honour went on to caution the jury not to misuse that evidence. She said (inter alia): "You must not use the evidence of other acts as establishing a tendency on behalf of the accused to commit offences of the type charged. You cannot act on the basis that the accused is likely to have committed the offences charged because [the complainant] made other allegations about him, and you will recall that the accused disputes that the six incidents occurred at all. … You must not reason that, just because the accused might have done something wrong to the complainant on some other occasion, he must have done so on the occasion alleged in the indictment. You cannot punish the accused for other acts attributed to him by finding him guilty of the charges on the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with law. … The context evidence matters, if you find that you are satisfied they did occur, are only raised for you for two purposes and only two purposes. They are raised for your consideration of whether you are satisfied that the complainant, [the complainant], did not consent to the sexual intercourse, even though she offered no physical resistance and it is there for your consideration of whether you are satisfied that the accused must have known or was reckless to the fact that [the complainant] was not consenting to the sexual intercourse. You cannot use the context evidence as showing a tendency by the accused. You cannot use it to be direct evidence that the offences themselves occurred. You cannot substitute the evidence of context for the evidence concerning the charges on the indictment, and you cannot punish the accused for those other matters by finding him guilty of the matters on the indictment. You can only find the accused guilty of a matter on the indictment if the Crown satisfies you beyond reasonable doubt of the elements of the offence. The context evidence is there for your consideration of the aspects of [the complainant's] consent or rather lack of consent and for your consideration of what was the accused's state of mind about that. Ladies and gentlemen, again, you cannot approach that context evidence with emotion. You cannot allow it to overwhelm your rational consideration of the elements on the indictment."
Ground 4 is a complaint that her Honour should have given a "consciousness of guilt" direction in relation to the Crown closing where it was suggested that the applicant had telephoned police that morning because he had a guilty mind. Her Honour was not asked to nor did she give any direction about this. The only reference to this issue in the summing up was when her Honour in summarising the Crown closing address observed the following: "Mr Crown then turned to the call that [the applicant] made to Mt Druitt police station to give his side of the story. Mr Crown submitted that he did that as a pre-emptive measure because he did not want police to accept what she was saying."
Her Honour concluded her summing up at 1.22pm. The jury went home at 4:01pm that day and returned with verdicts of guilty at 11:39am the following day.

Ground 1: Her Honour erred in admitting additional context evidence of historical acts of maltreatment by the applicant which was contrary to a pre-trial ruling of her Honour Norton SC DCJ and without regard to s 130A of the Criminal Procedure Act 1986 (NSW)

Applicant's submissions

It was submitted that a significant factor in the reasons of Judge Norton allowing the admission of the 1998 evidence was that its potential prejudicial effect was to be tempered by the evidence of a continuation of the relationship. When Judge Culver asked the Crown whether there had been a ruling on the interim acts or "arrangements between the parties" about it, the Crown should have answered in the affirmative. It was submitted that the terms of the judgment of Judge Norton established that the parameters of the context/relationship evidence had been determined by her Honour.

The Crown submissions

The Crown submitted that, having regard to the transcript and judgment of Judge Culver there was no "order made" or "ruling on the admissibility of evidence" in relation to interim acts of verbal or physical acts.
It was submitted that the Crown Prosecutor in the 2016 trial had reserved his position in relation to acts of violence, depending on the cross-examination of the complainant. It was further submitted that the parameters of Judge Norton's ruling might relevantly have come under consideration in the context of an application made in the 2017 trial to re-agitate the admissibility of the 1998 incident in any event. But this did not occur and there is no complaint made in the present appeal that the evidence of the 1998 incident should not have been admitted in the 2017 trial.
The Crown relied upon the fact that, unlike the position before Judge Norton, Judge Culver invited discussion as to the scope of cross-examination and what impact that would have on the admissibility of such evidence.
The Crown submitted that the applicant's complaint in this Court that the timing of the second operated adversely on him could not be accepted because when defence counsel was given the opportunity by the trial judge to confirm whether there was forensic matters that had arisen, thus far, that would give rise to prejudice if the evidence of the interim acts were allowed, he later confirmed that there was not.

Consideration

I have extracted the transcript and judgment to which this ground relates above at [9]-[24] and [35]-[37]. The determination of this ground is concerned with s 130A(1) of the Criminal Procedure Act 1986 (NSW) which provides that: A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.
Section 130A(5) provides that: To avoid doubt, this section extends to a ruling given on the admissibility of evidence.
The question is whether Judge Norton made an "order" as to the admissibility of the interim acts in her judgment in 2016.
It was common ground that Judge Norton was not asked to specifically rule on the admissibility of the interim acts. That was because the then Crown Prosecutor indicated that he would not be relying upon that evidence in chief and would only lead it in reply if certain matters were raised in cross-examination. But it must have been obvious to all concerned that it would inevitably arise in cross-examination given the Crown case. Defence counsel appearing before Judge Norton was the same defence counsel who appeared on this argument before Judge Culver. In response to a question by her Honour, he indicated that he would be putting to the complainant "that the relationship was ongoing between 2001 and 2013 with gaps and that there were arguments but just normal, everyday argument, nothing specific". It must have been anticipated that the evidence of the interim acts was always relevant and admissible on this basis. It is somewhat surprising that Mr Williams and Judge Norton did not interrogate the Crown's position in this regard at that time.
When Judge Norton came to consider whether the 1998 incident should be excluded under s 137 of the Evidence Act, her Reasons disclose that she relied upon this continuation of the relationship as evidence minimising the prejudice of the admission of the 1998 incident.
The applicant relied in this Court on the passage in the judgment of Judge Norton where her Honour accepts that references to the use of a gun in the 1998 incident "may invoke an emotional response in jurors", but that such evidence had to be considered in light of other evidence in the trial which included evidence of "the continuation of the relationship after the events of 1998''. The applicant submitted that the application by the Crown in the 2017 trial to lead evidence of interim threats and violence "sought to disturb an underlying basis of the decision of the previous trial judge to allow for the admission of the evidence of the 1998 kidnapping - namely, a lack of relevant violence or intimidation between that event and the allegation". Although, there is some force in this submission the fact remains that Judge Norton made no ruling on the admissibility of the interim acts.
When the replacement Crown Prosecutor indicated that he proposed to lead the interim acts in chief, one of the first questions that Judge Culver asked defence counsel (who at that time was the same defence counsel who had appeared before Judge Norton) was whether it would be suggested to the complainant that she and the applicant were happily in a relationship for many years after that. When he conceded that he would, her Honour was satisfied that the evidence was relevant and admissible.
I am satisfied that when Judge Norton referred to the "continuing relationship" in her judgment she was referring to the evidence of that relationship without the additional interim acts. But that does not mean that her Honour ruled on the interim acts.
There was no application for Judge Culver to reconsider Judge Norton's ruling. Subs 130A(2) of the Criminal Procedure Act provides the exception to s 130A(1) as follows: (2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless-- (a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal.
This provision was considered by Beech-Jones J in R v Obeid (No. 4) [2015] NSWSC 1442 at [11]-[12] where his Honour observed the following: "Otherwise underlying the debate on this application was an issue as to the approach to be taken to s 130A(1). It can be accepted that the phrase 'interests of justice' is a commonly employed phrase which has been held to be of wide import and comprehend many factors (see State of Western Australia v Rayney [2011] WASC 326; 42 WAR 383. Hence, that phrase is also to be found in s 132(4). However, context is important and the present context involves the deployment of that phrase as the threshold for revisiting a matter already determined. In that context, the 'interests of justice' extends to the necessity to avoid the unnecessary re-agitation of matters already determined so as to avoid a waste of resources, and to respect principles of finality even in respect of a matter determined on an interlocutory basis. In my view the starting point for an application to which s 130A applies is to consider whether there has been some material change in circumstances since the previous ruling. This is the approach adopted for the revisiting of interlocutory orders in civil proceedings (see Douglas v John Fairfax & Sons Limited [1983] 3 NSWLR 126 at [134]). In so stating I do not consider the necessity to demonstrate a material change in circumstance exhausts the circumstances in which the interests of justice may warrant a departure from an earlier order."
There is no complaint made in the present appeal that the evidence of the 1998 incident should not have been admitted in the 2017 trial. Nor do I consider that Judge Culver ought to have considered herself bound by the pre-trial ruling of Judge Norton such that it was not permissible for her to consider the question of the interim acts.
It is pertinent to note that the basis of the objection to the admission of the interim acts before Judge Culver was the fact that the Crown had indicated that he did not propose to rely upon in it chief. It was never suggested to her Honour that she was precluded from considering its admissibly by reason of s 130A(1) of the Criminal Procedure Act. Despite this, it was submitted that objection had in fact been taken to the point raised under this ground.
This Court considered a similar argument in Vickers v R [2006] NSWCCA 60. Simpson J (with whom James and Hall JJ agreed) rejected an argument that rule 4 has no further application if an objection is taken on one basis at first instance and then an entirely different objection to the same piece of evidence is sought to be made on appeal: see at [73]-[78].
I would refuse leave to appeal this ground.

Ground 2: Her Honour erred in admitting as context evidence the reasons why the complainant did not complain about the matters contained within the context evidence

The applicant's submissions

The applicant conceded that no "House v The King" ((1936) 55 CLR 499; [1936] HCA 40) error could be established with respect to the ruling that the context evidence was admissible. Rather, complaint was made about the admissibility of the complainant's reason for not complaining in relation to the context evidence.
The applicant relied on the fact that at no stage had he foreshadowed that reliance would be placed on delay as a reason to reject the complainant's evidence of the "interim events".

The Crown submissions

The Crown submitted that the impugned evidence was relevant and admissible to explain the complainant's failure to complain to police or her family of the interim acts of violence. The evidence was also relevant and admissible to elucidate the level of the complainant's fear of the applicant and her perception that he would do as he wanted without regard to her feelings or the consequences of his actions. In that sense, it was said to be relevant to the conduct and state of mind of both the complainant and the applicant during the incident on 2 April 2015. It was relevant to the issue of consent and whether the applicant knew that the complainant was not consenting (or was reckless in that regard). As no objection was taken by trial counsel for the applicant on the basis argued on appeal, the Crown relied upon rule 4 of the Criminal Appeal Rules in relation to this ground.

Consideration Ground 2

Evidence of complaint of a sexual assault and the lack thereof has a particular significance in sexual assault trials: see ss 294 and 294AA of the Criminal Procedure Act. Her Honour was not required to give a warning under those sections in this trial because there was no delay in complaint. But in cases where there has been delay in relation to charged allegations of sexual assault, the Crown will usually adduce evidence from the complainant to explain the delay given the terms of s 294A and the need to identify what the "good reasons" for not complaining were.
But the absence of complaint about the interim acts was in a different category. The evidence of the interim acts was admitted over an objection. Nowhere did defence counsel suggest during the legal argument that it was going to be put to the complainant that if those interim acts had actually occurred she would have reported them to police. On one view, it would have been a brave forensic decision for defence counsel to put this to a complainant without knowing what the answer would be. Despite the fact that defence did not foreshadow such cross-examination and the fact that the Crown had not suggested during the preceding voir dire that he proposed to lead the impugned evidence, the Crown adduced an explanation from the complainant as to her lack of complaint about the interim acts which was highly prejudicial and introduced even more evidence of the applicant's bad character. That evidence was to the effect that the applicant had no respect for the law and had threatened to hurt her family and children should she report him to the police in relation to this behaviour.
Despite the prejudicial nature of this evidence, no objection was made to it at trial after it was given. For reasons I will develop further under ground 3, if this was the only complaint made on this appeal, it may have been an appropriate case for the application of the proviso in s 6(3) Criminal Appeal Act, but this is not the only complaint that I would uphold on this appeal, as my consideration under ground 3 will disclose.
Although the Crown relied upon rule 4, I am not satisfied that it is engaged because the evidence given by the complainant was not the subject of any ruling and as such could not be described as a " direction, omission to direct, or decision as to the admission or rejection of evidence". I will also discuss the application of rule 4 to this appeal further below at [222]-[223].
I would uphold ground 2. The consequence of that will be considered further under ground 3.

Ground 3: There was a miscarriage of justice occasioned by the cross-examination of the applicant and the Crown Prosecutor's closing address

The applicant's submissions

In addition to relying upon the relevant authorities, which were not in dispute, the focus of the applicant's submissions was to take the Court to the impugned passage of the transcript in some detail. The complaints fall into six categories: 1. The cross-examination about the 1998 kidnapping offence and interim events; 2. Questioning in a manner which exposed a period of time from 2008 until 2013 when he was imprisoned and this could not be revealed to the jury; 3. Cross-examining in a tone and manner which was offensive, humiliating and insulting; 4. Cross-examination that invited tendency reasoning; 5. Improperly raising recent invention in breach of the applicant's right to silence; and 6. Inviting the applicant to comment on the complainant's evidence.
I propose to consider these complaints in detail in my consideration below.
It was further submitted that, it was relevant that the person being cross-examined in this offensive sarcastic and demeaning manner was a 51 year old Indigenous Australian raised in circumstances of social deprivation and the subject of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 ("Bugmy") findings on sentence. It was submitted that the applicant gave evidence consistent with a person who was socially disadvantaged and the cross-examination is even more problematic when considered in that light.

The Crown submissions

The Crown accepted that some aspects of the cross-examination of the applicant and some comments made by the Crown Prosecutor in his closing address were not appropriate. However, it is submitted that they did not, either alone or combination, so affect or permeate the trial as to warrant the conclusion that the accused was denied a fair trial.
I shall set out the concessions made by the Crown in my consideration below. The complaints made about the cross-examination, which were not conceded, can be summarised as follows:
The specific complaints made on behalf of the applicant, which were not conceded by the Crown as being inappropriate, were as follows: 1. The Crown Prosecutor did not "put to" the applicant as a "positive proposition" that the gun was loaded. The effect of the question was to ask whether the gun was loaded. 2. It was submitted that there was nothing impermissible in the Crown Prosecutor adducing from the applicant that the complainant had, during the 1998 incident, acted nicely to him as being relevant to how she acted in the charged offences. It was submitted that this was not susceptible to tendency or coincidence reasoning and was instead relevant to shed light on her conduct and her state of mind on 2 April 2015. 3. It was not conceded that the applicant was "directed in a humiliating way to put his glasses on", although the manner of questioning was undoubtedly blunt. 4. It was not conceded that the cross-examination of the applicant where it was put to him that he did not live in the house (where the tools were) from 2008 until 2013 revealed that he was in custody during that time. It was submitted these questions could have been answered truthfully without causing embarrassment.
As for the closing address, the following complaints were not conceded: 1. It was not conceded that the Crown Prosecutor should not have kept repeating the expression "my missus" in his closing address or suggested that the applicant treated the complainant as "his property". 2. It was not conceded that the applicant was "quite literally demonised in cross-examination". 3. It was not conceded that the questioning had the effect of reversing the onus of proof.
Reliance was placed on the fact that the Crown Prosecutor did not raise his voice or question the applicant in an aggressive manner. It was conceded that sounds can be heard on the recording of laughter and sighing but they are of short duration and often merely part of the speaker's voice inflection when uttering a single word or a few words. It was noted that the applicant relies upon ten such instances in a cross-examination that lasted approximately one hour and ten minutes. It was also submitted that any assessment of the questions asked by the Crown Prosecutor must be made in the context of the questions and answers that preceded such questions and the whole of the applicant's evidence.
It was submitted that the cross-examination of the applicant and the closing address of the Crown Prosecutor were generally conducted in accordance with the Crown Prosecutor's obligations and duties in the context of the adversarial process. The Crown Prosecutor's closing address contained a number of reminders as to the heavy burden placed upon the Crown in terms of proving its case.
The Crown submitted that a number of parts of the now impugned cross-examination were legitimate, having regard to issues raised by the evidence in chief of the applicant. The Crown Prosecutor legitimately sought to undermine evidence that was highly damaging to the complainant's credibility and character.
In the context of the above, it was submitted that it was important for the Crown Prosecutor to strongly emphasise the complainant's fear of the applicant and her behaviour in the face of previous threats and violence (and the applicant's knowledge of such), given that the applicant's knowledge of lack of consent was an issue that loomed large in the trial. In these circumstances, it was submitted, a robust cross-examination of the applicant was both justified and necessary
Reliance was placed on the fact that no issue was taken by experienced trial counsel for the applicant, thus, rule 4 of the Criminal Appeal Rules is engaged.

Relevant principles

Before I turn to consider the competing arguments under this ground, it is necessary to set out some of the established principles that govern the conduct of a prosecutor. These principles are well settled and there was no dispute in relation to them on this appeal; only as to the application of them to the facts in this case. As Deane J noted in Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 at 664: "...Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he [or she] will act with fairness and detachment and always with the objectives of establishing the whole truth."
The High Court specifically considered whether improper cross-examination of an accused person caused a trial to miscarry in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 ("Libke"). In Libke, the applicant was found guilty of one count of indecent dealing with an intellectually impaired person, and one count of sodomy of an intellectually impaired person. He appealed on the basis of the prosecutor's lengthy cross-examination which contained regular commentary on the applicant's evidence. Some of the impugned questions included: "Q: Oh, yes. Look, I've heard all of that. I'm trying to convey to you I'm not buying it. I suggest you rang the second time just to check the coast and just see if, perhaps, you know, one of the other family might have been there and answered the phone? A: No, not at all. Not at all. Q: I asked you how long you were with her? A: On the first occasion? I never - well, it could have been half an hour. Q: Half an hour? A: Could have been. Q: With her in the park? A: Yeah. Q: On the first occasion? A: Oh, could have been. Q: Well, you're the person who's the historian. How long was it? A: I don't know if … Q: I put it to you of course that none of this happened, but anyway I'm just trying to analyse your version of it? A: Well, none of what happened? Q: She turned - I put it to you your evidence is just a tissue of lies. That's what I'm putting to you, and I'm trying to work out just what it is that you're trying to tell us. She turned towards you? A: Mmm. Q: I put it to you in short that you took advantage of this girl, you importuned her, knowing full well she was disabled, that's what I put to you? A: No sir. Q: Now, you told her how you quit your job? A: I told her how I quit it. Q: Sorry, you told her you quit your job? A: Yes. Q: Now we've heard with great rhapsody this morning about how and why you quit your job, but did you tell her that you quit it because you weren't being paid enough? A: Oh, that was one of the reasons."
Gleeson CJ, Hayne and Heydon JJ held that although the prosecutor's comments in the course of cross-examining the accused had departed from the rules that ensured the orderly conduct of a trial, they had caused no miscarriage of justice. Callinan and Kirby JJ dissented.
One of the issues upon which the judges were not in agreement was whether it is the role of defence or the judge to object to improper questioning. On that issue Hayne J said at [76]: "Failure to object to the questions at trial does not bar the appellant from complaining, on appeal, that the trial was unfair. Not least is that so because it must be recognised that counsel for an accused person may well hesitate before objecting to a line of questioning put in cross examination of the accused, lest it appear to the jury that counsel feels a need to protect the witness. But responsibility for deciding whether objection should be taken to the way in which a question is put to a witness, or to the conduct of opposing counsel, is a responsibility that rests primarily with counsel, not with the judge. And where, as here, the cross examination was interrupted by an adjournment, it is open to counsel for an accused to make any necessary protest in the absence of the jury and without further interruption of the cross examination. But no such objection or protest was made in this case." (Emphasis added.)
Heydon J expressly agreed with Hayne J and added at [133]:] "It was open to counsel for the accused to object to the questions criticised above, but there was no objection. He could well have judged that it was prudent not to do so. However, the permissibility of questioning of the type criticised in this case does not depend solely on whether there are objections from counsel representing the party calling the witness. "The failure of counsel to object does not ... give Crown counsel carte blanche ...". Trial judges have a responsibility independently of objections to prevent this type of questioning being employed. "If counsel begin to misbehave [the trial judge] must at once exert his authority to require the observance of accepted standards of conduct." Here the trial judge occasionally intervened to control the witness's answers, but never to control counsel's questions." (citations omitted) (Emphasis added.)
Kirby and Callinan JJ, on the contrary, considered it to be the role of the trial judge to address misconduct by the prosecutor at [35]: "The role of prosecuting counsel is not to be passive. He or she may be robust, and be expected and required to conduct the prosecution conscientiously and firmly. Because a criminal trial is an adversarial proceeding, there is at least the same expectation of defence counsel. The obligation of counsel extends to the making of timely objections to impermissible or unacceptable questions and conduct. But it is also the duty of the trial judge to make appropriate interventions if questions of those kinds, capable of jeopardizing a fair trial, are asked. The duty of the trial judge is the highest duty of all. It is a transcendent duty to ensure a fair trial." (Emphasis added).
Heydon J set out some examples of types of impermissible questioning at [125]-[131]. These include: comments, compound questions; cutting off answers before they were completed; questions resting on controversial assumptions and argumentative questions.
The question of what sort of improper prosecutorial conduct during cross-examination and closing addresses can lead to the trial miscarrying has been considered in a number of decisions of this Court. The principles governing the conduct of Crown Prosecutors in a criminal trial and examples of permissible and impermissible questioning were summarised by this Court in Hughes v R (2015) NSWLR 474; [2015] NSWCCA 330 (Beazley P, Schmidt and Button JJ), at [265]-[275]. In doing so the court observed at [275], that the determination of a ground such as this requires the Court to analyse exactly what was said or done, and consider it in the context of the entirety of the trial, including remedial steps (if any) taken by the presiding judge. The type of questioning the subject of some of the cases referred to in Hughes v R can be summarised as follows.
In R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 this Court (Carruthers AJ, with whom Spigelman CJ and Sperling J agreed) upheld an appeal in which it was contended that the Crown closing cause the trial to miscarry. It was held, inter alia, that it was inappropriate for the Crown Prosecutor to categorise the defence raised by the accused as a "cynical defence" or make a comment about the defence case in this way such as this, for example: "I know we went to clubs: I know I went to the grave side of my daughter with her; I know I went to look at houses, but, you know, we weren't boyfriend and girlfriend. Sounds like a girlfriend to me…" (Emphasis in original.) "But you see, the beauty of it all is, 'How am I going to explain the fact that this woman has a hole in her stomach, that she's been stabbed through the abdomen, and even her liver? How am I going to explain that?' Well, 'I could blame the one-armed man, but that was done in The Fugitive. I could blame aliens, but I don't know, maybe that's a bit like the X-Files. What a great idea, she stabbed herself, because she couldn't live without me. She couldn't live without me. The accused obviously has some strong qualities: he likes karaoke; he makes pasta, Italian coffee; perfect manners." "One of the aspects also was the significance of the plastic bags out on the verandah. As I said, right from the start, the Crown case was that this man, for some reason, lost it when he saw this woman dancing with her ex-boyfriend. Why do you think he left without saying goodbye? I mean, that in itself - the cross-examination today was ridiculous."
In R v Rugari the court relied upon the following passage from Roulston [1976] 2 NZLR 644 at 654 as cited in R v McCullough (1982) 6 A Crim R 274 at 285-286: "The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial." (Emphasis added.)
Further, the Court confirmed the following (at [52]): "Thus although Crown Prosecutors are subject to considerable constraints, they must nevertheless discharge their obligations fearlessly in the interests of the Crown, acting on behalf of the community."
In Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334, complaint was also made about comments made in the course of a Crown closing address. Those comments included: "It is all silly. This is a real person we are talking about. I have not seen a plot this bad even on that 'Desperate Housewives'." "Well it seems to me it would be within your knowledge that in almost every movie I've ever seen, where a woman is raped, she has a shower or if there is no shower available, bathes somehow." "Now it is not part of my job to judge people. It is my job to present the evidence fairly and to the best of my ability. However, I have got to say after careful consideration I have come to the realisation that one of the witnesses in this trial is an idiot."
The Court of Criminal Appeal reviewed the relevant authorities and commented that a "formulaic approach" should not be taken in terms of determining whether or not a Crown address exceeds boundaries. Rather, it was a question of "tenor or impression" in determining whether the accused had received a fair trial in all the circumstances. The comments about the complainant requiring a shower were, in this case, improper because they were not founded on evidence arising from the trial. Furthermore, it was unfair for the Crown to refer to one of the key witnesses as an "idiot". As the Court noted: "By conveying to the jury in no uncertain terms that counsel representing the interests of the community and of the State regarded a witness as a fool to entertain for one moment the thought that the complainant may have had consensual sexual intercourse with the accused, the jury were in effect being told that they were also fools if they were to reach the same conclusion. Such a submission represents a significant departure from the responsibilities and obligations of a Crown Prosecutor to persuade a jury of an accused's guilt by way of balanced and rational argument based upon the evidence in the trial."
The Court observed that ridiculing the defence case was likely to deflect the jury's attention from considering the issues in the trial. Additionally, it was improper for the Crown to convey his own personal opinion to the jury (namely that he did not understand it).
The Court considered that when all of these improprieties were considered together, it was "difficult, if not impossible" for the trial judge to formulate a direction which would cure the unfairness to the appellant. As such, the Court quashed the appellant's conviction and ordered a new trial.
R v Liristis [2004] NSWCCA 287 was another case concerning allegedly improper comments in a Crown closing address. In that case, the Crown had made comments such as: "It's really pathetic in some ways that you are - one wonders is the jury really being asked to accept what you have been asked from the accused? Look, am I really hearing this? I pinch myself to see whether my senses are telling me this is what the accused is saying whether he really thinks that you are going to accept this version of his."
The Crown had also made several comments about an exhibit that had been withdrawn, calling it a "not fair dinkum letter" and a "forgery". Kirby J held that the ground of appeal had been made out. In relation to the "really pathetic" statement, his Honour stated at [94]-[96] that "…to my mind, the prosecutor's comments were inappropriate for a number of reasons. First, the description of the accused's evidence as "pathetic" went too far in my view. One may doubt that it met the standard identified by the Crown on this appeal. That standard was expressed by the Court of Criminal Appeal in Tasmania in McCullough (1982) 6 A Crim R 274 in these words: (at 285) 'Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions.' Secondly, counsel for the Crown in these comments, again inappropriately, provided his own reaction to the evidence given by the accused. His reaction was irrelevant. He was appearing as an advocate, not as a witness. There were other complaints concerning the Crown's address, which I need not deal with, given the view which I have formed that there must be a new trial (subject to ground 7)."
In KNP v R [2006] NSWCCA 213, a ground of appeal concerned the Crown Prosecutor's address regarding the credibility of a complainant. Specific complaint was made about the Crown Prosecutor inserting his own view into the closing address: "One of the ways [the complainant] will be criticised, and I think it's strange but it's a matter for you - I shouldn't say 'I think'. On behalf of the Crown I suggest that it's strange that the accused chose the time ... But it will be said that you wouldn't believe that happened because of the time and place ...."
Similar comments were made at a later point: "But it's going to be suggested you wouldn't believe [the complainant] because he's told you the truth, because he's told you in the course of a relationship that had gone on for years, in the course of a sexual relationship with the accused was using him to relieve himself, that on a weekend when there are a bunch of people around, on a weekend when there isn't going to be much of an opportunity for any of his usual sexual exploits, that in a moment when they were alone together, probably the only moment when they're going to be alone together all weekend the accused did what the accused does and it's going to be suggested that that's somehow not believable. What I find difficult to believe is the suggestion."
Further comments were also made to the effect that the complainant was a "good kid" who did not complain because of his high regard for the appellant. He also made a reference to Santa Claus when indicating to the jury that a naïve and trusting child might not complain as readily as an adult would.
In relation to the Prosecutor's reference to his own personal opinion, McClellan CJ at CL (James and Hall JJ agreeing) held at [53] that: "To my mind there is no question but that the Crown Prosecutor's address was inappropriate and breached the obligations which fell upon him. The introduction of his own personal thoughts were a gross breach of his duty to present the Crown case in an impartial and fair manner. By imposing his own view on the jury there was a risk that they might believe that they were required to decide whether the prosecutor was correct in his personal views rather than assessing for themselves whether the evidence proved the Crown case: see R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 at 11."
Overall, McClellan CJ at CL found that despite the "serious transgressions" by the Crown, the trial had not miscarried given the careful directions by the trial judge.
In Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321, a ground of appeal centred on the Crown Prosecutor's use of the word "pathetic" three times and "absolutely pathetic" on another occasion. This Court (Giles JA, with whom Howie and Fullerton JJ agreed) held that, after considering the principles arising in R v Roulston, R v McCullough, R v Rugari and Livermore v R, the remarks when considered in context, did not cause a miscarriage of justice. His Honour found that while use of "pathetic" was not ideal, it did not constitute a "gratuitous denigration of the appellant or the defence case". His Honour also pointed out that the prosecutorial conduct complained of in Libke was "far beyond" what was complained of in the present case and, in Libke, the majority had not found that this conduct had caused unfairness.
Similarly, in Causevic v R [2008] NSWCCA 238 there were three complaints about the conduct of the Crown Prosecutor during the trial. The first was that the Prosecutor used expressions such as "I suggest", "I actually think", "[t]hat suggested to me" and "[i]t occurred to me". He also made a comment in their closing address inviting the jury to consider why the victim might have a motive to lie. Additionally, the Prosecutor used the word "nonsense" to describe the appellant's version of events.
McClellan CJ at CL (Barr and Price JJ agreeing), held that although the language was regrettable, the situation was dissimilar to Livermore v R, where the prosecutor invited the jury to conclude that they were "slow" if they did not hold his views. As for the use of the use of the word "nonsense", his Honour held that the Crown Prosecutor was entitled to "firmly and vigorously agitate the Crown case". He held at [46] that: "Whether or not the language used by a Crown Prosecutor breaches the obligation of temperateness and restraint will depend upon the circumstances of each case. The issues in this case were vigorously debated and Mr Murray cross-examined with some force. Although the prosecutor expressed himself in strong language I do not believe it was unacceptable in the circumstances. It did not occasion a miscarriage of justice."
More recently, in Curran v R [2020] NSWCCA 171 this Court considered a complaint about two remarks made by the prosecutor in his closing address. The first related to a several incidents which were alleged to have occurred on a boat and a beach at Pittwater. The prosecutor drew the jury's attention to the applicant's failure to contact the complainant's parents on either of two nights where, on the applicant's version, the victim and the complainant had visited an establishment with a phone. The prosecutor then made a comment to the following effect: "You heard the evidence from Jim Curtis about them getting back from the trip and you've heard the evidence from the [parents] about them getting back from the trip and you just wouldn't accept what the accused says about that. Why would he lie? Well, I'm not asking, it's not up to you to tell why he lied, this is a case where the prosecution must prove their case. But on this occasion you might think he has lied because what he was doing rather than being at a restaurant, was performing the indecent acts both on the boat and on the beach."
The second remark that was the subject of complaint was made later in the closing address in the context of acknowledging that the applicant was a man of good character. The prosecutor said: "But members of the jury even people with good character commit offences. What the Crown says is here is a man who has otherwise very good qualities, who has a weakness and a weakness is for this particular boy, perhaps boys in general. That will lead him to be involved in this family and as he got further involved to have a sexual interest in this boy."
It was accepted by both parties that this reference to "boys in general" should not have been made, as there was no tendency evidence led in the trial about a sexual interest in boys generally. In relation to both comments, the court held that there had been no miscarriage of justice. Basten JA noted that although "the remark should not have been made", any unfairness was reduced by the fact that it was made by the prosecutor rather than the judge.
Furthermore, the trial judge had told the jury to "disregard those remarks" and directed them that they should not convict unless satisfied beyond reasonable doubt as to the truthfulness and essential accuracy of the complainant's evidence about each count. Similarly, his Honour held that while the second remark should not have been made, it was also countered by a clear direction to the jury.
In separate reasons, R A Hulme J agreed with Basten JA and commented at [130] that: "I feel compelled to add, however, that it is startling that senior counsel who appeared for the Crown at trial could make such fundamentally flawed submissions to the jury. The choices forced upon senior counsel for the applicant were difficult and the task of the trial judge in maintaining the fairness and balance of the trial was made unnecessarily more onerous."
Hamill J also noted that "it was quite wrong for the prosecutor to address the jury in the way they did" (at [145]).

Consideration

I am satisfied that the determination of this ground requires the Court to: analyse exactly what was said or done, consider the impugned conduct in the context of the entirety of the trial and also consider whether the prejudice was cured by steps taken by the presiding judge: Hughes v R at [62].
Before turning to consider these issues, it is important to note at the outset that the Crown made a number of concessions in relation to the cross-examination of the applicant at his trial as follows: 1. It was conceded that the Crown Prosecutor erroneously put to the applicant that the complainant had visited the applicant in custody a couple" of times when her evidence was that it had been "numerous times"; 2. It was conceded that the Crown Prosecutor framed questions suggesting that the applicant did not express remorse or concerns for the 1998 incident despite the complainant never giving evidence to that effect; 3. It was conceded that, contrary to what was put to the applicant in cross-examination, the complainant did not give evidence that the applicant had threatened to shoot the complainant's friend during the 1998 incident (despite this, in answer to the question, the applicant agreed that "I probably did, yes"); 4. It was conceded that the Crown Prosecutor was wrong to suggest to the applicant that the complainant had given six examples of "bad treatment' (the interim events) when in fact she had given evidence of five; 5. It was conceded that the Crown Prosecutor should not have described the complainant's injuries from the 1998 incident as that she "broke her back" when she had in fact suffered cracked vertebrae" (although the error was corrected in the next sentence); 6. It was conceded that it was not appropriate to use language such as "you didn't give a rat's ass about how the complainant felt" or "pack of lies," "litany of lies" or "fairy tale". 7. It was accepted that the exchange between the Crown Prosecutor and the applicant became "heated" but at no time did the Crown Prosecutor raise his voice or question the applicant in an aggressive manner.
The Crown also made the following concessions about the Crown Prosecutor's closing address: 1. It was conceded that the Crown Prosecutor should not have said "I suppose a very cruel person could say she fucked up because she actually met him." (Although the Crown noted that this comment made by the Crown Prosecutor to the jury was immediately preceded by the Crown Prosecutor reading out a text message from the applicant to the complainant in which he said, inter alia, "[y]ou fucked up, not me". 2. It was accepted that the reference by the Crown Prosecutor in his closing address that, "[a]nd even if he.. just for one millisecond he thought that he was God's gift or, you know women fell at his feet' was "unnecessarily flamboyant". 3. It was conceded that it was not appropriate for the Crown Prosecutor to make the comment in his closing that the complainant would have "gone to the gates of hell' in preference to being with the applicant. 4. It was conceded that it was not appropriate for the Crown Prosecutor to refer to aspects of the applicant's evidence as "rubbish". 5. It was conceded that it was not appropriate for the Crown Prosecutor to suggest that the applicant's evidence was "pre-rehearsed". 6. It was conceded that the Crown Prosecutor used highly rhetorical language in his closing address.
The Crown's position was that even though it was accepted that some aspects of the cross-examination and some comments made by the Crown Prosecutor in his closing address were not appropriate, these factors, either alone or in combination, did not so affect or permeate the trial as to warrant a conclusion that the applicant did not receive a fair trial. Significant weight was placed on the fact that no complaint was made about any of these matters at trial and nor did the trial judge consider it necessary to intervene at any stage to censure the Crown.
It was common ground that despite the fact that the jury left the courtroom twice during the cross-examination, defence counsel raised no issues about any aspect of it. In fact, it was embraced by defence counsel in his closing address, when it was noted that the applicant "gave extensive explanations under what I put to you was a rigorous and extensive cross-examination" and that "you had the benefit of seeing the directness of his answers to the Crown."
The Crown submitted that rule 4 of the Criminal Appeal Rules was engaged in relation to this ground and opposed leave being granted. Rule 4 of the Criminal Appeal Rules is in these terms: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
I am not satisfied that rule 4 is engaged under this ground. It could not be said that the cross-examination of the applicant or the Crown closing address was a "direction, omission to direct, or decision as to the admission or rejection of evidence". Despite this, I am satisfied that many of the principles derived from the decisions concerning the engagement of rule 4 are applicable to the question of whether the trial miscarried as a result of the matters now complained of. As this Court (Giles JA, Hislop and Hulme JJ) observed in Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373; at [11]-[12]: "…it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously. A failure by counsel to perform this duty may be explicable because: (a) he (sic or she )overlooked the point or was unaware of the law on the subject; (b) he (sic or she) deliberately said nothing hoping to gain a tactical advantage at a later stage; or (c) he (sic or she) took no objection as, in the atmosphere of the trial, he saw no injustice or error in what was done - Tripodina (at 193 and 191)."
In reliance upon these principles, the Crown submitted that the failure to object to the cross-examination established that in the atmosphere of the trial, defence counsel saw no injustice or error in it.
In response to this, Mr Carroll submitted that this was no ordinary trial. He relied upon a number of features of the trial which he contended may have created an atmosphere unlike what one would expect in a NSW District Court trial on serious charges. Although it was not contended that any of these features on their own rendered this trial unusual, it was submitted that the cumulative effect of them was to do so.
I am satisfied that this was a highly unusual trial due to the cumulative effect of the following otherwise uncontroversial features.
First, the pre-trial ruling was made by a different judge to the trial judge.
Secondly, the Crown Prosecutor who appeared on the pre-trial ruling was a different Crown Prosecutor to that who appeared at the trial.
Thirdly, both the trial judge and the Crown Prosecutor went immediately from finishing the previous trial to commencing the applicant's trial.
Fourthly, the context evidence was ultimately ruled upon in two separate judgments by two separate judges even though it all formed part of the same subject matter.
Fifthly, after the complainant had finished giving her evidence the applicant's counsel withdrew for personal reasons and a new barrister had to be briefed at short notice to take over the representation of the applicant for the remainder of the trial.
Sixthly, in addition to fact that trial judge started this trial with another jury deliberating (a common feature in the NSW District Court), she was also the Parramatta List judge for significant periods of the trial which caused the trial to start late and finish early every day so that she could attend to other matters including sentences. There was not a single day of this trial, which went from 4 until 19 August 2017, in which the trial sat from 10:00am until 4:00pm. The court transcript records that her Honour was interrupted 13 times to attend to other matters.
Finally, the pre-trial ruling which permitted the Crown to rely upon the 1998 offences permitted prejudicial evidence of the applicant's bad character to be before the jury. I have already observed that this evidence was relevant and admissible given the issues at trial but, in different circumstances, it would have been inadmissible as evidence of bad character.
As Hayne J observed in Libke v The Queen at [77] failure to object to potentially unfair questions at trial does not bar an appellant from complaining, on appeal, that the trial was unfair. It is recognised that defence counsel may hesitate before doing so at trial in case it gives the impression to the jury that the witness needs protecting. In the present matter, it may also be the case, as was suggested by counsel for the applicant on appeal, that the acquiescing role played by the replacement defence counsel was a result of his late introduction into a trial that was already unusual for a number of reasons.
I am not only satisfied that rule 4 does not apply to this ground, I am also satisfied that in the unusual atmosphere of this trial, the failure by defence counsel to object does not inevitably lead to the conclusion that the trial was not unfair.
I turn then to consider whether the conduct of the Crown Prosecutor led the trial to miscarry under the third limb of s 6(3) of the Criminal Appeal Act.
It is to be accepted that the Crown Prosecutor's questioning and remarks fall to be assessed in the context of the issues raised in the trial. Given that the applicant's account of what occurred painted the complainant in a very unfavourable light, it was clearly appropriate for the Crown Prosecutor to forcefully and firmly put the prosecution case to the jury. The applicant attributed words and behaviour to the complainant that were highly offensive and provocative. The Crown suggested on appeal that it could be inferred that the applicant sought to arouse hostility on the part of the jury towards her in this way. That may well be the case; he certainly sought to cast himself in a more sympathetic light.
I am satisfied that the particular circumstances of this case were such that a robust approach to cross-examination was justified, noting that "the feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another' (see Rugari at [47]). The Crown Prosecutor was entitled to firmly call upon the jury to reject the defence case as inherently unbelievable. But the complaint made under this ground goes much further than a claim that the prosecution was merely "robust": six separate heads of complaint are relied upon in support of this ground.
In resolving the central question of whether the applicant's interests were prejudiced to a significant extent by the Crown's questioning of him, I have had regard to the six discrete complaints made about the cross-examination in turn.

The 1998 incident and interim events

Given the admission into evidence of the 1998 incident, considerable care was required to ensure that the facts in relation to it did not "swamp" the allegations upon which the applicant was standing trial. That did not happen in this trial. Instead, significant time was spent during the opening address, evidence in chief of the complainant, cross-examination of the applicant and Crown closing address going over the facts of that earlier incident in detail.
The applicant pleaded guilty to the 1998 incident. He did not try to deny it or minimise it at the trial. Despite this, the Crown Prosecutor pressed him on details of the 1998 incident at length in cross-examination. He repeatedly returned to the topic to undermine his credit. Furthermore, the facts of the earlier incident were at times put to the applicant inaccurately in a way that made the event more prejudicial. The Crown has conceded the factual inaccuracies. For example, it was put to the applicant that he had never apologised to the complainant for the 1998 incident. This was an irrelevant question and, as the Crown conceded on appeal, the complainant never suggested in her evidence that he had never apologised to her in the first place. Despite this, when the applicant gave evidence that he apologised the Crown Prosecutor replied by exclaiming "[r]eally?" in a surprised tone.
As for the interim acts, the Crown Prosecutor repeatedly stated to the applicant and the jury that there were six interim acts when there were in fact five. Both defence counsel and the trial judge referred to there being six rather than five such acts as well. Although this is a relatively minor matter on its own, the problem is that none of the factual inaccuracies were corrected. The only transcript evidence requested by the jury for their deliberations was the applicant's. The trial judge did not summarise the evidence in her summing up. This meant that the jury was left to deliberate with the incorrect recitation of the evidence contained within the Crown Prosecutor's questions.
I am satisfied that the cross-examination in relation to the 1998 incident went far beyond the limited purpose for which it was admitted. A more measured approach should have been taken to the 1998 incident in cross-examination.

Cross-examination invited tendency reasoning

I am satisfied that the applicant was cross-examined about the complainant's state of mind in a manner that invited tendency or coincidence reasoning. It was repeatedly put to the applicant that in the same way that the complainant was nice to him when he kidnapped her 17 years earlier, she was also nice to him at the time of the alleged offences. That is, it was put to the applicant that because he had scared her in the 1998 incident so too had he scared her at the time of the alleged offences.
To rely upon the 1998 incident in this way (at the same time as disavowing any reliance upon the evidence for tendency or coincidence reasoning), would have made it difficult for a lay jury to understand how it was not tendency evidence. It was imperative that the cross-examination did not invoke the impermissible lines of reasoning which a jury would be susceptible to falling into when confronted with prior extremely serious offending.
As for the interim acts, the cross-examination about the applicant having had a "bad day" on the day of the 1998 incident, the interim acts and the charged offences that I have extracted above at [106] also had the effect of using the context evidence as tendency evidence. Other questions inviting tendency reasoning included when the applicant was asked, "[y]ou knew that … when you are in a certain mood, she became very very scared of you. You knew that, didn't you? …" and, "[y]ou cause her, every time you get in a bad mood, to fear for her life and you know it don't you?"
It is to be accepted that the trial judge gave detailed directions about the context evidence and the limited way that it could be used but the evidence of prior bad character played such a disproportionately significant part of the Crown case that I am not satisfied any directions could have cured the risk that the evidence would be used as tendency or coincidence evidence.

Inviting the applicant to comment on the complainant's evidence.

I am satisfied that it was improper for the Crown to keep referring to the evidence of the complainant and her voice and demeanour and inviting the applicant to comment on it. This occurred on a number of occasions. The applicant was asked to comment on the tone of the complainant's voice on the triple-0 call and agree that she sounded scared. He was also asked by the Crown to comment on how the complainant gave her evidence in court when she recounted the details of the 1998 incident. The effect of this questioning was to require the applicant to explain why the complainant's claims should not be accepted. This had the effect of reversing the onus of proof on this issue.

Questioning about his absence from the complainant's home from 2008 until 2013

Unusually for a criminal trial, the jury was aware that the applicant was in custody from 1998 until 2001. The transcript records that the jury sent a jury note to her Honour inquiring as to whether he had been in custody from his arrest in 2015. They were informed that there was no evidence about that.
It was known to the Crown Prosecutor, defence counsel and the trial judge that the applicant had spent long periods in custody since he commenced the relationship with the complaint in late 1997. It would also have been apparent from the complainant's evidence that the relationship between the complainant and the applicant continued when he was in custody from 1998 until 2001, when he was in custody from 2005 and 2007 and when he was in custody from 2009 until 2013. It is clear from the applicant's evidence that he considered the relationship to be ongoing for this period as well. I have already considered the cross-examination on this issue above at [114]. Although, the complainant's evidence in chief was that the relationship finished in 2008, she conceded in cross-examination that it concluded in 2013.
In the context of there already being evidence that the applicant had been to gaol, I am satisfied that the cross-examination of the applicant where it was repeatedly put to him that he didn't "live" at the house from 2008 until 2013 was unfair. From the applicant's perspective he did live there, he was just prevented from physically being there because he was in custody. The unfairness is not that the Crown was trying to elicit an answer that suggested that he was in custody. Rather, the unfairness is that the questioning led the applicant to answer that he wasn't there during that time because he worked "on the railways". The jury would have realised that was an improbable answer, it is difficult to think of a railway job which would have precluded him from coming home for one single night during that five year period if he did in fact still live there.
The applicant was clearly agitated by this questioning but when he raised it in the absence of the jury he was told by the trial judge that the Crown Prosecutor was trying to be fair. But concealing from the jury that the applicant had been in custody did not mean that it was possible for the applicant to answer the questions in the form asked by the Crown Prosecutor.
The answer that the applicant was cornered into giving had the potential to lead the jury to realise that the applicant must have been in custody during that time. Despite this, the only discussion of this aspect of the applicant's evidence at trial was as follows: "NIVEN: All right. It's in relation to your Honour's context evidence direction. Your Honour referred to an intermittent relationship and I think it was the accused's case that that was not a correct reflection of the position, and also that-- HER HONOUR: He was in custody for long periods of time. I thought that was the most - NIVEN: It may be a matter of semantics but I raise it anyway. CROWN PROSECUTOR: He was away working for five years between 2008 and 2012. I thought that was delightful the way he answered that because - "
The answer was not "delightful"; it suggested that the applicant had been in custody for a significant time. Although it is to be accepted that the unfairness about this issue of where the accused was "living" was most likely the result of misunderstanding on the part of the Crown, as opposed to any intentionally unfair cross-examination, the end result was the same nonetheless.

Improperly raising recent invention in breach of the applicant's right to silence;

The failure of the trial judge to give a direction about this aspect of the cross-examination and closing is the subject of ground 4.
I have extracted the cross-examination on this issue at [73] and the closing at [133] above.
The jury were told that the applicant had maintained his right to silence when offered an interview following his arrest on 29 April 2015. Despite this, the Crown submitted to the jury that the applicant had invented the version he gave in court after being served with the prosecution brief. On this appeal the Crown conceded that it was not appropriate for the Crown Prosecutor to suggest that the applicant's evidence was "pre-rehearsed". I accept this concession.

Cross-examining in a tone and manner which was offensive, humiliating and insulting

As stated above at [218], the Crown has conceded on this appeal that many of the words used by the Crown Prosecutor at trial were inappropriate.
The concession was properly made. I am satisfied that the language at times was intemperate and inappropriate and went beyond what is appropriate language for a Crown Prosecutor to use. He injected his personal opinion into the questioning. The result was that the cross-examination and closing submissions amounted to a personal attack on the applicant and barracking for the complainant. The Crown Prosecutor engaged in questioning which was argumentative and then closed to the jury that the applicant was belligerent and arrogant.
I have had regard to the Crown submission that the language used by the Crown Prosecutor was coarse because he had adopted the same style of language as the applicant did in his evidence in chief. I am not satisfied that this is a satisfactory explanation.
As for the tone of the cross-examination, I have carefully listened to the audio of the cross-examination twice. The tone changes throughout the cross-examination. At times it is uncontroversial. At other times it is sarcastic and condescending. At other times the Prosecutor expresses mock surprise at some answers. He laughs at others.
Although the Crown Prosecutor and the trial judge both reminded the jury of the burden and standard of proof on a number of occasions, this was a trial in which the jury was invited to consider two versions of events. As was submitted on behalf of the applicant on this appeal, this meant that there had to be consistency in the treatment of the complainant and the applicant as a witness. The complainant had been cross-examined with respect by defence counsel. But the applicant, regrettably, was not.
Complaint was also made that some of the questions should have been excluded under s 41 of the Evidence Act which is in these terms: (1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question")-- (a) is misleading or confusing, or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or (d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability). (2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account - (a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and (b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and (c) the context in which the question is put, including - (i) the nature of the proceeding, and (ii) in a criminal proceeding--the nature of the offence to which the proceeding relates, and (iii) the relationship (if any) between the witness and any other party to the proceeding.
The applicant relied upon the fact that he is an Aboriginal man of limited education and a "Bugmy" upbringing who has spent a significant amount of time in custody. This was said to be relevant to s 41(2) of the Evidence Act. To the extent that it was relevant, Mr Carroll noted at the hearing of this appeal that the complainant is a blond Caucasian woman.
There is no doubt that the approach a Crown Prosecutor might take to cross-examination of a highly educated accused will be different to that taken with an accused who has had limited education. I am satisfied that all persons of limited education should be treated with respect by a Crown Prosecutor, whether they are Aboriginal or not. The High Court took a similar approach in Bugmy.
Some of the questions were asked by the Crown Prosecutor in a mock slow voice pausing between questions as if speaking to a child. I am not satisfied from the tone of this questioning that this approach was taken out of respect for the applicant's limited education.
It is the experience of those who have practiced in the criminal law for many years that Aboriginal witnesses and accused persons are generally reluctant to give evidence and can often feel excluded from the criminal justice process (Judicial Commission of NSW, Equality Before the Law at 2.2.4). Although I am not satisfied that the fact that the applicant is Aboriginal has any direct bearing on the resolution of this ground of appeal per se, I am satisfied that the submission made by Mr Carroll on this issue was one appropriately made in the circumstances.
I have had regard to the Crown submission that, unlike in Libke, the applicant was able to directly and confidently answer questions put to him (as acknowledged by his counsel in the defence closing address). Although, on the whole, the applicant was able to answer the questions, I am not satisfied that that is an answer to this ground in the circumstances of this case.

No intervention by Trial Judge

Complaint was made on behalf of the applicant under this ground that although her Honour controlled the nature and content of questioning of the complainant, she did not do so when the applicant gave evidence. Her Honour did remind the applicant to keep his voice up and at one stage pulled the applicant up for speaking over counsel (see above at [114]).
Having listened to the audio of this exchange I am satisfied that the Crown had finished his question when he asked "[d]o you remember". After the interjection by the trial judge, the Crown Prosecutor moved on to another topic. The applicant never completed his answer. The question of what he meant by "missus" was never finished and then became a focal point of the Crown closing address.
It is always a difficult question for a trial judge to know when to intervene, as defence counsel may not be objecting for tactical reasons. I have also had regard to the fact that the trial judge was working under very onerous conditions given the significant workload she was required to meet at the same time as presiding over this trial. Despite this, I am satisfied that the failure by the judge to intervene to censure the Crown does not mean that the conduct of the Crown did not cause any unfairness.

Conclusion re ground 3

I have had regard to the following observations of Carruthers J (with whom Spigelman CJ and Sperling J agreed) in Rugari v R at [62]: "As has been pointed out by counsel for the Crown before this Court (and it is a valid point) as it is now the responsibility of the Crown Prosecutor to address immediately after the conclusion of the evidence, which in most cases is the case for the defence, it is often difficult for Prosecutors to collect their thoughts sufficiently to present a Crown case in as concise and appropriate a fashion as they would wish. That is a point which I have taken into consideration in evaluating the matters that have been raised in this appeal."
I am not satisfied that the conduct of the Crown Prosecutor in this matter could be adequately explained by insufficient time to collect his thoughts.
I am satisfied that there was a "miscarriage of justice" within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). As the High Court observed in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] "any departure from trial according to law, regardless of the nature or importance of that departure" is a "miscarriage of justice" for the purpose of provisions like s 6(1) of the Criminal Appeal Act.
The Crown did not suggest that if error was found under this ground it would be applicable to apply the proviso in this matter and I do not find otherwise.
The resolution of this ground means I would propose that a new trial be ordered. Despite this, I propose to go on to consider ground 4 for completeness.

Ground 4: Her Honour erred in dealing with the post-offence conduct of the applicant by failing to give a consciousness of guilt direction in relation to the applicant's "pre-emptory" telephoning the police after the incident

Applicant's submissions

The applicant submitted that the Crown in his closing address sought to use the fact that the applicant had telephoned Mount Druitt police on the morning of 2 April 2015 as post-offence conduct evidencing a consciousness of guilt. Although there was no evidence about what the applicant had said to police that day, the Crown addressed the jury by suggesting that the reason he had called police that day was to give a false exculpatory account of events earlier that day.
It was submitted that the jury should have been directed that, before they could infer that the applicant acted because he was conscious of his guilt of the offence, they were required to exclude any alternate inference that was inconsistent with guilt.

Crown submissions

It was submitted that having adduced this evidence at the request of the applicant, the Crown Prosecutor was entitled to refer to it in his closing address. The effect of the Crown Prosecutor's submission in his closing address was that the version given by the applicant was untrue and should be rejected. Consistently, no such direction was sought by trial counsel for the applicant and rule 4 of the Criminal Appeal Rules is engaged in relation to this ground.
Reliance was placed by the Crown on the decision in Patterson v R (Cth) [2001] NSWCCA 316.

Consideration ground 4

I have extracted the evidence pertaining to this ground at [73] above and how the Crown used it above at [133]. In addition, Exhibit A showed that the applicant had been attempting to contact the complainant before he called the police that day.
It is common ground that defence counsel wanted the Crown Prosecutor to lead evidence from the OIC that the applicant had telephoned police that morning. The applicant telephoning police to see what they wanted to speak with him about could be considered to be either neutral evidence or possibly evidence consistent with innocence, depending upon the facts of the case. In this trial the Crown relied upon it in his closing address as the conduct of a guilty man. The difficulty with this, as I have observed above under ground 3, is that there was no evidentiary basis to do so.
The actual details of the call were never adduced from the OIC by either the Crown Prosecutor or defence counsel. The applicant gave some brief evidence about it, as extracted at [89] above, but the Crown Prosecutor did not ask any questions in cross-examination of the applicant in relation to his telephone calls to police. Thus, it was never suggested to the applicant in cross-examination that the reason he telephoned the police that day was because he knew he had sexually assaulted the complainant and wanted to get his story in first. Despite not ever suggesting this to the applicant, that is the case theory the Crown Prosecutor presented to the jury in his closing.
Defence counsel made no mention of this evidence in his closing address. Nor did he make any complaint about it. Nor did he request an Edwards direction (Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63).
I have already found under Ground 3 that the Crown should not have invited the jury to rely upon this evidence as a pre-emptive attempt to exculpate himself. Although rule 4 is not engaged in relation to the Crown closing, it is engaged in relation to the failure to request an Edwards direction in relation to it.
As this Court (Gleeson JA with whom Harrison and Davies JJ agreed) observed in Roos v R [2019] NSWCCA 67 at [72]-[74]: "Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. The criterion for the exercise of r 4 has been the subject of discussion in this Court. In Picken v R [2007] NSWCCA 319, Mason P (Hidden and Harrison JJ agreeing) noted at [20] that there have been varying formulations of the test for identifying a miscarriage of justice in this context, referring to Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; and R v Wilson (2005) 62 NSWLR 346 at 352 [20]. The test proposed by McHugh J in Papakosmas v The Queen, which is a negative constraint, was doubted in Greenhalgh v R [2017] NSWCCA 94 at [8] (Basten JA, Button J agreeing), where the view was expressed at [16] that this Court should be cautious in laying down principles to be applied when exercising a broad discretionary power under r 4. Nonetheless, it is generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R at [20] - [21]; ARS v R [2011] NSWCCA 266 at [147] (Bathurst CJ, James and Johnson JJ agreeing); Greenhalgh v R at [47]-[48] (N Adams J) cf [7]-[21] (Basten JA, Button J agreeing). It is also to be kept in mind, as Mason P said in Picken v R at [22], that: 'The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge'."
I am not satisfied that the failure to give an Edwards direction in this matter on its own resulted in the applicant losing a real chance (or a chance fairly open) of being acquitted. Despite this, as Mason P observed in Picken v R at [22], I am satisfied that when taken in conjunction with the matters identified under ground 3 its impact contributed to the applicant's trial miscarrying.

Conclusion

The orders I would propose are as follows: 1. To the extent necessary, leave is granted. 2. The appeal is allowed. 3. A new trial is ordered. 4. The matter is listed for arraignment in the District Court in Parramatta on 4 December 2020 at 9:30am.

Amendments 22 November 2021 - Publication restriction removed - judgment published 24 November 2021 - [92] and [141] the name and the address of the complainant anonymised 24 November 2021 - [92] and [141] address anonymised 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: 24 November 2021

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