Groundstroem v Attorney-General for New South Wales

Legislation

1. Relevant provisions of the Act are these: 74 Definitions (1) … (2) In this Part, a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or an inquiry into, any aspect of the proceedings giving rise to the conviction or sentence. 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. …

Legal principles

1. In Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 the following is said: [34] The legal principles governing these applications are now reasonably well known. The inquiry is not whether there is a doubt or question as to the convicted person's guilt or, here, as to the sentence (Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [29]-[31]) but whether there appears to be a doubt or question: Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [16]. The requisite "doubt or question" was said to be something which might cause unease: Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 at 48. [35] In Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Johnson J said: [6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. Some Other Features of the Jurisdiction [9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.

The basis of the application

1. It is a little difficult to identify the precise bases on which the applicant relies because of the somewhat discursive narrative of the documents setting out his complaints about the trial. It appears that the grounds are these: (1) Reliance on what is said to be fresh evidence concerning the complainant's medical history. (2) What is described by the applicant as "'other' fresh/new evidence" that existed at the time of trial but the existence or significance of which the defence was not aware: (a) A Family Court report concerning the complainant's physically violent childhood; (b) Evidence in relation to the "Turning Point" course; (c) Literature and expert on the "Turning Point" course and the relationship between Post-Traumatic Stress Disorder and medication; (d) Evidence from a gynaecologist, Dr David Smith; (e) What is described as the "48 Hour Rule" said to be contained in one of the Bench Books; (f) Matters concerning the complainant's skills in English.

(1) Fresh evidence about complainant's medical history

1. The applicant does not identify what aspect of the complainant's medical history amounts to fresh evidence. He refers to the fact that the complainant suffered from endometriosis/bleedings in Finland before moving to Australia which led to her conceiving Nicholas in 1989. Other references in his narrative imply, but do not state, that any bleeding about which the complainant complains were not related to sexual assault of any kind but were related to her pre-existing condition, presumably, the endometriosis. For example, he says: Why did she not reveal history of malnutrition - potential cause of bleeding? Why did she not reveal regular undiagnosed rectal bleeding spanning years? Why did she not reveal the occurrence of two invasive procedures to alleviate the bleeding, knowing not doing so would be incredibly prejudicial to me? Why did she not qualify her past and the bleedings as perhaps something entirely separate and still claim I abused her … unless it was to manipulate the truth? … The point of the medical history evidence was to achieve the following: To give logical and irrefutable proof of actual pre-existing conditions as sources of bleeding which in turn would undermine the credibility of any bleeding being due to actions by me.
2. He went on to submit that the medical history was the cornerstone of the evidence which would encourage jurors to ask hard questions about the complainant's "believability".
3. The applicant further submitted that the allegations the complainant made against him, were almost immediately preceded by her experience of anxiety riddled flashbacks and nightmares, then grossly exacerbated, morphing into and given full voice in vague accusations of assault by me once she'd completed most of the "Turning Point" course (a regression therapy course run by unqualified people).
4. The applicant's submissions appear, in an indirect way, to criticise the competency of the lawyers who acted for him at the trial although he accepted that both counsel and his instructing solicitor "both gave me a very thorough explanation prior to trial of why the sexual history of an accuser is completely untouchable in court". The thrust of the criticism appears to be that he found the discussions with his lawyers "contradictory and confusing", and he did not think of using the medical history evidence as part of the defence.
5. His submissions on this aspect conclude by saying: In short, there is no doubt that the evidence physically existed at that time in a file somewhere in Finland. Yet - for all practical purposes I wasn't aware of it, and neither was my defence. From their perspective, the trial was already running in a particular way and therefore they had no logical reason to try to think of, or, ask me for anything of that type of evidence. In any event, they never asked.
6. There appear to me to be a number of problems in relation to this medical evidence.
7. First, the medical evidence is not even identified by the applicant. If it was the fact that the complainant suffered from endometriosis, that would have been an obvious matter to raise with the complainant in cross-examination to challenge her evidence that the bleeding came from the anal rapes. That is the more so when the complainant herself gave evidence in chief of having been diagnosed with endometriosis which she described as a condition that affects the uterine wall. Her evidence was that she conceived their first child, Nicholas, because that had the potential to obviate the need for treatment for that condition.
8. Secondly, the complainant's evidence was that the bleeding came from the anus and not from the vagina, and only occurred after she had been subjected to anal intercourse.
9. Finally, the evidence would have no significance because the jury was clearly not satisfied beyond reasonable doubt that the complainant sustained bleeding or other injury from the sexual assault. The applicant was found not guilty of the aggravated form of sexual assault which was dependent upon establishing actual bodily injury. The fact that the complainant may have suffered from a condition which involved bleeding from the uterus would not have had an impact upon her credibility in claiming she had anal intercourse, which was not disputed by the applicant, and that that intercourse resulted in bleeding.
10. In that way even if the other requirements for fresh evidence were satisfied, which they would appear not to have been since the evidence was clearly in existence and referred to in the trial, the evidence would not have made any difference to the outcome.
11. The applicant also refers in his submissions to two occasions where he asserts the complainant was raped at a young age and was molested by her father as a toddler. It is far from clear if this forms part of the medical evidence that he now wishes to adduce, because the reference to this material occurs in the part of the submission where he accepted that his lawyers gave him a thorough explanation as to why the sexual history of a complainant was not able to be led. If those two asserted occasions are put forward as part of the medical history, s 293 of the Criminal Procedure Act 1986 (NSW) would make evidence of them inadmissible. The applicant does not assert, and it is not the case, that any of the exceptions in s 293(4) are applicable.
12. This matter does not cause a doubt or question in my mind concerning the applicant's guilt.

(2) The other fresh/new evidence

1. It is not clear from the applicant's submissions whether these matters are to be regarded singly or in combination to raise a doubt or question about his guilt. I will, however, first consider each of them individually, and thereafter in combination.

(a) A Family Court report

1. The applicant does not identify this report. It is said to contain an admission on the complainant's part that she came from a physically violent childhood. The applicant submits that her evidence at the trial "strongly implied that having come from a single parent household she knew nothing of any abuse, especially sexual".
2. The relevant evidence given by the complainant which the applicant is likely to be relying on (he does not identify it) was in relation to her account of the first time she said that the applicant raped her. The relevant question and answer in the transcript were this: Q: Did you have any understanding of whether what had happened to you was common, normal? A: No, I didn't know because I went - I grew up in a single parent family and he grew up with two parents. So I thought well maybe it is something I have no clue about. Maybe he knows. Maybe this is something that he has experience, I don't know.
3. The context was that the complainant said to the applicant the following day, after finding bruising on her legs and around her vagina and having pain in the pubic bone area, that what he did constituted rape. His reply was: I'm sure it happens in marriages, it's just not talked about. It was in that context that the complainant was asked if she understood that what had happened was common or normal. Her answer, effectively, was that as she had only had a single parent in her household, she had no experience of whether rape within marriage was common or normal. She also gave evidence that she did not understand, until she went to the women's refuge, that rape within marriage was unacceptable.
4. Even if there was evidence that she had suffered some quite different form of abuse in her childhood, that casts no doubt on her knowledge of whether rape within marriage was common or normal.
5. I do not have a doubt or question in my mind concerning the applicant's guilt from evidence of the type described but not identified by the applicant.

(b) The Turning Point course

1. The applicant asserts that the complainant misled the jury and/or committed perjury in relation to her reasons for attending the Turning Point course. The applicant asserts that the complainant was introduced to the course by a Sandi Forbes after she heard about what the applicant says were the complainant's nightmares and flashbacks. He claims that Ms Forbes has told him that she understood the complainant came from a violent background, something the applicant claims the complainant directly or impliedly denied.
2. Once again, the applicant has not identified the misleading or false evidence. It seems, however, that this matter relates to the applicant's assertion about the Family Court report and the complainant's evidence about her childhood. I have already set out what that evidence was. She did not say that she did not come from a violent background, nor did she imply it.
3. There is no statement from Ms Forbes and, even if there was, it would be inadmissible hearsay about a collateral matter going only to the complainant's credit.
4. More significantly, the applicant does not identify what was misleading or untruthful about what the complainant said were her reasons for attending the course. She was asked in cross-examination if she recalled doing the course in 1993 and she agreed that she did. In answer to the cross-examiner's question "Did the course have a bit of an effect on you?", the complainant said: Yes, I realised that when I started going there I thought I needed help, however, I started realising after that course that actually there were more issues happening at home as in my marriage than I realised. Apart from the complainant denying that she only started arguing with the applicant after she attended that course, no further questions were directed to it. Her evidence was, therefore, that she went to the course because she thought she needed help.
5. This matter does not cause me to have any doubt or question concerning the applicant's guilt.

(c) Literature/experts on "Turning Point" course

1. The applicant submitted that the complainant's accusations about him and the way her behaviour changed so radically in 1993 and 2003 were due to the combined factors of: (a) the terminal diagnosis of their son; (b) flashbacks; (c) previously undiagnosed PTSD; (d) the changing and adding of medications with known side-effects that exacerbate existing PTSD; and (e) attending the Turning Point course.
2. There is no evidence relating to flashbacks, PTSD or medications. The complainant was not cross-examined about them.
3. She was cross-examined at some length to suggest that she was making the complaints out of vindictiveness, because she blamed the applicant for Nicholas's death. She denied that she blamed him for Nicholas's death. That was a matter the jury, no doubt, considered when deciding that the sexual assault allegations were true.
4. It is not clear what the applicant means when he says that the complainant's accusations and behaviour changed. As to the accusations, the evidence was clear that the accusations by the complainant to the applicant commenced after the first allegation of rape in 1992, an allegation reported at the time to her sister in Sweden. She continued, thereafter, to make similar accusations as the sexual assaults continued. There is no evidence that the accusations changed. They pre-dated the matters in (a) and (e). As noted above, after the complainant's denial that she only started arguing with the applicant after attending the Turning Point course, no further questions were asked about the matter.
5. There is no evidence of when the complainant had flashbacks because, as I have said, she was not cross-examined about them. It is not even demonstrated that the complainant suffered from PTSD, let alone when it was diagnosed.
6. To the extent that the complainant's behaviour changed throughout the relevant period, the evidence and cross-examination dealt with that issue.
7. None of these matters could constitute fresh evidence. None of the matters is shown to have been unknown to the applicant at the time of trial. I do not have any doubt or question concerning the applicant's guilt by reason of these matters.

(d) Dr David Smith

1. The applicant submitted that the complainant was examined by the gynaecologist, Dr David Smith, when she was pregnant with Sebastian. The applicant submitted that if she had been injured or suffered bruising as a result of his treatment of her, this would have been ascertained by Dr Smith.
2. This matter is irrelevant because the jury did not accept beyond reasonable doubt that the complainant suffered injury from the sexual assaults. I do not have any doubt or question about the applicant's guilt from this matter.

(e) The 48 hour rule

1. The applicant refers to what he calls the "48 hour rule" in the Sexual Assault Bench Book. This is a section of the Bench Book dealing with medical examinations of sexual assault victims. Paragraph [22] of the Bench Book reads as follows: In anal sexual assault the penetration is usually rapid and is frequently done without the use of lubricant. Anal penetration in the course of a sexual assault is invariably described as painful and is frequently accompanied by some bright bleeding. If an examination is done within the first 24 hours, it may be possible to see linear abrasions in the anal canal. It may also be possible to see blue discolouration caused by bruising of the anal verge or the entrance to the anal canal. However, if the examination is delayed to 48 hours after the sexual assault, it is likely that these findings will have disappeared and the anal canal and verge will appear normal.
2. Once again, this is entirely irrelevant in the light of the jury's verdict. In any event, paragraph [22] says nothing about the length of time bleeding may last. It is concerned with whether linear abrasions might be seen in the anal canal. This matter could have been dealt with at the trial if admissible. It is not fresh evidence.
3. I do not have any doubt or question about the applicant's guilt as a result of this matter.

(f) English skills

1. The applicant submits that the complainant should not have been believed about her English skills, and that her lack of English skills provided no basis for an absence of earlier complaint. The applicant submits that the complainant perjured herself in relation to what she said about her English skills.
2. The complainant gave evidence about her English skills. She also gave evidence of her reasons for not having complained earlier. To some extent the lack of an early complaint was challenged in cross-examination but there was no challenge raised to her evidence concerning her English skills.
3. It is clear also that the failure to make earlier complaint was related to other matters as well. The complainant said that she did not feel strong enough to do it, and she expressed concern to her sister-in-law that if the applicant went to gaol, she and the children would be left with insufficient income to survive.
4. The issue of the complainant's English skills is an entirely collateral matter that could not have made any difference to the outcome.
5. I do not have any doubt or question about the applicant's guilt from this issue.

Conclusion

1. Even when considered as a whole, the matters raised in (a) to (f) above do not raise any doubt or question concerning the applicant's guilt.
2. The application fails to adduce or even identify precisely the evidence now sought to be relied upon. Even assuming the evidence is as the applicant asserts, such evidence is not fresh evidence. There is no reasonable prospect that whatever evidence might be admissible would have made any difference to the outcome.
3. The case ultimately depended on whether the jury accepted the evidence of the applicant. If it did not, the case against him was a strong one, particularly because of the admissions made to Dr Cassimatis and Sergeant Smith. Significantly, the first visit to Dr Cassimatis where the applicant said "1993 maybe he forced himself on his wife and bruised her", was long before the complainant left him. That put the lie to what the applicant said was a lie he told Dr Cassimatis just to get the complainant and the children back.
4. Sergeant Smith was an independent witness who made a record in the COPS system. The trial judge gave the jury a lengthy warning about Sergeant Smith's evidence, as his Honour was bound to do, but it was powerful evidence that tended to support what had been said to Dr Cassimatis, as well as the complainant's evidence.
5. I do not have a doubt or question as the applicant's guilt. Having considered all submissions and material, I decline to direct an inquiry or to refer the case to the Court of Criminal Appeal under s 79(1) of the Act.

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: 12 February 2019