Habambo v R

Court of Criminal Appeal (NSW)|2023-11-03|Before: Ward P, Rothman J, Davies J

Background

The applicant and the complainant met in early 2011 and were married on 10 November 2012 (25/08/22; T 68.35-69.10). They had not lived together prior to marriage (25/08/22; T 69.12-13). They first resided together in a granny flat at a property in Bass Hill for about two years (25/08/22; T 69.25-26). The couple had two children born in November 2014 and December 2016, respectively (25/08/22; T 69.34-36). The family moved into a larger house in Illawong at the beginning of 2015 (26/08/2022; T 126.35-36). The couple separated on 29 August 2020 (the date of the last of the charged offences - counts 31 to 34) (25/08/2022; T 69.41-42).

The respective cases

The Crown case was that the offences occurred in the context of an abusive domestic relationship. In opening submissions, the solicitor advocate referring to the trial as being one about "coercive control", explaining that concept as "a practice or a pattern of behaviour" that could include "psychological, physical, emotional and financial abuse through which one partner seeks to intimidate, isolate and control the other partner" (25/08/22; T 35.10-18). The defence took issue with this, applying unsuccessfully for the jury to be discharged as a result of what was described by defence counsel as "an argumentative submission that shouldn't have been made in an opening address" (see 25/08/22; T 40.11-44.40; T 45.38-52.25). No complaint is here made about this.
The Crown case included evidence of contemporaneous complaints made to family members, friends and (in the case of counts 9, 10 and 11) a general practitioner; contemporaneous text messages and other electronic records created by the complainant referring to incidents that had occurred; and photographs taken by the complainant immediately after particular incidents. The Crown also called various members of the applicant's family, including his sister (Rita Harb), his mother (Mona Habambo), another of his sisters (Remy Boumoussa) and his brother-in-law (Jimmy Boumoussa), the husband of the applicant's other sister, Rebecca. Pausing here, there is some inconsistency in the spelling of some of the names of members of the applicant's family. In a family tree tendered at the trial (Ex R) the names of the applicant's brothers in law are listed as "George Boumoussa" and "Jimmy Boumoussa" but in the transcript the complainant is recorded (at 29/08/22; T 192.25) as referring to Jimmy as "Jimmy Marousa"; (at 29/08/22;, T 193.25-28) to George and Jimmy as "George Marousa" and "Jimmy Marousa"; and (at 29/08/22; T 195.9) to George again as "George Marousa". The obvious explanation is that "Marousa" is a transcript error, given the family tree, and given the complainant's evidence (30/08/22; T 266.33-40) that George and Jimmy are brothers with the last name "Boumoussa".
The Crown was granted leave to cross-examine the applicant's family members witnesses pursuant to s 38 of the Evidence Act 1995 (NSW) (Evidence Act) on the basis that they had provided statements which it was accepted contained evidence unfavourable to the Crown case. The trial judge also, over the applicant's objection, granted the Crown leave to cross-examine those witnesses more generally as to credibility pursuant to s 38(3) of the Evidence Act (12/09/22; T 1047.21-24).
The defence case was that the alleged offending did not occur and that the allegations were motivated by financial and custodial issues on the part of the complainant. The defence tendered (over the Crown's objection) a number of text messages retrieved from an old phone of the complainant, which the applicant maintains were relevant to the complainant's motivation to lie (see the complaint as to Exhibit 11 raised by the applicant on the present appeal (3/11/23; AT 15.36-16.8)). The trial judge admitted the text messages in Exhibit 11 notwithstanding her ruling that they had been improperly obtained (see below).

Counts

The incidents the subject of the respective counts, and the evidence as to those incidents, can be summarised as follows.

Count 1 - 5 June 2011 - the "egg incident" (Not Guilty)

Count 1 (common assault) related to an incident alleged to have occurred on 5 June 2011 at the applicant's parents' house (prior to the marriage of the complainant and the applicant). The complainant said that the applicant had called her over and asked her to get something from the bottom of the fridge and that, while she was bending down to get a bottle of orange juice, the applicant had smashed an egg on her head "really, really hard" (25/08/22; T 70.11-15) and the egg was dripping down her face. The complainant said that the applicant's mother was present and said "Oh, my God. What are you doing? What did you do to her?"; and that the applicant had then taken a photo of her (25/08/22; T 70.15-17). The complainant said she was crying and that the applicant's mother was screaming and yelling at him. The complainant said that the applicant's mother tried to help her clean it out as best she could; but it smelled bad and the complainant was too upset so the complainant left and drove home to her parents' home address where she was then living (25/08/22; T 70.19-35). The applicant later emailed to the complainant the photograph he had taken of her (Ex A) (25/08/22; T 70.37-49).
In cross-examination, the complainant accepted that she had emailed the applicant on 5 June 2011, addressed to "Mr Hafaslam", which she agreed was a funny name that the applicant's friends would use (31/08/22; T 393.30-40). The complainant said that when she sent the email she was trying to be funny about the incident because she did not want the applicant to realise just how upset she was about it because he was her first boyfriend and they had only been dating a few months (31/08/22; T 397.9-11; 1/09/22; T 415.12-17).
Ms Harb gave evidence about the egg incident; namely, that she had come home from work that day and noticed that the complainant's hair was wet and that the complainant had told her about the incident and had been laughing about it (13/09/22; T 1091.16-27). There was also evidence from Ms Remy Boumoussa, who said that she was present in the kitchen, to the effect that someone had grabbed an egg and the applicant then grabbed another egg and cracked it on the complainant's hand; and that she and her mother had "just looked at each other laughing, like, this is cute, but then we had to clean the eggs" (14/09.22; T 1183.46-1184.5).
The applicant's mother, Mrs Mona Habambo, also gave evidence of the egg incident (14/09/22; T 1224.29-40) to the effect that the applicant cracked the eggs above the complainant's head and some of it went on the complainant's head and some on the kitchen floor; and that the couple was laughing. Mrs Mona Habambo said that she remembered the incident, that it was a joke; but that it was a nasty joke for her because she had to clean up the kitchen; and that she had offered to help the complainant clean her hair.

Count 2 - between January and March 2012 - "duct tape incident" (Guilty)

Count 2 (common assault) related to an incident alleged to have occurred in the applicant's vehicle (a Toyota Ute) between January and March 2012 (again before the couple's marriage) when the couple were on their way to church in Punchbowl.
The complainant said that the two were "mucking around" when the applicant's face changed all of a sudden and he told her to stop; that the applicant continued driving and then turned right onto King Georges Road and pulled over to the left putting his hazard lights on; and that he got out of the car, walked around the vehicle and opened the passenger side door and had silver duct tape in his hand (25/08/22; T 73.18-34). The complainant said that the applicant wrapped the duct tape around her head (around three or four times) and she had to put her hands up to her face to try and cover her eyes and prevent them getting stuck with the duct tape on her eyelashes and eyebrows (25/08/22; T 73.34-38). The complainant said that the applicant then returned to the driver's seat and continued driving to church like nothing had happened; and that she just sat there in the passenger seat truing to remove the duct tape very carefully (and painfully) because it was stuck to her hair (25/08/22; T 73.42-49).
The complainant's sister (Ms Marie-Antoinette Rachwan) gave evidence that she had a conversation with the complainant sometime in 2012 (6/09/22; T 759.2-4) (after the time the complainant was engaged to be married to the applicant, which was in October or November 2011) in which the complainant told her about an incident in the applicant's car when they had been "play fighting"; she had "flicked" the applicant's leg; and the applicant became angry and had pulled over to the side of the road, pulled out some tape and started taping around her face, with her hands covering her face (6/09/22; T 758.14-28; T 778.7-21). In cross-examination, Ms M Rachwan said that the complainant appeared scared and worried when she told her about the incident in 2012 (7/09/22; T 798.3-5).

Count 3 - late February 2013 - "plastic bag incident" (Guilty)

Count 3 (intimidation) related to an incident alleged to have occurred in late February 2013 (25/08/22; T 76.17). The complainant and the applicant (who by this time were married) were talking in the granny flat when the applicant forced the complainant onto the ground face down, face down between the back of the couch and the kitchen bench; kneeled on top of her with his knees on her hands so that her hands were behind her; and placed a plastic bag over her head and put duct tape around her neck. The complainant said that she was struggling to get out of it and that every time she took a breath the bag would be sucked into her mouth and she thought she was going to die. The complainant said that eventually the applicant got off her and she was able to get up and that she ripped the bag open so that she could breathe; and that the applicant then suggested that they watch a movie and he sat on the couch "like nothing had happened". The complainant said that she walked into the ensuite bathroom so that she could get rid of the tape and the plastic bag around her head; and that she called her friend (Antoinette Al Hage) and told her what happened (and that she was whispering when she spoke to Ms Al Hage) (25/08/22; T 76.15-45).
Ms Al Hage gave evidence that the complainant had called her around Valentine's Day 2013 from the bathroom and was whispering and talking very fast (13/09/22; T 1057.16, 31). Ms Al Hage said the complainant told her that the applicant had put her face down to the floor, put a plastic bag around her head and wrapped duct tape around her neck; that she thought she was going to die; and that when he let her go she was able to rip the bag open and he then asked her to watch a movie in the lounge area (13/09/22; T 1057.16-22).
Ms M Rachwan recalled that the complainant had told her of an incident where the applicant had put a plastic bag over her head and then taped around her neck; that he had her pinned down somehow where she was unable to breathe; that the bag was going in and out of her mouth as she was trying to breathe; and that eventually he let go and she ripped open the bag to catch her breath (6/9/22; T 763.39-45).

Count 4 (Not Guilty) and Count 5 (Guilty) - March 2013 spitting/ponytail incidents

Count 4 (common assault) was alleged to have occurred in about March 2013. The complainant said that she was in the bedroom of their Bass Hill home and was on her phone (texting); that the applicant saw her on the phone (which he usually did not like); and he started screaming and swearing at her. The complainant said that the applicant was saying a lot of nasty things about her and that he kept pushing her until she ended up on the back of the bed next to the bedhead; that one of the pushes forced her down onto the bed; and that she was sitting on the edge when he said "You're a shit wife and you're a shit person" and then made a sound like he was "coughing up phlegm"' and a large amount of spit landed on her face (26/08/22; T 96.8-35).
Count 5 (intimidation) was alleged to have occurred immediately following the above incident and as part of the same incident. The complainant said that she went to wipe off the spit; that the applicant was ranting and screaming at her; and that the applicant picked up some poultry or kitchen scissors and grabbed her ponytail in his fist; that the applicant pulled her hair down to the right so that her neck was strained and her head was downwards towards the right; and that the applicant put the scissors up with the vee open against her ponytail and held them there so that she could feel the blunt end of the blade against her neck. The complainant said that the applicant said to her "[y]ou don't need your hair. I'll cut it off for you"; and then eventually he let go and walked out of the room taking the scissors with him (26/08/22; T 96.35-97.6).
Ms M Rachwan gave evidence that the complainant had told her in around 2013 or 2014 that the applicant had grabbed a pair of scissors and put the scissors right against the base of the complainant's ponytail and threatened to cut her hair (6/09/22; T 763.23-26).
Another of the complainant's sisters (Ms Sueallen Rachwan) gave evidence that while the complainant was still living at the Bass Hill address the complainant told her of an incident in the bedroom at Bass Hill where the applicant had grabbed the complainant's hair and put scissors up to her ponytail, at the root of the hair, and was threatening to cut it off (7/09/22; T 840.16-40).

Counts 6, 7 and 8 - Easter 2013 incidents (Guilty)

Count 6 (common assault) was alleged to have occurred at Easter, after the couple had left a party at a friend's house in Greenacre on 31 March or 1 April 2013. The complainant said that when they were sitting together with friends in Greenacre the applicant had received a text message from his ex-partner, which had a photo of a lady wearing black lingerie and the message Happy Easter (26/08/22; T 99.32-41). The complainant said that she turned to the applicant and said "Oh, so you're still talking to her"; and that she got upset over it and walked outside; and that she called one of her sisters who was trying to console her (26/08/22; T 99.44-46). The complainant said that she went back inside and then the applicant decided that they had to leave because she looked visibly upset (26/08/22; T 100.6-7).
The complainant said that they got in the car; it was afternoon; that they were going home to their house in Bass Hill and arguing in the car about the text message; and that when they were near St Joseph's school in Enfield, approaching a red light, the applicant grabbed her right wrist and twisted it "really hard"; and it hurt a lot (26/08/22; T 100.7-14). The complainant said that she was yelling at the applicant to let her go and she tried to push his head away to do something to cause him to let go of her hand; and that eventually he ended up letting go of her wrist but then he used that same hand and grabbed the back of her neck and forced it down really hard between her knees (26/08/22; T 100.14-20). The complainant said that the applicant held her neck down while he continued to scream and swear at her and then finally he let go (26/08/22; T 100.20-22). The complainant said that they continued driving to the granny flat at Bass Hill and that when they went inside they both went into the bedroom and the applicant said "Look at you. You're fucked. You're drunk" and kept saying that to her (26/08/22; T 100.27-31).
Count 7 (common assault) followed the above incident. The complainant said that the applicant backed her to the bottom edge of the bed and then slapped her across the face. The complainant said that she fell onto the bed and just held her face and was crying when she was lying down (26/08/22; T 100.33-36).
Pausing here, in the complainant's account of events when giving evidence it is clear from the transcript that on occasion she demonstrated physically what had occurred; and on occasion she became upset (as, for example, when she needed a moment after recounting the incident in count 7) (26/08/22; T 100.36-37). The jury, of course, had the distinct advantage of directly observing such things.
Count 8 (intimidation) followed the above incidents. The complainant said that the applicant told her that "you need to cool off" and started removing her shoes (brand new boots, which he ripped in the process of removing them) and her clothes; and then forced her naked into a cold shower and left her there (26/08/22; T 100.40-50). The complainant said that she was huddled up in the corner of the shower and crying; and that after the applicant left the house she turned the water onto warm; and then called one of her sisters to tell her what had happened; and that all three of her sisters then came over to her house (26/08/22; T 100.50-101).
Ms M Rachwan gave evidence that the complainant had told her about an incident where the couple were driving home from an event and the complainant had seen something to do with an ex-girlfriend on the applicant's phone; and that the applicant had grabbed her and shoved her head between her knees in the car; and that once they got to their house he had forcefully ripped off her clothes and threw her in a cold shower; and that her boot was broken in the process (6/09/22; T 764.18-46). Ms M Rachwan said that she had been contacted by Ms S Rachwan who had said something along the lines that they needed to go to the complainant's house and it was an emergency (6/09/22; T 764.48-765.12). Ms M Rachwan said the all three sisters attended on this occasion; that the complainant's hair was wet and her face was "pretty red", like she had been crying (6/09/22; T 765.48-766.2).
Ms S Rachwan gave evidence that the complainant had called her and told her about a message the applicant had received from his ex-girlfriend with a photograph of a lady half naked or in lingerie with bunny ears; that the complainant was very, very upset at the time; and that the complainant called her again within less than an hour and was hysterically crying again, saying that the applicant was "still texting" her (the ex-girlfriend) (7/09/22; T 840.50-841.21).
Ms S Rachwan said that she called her the complainant later that day; that the complainant was crying and told her that when they got into the car the applicant was angry at her; that the applicant had twisted her arm and shoved her head between her legs; and that when they got back to the house he had stripped her clothes off and threw her into the shower, turned on the cold water and said "You need to cool off" (7/09/22; T 841.34-41). Her evidence was that she and her other sister (Caroline) drove to the complainant's house and that the complainant's hair was wet, her eyes were red and puffy and her cheeks were red and puffy; and that it was obvious that she had been crying (7/09/22; T 841.50-842.1; T 842.16-19).
Ms Caroline Rachwan (the complainant's third sister) gave evidence that she had made her way to the Bass Hill house with Ms M Rachwan; that the complainant's hair was wet and her eyes were teary; and that the complainant had told her that the applicant had forced her to leave their friend's house; and that once they arrived at their house he had slapped her across the face, stripped her clothes off and threw her into a cold shower (9/09/22; T 917.9-24).

Counts 9-11 - 22 November 2013 - "Exhibit C incidents" (Guilty)

Count 9 (assault occasioning actual bodily harm) related to an incident at about midnight on 22 November 2013 (a date the complainant recalled as it was shortly after their first year anniversary) (26/08/22; T 103.29-36). The complainant said that she was in the ensuite bathroom and she was on her phone; that the applicant barged in to the bathroom and demanded that she hand over her phone; that he started getting more and more wound-up and aggressive as he was demanding she give him her phone; and that he snatched the phone out of her hand and threw it down on the ground causing the screen to crack (26/08/22; T 103.43-50). The complainant said that she backed away from the applicant but ended up backing away into where the shower was (an open shower with just one panel of glass) and that the applicant kept backing her into the shower while yelling and swearing at her. The complainant said that the applicant grabbed her head and her right shoulder and then rammed them into the tiled wall of the shower (26/08/22; T 104.2-9). The complainant said that she was dazed from the hit of her head to the tiles and that her shoulder was cut (about a four centimetre laceration that she did not notice at the time) (26/08/22; 104.11-14).
The complainant said that the applicant left the room and she closed the door and locked it; that she was terrified and looking for a way out; and that she was trying to open the window quietly but she could not get the flyscreen off. The complainant said that the applicant asked what she was doing and started screaming at her to open the door (26/08/22; 104.14-25).
Count 10 (malicious damage) related to the conduct of the applicant forcing open the bathroom door and causing damage to the door jamb (26/08/22; T 104.26-27).
The complainant said that the applicant dragged her away from the window and pulled or dragged her backwards to the other side of the bed. The complainant said that the applicant had gotten her down on the ground between the bed and the sliding wardrobe and that she was flat on her back and he was crouched behind her (26/08/22; 104.29-33).
Count 11 (intimidation) followed on from the above two counts. The complainant said that the applicant put one of his hands over her mouth, covering it tightly, and with the other hand he pinched her nose closed hard so that she could not breathe (26/08/22; T 104.33-35). The complainant said that she was thrashing and kicking and trying to move his hands; and that eventually he let go and she started screaming for help (26/08/22; T 104.35-42). The complainant said that the applicant put his hand back on her mouth again but not so hard and yelled at her to "Shut up"; and that she stopped screaming because she was scared of what he was going to do. The complainant said that the applicant walked out of the bedroom and she followed because she thought she might be able to run out the front door but that before she got there he grabbed her arm and he pulled her back (26/08/22; T 104.44-105.2).
The complainant said that she tried again a few times to run out the front door but the applicant again pulled her back, grabbing her arm and causing her to fall to the ground, and that she eventually gave up (26/08/22; T 105.4-8). The complainant recalled that the police arrived a short time later; that when they heard police announce themselves at the door the applicant told her not to say anything; and told her to tell them that they had argued about money (26/08/22; T 105.8-11). The complainant accepted that she had lied to the police officer; and said that she was scared of repercussions from the applicant if he had found out she had told them the truth (26/08/22; T 105.33-38). The complainant said that the police had asked if she needed an ambulance and that was when she realised that her arm was dripping blood from the cut on it (26/08/22; T 105.41-47).
The complainant gave evidence that she complained to Ms M Rachwan about the incident (26/08/22; T 107.26030); and that she was also experiencing headaches shortly after the incident as a result of which she attended a doctor in Campsie with Ms S Rachwan to see if she required further medical treatment (see below) (26/08/22; T 110.9-16).
The complainant gave evidence that she also spoke to the applicant's sister, Ms Harb, about the incident (26/08/22; T 112.27-41). In cross-examination, the complainant gave evidence that she told Ms Harb "the truth of what had happened, what [she] told the Court" (2/09/22; T 522.19-22). The complainant could not remember word for word what she told Ms Harb but agreed with the proposition that she told Ms Harb that she had her head bashed against the wall and that she was the victim of the conduct about which she had given evidence in chief (2/09/22; T 522.15-22).
In cross-examination, the complainant agreed that she did not tell the police officer the truth of what happened; she did not remember exactly what she told the police officer; and she could not remember what she had told the police officer as to how she got the injury to her shoulder (30/08/22; T 277.42-278.15; T 278.32-43; T 280.50-281.4).
Senior Constable White gave evidence that he had attended the Bass Hill premises on 22 November 2013; and that the COPS entry created in relation to the incident recorded that the couple had been arguing over financial issues; that the complainant had said she had slipped over in the shower scratching her left shoulder on a rough surface inside the shower as a result of the argument (15/09/22; T 1399.20-1400.29) and that the COPS entry also recorded that the complainant, "angered" by slipping over, had then scratched the applicant's left shoulder (15/09/22; T 1401.13-15).
Ms M Rachwan gave evidence that the complainant told her in about 2013 about an incident where the couple were having an argument at their house at Bass Hill; that they were in the bathroom; and that the applicant had grabber the complainant's head and slammed the side of her head against the wall of the bathroom; that they continued arguing and that the complainant was trying to escape from the applicant (6/09/22; T 759.11-15). Her evidence was that the complainant told her that she was trying to remove the flyscreen in their bedroom to escape through the window into the backyard; and that the applicant had somehow broken the door down and continued to chase her after he got access to the bedroom; and that he chased her out of the bedroom and he somehow got a hold of her and had placed his two hands to block her airways (6/09/22; T 759.18-27). Ms M Rachwan had taken photographs of the damage to the door and of injuries to the complainant's arm and shoulder the following day (6/09/22; T 760.40-42) (Ex B; 26/08/22; T 107.34-108.3) (see 30/08/22; T 222.5-17).
In cross-examination, Ms M Rachwan confirmed her evidence in chief (7/09/22; T 804.16-808.15), agreeing that there was a conversation within their family about the police being called to the complainant and the applicant's house on this occasion (7/09/22; T 804.39-45).
Ms S Rachwan gave evidence that the complainant had told her about in incident sometime during summer in 2013 where the applicant had grabbed her phone and thrown it/smashed it on the floor; and had hit her head into a wall (7/09/22; T 843.14-18). Ms S Rachwan did not remember the exact details but said that somehow the applicant was outside the bedroom; the complainant was inside the bedroom and had locked the bedroom door; that the complainant was trying to escape out of the bedroom window and was pulled back in by the applicant and that the applicant had broken down the door and gotten into the bedroom (7/09/22; T 843.18-26). She thought that the complainant had told her that she was on the floor and that her mouth and nose were covered so that she could not breathe; and that she had been screaming for help (7/09/22; T 843.26-31). She said that the complainant told her that the police had turned up and the applicant had told her not to say anything and so when she spoke to the police she said that they had just had a normal marital argument (7/09/22; T 843.31-37). In cross-examination she confirmed her evidence in chief (at T 909.44-913.6).
The complainant's mother, Mrs Lina Rachwan, said that the complainant had told her that the applicant had pushed her in the shower and that she hit her head and cut her shoulder; and that the applicant was trying to suffocate her and put his hand on her mouth and nose (7/09/22; T 990.26-34). Mrs L Rachwan also referred to having spoken to the applicant about the incident and that the applicant's response was that the complainant had been screaming and that he put his hand over her mouth and nose to calm her down, to stop screaming (12/09/22; T 992.41-993.9). The complainant's mother confirmed her evidence in cross-examination (at T 999.44-1004.35).
Ms Harb gave evidence that the complainant had told her in relation to this incident that she had a fight with the applicant and that "He pushed me. He pushed me really hard"; that they had a big fight and he pushed her; and that she had bruises to prove it (13/09/22; T 1096.11-49). However, Ms Harb did not accept that the complainant had told her that she had been thrown against a wall or that she had been choked or suffocated by the applicant (13/09/22; T 1101.37-44). (This factual dispute is relied upon by the Crown in answer to the complaint as to the admissibility and relevance of Exhibit C - see below.)
In evidence were text messages exchanged on 23 November 2013 between the complainant and Ms Harb about this incident (see below) (admitted as Ex C; 26/08/22; T 112.43-49). (The admission of this material and the way in which it was utilised at trial is the subject of Grounds 1, 1A and 2.)
As referred to above, the complainant said she suffered from headaches as a result of this incident, which led to her attendance on Dr Khuu on 22 November 2013. Dr Khuu gave evidence at the hearing. Dr Khuu had no recollection of the consultation (29/08/22; T 146.43-147.2 on the voir dire; 16/09/22; T 1440.35-36) but notes that he had made of the consultation were admitted, without objection (see Ex W; 16/09/22; T 1440.2-8). For completeness, we note that there was an objection to certain of the questions asked of Dr Khuu, but not to the admission of Ex W into evidence - see 16/09/22; T 1440.7-8. The notes recorded: Reason for contact: Left side bad headache from yesterdqy [sic] Management: temperature is 37.2 head injury advise of precautions on head injuries, to go to hospital if danger sign or symptom occur advise to see doctor GAN if it a legasl [sic] case patient might need to see psychologist as she said her husband pushed her left side of her head against a wall and also tried to suffercate [sic] her
Ms Al Hage gave evidence (13/09/22; at T 1058.44-50; T 1073.6-1074.12) of a complaint made by the complainant to her about this incident.
Mrs Mona Habambo was cross-examined about her evidence in relation to this incident, and said that the applicant called her and told her that he had had an argument with the complainant (14/09/22; T 1263.18-20). Mrs Mona Habambo gave evidence that, when she arrived, the applicant told her that the complainant "went crazy…she tried to hit me…I hold her hand and she scratch me" (14/09/22; T 1263.35-1264.5).

Count 12 - July 2014 - "pushing during pregnancy" incident (Not Guilty)

Count 12 (common assault) related to an alleged offence in June or July 2014, at a time when the complainant was pregnant with the couple's first child. The complainant said that the couple were in the bedroom talking, not arguing but "playing around", when the applicant got angry and grabbed her shoulders and very aggressively shoved her back onto the bed; that she got back up and he did so aggressively again; and that she told him to stop "be careful of the baby". The complainant said she was really scared about the baby but did not tell anyone else about this incident (26/08/22; T 125.41-126.3).

Counts 13, 14 and 15 - 12 October 2015 - pushing/balcony threats (Guilty)

Count 13 (common assault) was alleged to have occurred on 12 October 2015 at the Illawong property. The complainant gave evidence that she was on the bed with their son (then aged 11 months) when the applicant became angry and began kicking her really hard a few times in her thighs (26/08/22; T 127.20). The complainant said that she had fallen half off the bed from the force of the kicks.
Count 14 (intimidation) related to the complainant's evidence that the applicant then told her "Get out, you're not - get out, this is not your house, you're not allowed to live here, and if I could, I'd throw you off the balcony, I would" (26/08/22; T 127.26-29).
Count 15 (intimidation) related to the complainant's evidence that later in the evening, when the complainant brought that incident up with the applicant, he said "Yeah, if I could, I would throw you off the balcony as well" (26/08/22; T 127.34-38).
In evidence there was a screen shot of a note that the complainant said she had recorded on her phone in relation to this incident (which was tendered without objection) (Ex D; 26/08/22; T 128.30-41). The applicant points out that there was no evidence as to when the complainant had created the note. The complainant gave evidence that she did not tell anyone about this incident (26/08/22; T 129.25-27).

Counts 16 and 17 - 26 January 2016 incident at Illawong (Guilty)

Count 16 (intimidation) related to an incident on 26 January 2016. The complainant said that the couple was getting ready to leave for the applicant's sister's house for an Australia Day BBQ and there was an argument because the complainant was not ready on time to leave. The complainant said that the applicant said that he was going to take their son and leave; the complainant said "No, just wait" and was rushing to get ready; and that the applicant kept yelling at her and telling her she was too dumb to do anything and too stupid to know better (26/08/22; T 129.37-130.9).
The complainant's evidence was that the applicant went to leave with their son; that she went to follow them and the applicant pushed her back into the house; that the applicant took her handbag and both sets of the car keys; and that when she went to try and follow the applicant downstairs to the car, the applicant kept pushing her away from the car, saying "you're not allowed in". The complainant said that she went to run around the other side of the car by Which time the applicant was already in the driver's seat; that the complainant went to enter the vehicle in the back left passenger side and had opened the door and had one foot inside the car and one hand holding the handle of the door inside the door. The complainant said that the applicant was looking at her directly in her eyes and that he started accelerating the car very fast; and the complainant started screaming because she thought she was going to get crushed by the gate and the door or by the gate or fence hitting the door. The complainant said that the applicant stopped after driving maybe a metre or so (26/08/22; T 130.21-42).
Count 17 (common assault) followed on from the above incident. The complainant said that she jumped into the car, buckled herself up and said she was ready to go with them; and that the applicant then got out, came around to her side, opened the passenger door and unbuckled her seatbelt. The complainant said that the applicant grabbed her arm and pulled her out of the car, throwing her down to the ground. The complainant said that the applicant pushed her well away from the car a couple of times and shut the door; then drove off with her son and without her (26/08/22; T 130.48-131.15).
The complainant gave evidence that she had made some notes on her phone about the incident, which were tendered without objection (Ex E; 26/08/22; T 131.44-132.13). The complainant said that she made the notes at the time (26/08/22; T 135.13-17). The notes do not appear to be complete. The complainant confirmed that she did not remember telling anyone else about the incident (26/08/22; T 135.40-43).
Ms S Rachwan gave evidence that she was told sometime in 2015 by the complainant about an incident where the applicant had taken the couple's son and put him in the car and had told her that she was never going to see him again and that he had driven off when she was half inside the vehicle. The complainant had said that she ended up on the floor but Ms S Rachwan was unsure whether that was due to the applicant pushing the complainant or driving off (7/09/22; T 844.43-845.14).

Count 18 - 16 April 2017 - Easter 2017 incident (Guilty)

Count 18 (intimidation) related to an incident at Easter on 16 April 2017. On this occasion, the couple's son had been swearing in church at Punchbowl and the complainant had taken him outside to sit with him in the car. The complainant said that the applicant came out with their daughter in the pram and they had an argument; the applicant told her that it was her fault that their son was "acting up" and then said that he was leaving with their daughter and that the complainant would never see her again, after which he started walking away with their daughter in the outside carpark. The complainant said that she was yelling at him to come back with their daughter and that eventually he did. The complainant said that the applicant drove them home to Illawong although they had been supposed to go to the complainant's aunt's house for Easter lunch. The complainant said that the applicant told her "in a really aggressive way" that they were not going (to her aunt's home for Easter lunch)and told her to ring her mother to tell her that they would not be coming. The complainant said that she called her mother as they were driving back to Illawong; and that when they got home the applicant took her phone, car keys out of her bag and her credit card out of her wallet so that she would not be able to leave the house or make any phone call (29/08/22; T 167.41-168.34). The complainant said that the applicant later forced them to go to see his family (29/08/22; T 168.47-169.2).
Ms M Rachwan gave evidence that the day after this incident the complainant had come over to the family's house at Canterbury and told them that the applicant had taken away her phone, wallet and keys, preventing her from attending Easter with them in Canterbury and that she was forced to attend his family's Easter celebration (6/09/22; T 766.46-767.1).
Ms S Rachwan said that the complainant told their mother about the incident in her presence a day or several days later; that the complainant indicated that her son was being naughty and that at some point the applicant had said to her that she was never going to see her daughter again. Ms S Rachwan confirmed that the complainant did not attend Easter lunch as planned (7/09/22; T 845.34-50).
Mrs L Rachwan gave evidence about an incident at Easter (the "next one" after her evidence in relation to the 22 November 2013 incident); recalling that the complainant had called her on that occasion and said that they were not coming to Easter lunch (12/09/22; T 993.46-994) and that the following day the complainant had said that at the church the applicant had the couple's daughter in a pram and had threatened to take her away so that the complainant would never see her again (12/09/22; T 994.29-32).

Count 19 - July 2017 Fish markets incident (Guilty)

Count 19 (intimidation) related to an incident in July 2017. The complainant said that they had just had lunch at the Notaras Fish Markets in Cronulla and were going to take the children home for their nap; that the applicant's mother called saying that they (the applicant's parents) wanted to see the children; and that she and the applicant had an argument as to whether the applicant's parents meet them at Cronulla or at the couple's home at Illawong. The complainant said that she was pleading with him to take the children home as they were tired; and that the applicant said to her "I want to put you six feet under, and I'm going to bury you under the pool" (29/08/22; T 169.17-50); and that made her feel scared and intimidated (29/08/22; T 170.9-10). The complainant said that they stayed in Cronulla and waited for the applicant's family to come; and that later the applicant's mother had called her and complained that she had been very rude; and that the complainant told her that the applicant had threatened to kill her and she was terrified and could not even speak (29/08/22; T 170.10-20).
Ms S Rachwan gave evidence that the complainant had told her that the applicant had said things to her, saying that "A few times, there was, you know, 'I'll - I'll bury you. I'll put you six feet under.' That was one I remember because he actually said that he would bury her under the pool … and that happened a few times. It wasn't just once" (7/09/22; T 853.27-30).
Mrs L Rachwan gave evidence that when her husband was in Lebanon in 2017 the complainant had told her something similar (that the applicant had threatened to put her "six feet under") (12/09/22; T 995.24-26).
Mrs Mona Habambo denied that Mrs L Rachwan had told her that the applicant threatened to kill the complainant, that the complainant was scared, and that the applicant had threatened to put the complainant "six feet under" (14/09/22; T 1284.34-40). Mrs Mona Habambo said that the meeting that was held in 2017 was arranged because the complainant's mother wanted a bigger house for her daughter (14/09/22; T 1284.47-50-1285.13).

Count 20 - 16 April 2017 bomb threat incident (Guilty)

Count 20 (intimidation) related to an incident that occurred around 16 August 2017 (the day of the complainant's mother's birthday). The complainant said that the next day they were having an argument and the applicant said "[i]f you leave you leave with nothing but the clothes on your back" and that "[y]ou can take the kids, but you have to pay for everything for them. You won't see a dollar from me" and "[o]r they stay with me and I'll pay for everything for them", to which the complainant said that she said "Of course they are going to stay with me" and the applicant replied "with what money? Good luck to you" (29/08/22; T 170.33-171.3). After this evidence, the complainant requested a short break.
When the hearing resumed, the complainant gave evidence that the next day in the evening they were having an argument about the complainant being upset, during the course of which the applicant said to her that he was testing her the other day; and that the applicant said "Put it this way. If you think you're going to forcefully get me out of this house, good luck to you" and then he said "You, anyone. There's police; you can bring the whole army down here. I'll turn the whole suburb of Illawong into a bomb and blow everyone up including myself" and that "I'll tie a grenade and I'll blow everything up. No one is taking my kids away from me. These kids aren't growing up without me" (29/08/22; T 173.12-38).

Count 21 - 7 October 2017 - outfit incident (Guilty)

Count 21 (intimidation) related to an occasion on 7 October 2017, when there was to be a pre-wedding party for the applicant's sister. The complainant said that they were at their house in Illawong and Ms M Rachwan and two friends had been asked to babysit the children while they attended the event in the evening. The complainant said that she had come out of her bedroom in her outfit to ask them their opinion of it; that after she returned to the wardrobe the applicant was yelling and shouting at her to change her outfit and said that she looked like a whore; and that she was not allowed to go unless she changed her outfit. The complainant said that the applicant ended up storming out of the house and forcing her to stay at home; and that he then sent her a text message shortly after he left saying "I dare you to turn up" . The complainant said that she took a screen shot of the message (no such document was in evidence) (29/08/22; T 174.46-175.46).
Ms Janet Akl (one of the complainant's friends who was there on that occasion) gave evidence that the complainant had told her that the applicant was not happy with her outfit; and that the complainant was quite upset; and that the applicant left without the complainant and told her not to follow him. Ms Akl also said that the applicant had sent a text message to the complainant saying "I dare you to come" (12/09/22; T 951.25-952.9).

Count 22 (Not Guilty) and Count 23 (Guilty) - 30 January 2018 - bathroom/choking incidents

Count 22 (common assault) related to an incident on 30 January 2018 at Illawong. The complainant's evidence was that in the morning at around 8am the applicant was getting ready for work; they were in the ensuite bathroom; she was standing right beside the applicant in front of the basin using a tooth whitening pen; and the applicant went to leave the bathroom and walked behind her, grabbed her by the waist and shoved her forward hard so that her hips hit the edge of the marble topped basin "really, really hard" and it hurt a lot (29/08/22; T 176.32-47). The complainant said that the applicant then came back to stand in front of the toilet and she asked him why he had done so he said to her angrily "because you were deliberately sticking your arse out" (29/08/22; T 176.49-177.4).
Count 23 (intentionally choke with recklessness; this being one of the counts on the indictment that was amended during the trial) related to conduct immediately following the incident the subject of count 22 (on which the applicant was acquitted). The complainant, who had been rinsing her mouth at the time, said that she turned to the applicant (intending to say "sorry, no I didn't") and some water came out of her mouth onto the applicant. The complainant said that the applicant said to her (in a screaming sort of voice) "you spat dirty water on me?" and then grabbed her neck with both hands and ran her backwards into the bedroom, maybe two metres or so, and her knees hit the bed and she fell on it while the applicant was still holding her neck with both hands. The complainant said that she was trying to gasp for air but could not breathe (29/08/22; T 177.4-14; T 177.40-50). The complainant said that eventually the applicant let her go (estimating that he let go after less than 10 seconds) (29/08/22; T 177.16; T 178.2-3).
The complainant said that she asked the applicant what he was doing and why he could not just wait for her to get the whitening pen; and that he grabbed her wrist, took the whitening pen and threw it across the room (29/08/22; T 177.16-23). The complainant said she then went to the playroom and took some photographs of herself and her wrists (see Ex G; 29/08/22; T 178.5-33). (The applicant says that those photos are of limited quality and do not appear to depict any obvious injury (6/09/22; T 720.15-19).) There was no evidence of any complaint being made in relation to this incident at the time.

Count 24-27 - 14 July 2019 - pushing/choking/intimidation (Guilty on counts 24, 26 and 27; Not Guilty on count 25)

Count 24 (common assault) related to an incident on 14 July 2019 at Illawong. The complainant said that they had been out shopping at Birkenhead Point and the children had fallen asleep in the car on the way home. The complainant said that she put the children in their beds to have their nap and the applicant went to have a nap while she cleaned the house. Then the complainant decided to fix her nails and was doing that at home, sitting in front of the heater on top of a thick, heavy brown blanket. The complainant said that her daughter woke up from her nap around 5pm and had gone to the fridge and was crying because she wanted some cupcakes. The complainant said that her daughter's crying had woken up the applicant who had got out of bed and was yelling at her, saying "Oh, was that so hard, for anyone to close the fridge". At this point, the daughter (by then about two and a half) had come to sit next to the complainant on the blanket with a bag of snacks (29/08/22; T 181.8-37).
The complainant said that the applicant was yelling at her and telling both her and their son to turn off the heater. The complainant said that their son did so and that the applicant then grabbed the blanket from behind her and tugged it from right under her; that their daughter was sitting on it too and she fell forward and hurt her knee and started crying; and that the applicant kept tugging the blanket. The complainant said that she put her hand up to stop herself from falling (describing how she had done so) and that it ended up being around his crotch area. The complainant said that the applicant yelled at her, saying "You - you punched me in the balls" and that he hit her in the face around the corner of her mouth with his hand (either a fist or open hand) (29/08/22; T 181.42-182.11).
Count 25 (common assault), of which the applicant was found not guilty related to an incident immediately following count 24. The complainant said that the applicant then grabbed her by the neck with one of his hands; that it "wasn't like his choking hold"; it was a "threatening hold", with his hand just there on her neck (29/08/22; T 182.12-16). The complainant said that, when the applicant let go, she got up; that she said "Come on. I dare you. I'm waiting for the day. And I can't believe you would do that in front of the kids"; and then the applicant stood really hard on her big toe. The complainant said that the applicant knew that she already had an injury on this toe. The complainant said that she screamed and then stepped on "his" (the applicant's) toe to get him away from her (29/08/22; T 182.19-24).
Count 26 (intentionally choke/suffocate; this being another count amended on the indictment during the trial) related to an incident immediately following the above. The complainant said that the applicant put both his hands around her neck again (to strangle her); that he ran her over to the couch, which was a distance behind her; that she fell onto her back on the couch; that he continued to choke her and "was still strangling" her; and that he said "Oh, here, I'll stop your breathing, too" (29/08/22; T 182.24-30; T 184.41-48).
The complainant said that the applicant let go at that point; and that she told the children (who were in the middle of the living room "watching the whole thing") to call the police. The complainant said that the applicant was then standing behind her head and that he covered her mouth and blocked her nose again; and that she could not breathe again. The complainant said that she was thrashing and struggling to try to get the applicant off her and that he was telling her to shut up. The complainant said that she could not breathe and that eventually the applicant let go of her (29/08/22; T 182.30-34; T 184.48-185.2).
Count 27 (intimidation) followed on from the above incident. The complainant gave evidence that after the applicant had removed his hands from her neck and she had told the children to call the police, she asked him how he could do that to her, especially in front of the children; and the applicant said "If I was going to choke you, you would've been dead. [If] I was going to hurt you, you would've been hurt" (25/08/22; T 182.40-41; T 185.24-33).
In evidence there were some photographs the complainant said she had taken of herself in the laundry right after this had happened (Ex H; 29/08/22; T 183.35-50); the first photograph of her face, relating to count 24; the second of her neck, and the third being a screen shot of the time and date taken of the photographs. The complainant said that she was bleeding inside her mouth as a consequence of count 24 and that her neck was red (29/08/22; T 183.40-43).
The complainant she had sent some text messages to Ms M Rachwan about the incident (Ex J; 29/08/22; T 186.2-10). The first text message was sent at 9.24am on 15 July 2019 and read "Hey. Can you talk for a bit? George did some shit to me in front of the kids yesterday and I don't know what to do" (which the complainant said referred to the 14 July incident). The complainant said that she met her sister at Metro Café in Campsie and told her what had happened (29/08/22; T 186.24-36).
Ms M Rachwan gave evidence that the complainant had sent her the photos (Ex J) and that the complainant told her that she was at her house in Illawong, sitting in front of the heater on a blanket and her daughter had come and sat next to her on the blanket. Ms M Rachwan thought that the applicant had tried to turn the heater off or maybe approached the complainant but remembered that they were "kind of verbally arguing and then he tried to slap her". Ms M Rachwan recalled that the complainant told her that the applicant had pulled the blanket from underneath her trying to get up; and that because of that the daughter had fallen or slid off the blanket and hurt herself somewhere in the process; and that is when the applicant tried to slap the complainant. Ms M Rachwan said that the complainant was "kind of pulling, pushing him away" but because she was on the floor she got his groin area at the time and the applicant started saying something like "You got me in the nuts, you got me in the nuts". Ms M Rachwan's understanding from what the complainant told her was that it was unintentional, that it was just the height she was at. Ms M Rachwan said that she believed that the complainant stood up and the applicant stepped on her big toe (which she said "gets quite infected") and that it was painful for the complainant; and that the complainant did the same thing back to him. Ms M Rachwan said that the complainant told her that the applicant had grabbed her by the neck and then dragged her to the couch and starting choking her; and that the children were there, just standing and staring at the whole thing "basically just frozen"; and that the complainant was screaming out to her son to call the police (6/09/22; T 769.23-770.7).
Ms Al Hage also gave evidence about disclosure by the complainant about an incident in 2019 where she was sitting with her daughter on a blanket in front of the heater and the applicant got angry and pulled the blanket from underneath them; that while she was falling the complainant had pushed the applicant; and that the applicant hit her in the face and then started to choke her in front of the children and was trying to suffocate her by putting something over her mouth and nose for her to stop breathing (13/09/22; T 1060.12-17).
The complainant gave evidence that she had made a note in her phone about the incident that same day (Ex K; 29/08/22; T 188.42-189.11).

Counts 28 (Guilty) and 29 (Not guilty) - 24 December 2019 - "Christmas Eve 2019 incidents"

Count 28 (intimidation) related to an incident on 24 December 2019 at Strathfield. The complainant said that they were at the applicant's sister's house and they were packing away to leave; it was close to midnight; and the children had already unwrapped all their presents. The complainant said that the applicant told her to stack the pile of boxes into his arms so he could carry them all out to the car; and that he told her to hurry up and go outside to open the doors for him. The complainant said that she told the applicant that she was just going to pack up the children and their things and would then follow him outside; that she realised she needed another bag; and asked the applicant's sister if there was a bag she could use. The complainant said that Rita went to find one and that she (the complainant) was waiting in the living room with the applicant's mother sitting on the couch opposite, and they were talking while she was gathering the children's things (29/08/22; T 24-44).
The complainant said that Ms Harb then came back with a bag; that she was loading up the toys in the bag and she was still talking to the applicant's mother; and that she heard shouting outside and was concerned that the applicant was calling her name. The complainant said that the applicant's mother told her that the applicant was calling his younger sister (Remy) and not to worry (29/08/22; T 192.46-193.2).
The complainant gave evidence that she finished packing everything and started walking towards the door with the children; and before they reached the hallway she saw Ms Harb running towards her. The complainant said that Ms Harb looked worried like she was very anxious and said "Hurry up. You have to come outside now. My brother's losing it because you're not there to open the door for him". The complainant said that when she got to the front door the complainant said she could hear the applicant yelling at her very loudly from the street "Where the fuck were you? Where the fuck were you? I fucking told you to come outside now and open the fucking door for me. And you do what I tell you to do when I tell you to do it". The complainant said that she said to him "why don't you just do us all a favour and just fucking leave"; and that the applicant yelled out "I had to call George Marousa [sic] to come and get you because you're so fucking dumb and so fucking useless" (and continued on with that tirade) (29/08/22; T 193.4-26).
The complainant said that outside with the applicant were his two brothers-in-law (George Boumoussa and Jimmy Boumoussa) and that they were trying to calm the applicant down. The complainant said that Ms Harb had followed her outside along with the children; and that the applicant's family members had come out as well because they heard all the commotion. The complainant said she kept trying to explain to him that she was just inside packing the children's things; and the applicant just continued and screamed "open the fucking door" (29/08/22; T 193.26-194.3).
Count 29 (common assault) (of which the applicant was acquitted) followed on from the above incident. The complainant said that when she opened the car boot, the applicant yelled "Move" and said that very forcefully; and that the applicant then shoved the pile of boxes he was holding very hard into her stomach area, and that because of the force she stumbled backwards. The complainant said that behind her was her son and behind him was the applicant's mother. The complainant said that she realised that she was tripping on something behind and when she turned around she saw her son there and that the applicant's mother had caught him to prevent him from falling. The complainant said that the applicant then started saying really loudly "Look at her, she's fucking crazy. She's falling all over the kids"; that she (the complainant) then said "You just pushed me with the boxes" and that George and Jimmy would have seen him do it; and that she then said to the applicant "why don't you just choke me? Would that make you feel better?". The complainant said that the applicant just stared at her "dead in the eye" in a frozen way; and that she went onto the footpath and his brothers in law were trying to calm him down (29/08/22; T 194.5-25).
The complainant's evidence was that the applicant's sisters had come outside and were screaming at him asking what was wrong with him and why he would treat his wife like that; and yelling that he was the worst husband (29/08/22; T 194.25-32). The complainant also said that the applicant's mother had told her that claimed that the applicant's mother was saying that she should slap the applicant or hit him; and that she told his mother that she would never hit him because "He would kill me" (29/08/22; T 194.46-50).
The complainant said that the following day she sent text messages to the applicant's sisters (Rita, Remy and Rebecca) apologising for what had taken place outside "because it was quite bad', and they have obviously neighbours, and … it was close to midnight" (Ex M, N, O; 29/08/22; T 195.24-197.15).
The message to Ms Harb (Ex M) (responding to her message that "Let me know If you need anything. I'll happily crack him in the head for you any time") included the words "sorry about the screaming match last night" (29/08/22; T 196.3-11).
Similarly, the message to Ms Remy Boumassa (Ex N) included "I'm sorry about all the yelling that happened last night in front of your family and kids" (to which Remy responded "Why be sorry. You done nothing. I would've slapped my husband if he done that lol. It would have been much worse. You done nothing wrong") (29/08/22; T 196.38-197.2).
Again along similar lines, the message to Ms Rebecca Boumassa (Ex O) included "I'm so sorry to you and Jimmy about the screaming match in front of your home and kids" (to which Rebecca responded that she was "so angry at him and worried about you"; and that "you're an angel. I seriously wish I could change him. No one deserves that treatment especially you") (29/08/22; T 197.17-30).
Ms Harb in her statement said of the Christmas Eve 2019 incident that the complainant was "in my brother's face", screaming at him, swearing and screaming in front of the kids (13/09/22; T 1137.6-14). Ms Harb was cross-examined as to this (13/09/22; T 1147.5-1148.28).
Ms Remy Boumoussa was cross-examined about her evidence that she was present at the incident alleged to have occurred on Christmas Eve in 2019 but that she did not observe the applicant behaving aggressively at all that evening (14/09/22; T 1202.7-1205.48).
Mrs Mona Habambo gave evidence about the alleged incident on Christmas Eve 2019 to the effect that the complainant and the applicant were arguing but that the argument was "normal" (14/09/22; T 1279.44-1280.6). She denied that the applicant had become increasingly angry because the complainant had not come outside to help him or that he had been screaming at her to do so; and she denied that the applicant yelled at the complainant or abused her and said that the applicant was yelling at someone to get the keys from the complainant's bag (14/09/22; T 1280.8-21).
Jimmy Boumoussa, who was also present at the incident on Christmas Eve 2019, was cross-examined about his evidence that, during the incident, the complainant stood in the way of the applicant as he attempted to access the boot of his car, that the complainant was "in [the applicant's] face" saying "fucking hit me. Hit me, George if you're a man, fucking hit me, do it if you're a man, hit me", the applicant then saying to the complainant, "Ann-Maree, what the fuck are you talking about what's wrong with you? Stop it" (15/09/22; T 1319.30-40). His evidence was that the complainant continued to provoke the applicant; that the complainant "bridged up to George, provoking him to hit her" (15/09/22; T 1332.29-37); that he had never seen anything like this before from the complainant, she was not crying, he did not hear the applicant call the complainant any derogatory names, and he did not see the complainant stumble or fall over when she opened the car boot (15/09/22; T 1332.44-45; T 1334.6-23; T 1335.24-30).

Count 30 - 28 July 2020 - intimidation incident (Guilty)

Count 30 (intimidation) related to an incident on 28 July 2020. The complainant said that it was in the evening; she was ironing and the applicant was sitting on the couch going through her expenses and seeing where she had spent money from the bank account. The complainant explained that the applicant had opened a different account that he allocated to her only to use as her expenditure account where he would put a weekly allowance. The complainant said that the applicant was arguing with her and yelling at her about "YouTube" expenses; and that he said to her "you're so selfish, that's why you won't have another kid with me"; and threatening her saying that "if you don't have a baby in two year's time, then you're out"; and then said that she could get half of whatever profit they made from selling the top half or top house of a proposed development and "that's it, you won't get another dollar from me" if she did not have a child in the next two years". The complainant's evidence was that she felt really intimidated and forced to have a child against her will. (29/08/22; T 198.19-199.16).

Counts 31-34 - 29 August 2020 - final incidents (Guilty)

Count 31 (common assault) related to an incident on 29 August 2020 at Illawong, the day that the complainant left the applicant (29/08/22; T 199.29).
The complainant said that it was a Saturday; in the afternoon; and that they were at home with the children; she was in the kitchen doing the dishes and when she turned on the tap it started spraying water everywhere. The complainant said that she asked the applicant to help her. The complainant said that the applicant got his tools and set of Allen keys; and that she was taking things in and out of the washing machine. The complainant said that the applicant told her to come over so that she could be the one to fix the sink and he was going to teach her. The complainant said that she was frustrated and said something like "why can't you just do it, aren't you a man?" (29/08/22; T 199.25-45).
The complainant said that the applicant kept telling her what to do; and the applicant said that his hand was still sore from having mixed cement with his hands the day before. The complainant said to the applicant that she could not understand how he had been out all day helping his friend put together a pergola, such a massive job, and could not do this; that she began crying and walked away; and that the applicant said "you can't fucking do anything you're too dumb. You and your fucking family". The complainant said that they were arguing and yelling at each other; and that the children had come inside and were standing between the applicant (who was near the kitchen sink) and the complainant (in the laundry) (29/08/22; T 199.45-200.20).
The complainant said that the applicant told the kids to come on and go on the boat (a little tinny at the back of the property); that she told him "no" (because she was concerned that it could be dangerous); and that their daughter did not want to go. The complainant said that the applicant was trying to take their daughter outside; that she followed them; and that they ended up going downstairs from the front of the house over to where the shed was; and the applicant was saying to her "stop hitting me" and "don't push me". The complainant said that she was not even touching him at all; and then the applicant picked up their daughter, who was screaming and crying; that he put their daughter down onto the grass around the pool; and he then walked over to the complainant and ended up backing her into where the outside benches were and then used both hands and pushed her against the bench. The complainant said that she fell onto her back because the back of her knees had hit the bench. (29/08/22; T 200.22-201.31).
Count 32 (common assault) followed on from this incident. The complainant said that she had stood back up and went to make sure their daughter was okay; that the applicant said again "Get out of my way … don't hit me" (the complainant said she was not touching him); and that the applicant ended up going upstairs the back way, so she carried her daughter through the backyard around the shed; that the applicant was trying to get their son to go with him and their son was saying no and walking away from him; and that she was pleading with the applicant to leave the children. The complainant said that the applicant pushed her again with both hands and she fell backwards onto an old washing machine at the front of the house, hitting the edge of the washing machine. (29/08/22; T 201.30-202.12).
Count 33 (intimidation) followed on from the above incident. The complainant said that after she got back up the applicant said to her "I'm gonna put you six feet under" and "I'm going to throw you off the balcony"; at this time she was still pleading with him to leave the children and they were standing right next to the glass balustrade (29/08/22; T 202.36-40).
Finally, count 34 (common assault) related to an incident following the above. The complainant said that the applicant ended up going inside, after the children; that she followed him inside (because she was worried about them with him); and that, as she was walking in behind the applicant he shut the big glass door on her saying "It's not your house". The complainant said that the door was shut on her so that she was half inside the house and half outside the house "so it was across the middle of [her] body". The complainant said that she was stuck and the applicant was holding it closed with her foot. The complainant said that she was screaming for help and that the applicant was telling her to get out of the house but she told him she was stuck in the door and was yelling at him to move his foot. The complainant said that the applicant eventually stopped blocking the door and she was able to enter the house. The complainant said that she saw some neighbours from the driveway and she told them she was scared. The complainant said that a short time after this the police arrived; and that she heard the applicant lying to the neighbours about what had happened (29/08/22; T 202.42-203.31).
The complainant agreed in cross-examination that she heard the applicant tell a neighbour, when asked what was going on, words similar to "I don't know, she's gone mad. She needs to calm down. I'm just trying to separate the kids from her and take them to the cubby house" (6/09/22; T 702.42-46).
The complainant said that when the police arrived she called Ms M Rachwan and asked her to come to the house (29/08/22; T 203.34-38).
The complainant's conversation with Constable Murray was recorded, played and tendered (Ex P; 29/08/22; T 204.14-29).
Ms M Rachwan gave evidence that the complainant had called her that day and asked her to come over (6/09/22; T 773.19-24); that when she arrived the complainant had told her that the applicant had been trying to take the children somewhere and she did not want him to, and that the applicant had pushed her into the washing machine (6/09/22; T 774.14-17). Ms M Rachwan said that the complainant had told her that the applicant had wedged her in between the door, putting his foot up against the door so that she could not move and was prevented from going anywhere; and that after this he had pushed her onto a long bench downstairs and she fell backwards (6/09/22; T 774.40-48). Ms M Rachwan said that she was also told that the applicant had been screaming "get your hands off me" although the complainant said she had not touched him (29/08/22; T 775.1-7).
Ms S Rachwan gave evidence that she also attended that day (7/09/22; T 851.9-29) and that the complainant had told her that she had been pushed against or shoved into an old washing machine, that the applicant said he would throw her off the balcony and that he would bury her, and that at some point she had been wedged in the doorway half in and half out and that she was screaming for help (7/09/22; T 852.20-38).
The complainant gave evidence that she had a bruise on her shoulder; that she had only noticed it at midnight or close to midnight when she went to have a shower. The complainant remembered that she had told police at the time that she did not think she was injured anywhere; and she said that she called the police the following day and emailed through a copy of a photo she had taken (Ex Q; 29/08/22; T 210.15-49).

Events after final incident

The complainant moved out of the Illawong address to reside with her parents with the children. In subsequent family law proceedings, the complainant was granted occupancy of the Illawong house (29/08/22; T 212.2-16). The complainant attended the premises on 14 October 2020 and said that there was damage to various items of property and that other expensive items were missing (29/08/22; T 212.16-213.11). The complainant said that she had telephoned Burwood Police Station at some point to make a formal statement about her relationship with the applicant (29/08/22; T 213.35-49) but they did not understand her concerns; and eventually she went to Sutherland Police Station to make a full statement (29/08/22; T 213.49-214.2).
Mrs Mona Habambo gave evidence that, in a meeting with the complainant's family in September 2020, the complainant's father had said that "an innocent boy can go to jail. I can make you guilty and be insane, and you won't see your kids" (14/09/22; T 1296.11-13).

Tendency reasoning

The Crown case relied upon tendency reasoning, alleging that the applicant had a tendency to choke, suffocate and strangle the complainant, to be violent towards her in a domestic setting, to control and coerce her by intimidation and to control and coerce her by making threats in relation to the children (20/09/22; T 1679.27-1680.36). Although there was some objection to the tendency reasoning, there is no complaint on appeal in relation to this.

Expert evidence - Dr Susan Hayes

Dr Hayes, a forensic psychologist, gave expert evidence in the Crown case as to the cycle of domestic violence, counterintuitive responses to it and the concept of coercive control (16/09/22; T 1464-1483). Defence counsel objected to this evidence being given on the basis that Dr Hayes lacked the requisite expertise (Dr Hayes having said that she had not done a "huge amount" of research in this area) (16/09/22; T 1452.5-1457.20). The trial judge allowed the evidence (noting the difference between research and expertise).
The trial judge informed the jury that the Crown was not relying on Dr Hayes' evidence as evidence that the offences occurred but, rather, on the basis of assisting them with their consideration of whether the complainant's evidence was credible (16/09/22; T 1483.33-1484.26).
The complainant had been interviewed by Professor Hayes on 6 April 2022. In cross-examination, it was put to the complainant that she had told Professor Hayes that her family was a normal family growing up. The complainant remembered telling Professor Hayes this but added that she had told her about one incident of domestic violence in her own family involving her father (30/08/22; T 274.40-47). Professor Hayes did not accept that the complainant had told her about any incident involving family violence in her family growing up and said that if the complainant had said this she would have made a note of it (16/09/22; T 1471.34-1472.42).

Exhibit CB

As noted above, adduced in the Crown case (Exhibit C) were screen shots of messages exchanged between the complainant and Ms Harb on 23 November 2013, after the incident the subject of counts 9,10 and 11 (to which we will refer as the Exhibit C incident). These screen shots were tendered without objection during the complainant's evidence in chief (25/08/22; T 112.48-49).
The applicant points out that the screen shots, as tendered, do not appear to be in chronological order, noting that the first screen shot page has a time stamp of 2.13pm on 23 November 2013 while the fifth screen shot page has a message bearing the time stamp of 2.07pm followed by one at 2.24pm with no apparent reference to any message at 2.13pm. It is clear that the pages of screen shot messages were not sequential. However, nothing here turns on this in circumstances where Ms Harb readily accepted that she had sent the messages.
Relevantly, the screen shots included the following statements by Ms Harb to the complainant.
At 2.13pm: It's Rita, babe I can't stop thinking about this and crying I can't even imagine what ur feeling. Ur honestly way out of George's league in every way and u deserve soooo much more than this at least the bare minimum of someone just being normal!! I want to help in any way possible at all please let me know what I can do and ill do it! I have ur back a billion percent if it was up to me I would tell u to go get what u deserve and punch him in the teeth and make sure he is lonely forever for what he does …
At 5.35pm, after an incomplete message from the complainant at 5.23pm ending "and the clothes and makeup we bought while in america", Ms Harb sent the following: Are u kidding me!!! Is he a child !!! Tell him if he wants it to come to ur parents house and get it infront of everyone so everyone knows exactly how childish he is! Be like really this is going to stoop as low as money and Indian giving when I gave you myself! The one thing I can never get back! Say u know what if u are that low I don't wat a thing from u I walk away the better person AHHH he makes me soooo mad babe u have mu back a BILLION PERCENT ! If I have to physically get involved and punch him I will !!! It's not right no matter what it is not right !!!
Pausing here, the last message in its terms would appear to relate to a complaint as to money (with the reference to "stoop as low as money and Indian giving", which is supported by the response that refers to "I know its crazy he's acting so petty …") rather than a complaint as to physical violence (which was the substance of the Exhibit C incident). Nevertheless, the Crown case extended to intimidation and coercive control, to which financial control or coercion could relevantly relate (and the applicant's defence case raised the question of a financial motivation for the complainant to lie, to which this message could also be relevant).
At 6.11pm, the complainant sent a message (seemingly unrelated to the above, since it commences "Hah ahahahahahahah dog indeed!!!! Admittedly I dont understand his mind either") concluding "[a]nd he doesn't want to try and seek help because he'd be 'humiliated" if people found out!'", to which Ms Harb responded: He would be humiliated BC HE KNOWS HE IS WRONG !!! He would be humiliated if ppl knew he went to counceling but wouldn't be humiliated if ppl knew HE ABUSES HIS WIFE !!!!!!! He is fuckedddddds HE SHOULD BE HUMILIATED ill fucken make posters and put them all over Sydney with his on ot and a big ass sign saying GIRL BASHERR and well see what's humiliating!!!!!!!" Arghhhh he makes me crazy I can't even imagine what ur feeling!
The following screen shot page, which both in terms of timing and content does not appear to follow on from the previous messages (and may even not have been on the same day), commences with a message from Ms Harb at 1.53pm referring to her mother speaking to her brother (the applicant) that day. Ms Harb's message said that she was yelling at her mother telling her what to say to him "and he is like why the fuck does she know". Ms Harb went on to say: … and I said bc mum had u in speaker when u were talking which is true me and beck heard so whatever he says or tries to trick u (I don't know if he will but since I don't know this guys capabili ty) just don't fall for it ! We haven't spoken so don't let him trick u
The complainant's response at 2.02pm was: Omg!! He is so concerned with the fact that everyone is going to find out who he truly is rather than fixing the problem!!! …. I believe he would stoop so law as to try and trick me you should have heard the shit coming out of his mouth yesterday on the phone to my dad! He made out that I was crazy and suicidal!!
The next screen shot page appears to follow on sequentially from the last, with a reply at 2.04pm by Ms Harb referring to the applicant making her "crazy". Ms Harb then made reference to her mother saying something about witnesses to the priest, and offering to be a witness for the complainant. The complainant's response referred to "todays apt [appointment] with the priest". At 2.24pm, Ms Harb sent a message: Really!! I don't really know exactly what they were saying [in context, this is a reference to the applicant and his mother] but I think they were talking about divorce and how ridiculous it is and my mum was saying how lucky he is that ur willing to work it out and how he is wrong she was yelling at him telling him he has a major anger problem and needs help …
That message was followed by one at 2.26pm from Ms Harb, that included a reference to the applicant trying to convince his mother that "he is so stressed out … feels overwhelmed" and that "u don't want to have a family with him …". The text of the message is consistent with it being sent around or after the end of the first year of the couple's marriage.

Applicant's case at trial

As adverted to earlier, the applicant's case at trial was based on the proposition that the allegations made against him were fabrications. The applicant relied on the fact that he had no prior criminal history (see 16/09/22; T 1489.5-16), in conjunction with the evidence of various character witnesses in support of the proposition that he was of good character. Those character witnesses were: Ms Ashleigh Dixon, a neighbour (16/09/2022; T 1509-1527); Dr Elizabeth Blaber, a former partner of the applicant (16/09/2022; T 1505-1508); Mr Maroun Taouk (CEO of TQM Design and Construction (19/09/2022; T 1587-1592)) and Mr Malek Yazbek, a work colleague (19/09/2022; T 1593-1596; T 1601-1602).
The applicant, as was his right, did not himself give evidence at trial. The recorded account he gave to police in relation to the final incidents (on 29 August 2020) was played at the trial (Ex D; 15/09/22; T 1381.3-15). The applicant tendered a number of photographs (Exhibits 1-10) said to provide some evidence that the relationship was not as unhappy as alleged; nor was it one characterised by coercive control (22/09/22; T 1791.13-33). The applicant also tendered (over the Crown's objection) the text messages referred to earlier which became Exhibit 11 (see below) (01/09/22; T 468.11-470.41; 05/09/22; T 569.41-44; T 614.5-615.18).

Exhibit 11 - Messages extracted from the complainant's old phone

The applicant sought to cross-examine on, and ultimately tendered, various text and WhatsApp messages that had been extracted from a phone previously used by the complainant that had been left by her at the Illawong property. The messages had been extracted by an expert retained by the applicant (Mr Navid Sobbi, the CEO of a digital and forensic specialist firm). There was objection by the Crown (5/09/22; T 569.41-44) to the use in cross-examination and to the ultimate tender of this material, as explained below. Most of the messages were eventually admitted (Exhibit 11) but this did not occur until very late in the trial (on 19 September 2022) (19/09/22; T 1617.14-15), by which time the complainant's cross-examination (and that of her sisters) had already concluded. The applicant complains that the late admission of this material significantly hampered the forensic impact of the text messages in terms of the proper presentation of his case at trial. (This complaint forms the basis of grounds 3, 3A and 4).
The Exhibit 11 messages, relevantly, included statements from the complainant to one or both of her sisters as follows: on 8 April 2018, "Yes because we can't afford the luxury lifestyle I live" and "He added up all our expenses (bills etc) to see what we're left with so at the end we only have $750 pw to spend so he gets $150 and I get $600" and "He said if I'm not happy with it I can get a job and work Sundays to 'see what it's like to live on a budget and how much work it takes to make money' … coz I ain't working now"; and on 31 March 2020, "If he's not gona provide I'm fucking out", "its his fucking job to provide the money!!!the tucker not for anyone else to do it!!!!", "That's his one fucking job", and "Yeh if he wouldn't fucking chase me for the kids". The applicant maintained that the relevance of those messages was as to the complainant's motivation to lie (see for example 5/09/2022; T 640.36-40; 21/09/22; T 1747).
There were also messages on 16 April 2017, the day of the Easter 2017 incident when the complainant said the applicant had taken her phone, showing that there was no response by the complainant to earlier messages on that day until 3.27pm. The message at 5.08pm is consistent with the complainant's evidence as to the applicant not allowing her to attend Easter lunch with her family, saying "I don't know what to say about why we couldn't go tho".
It is convenient at this stage to set out the chronology of events leading to the admission into evidence of Exhibit 11, since the applicant's complaint is to interference with defence counsel's attempt to deploy those messages in cross-examination.
First, on 31 August 2022 (see T 351.37-353.30), when the complainant was being cross-examined, the issue was raised (in the absence of the jury and the complainant) as to certain text messages in which there was reference to the complainant vomiting after drinking alcohol (messages on 12 June 2018 and 16 September 2019). The Crown raised a concern as to how the evidence had come into the possession of the applicant and the potential application of s 138 of the Evidence Act (31/08/22; T 352.6-8). The solicitor advocate indicated that she would be objecting to the proposed tender of the text messages (31/08/2022; T 353.44-354.4). At the end of the discussion, defence counsel indicated that he was not proposing to tender the text messages (31/08/22; T 354/40-41).
The following day, the issue was again raised as to how the defence had access to the complainant's phone from which the text messages had been obtained (again, in the absence of the complainant and the jury) (see 1/09/22; T 455.12-461.33). The trial judge raised concern as to the provenance of the document containing the text messages; and there was debate as to how this issue might be resolved in the course of cross-examination of the complainant (1/09/22; T 457.47-458.23). The trial judge proposed a course whereby the complainant could be shown a document and invited to read it and asked a question about it but told not to attempt to identify it (1/09/22; T 458.13-23). Both defence counsel and the solicitor advocate expressed their acceptance of that course (1/09/22; T 461.3-13).
The complainant's cross-examination then resumed with questions as to the events of 16 April 2017 (the Easter 2017 incident when she said the applicant had taken her phone). It was put to the complainant that she had been sending multiple messages all afternoon to her family and friends using her mobile phone; her evidence was that she did not know what time the phone was returned to her (1/09/22; T 464.13-16).
The complainant then indicated that she had a question and, in the absence of the jury, asked the trial judge a question as to the source of the text messages that she had been shown and said that she was wondering about her privacy rights, saying that the messages appeared to be from her phone and had been unlawfully obtained (1/09/22; T 466.5-468.33). (The applicant attaches some significance to the language here used - i.e., the words "unlawfully obtained" (1/09/22; T 467.23), as suggesting that the complainant had improperly consulted with her legal representatives during the course of cross-examination on this issue - see below.)
What next appears to have occurred (again in the absence of both the complainant and the jury) was that the trial judge suggested that, before that evidence could go further, defence counsel would have to show the provenance of the document; and her Honour suggested that there be a voir dire going to the question of admissibility of the evidence (1/09/22; T 467.37-470.41).
The voir dire then took place, interspersed with further debate (in the absence of the complainant) as to the potential application of s 308 of the Crimes Act 1900 (NSW), in the course of which the trial judge suggested that the defence have time to consider the relevant provisions and that, in the meantime, the voir dire be finished and the cross-examination move on to another topic (but saying that defence counsel could come back to this the following day if he wished) (1/09/22; T 470.45-479.22). Defence counsel expressly approved of this course of action (1/09/22; T 478.49-479.7). After the voir dire concluded, there was further discussion as to s 308 of the Crimes Act (1/09/22; T 477.43-478.45) before the jury returned.
The following day (2 September 2022) after cross-examination as to other aspects of the matter, the issue as to the admissibility of the phone data was again discussed in the absence of the jury and the complainant (T 530.21-544.39). The defence counsel suggested that the Crown had a prosecutorial obligation (in relation to the messages) to put before the Court all the evidence (2/09/22; T 537.10-12). The trial judge noted that this extended to an assessment as to reliability of the evidence, whereupon defence counsel accepted that "perhaps" the Crown should have the "full" expert report in relation to the downloading of the messages (2/09/22; T 537.34-46). (At this stage, the Crown had not yet seen the expert report that the applicant had obtained in relation to the text messages.)
The solicitor advocate for the Crown suggested that an advance ruling might be sought on the issue pursuant to s 192 of the Evidence Act "because if there's no ruling, it's going to keep coming up and it's going to keep delaying the progression of the trial" and the trial judge indicated that she needed to be satisfied as to the issue of whether or not the material had been illegally obtained (2/09/22; T 538.45-539.1).
The defence counsel then informed the trial judge that the expert report was finished but that he needed instructions to serve it on the Crown at that stage (T 539.37-38)`2. Ultimately, an expert report was produced to the Crown (MFI 17) (T 540.38-41). In order not to delay the trial, the cross-examination proceeded to a different issue; at the conclusion of which there was further discussion in the absence of the jury and the complainant, as to the "s 138 issue" (2/09/22; T 555.25-558.6).
When the hearing resumed on Monday, 5 September 2022, there was discussion in the absence of the jury and the complainant as to the provenance of the text messages document, including as to the asserted relevance of the messages before the cross-examination resumed on a different topic (5/09/22; T 560.2-585.19).
Later that day, again in the absence of the jury and the complainant, the trial judge revisited the issue, observing that there was a divergent position between the parties as to whether or not the evidence in the phone messages had been illegally or improperly obtained (5/09/22; T 614.5-7). The trial judge referred to the undesirability in policy terms of admitting evidence in such a way as to humiliate a complainant (but expressly noted that this was not the defence counsel's intention) and that there was an undesirability in policy terms if complainants in domestic violence cases were deterred from bringing forward allegations of domestic violence if they feared that their personal messages would be published. Her Honour said that, on the other hand, "the stakes for the accused are high" and that the applicant's liberty would be at grave risk if the jury were to find him guilty (5/09/22; T 614.5-33).
After referring to counsel's submissions and the need for a balancing exercise to be undertaken, the trial judge said that she was considering that the discrete messages that had been revealed to her so far could be shown to the complainant and that the complainant have an opportunity to indicate whether they are indeed her messages; but that, out of fairness, before that was done the trial judge wished to explain to the complainant in the absence of the jury that her Honour did not yet know the provenance of the document. The defence counsel indicated that he did not wish to be heard on this (and nor did the solicitor advocate) (see 5/09/22; T 614.35-615.32).
The discrete messages to which her Honour there referred were those that had been considered by her Honour on 5 September 2022 by reference to a table prepared by the defence (see from 5/09/22; T 566.48); her Honour there addressing only the question of potential relevance of the messages, not whether the messages had been unlawfully obtained.
Those messages (by reference to the entries in the defence's document) were: messages (described as entry 2036 on the table), the relevance of which was said to relate to the complainant's contention that the applicant had taken her phone (5/09/2022; T 566.50-569.39); messages at entries 7334-7345 and 7347-7368 of the table, concerning the operation of the complainant's phone around the Easter 2017 incident (5/09/2022; T 570.12-572.26); messages at entries 9712 and following, relating to the 7 October 2017 incident the subject of count 21 (5/09/2022; T 573.28ff); messages at entries 9713-9718 (5/09/2022; T 574.04ff) relating to that incident; messages at entries 1791-4 to 1792-7 relating to the 14 July 2019 incident the subject of counts 24 to 27 (5/09/2022; T 575.37ff); messages at entries 4273-4276 (5/09/2022; T 582.4ff) said to be relevant to whether the complainant was able to stand up to the applicant (or was a "shy, reserved person who's been dominated"); and messages at entries 4264 and 4266 (5/09/2022; T 582.46ff) said to be relevant for the same reasons as the previous messages.
The Crown conceded the relevance or potential relevance of some of those messages; and the defence counsel conceded the lack of relevance or otherwise did not press other messages in the bundle.
Relevantly, none of the messages had been tendered or admitted in evidence at that stage. (The documents, which ultimately became Ex 11, do not appear to have been given an MFI number in the transcript.) When the complainant was shown MFI 18 (the mobile phone - see (5/09/22; T 620.25)) on 5 September 2022, and again asked questions as to the phone messages on 16 April 2017, the witness again asked to raise a question with the trial judge and, in the absence of the jury, expressed her concern as to her privacy and how the text messages could be used. The trial judge informed the complainant that she was aware of the complainant's interest in her privacy but had to balance that against other important issues in the trial; and that the defence counsel would be permitted some limited questioning about some selected messages, not everything on the phone; and that at that stage the messages were not before the jury and her Honour did not have evidence as to whether they were the complainant's messages or not (5/09/22; T 624.6-626.19).
Cross-examination then resumed. The solicitor advocate objected to a question relating to the "I might come over soon" message (5/09/22; T 628.29-31) and her Honour reminded defence counsel that s 43 had been raised (T 629.4). After further questions, the solicitor advocate complained that the defence counsel was reading directly from the document the provenance of which was not known. The trial judge noted that the Crown had repeatedly raised this issue; and that the Crown had invited, and the Court had contemplated, that defence counsel would be asking the witness to consider the notes that he had (5/09/22; T 629.29-31).
After the luncheon adjournment, defence counsel raised other messages that had not been included in the bundle reviewed by the trial judge earlier that day and suggested that they could be reviewed quickly. That led to some debate as to the relevance of those further messages and a bundle of them was marked MFI 22 (5/09/22; T 638.14-642.16).
In the course of that exercise, her Honour indicated that the defence counsel would be permitted to cross-examine on those (additional) messages "on the same basis", i.e., on the same basis as the earlier "discrete" bundle of messages, namely, that defence counsel draw the messages to the attention of the complainant and "she can say whether or not she sent a message. And if she says it's not her message, then that's that" (5/09/22; T 640.49-641.1).
Not long after this, an issue was raised as to messages that the complainant said appeared to be from WhatsApp from 2020 ("logged" to her email). The complainant said that she still had her phone with her; and that this was a "massive invasion of [her] privacy" (5/09/22; T 644.5-14). Defence counsel said that the messages concerned were from March 2020 (i.e., before the couple's separation) (5/09/22; T 644.19). There was then debate, in the absence of the complainant and the jury, as to this issue (5/09/22; T 644-659), including as to whether the messages in the March 2020 tranche of WhatsApp messages had been sent and received from a different handset (in the complainant's possession) and then "synced" through to a different handset of which the applicant had gained possession when the complainant left the home (5/09/22; T 645.49-646.5).
The defence counsel asserted that there was no synchronisation involved at all (5/09/2022; T 647.5-11) and then proceeded to make the very serious accusation (albeit cast as a submission) that the complainant was knowingly giving false evidence and of contacting her lawyer in the breaks (5/09/2022; T 647.19-22). The trial judge considered that submission to be inappropriate, making reference to the level of distress on the part of the complainant that was visible to her Honour and saying that if defence counsel could see that then she thought he would withdraw that submission immediately (5/09/22; T 647.24-27). The trial judge said that there was no evidence that the complainant was contacting her lawyer during breaks about this and that this suggestion was "utterly speculative". Defence counsel appeared to base that suggestion on an inference drawn from the fact that the complainant was saying "this is unauthorised access" when she was not a lawyer (5/09/22; T 647.29-30).
Defence counsel then withdrew the submission (T 647.34-46). It is not altogether clear from the transcript whether the submission that there was withdrawn was simply that the complainant had contacted her lawyer during the breaks as to this issue; but to give counsel the benefit of the doubt it can be accepted that it would properly have also extended to the submission that the complainant was knowingly giving false evidence. That said, in submissions on the present appeal, the applicant appears to reinstate the submission that there had been some improper communications between the complainant and her lawyers in the course of cross-examination (see below).
The applicant, having pointed in submissions to: the earlier statement by the trial judge to the complainant that it was not clear if the document in question would become evidence and there was no evidence currently as to where it had come from (5/09/2022; T 618); the interruptions during the course of cross-examination when the complainant wanted to ask questions about where the extracted messages had come from (5/09/2022; T 643.32-644.14); and the exchanges referred to above, has placed some weight on the fact that, when there had been an earlier interruption by the complainant on 1 September 2022 (1/09/22; T 465.21), the complainant had used the words "unlawfully obtained", the applicant submitting that those words "do not constitute an ordinary expression by a non-legally trained person" (see applicant's written submissions dated 31 July 2023 at [118]). In this regard, it may be noted that the trial judge had observed, at T 647.44, that the complainant was a "relatively intelligent woman", which would appear to cast doubt on the proposition that something adverse to the complainant could properly be inferred from the use of the words "unlawfully obtained".
In any event, returning to the chronology of events leading up to the admission of Exhibit 11, the trial judge indicated that if the complainant was in a "relatively robust state", the trial judge would like to understand on a voir dire whether the complainant said that the document she had just been shown contained messages sent and received on the other handset that was still in her possession (saying that if that was the case then her Honour had an issue); and the solicitor advocate said that it was the expert that needed to be put on the voir dire to clarify these issues; and expressed concern that the expert report had been served on the Crown halfway through the complainant's cross-examination (5/09/22; T 648.40-50). When asked whether the expert was available, defence counsel said that he would rather move on to another topic of cross-examination of the complainant (5/09/2022; T 649.2-12; T 650.30-34). That is what then eventuated; i.e., while the issue remained unresolved, there was cross-examination of the complainant on a different topic.
The trial judge explained to the complainant that the lawyers were not going to take her to the 2020 WhatsApp messages (i.e., those in the bundle that the witness had just been shown). The complainant continued to express her distress at how the applicant's lawyers were allowed to have access to her personal WhatsApp messages that she said she understood were linked to her email address; and asked a question as to her rights to privacy with WhatsApp (5/09/22; T 651.4-15; T 652.16-20; T 652.42-46).
The trial judge explained to the complainant that she was not allowed to give the complainant legal advice (5/09/22; T 653.14-20). Then there was discussion in the absence of the complainant where the trial judge sought to clarify whether there was a separate password for the WhatsApp account (as her Honour understood the complainant to have been suggesting). The defence counsel objected to the complainant asking questions seeking advice as to privacy issues from the trial judge; and submitted that the assertion that there was a concern that the complainant's WhatsApp account was "still being monitored quite improperly by anyone" was absurd. The trial judge explained that her concern was to clarify with the complainant her position as to passwords (a course with which the defence counsel said he had no issue); and the audio visual link was then reactivated and the solicitor advocate asked the complainant whether there was a separate password needed to access her WhatsApp application; the response to which was that the complainant would have to double check if WhatsApp was actually linked to email because if so then it was a different password to the login to the phone (5/09/22; T 653.34-657.1).
The complainant then said that she was not sure whether she should get her own legal advice "with regards to privacy laws and things of that nature" (5/09/2022; T 657.9-10), to which her Honour commented that she was not aware of an available objection by a witness in the matter of privacy. Defence counsel then said that he was content for the complainant to obtain legal advice on her privacy concerns. The trial judge then informed the complainant that she would not be breaching the rules of cross-examination if she obtained independent legal advice (in context, that relating to the privacy issue); and in the meantime the cross-examination would be directed towards things other than the WhatsApp messages (5/09/22; T 657.12-35).
The issue was then raised the following day (6/09/2022; T 692.15-20), when the solicitor advocate indicated that the Crown objected to the tender of a phone that it submitted had been improperly taken possession of by the accused. When cross-examination resumed, the complainant then identified the Samsung Galaxy phone with a cracked screen (MFI 18) as the one she had used (6/09/2022; T 695.35-41) and the defence counsel indicated that it was not proposed to tender it.
After questions on other topics, the complainant's cross-examination concluded on 6 September 2022.
Subsequently, in the course of cross-examination of Ms M Rachwan, an issue arose as to whether questioning by defence counsel as to whether the complainant was concerned about having the children if she left the accused infringed s 44(1) of the Evidence Act was permissible (being a question about a previous representation alleged to have been made by a person other than the witness) (7/09/22; T 819.25-47).
In the absence of the jury and the witness, defence counsel maintained that the question was about a "topic" (i.e., whether the witness remembered having conversations within the family as a topic) not about some SMS messages. The trial judge expressed the view that the Crown's objection was apposite unless the defence could come within s 44(2) or (3), noting that the expert had not yet given evidence on the issue. Her Honour indicated that she was not yet satisfied that the previous representation of the complainant would be admitted. The response by defence counsel was to suggest the following course: that he put to the witness the SMS chat between the three persons in March 2020; ask her to read it to herself; and that he ask the witness not to identify the document. Defence counsel submitted that this would comply with s 44(3). The Crown did not demur from such a course (7/09/22; T 821.3-824.13).
After the conclusion of Ms M Rachwan's evidence, the trial judge raised (in the absence of the jury) an issue as to the defence counsel having put to the witness a message that was a WhatsApp message ("Yeah, if he wouldn't fucking chase me for the kids"), saying that she had understood that the defence counsel had withdrawn reliance on the WhatsApp messages because of the issues raised regarding the password and the earlier discussion about synchronisation (see above). Defence counsel said that he understood the ex tempore ruling (see at T 614.5-615.18) to include the WhatsApp messages. The trial judge accepted that the WhatsApp messages in MFI 22 did "survive" the ruling that permitted the defence counsel to allow discrete messages that had been revealed to the trial judge to be shown to the witness (7/09/22; T 831).
After further discussion, defence counsel accepted that, in relation to Ms M Rachwan, he was properly required to comply with s 44(3) in respect of the message about the children and related messages and he said that he did not wish to be heard about the provisions of s 44(3) (i.e., that he did not wish to suggest that he had been at all "unduly fettered" in cross-examination on this issue) (7/9/22; T 832.21-833.46). The issue was further explored (7/9/22; T 834-835) with the defence counsel indicating that he was content to proceed with the cross-examination of Ms S Rachwan on the same basis (in accordance with s 44(3)) (7/09/22; T 835.35-42).
On 19 September 2022, the issue as to the tender of the text messages was raised (see from T 1537) in the context of service of the second expert report from Mr Navid Sobbi which attached the SMS messages relied upon by the defence. The trial judge indicated in some detail (19/09/22; T 1548.8-1549.38) the concerns she had in relation to the tender of the text messages, including that the evidence as to how the complainant's phone was obtained indicated an impropriety and that she had grave concern as to whether, after the relationship had been terminated, the applicant continued to have access to WhatsApp or text messages sent and received by the complainant by reason of synchronisation with the handsets. Ultimately, two pages of SMS and WhatsApp messages were tendered without objection as Exhibit 11 in the defence case (19/09/22; T 1617.13-14) (the copy of Exhibit 11 in the Court Book extends for more than twenty pages).
As to impropriety, her Honour found (see the ex tempore judgment dated 19 September 2022 at p 4): The impropriety in the possession of the phone, in my view, is established in so far as the complainant's evidence, which is the only evidence I have in this regard, is that she was made to take a handset by the accused and to relinquish her other handset, and use the same phone number but she had to - she used the word, she was forced to give the passcode to the accused. When she then fled the marriage on 29 August 2020, she left the particular handset in question that had a cracked screen in a drawer. She did not give evidence that she gave permission for the accused to access that. In fact, she made it clear she felt somewhat violated in her privacy, especially as that phone continued to receive a synchronisation of messages, either text and/or WhatsApp messages, after the complainant left the marriage. I am of the view that that, on her evidence, was of unauthorised access by the accused. Particularly where there is a relationship that ends, there are real issues of privacy for someone then to go in and see that phone. I know that defence does not rely on messages after 29 August 2020, but the impropriety, in my view, is established. Accordingly, s 138 subs (1) provides that the evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
Thus, notwithstanding the trial judge's view that the text messages had been improperly obtained, those discrete messages that the trial judge had ruled on were admitted into evidence.
There was no application by defence counsel to recall the complainant or her sisters following the admission of Exhibit 11.

Amendment to counts on the indictment

On 20 September 2022, an application was made by defence counsel (on the eighteenth day of the trial) for the trial judge to recuse herself on the basis of a reasonable apprehension of bias (20/09/22; T 1644.9-11). The application was based in part on the fact that earlier that day there had been an exchange between the trial judge and the solicitor advocate for the Crown in which her Honour raised, in the absence of defence counsel, whether there might need to be an amendment to the indictment to specify that the conduct was intentional (that being a required element of the offence). The discussion related to counts 23 and 26 (which were subsequently amended on the indictment to specify the element of intention).
The recusal application also relied upon incidents during the course of evidence during the trial, when the defence counsel had raised objections as to certain matters (20/09/22; T 1644ff). In particular, complaint was made as to: comments made by the trial judge when defence counsel objected to the evidence of Professor Hayes (16/09/22; T 1452.5-6); the trial judge "berating" defence counsel about questions asked of Constable Murray, and her Honour's position that this was contrary to an assurance given by the defence counsel earlier that he would not be going into the question of prosecutorial or investigative discretion (16/09/22; T 1385-1393); and comments (said to be highly critical) of whether the Crown had been provided with the table of text messages over the weekend before 5 September 2022 (15/09/22; T 1537ff). It may be noted that rulings in relation to the last of those matters were in substance in favour of the applicant, yet it was submitted that the exchanges demonstrated apprehended bias (20/09/22; T 1661.30-34).
The trial judge refused the recusal application (see ex tempore reasons given on 20 September 2022 and published ex tempore reasons granting the amendment application over the objection of defence counsel). No complaint is here made about either of those decisions but they may provide some context when considering the complaint by the applicant as to the conduct of aspects of the trial.

Conviction Appeal

As noted above, on appeal the applicant relied only on some of his grounds of appeal (not pressing grounds 9 and 10 of his grounds of appeal), those falling into two categories: grounds 1, 1A and 2 relating to Exhibit C; and grounds 3, 3A and 4, relating to Exhibit 11. They will be considered sequentially.

Grounds (1, 1A and 2) - Exhibit C

The "Exhibit C" grounds of appeal are as follows: Ground 1: The trial judge erred in admitting Exhibit C into evidence. Ground 1A: The failure by trial counsel to object to the admission of Exhibit C into evidence occasioned a miscarriage of justice. Ground 2: The admission of Exhibit C into evidence has caused a miscarriage of justice.

Applicant's submissions

In summary, the applicant submits that the messages in Exhibit C, though relating specifically to counts 9 to 11, were capable of being directed more generally as to the applicant's bad character and tendencies; that they were not admissible for a number of reasons; and that the trial judge had an obligation (as part of the obligation to give the applicant a fair trial) to exclude the evidence pursuant to s 137 of the Evidence Act (or, at the very least, there should have been substantial redactions from the messages in question pursuant to s 137 of the Evidence Act).
As to the admissibility and relevance of the messages, the applicant points out that there is no reference in the exchanges between Ms Harb and the complainant to the specifics of the events of 22 November 2013 or as to the content of any complaint; and that Ms Harb had not witnessed the incident on 22 November 2023 but, rather, was responding to what the complainant had told her about it.
The applicant contends that: the various statements of opinion by Ms Harb in the messages were inadmissible by virtue of s 76 of the Evidence Act; that the statements were not relevant (for the purposes of s 55 of the Evidence Act) in circumstances where they were only based on what the complainant had told her; and that the prejudice to the applicant associated with the admission of that material was obvious.
Further, the applicant submits that the unfair prejudice to him by the admission of this evidence was compounded by reference to the context in which the evidence in question was admitted and the use made of it during the trial. In this regard, the applicant points to the following matters: that it was his own sister expressing these opinions about him; that the Crown was running a tendency case which involved the proposition that the applicant was abusive, controlling and had a propensity to be violent towards the complainant; and that the Crown "insisted" that the complainant read those messages onto the record verbatim and was then asked to repeat words in the messages (for example, the reference to "abuses his wife" and "girl basher"), noting that the complainant was asked to confirm that those words suggested that the accused was "abusing his wife" (26/08/2022; T 122-123).
Pausing here, the suggestion that there was some "insistence" on the part of the Crown is not supported by the transcript; rather, it appears that the Crown simply followed the pattern of asking for the message to be read onto the transcript and then questioned the complainant about her understanding of it. There is nothing in this complaint that assists the applicant in relation to grounds 1-2.
The applicant also complains in this context that non-responsive answers were given by both the complainant and Ms M Rachwan in cross-examination which (although struck out or where the jury was subsequently told to disregard the answer) were nevertheless heard by the jury. The applicant refers in this regard to the statement by the complainant that Ms Harb "was very sympathetic and nice to me because she had told me she had experienced similar things whilst living with [the applicant]" (2/09/22; T 524.10-23) (an answer that, on objection, was not pressed by the Crown and which was struck out); and the statement by Ms M Rachwan that Ms Harb told her that the applicant "had done a similar situation to her [Rita] in her bedroom on the second floor of their home in Menai" (7/09/22; T 799.12) (which the jury was told to disregard (7/09/22; T 804.3-5)).
As to that last answer by Ms M Rachwan, the applicant says that the issue was exacerbated because the Crown had initially contended that the evidence was responsive to the question asked (7/09/22; T 799.27-28) but subsequently confirmed that it was not the Crown's intention to lead, nor rely upon, any evidence suggesting that the applicant had assaulted his sister on some other occasion (7/09/22; T 801.23-24; 12/09/22; T 1045.22-23). The applicant complains that although trial judge directed the jury to disregard "that last answer" (7/09/22; T 804.3) several questions had been asked since the witness had given the impugned evidence.
In relation to this last complaint, it is not accurate to suggest that there had been several questions asked of the jury between the impugned answer and the trial judge directing the jury to disregard "that last answer". The transcript records that, after defence counsel read out to Ms M Rachwan her statement at [7], there was the following exchange (7/09/22; T 799.8-28): Q. … Now, I suggest that the only thing that Ann-Maree in your presence said to Rita was that George had pushed her, pushed her in the lounge room. Do you remember that? A. When I was with Ann-Maree on that day, on loudspeaker, Rita explained that he had done a similar situation to her in her bedroom on the second floor of their home in Menai. Q. Did I just ask you that then? A. No, you - you - Q. Why did you volunteer that when I asked you - put to you the proposition that the only thing that Ann-Maree told Rita was that she had been pushed by the accused? That's the question I asked you then, didn't I? A. Yes. SOLICITOR ADVOCATE: Your Honour, I object. HOGAN: I ask for the answer to be struck out, as - SOLICITOR ADVOCATE: I object. My friend well knows that that answer was entirely responsive
The trial judge then asked the jury to step out for a moment, indicating to the members of the jury that they would be back soon. There was debate, in the absence of the jury and Ms M Rachwan, as to the answer that defence counsel had asked to be struck out, in the course of which her Honour made the observation that she considered the witness was attempting to be responsive; and the Crown's position was stated as being that the answer was responsive but the Crown did not rely on it. The trial judge proposed a course of action to address this issue, namely a direction to the jury (7/09/22; T 801.42-48): The witness was responding in a more expansive way than the question sought. You must not use the answer of the witness in any way which suggests any tendency of the accused. You must not use that evidence to suggest in any way he is more likely to have committed any offence on the indictment or to have behaved in a particular way. You must not use that evidence in substitution of any charge on the indictment. This is this witness speaking about something that she overheard, and is not relied upon by the Crown.
The solicitor advocate indicated the Crown's position was that such a direction was appropriate but defence counsel was adamant that the answer was "completely unresponsive" to his question and pressed for the answer to be struck out (expressing the fear that the proposed direction would highlight the matter) (7/09/22; T 802.4-7). Defence counsel expressly stated that what he would like was that the jury be told to "disregard that last answer" and confirmed that he was saying that was enough (7/09/22; T 802.9-17). After further discussion, the trial judge indicated that this was not her preference as to how to manage that issue but she would adhere to the defence request, noting that defence counsel was properly instructed (7/09/22; T 802.33-43). The jury returned and the trial judge gave the direction that had been expressly sought by defence counsel (and is now impugned). The complaint here made by the applicant as to some prejudice because of delay in striking out the impugned answer or as to the manner in which the jury was directed to disregard it cannot be accepted in those circumstances. Moreover, if it be suggested that the jury would not have understood what was the "last answer" that the jury had been told to disregard, there is no basis to think that would be the case (and if there had been a concern it could have been clarified at the time - but clearly defence counsel took a forensic decision not to highlight the answer by repeating it). There is nothing in this complaint that assists the applicant's contentions as to grounds 1-2.
The applicant also complains that the Crown cross-examined Ms Harb at length about the expressions of opinion in Exhibit C, including as to what she meant by the words "girl basher" or "abuses his wife" (13/09/22; T 1132.40, T 1133.23, T 1133.31, T 1133.44, T 1134.31); and that the Crown was permitted, over objection, to cross-examine Ms Harb as to whether she believed what the complainant had said at the time, including the suggestion to Ms Harb that she had "no reason not to believe [the complainant]" (13/09/22; T 1097.49-1098.1).
Also raised in support of the complaint as to the use of Exhibit C at the trial, is the complaint that the body-worn video (BWV) recording of Senior Constable Johnson (which was admitted without objection - Ex D; 15/09/22; T 1381) included an account given by the applicant in relation to the final incident on 29 August 2020 where he described his sisters as "lazy and dumb". The applicant notes that the Crown in closing submitted to the jury that: [the applicant] provides irrelevant and unnecessary information, including you might recall that his own sisters, the same sisters who came to Court to give evidence in support of him, are "lazy and dumb", and the complainant is only upset because her house is not as big as theirs [21/09/22; T 1730.20].
The final complaint as to the use of this material is that, in closing submissions, the Crown drew the jury's attention to Exhibit C, submitting that the content of the messages was plainly referable to the seriousness of the incident and that: Rita Harb was outraged, she was appalled and angry and her text messages make this clear. She believed the complainant because she accepted what the complainant had told her as truth. Rita Harb's assertions in her evidence that she was not told about the full incident were simply not believable in the face of what she wrote to the complainant in those text messages. [21/09/22; T 1693.45]
The applicant maintains that it is difficult to see how the messages in Ex C were rationally capable of distinguishing between whether Ms Harb had only been told by the complainant (as she said in evidence) that the applicant had pushed her forcefully (13/09/22; T 1096-1097), or whether she had also been told (as the complainant asserted) that the applicant had suffocated her (count 11) (13/09/22; T 1101.37-41); and that the cumulative effect of the matters referred to above as to the use of this material at trial was such as to introduce (improperly) evidence of bad character. The applicant says that this includes the "toxic implication" that Ms Harb might have formed that particular view about her own brother perhaps in part based on her own alleged experiences with him. The applicant says that, given that the opinions were contained in messages which Ms Harb accepted she sent, there is no reason to think that jury would not have accepted that such was Ms Harb's assessment of her brother the applicant at the time they were sent; and that the cross-examination by the Crown of Ms Harb only served to remind the jury of the issue (the applicant here referring to what he contends was the "further inappropriate questioning" directed at whether Ms Harb "believed" the complainant when she sent the messages).
As to the reference by the Crown in closing submissions to the fact that the applicant had referred to his sisters as "lazy and dumb" in the BWV, the applicant complains that this was not in accordance with the Crown's prosecutorial obligations in circumstances where even the Crown was submitting that this information was "irrelevant". The applicant says that this would have served only further inappropriately to inflame the jury.
The applicant appears to accept that the words "is not admissible" in s 76 of the Evidence Act are to be (or at least may be) understood as meaning "not admissible over objection" (referring to Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 (Perish) at [261]-[273] (Bathurst CJ, Hoeben CJ at CL, Bellew J)). However, the applicant emphasises that in Poniris v R [2014] NSWCCA 100 (Poniris) Macfarlan JA, (Adamson J, as her Honour then was, and Bellew J agreeing) observed (at [49]) that, where the danger of unfair prejudice is manifest, an obligation to exclude the evidence under s 137 of the Evidence Act may arise "in accordance with the trial judge's overriding obligation to ensure a fair trial according to law" (Macfarlan JA there citing Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 at 117-8 per Barwick CJ; James v The Queen [2014] HCA 6 at [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ)).
The applicant submits that the present case is one where (having regard to the contents of the messages and the way in which they were deployed at trial) the prejudice in question was manifest and the trial judge had an obligation to exclude (or at least substantially redact) the evidence pursuant to s 137 of the Evidence Act, notwithstanding the absence of objection by defence counsel.
Further, the applicant submits that even if that is not the case (i.e., even if the trial judge did not have an obligation to exclude or redact the evidence in the absence of objection thereto), leave ought nevertheless be granted on grounds 1 and 2 pursuant to r 4.15 of the Criminal Appeal Rules . The applicant also argues that, given the content of the messages, there was no conceivable rational basis for trial counsel not objecting to their admission (referable to ground 1A). The applicant argues that the messages contained nothing germane about the content of any complaint (other than at best implicitly supporting the conclusion that it related to some kind of unspecified physical violence); and, again, says that the messages were not capable of rationally delineating between what Ms Harb said was the content of the complaint and what the complainant claimed she had told her about counts 9 to 11.
The applicant accepts that on the question of leave to raise grounds 1 and 2, the question is whether the admission of the evidence has, or at least may have, occasioned a miscarriage of justice (citing Poniris at [57]-[59] (Macfarlan JA, Adamson and Bellew JJ agreeing); ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, James and Johnson JJ agreeing)), the applicant noting that this turns on the materiality of the irregularity and the risk of improper reasoning. The applicant submits that, in all the circumstances, a miscarriage of justice was occasioned in the present case; and that there could not be satisfaction that no substantial miscarriage of justice has occurred for the purposes of s 6(1) of the Criminal Appeal Act.

Crown's submissions

As to grounds 1, 1A and 2, the Crown emphasises (as the applicant concedes) that there was no objection to the admission of Exhibit C and says that there was therefore no decision made by the trial judge from which first limb error could be said to arise; but in any event it would be necessary for the applicant to establish that any such error led to a miscarriage of justice. The Crown contends that the trial judge was not required, of her own motion, to intervene and reject the tender of Exhibit C as part of an overriding duty to ensure a fair trial.
The Crown relies on Perish at [261]-[270] (Bathurst CJ, Hoeben CJ at CL and Bellew J), where it was held that where the words "not admissible" appear in the Evidence Act, they mean "not admissible over objection", noting that Perish was applied in McIlwraith v R [2020] NSWCCA 274, [32] per Meagher JA w (Fullerton and Button JJ agreeing). The Crown also refers in this context to Dogan v R [2020] NSWCCA 151 at [19], [98]; Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [58]; Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55]; Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93; (2017) 319 FLR 228 at [39]; Severino v The Queen [2017] NSWCCA 80 at [62]; and Kapanadze v The Queen [2017] NSWCCA 69 at [57]. The Crown submits that, by parity of reasoning, the same principles apply where the issue is as to relevance of evidence (noting that s 56(2) of the Evidence Act provides that evidence "that is not relevant in the proceeding is not admissible").
The Crown maintains that Exhibit C was plainly admissible; and that the record of the text exchanges between the complainant and Ms Harb was directly relevant to the jury's consideration of the disputed terms of the complaint made to Ms Harb concerning counts 9, 10 and 11. The Crown says that this was an important issue in the trial, particularly in light of the defence case that evidence given by the complainant's family members and friends of contemporaneous complaint was false and based on dishonest collaboration with the complainant after the event. The Crown submits that the jury's resolution of the issue also had the capacity to impact on Ms Harb's credibility as a whole, noting that Ms Harb gave evidence unfavourable to the Crown on a number of issues.
As to the relevance of the messages, the Crown submits that the messages were well capable of delineating between the low-level complaint of a forceful "push" (described by Ms Harb) and the allegation of a violent assault and suffocation (described by the complainant); and that there is no sound basis for the applicant's submission that a concern arises that Ms Harb "was expressing those strongly worded opinions about her brother, in part, because of her own experience with him" (citing the applicant's written submissions dated 31 July 2023 at [100]). The Crown says that the message exchanges and Ms Harb's responses were obviously in relation to the incident to which counts 9-11 related (noting that both the complainant and Ms Harb gave evidence to that effect).
The Crown further says that the applicant cannot derive assistance on this issue from other evidence in the trial (of the complainant and Ms M Rachwan) that was struck out and which the jury was directed to disregard. The Crown submits that the jury must be presumed to have disregarded the evidence in accordance with the direction given by the trial judge (citing The Queen v Glennon (1992) 173 CLR 592 at 614-615; [1992] HCA 16 (Mason CJ and Toohey J) and Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13] per Gleeson CJ and Gummow J; at [31] per McHugh J). The Crown notes that there was no application to discharge the jury, nor any other application made by defence counsel concerning that struck-out evidence, nor is there any ground of appeal relating to it. The Crown also notes that the source of the evidence that was struck out was not Ms Harb but, rather, the complainant and Ms M Rachwan (both of whom were challenged in cross-examination in relation to credit).
The Crown also submits that there are textual indications in the messages that are inconsistent with Ms Harb characterising the applicant as someone who had previously physically assaulted her so that she was afraid of physical violence at his hands (pointing to the reference to the applicant as "a child" and as being "childish" and to Ms Harb being willing to get "physically involved" and "punch the applicant).
The Crown says that the statements by Ms Harb in the message exchanges that the applicant "abuses his wife" and is a "girl basher" were relevant and admissible in the context of Ms Harb's evidence that the complainant had merely told her that the applicant "pushed her". It is submitted that it was open to the jury to consider that Ms Harb would not have used those descriptors had the complainant only made a complaint of pushing. Moreover, it is noted that Ms Harb's evidence was that her characterisation of the applicant as a "girl basher" in the exchanges was based on what she had been told by the complainant about the Exhibit C incident. The Crown says that if the jury otherwise had doubts about the reliability or honesty of the complainant's evidence concerning this incident, then Ms Harb's strong reaction to what she was told by the complainant did not have the capacity to cause unfair prejudice to the applicant to any appreciable degree.
The Crown points to the fact that the trial judge gave the jury the conventional direction in the summing up that the fact that a false allegation can be repeated does not make it more likely to be true (26/9/22; SU 20).
As to the reference by Ms Harb to her mother telling the applicant that he had a "major anger problem", the Crown says that this was made in the context of a discussion referring to divorce; and so clearly flowed from the incident that had just occurred.
The Crown submits that if Ms Harb's evidence was accepted by the jury, it had the capacity significantly to damage the Crown case; that the jury's consideration of the content of the complaint made to Ms Harb was an important issue in the trial, as was Ms Harb's credibility; and hence Exhibit C was plainly admissible.
Furthermore, it is noted by the Crown that the applicant placed reliance on aspects of Exhibit C, in particular the reference in a text message by the complainant to a phone call between her father and the applicant in which the applicant "made out that I was crazy and suicidal", that evidence being relied upon by the applicant to support the contention that the complainant's allegations were false and arose in the context of alleged mental health issues on her part. The Crown points out that in cross-examination of the complainant, the defence counsel expressly relied on that text message for a hearsay purpose, as to the truth of what was asserted (2/09/2022; T 501.11-26).
The Crown submits that the evidence of Ms Harb was all the more significant in circumstances where: on the Crown case, the complainant had made contemporaneous complaint to a large number of people, with whom she was close, including her sister, her mother and her friends; and where the applicant's case was that the complaint witnesses had effectively collaborated with the complainant in 2020 and been provided information that allowed them to give false evidence of contemporaneous complaint made from 2013 onwards. The Crown says that, in that context, Ms Harb's evidence that the complainant told her only that she had been pushed (as opposed to being thrown against a wall and subsequently suffocated) had the capacity relevantly to impact upon the jury's assessment of whether or not there was a reasonable possibility, not excluded by the Crown, that the complaint evidence was the product of some retrospective collaboration between the complainant and those complaint witnesses.
As to the implicit criticism by the applicant of the breadth of the Crown's cross-examination of Ms Harb pursuant to s 38 of the Evidence Act, the Crown says that this was appropriate; noting that Ms Harb's evidence contradicted the evidence of the complainant in a number of important respects. In that regard, the Crown says that the issue of bias on the part of Ms Harb was squarely raised (13/09/22; T 1095.40-41, T 1101, T 1128.10-16, T 1148.24-28) and that the cross-examination of Ms Harb's belief at the time of what she was told (and that she no longer believed it) was relevant to that issue; that cross-examination as to Ms Harb's use of the term "girl basher" arose out of the complaint made to her by the complainant concerning the incident on 22 November 2013 (and was not in some wider context); and that the cross-examination of Ms Harb as to the Christmas Eve 2019 incident (13/09/22; T 1135-1144; T1147-8) was as to her evidence of the complainant's conduct on that occasion.
As to the other family members (Ms Remy Boumassa, Mrs Mona Habambo and Mr Jimmy Boumassa), the Crown says that there was cause for them to be cross-examined in circumstances where their evidence, if accepted, undermined the evidence of the complainant.
The Crown submits that there was no impermissible use made of Exhibit C by the solicitor advocate in the closing address, noting that the closing address was lengthy and proceeded over two hearing days, and says that the reference to Exhibit C as follows (19/09/22; T 1693.41-49) was appropriate: The text messages sent and received between the complainant and Rita Harb after this incident were tendered and they're marked exhibit C and they're obviously in your folders, and the Crown submits they are plainly referable to the seriousness of this incident. Rita Harb was outraged, she was appalled and angry and her text messages make this clear. She believed the complainant because she accepted what the complainant had told her as truth. Rita Harb's assertions in her evidence that she was not told about the full incident were simply not believable in the face of what she wrote to the complainant in those text messages.
As already noted, the Crown points out that the applicant himself placed reliance on aspects of Exhibit C (see above) to support the contention that the complainant's allegations were false and arose in the context of alleged mental health issues on her part.
The Crown says that, in circumstances where Exhibit C was admissible, and in part relied upon by the applicant, there could be no miscarriage by reason of defence counsel's failure to object to its admission (cf ground 1A). The Crown contends that the applicant has not established that the admission of Exhibit C and/or defence counsel's failure to object to Exhibit C had the capacity to cause practical injustice or that there was a "real chance" that the jury's verdict was affected.
As to the applicant's submission that the trial judge should have intervened, of her own motion, and rejected the evidence as inadmissible because the prejudice to the applicant was manifest, the Crown notes that in Poniris (at [39]-[42]) reference was made without demur to FDP v R [2008] NSWCCA 317 (FDP), where this Court (McClellan CJ at CL, Grove and Howie JJ) held that a trial judge is not obliged by s 137 to reject evidence on his or her own motion in the absence of an objection based on that section. The Crown also refers in this context to Flood-Smith v R [2018] NSWCCA 103 per Hoeben CJ at CL (Walton and Button JJ agreeing). The Crown emphasises that the situation where a trial judge may nonetheless be obliged to intervene and to reject evidence under s 137 where there has been no objection must be an exceptional situation where "the danger of unfair prejudice is manifest" (Poniris at [49]); and contends that this is not such a case.

Determination as to grounds 1, 1A and 2

It is not in dispute that, as no objection was taken to the tender of Exhibit C, rule 4.15 of the Criminal Appeal Rules is engaged in relation to grounds 1 and 2 of the applicant's appeal.
Considering ground 1 and 2 together, the text messages in Exhibit C were in our opinion both admissible and relevant in circumstances where there was a dispute raised as to the complaint made by the complainant to Ms Harb of the Exhibit C incident.
As to the complaint that the messages amounted to opinion evidence contrary to s 76 of the Evidence Act, the messages were not being relied upon as evidence of Ms Harb's opinion of her brother's character; rather they were relied upon as relevant to her credibility in asserting that all she was told by the complainant was that the applicant had forcefully pushed the complainant. There is no doubt that the content of the complaint made by the complainant to Ms Harb as to the Exhibit C incident was in issue and the text messages were clearly relevant to the assessment of her credibility.
The fact that Ms Harb's text messages were only based on what she was told by the complainant does not deprive the text messages of relevance because the issue to which the text messages go is as to whether her response is consistent with the contention that all she had been told was as to a forceful pushing (contrary to the complainant's evidence that she told Ms Harb all that she said had occurred).
In circumstances where the Exhibit C text messages were admissible and of relevance in the way set out above, the manner in which Exhibit C was used by the Crown did not in our opinion give rise to unfair prejudice to the applicant. Apart from the matters already considered in this context (the fact that the complainant was asked to read them onto the record and then to repeat parts of the messages; and the complaint about the non-responsive answers as to Ms Harb's account of previous conduct towards her), the complaints by the applicant as to the cross-examination of Ms Harb as to her belief have no substance. As the Crown has noted, the question of Ms Harb's belief at the time as to the things she was told by the complainant compared with her belief at the time of trial was a matter going to Ms Harb's credibility which was squarely in issue. Nor do the complaints as to the BWV recording, or the reference to it in the Crown's closing submissions, have force. The applicant's response at the time of the final incident when questioned by police had obvious relevance to the assessment by the jury of the competing versions of what had occurred in that incident.
In our opinion, the admission of the text messages in Exhibit C was not such as to cause manifest or unfair prejudice to the applicant; nor is the implicit criticism of the scope of the cross-examination that was permitted of Ms Harb and the other members of the applicant's family well-founded. Their evidence clearly had the capacity, if accepted, to undermine the Crown case.
The trial judge was not in our opinion required to intervene of her own motion to reject this evidence. The Court in FDP v R (at [28]) adopted what had been said in Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 (at [20] per Gleeson CJ and Hayne J), in relation to the provisions of the Evidence Act concerning identification evidence, to the effect that the Evidence Act applies in an adversarial context; and that counsel for an accused may have any one of a number of reasons for not objecting to particular evidence (of which the trial judge will ordinarily not be aware and as to which the trial judge may have no right to enquire); and went on at [29] to say: 29. So far as s 137 is concerned, we do not understand how a trial judge could reliably undertake the balancing exercise that the section requires between the probative value of the evidence and the danger of unfair prejudice without a complete understanding of both the Crown and defence cases and the arguments to be addressed to the jury by the parties. Yet the section is engaged when the Crown first introduces the evidence that is later impugned in this Court. This difficulty is alone sufficient to lead us to the conclusion that s 137 cannot operate to oblige a judge to reject evidence that may later be seen in the context of the whole of the trial to have resulted in a miscarriage of justice.
In the present case, there is not such an exceptional circumstance as to have required Exhibit C to be rejected despite the absence of objection.
Grounds 1 and 2 are therefore not made good and we would refuse leave to raise those grounds of appeal.
Ground 1A alleges miscarriage as a result of defence counsel's failure to object to Exhibit C (in substance an incompetence of counsel ground though not expressed as such).
As to the incompetence of counsel ground, as noted by the Crown the principles concerning miscarriage as a result of the conduct of trial counsel for an accused were summarised in Hanna v R [2022] NSWCCA 7 per Johnson J at [20]-[22] (Fullerton and Dhanji JJ agreeing). It is not sufficient to point to some failing "even a gross failing" of the legal representative who appeared at trial. What is required is that (see Tsiakas v R [2015] NSWCCA 187, Beech-Jones J, as his Honour then was at [42]-[44] (Leeming JA and Johnson J agreeing)) there was some material irregularity in the trial such that there is "a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial", his Honour there citing Nudd v The Queen [2006] HCA 9 at [24] per Gummow and Hayne JJ; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J). Reference is also made to Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429 (Bathurst CJ, Bell P and Johnson J) at [154]-[159] and R v Miletic [1997] 1 VR 593 (per Winneke P, Charles and Callaway JJA at 600).
The record of the trial must be examined to determine from the objective circumstances whether the accused has had a fair trial. The ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open.
We have considered carefully the record of the trial. In our opinion, ground 1A is not made good. In particular, the reliance by defence counsel on aspects of the messages in Exhibit C makes untenable the proposition that there was no rational forensic purpose in not objecting to the admission of that material.
Accordingly, leave to appeal on ground 1A should be refused (and were it to be granted the appeal on this ground would be dismissed).

Exhibit 11 grounds (Grounds 3, 3A and 4)

The Exhibit 11 grounds are as follows: Ground 3: The trial judge erred in preventing trial counsel from putting to the complainant in cross-examination the content of her alleged previous representations in the messages. Ground 3A: The failure by trial counsel to seek a ruling as to the admissibility of the messages in Ex 11 prior to the completion of the cross-examination of the complainant occasioned a miscarriage of justice. Ground 4: The failure to determine whether the messages in Ex 11 were admissible prior to the completion of the cross-examination of the complainant caused a miscarriage of justice.

Applicant's submissions

The complaint raised by these grounds in essence goes to the limitation placed by the trial judge on cross-examination by the defence counsel in respect of the Exhibit 11 text messages. The applicant complains that repeated interruptions as to this issue during the course of cross-examination of the complainant had the effect of the Crown "running interference on evidence that was problematic for its case" (see [108] of the applicant's written submissions dated 31 July 2023). (We do not accept that there was any improper interference by the Crown in raising objection to the use of the messages in circumstances where their provenance was not established and there was an issue raised on the complainant's evidence as to whether they had been unlawfully obtained.)
The applicant argues that, where the Crown case already depended upon select text messages produced by the complainant (Exhibit C) and where the "ordinary expectation" might have been that the police or the Crown might produce a Cellebrite extraction of the messages on the complainant's phone (certainly those proximate to the alleged incidents or relevant to the issues in the trial) as part of the Crown's prosecutorial obligations, the objection taken by the Crown to that material was "difficult to understand and highly problematic".
Pausing here, the Crown objection was clearly identified from the outset - namely, that the text messages had been unlawfully or improperly obtained and should be excluded on that basis. The transcript makes clear that the Crown had not been privy to the impugned text messages prior to their attempted utilisation in the defence case; and that the first expert report was not served until after the issue had been well and truly articulated in the course of the hearing (the second expert report was not served until the very end of the trial).
The applicant argues that many of the objections made during the cross-examination of the complainant as to the use of the text messages were misconceived, referring in this context to the objection made (see 5/09/22; T 622) on the basis of s 43 of the Evidence Act to a question as to the sending by the complainant of a text message to Ms M Rachwan at 5.36pm on 16 April 2017 (saying "I might come over soon").
The applicant says that, to the extent that what was being put constituted a prior inconsistent statement (of the complainant), what defence counsel was doing was precisely what was required, or at the very least permitted, by s 43 of the Evidence Act if the evidence were to be later adduced (referring to s 43(2) of the Evidence Act); and that, to the extent that the objection was founded on s 44 of the Evidence Act (noting that the objection was that the complainant was being cross-examined on a document that was not hers, and was being asked to adopt it), the previous representation in question was that of the complainant herself and not some other person.
The applicant says that the same issue arose again (5/09/2022; T 628-629) "this time with the trial judge referring to trial counsel needing to comply with s 43". We note that, in fact, the transcript records that what there occurred was that the solicitor advocate objected to the question as to the communication ("I might come over …"); the trial judge indicated that the defence counsel should ask the time as there was "a compound situation there"' and the trial judge reminded defence counsel that s 43 had been raised (5/09/22; T 629.4). There was no ruling requiring the defence counsel to comply with s 43 at that stage. Rather, following the solicitor advocate's objection that the provenance of the document from which defence counsel was reading was simply not known, the trial judge said (5/09/22; T 629.29-31): The Crown has raised this issue repeatedly, Mr Hogan. What the Crown has invited, and the Court contemplated, was that you would be asking the witness to consider the notes you had.
The applicant says that is unclear what the legal basis for the objection was, or what it conceivably could be; that defence counsel "plainly had a good faith basis for the cross examination as was entitled to proceed" ([112] of the applicant's written submissions dated 31 July 2023); and the applicant complains that the admonition from the trial judge precluded counsel from asking further questions about those messages. What defence counsel then did was to ask the complainant to read the messages to herself (5/09/22; T 629ff), without their content being disclosed. (The relevance of those messages appears to have been related to the proposition put to the complainant that she had been using her phone continuously from 3.08pm onwards, in circumstances where the complainant's evidence as to the incident after Church on Easter Sunday was that the applicant had taken her phone and she was unable to do anything.)
Pausing here, the suggestion that the basis for the Crown's objection was not clear cannot be accepted - the Crown had consistently raised the issue as to the provenance of the text messages; the assertion of the Crown being that they had been improperly obtained.
The applicant also points to the discussion in the absence of the jury later on 5 September 2022 (see 5/09/22; 5 640.46-47) as to the defence counsel being able to cross-examine in relation to text messages between the complainant and Ms S Rachwan (where the complainant said "If he is not going to provide, I'm fucking out" - see Ex 11, 1048; and her concerns that the applicant might "fucking chase me for the kids" - see Ex 11; 1049) on 31 March 2020; namely that (5/09/22; T 640.49-641.1): HER HONOUR: On the same basis that he draws it to the attention of the complainant and she can say whether or not she sent a message. And if she says it's not her message, that that's that.
The applicant says that the trial judge correctly identified (5/09/2022; T 641.46-50) that, if the whole rationale in the defence case was that the complainant had concocted her version of events so that she could leave the applicant ("getting money or control of the children"), then there was a concern that if some exploration of that was not permitted to the defence, it would be unfair. (Her Honour went on to say that in order to be fair the context had to be permitted; so that the complainant should be permitted to read all of the messages in the tranche (MF1 22) before being taken to the ones that the defence counsel wished her to see (5/09/22; T 642.4-6))
The applicant complains that the legal basis for the limitation imposed is not clear because the original determination (5/09/2022; T 614.5-615.18) appears to be referable to s 138 of the Evidence Act (given the repeated references to a "balancing exercise"). The applicant submits that there was no proper basis identified for limiting trial counsel in the fashion that her Honour did, particularly where the messages were said actually to have been written by the complainant; and that the trial judge erred in limiting the cross examination in the way that was done; and hence ground 3 is made out.
Complaint also appears to be made by the applicant as to the circumstances in which concerns had been raised by the complainant (in the absence of the jury) as to how the WhatsApp messages had been obtained (see 5/09/22; T 644.6-14). As noted earlier, the accusation made is that the complainant was knowingly giving false evidence and improperly communicating with her legal representatives when raising questions as to access to the relevant messages.
The applicant's complaint is that, as a direct result of what occurred, defence counsel was not able to comply with s 43(3) of the Evidence Act, nor was defence counsel properly able to test the complainant's evidence by reference to the WhatsApp messages (which the applicant maintains were relevant to the financial and custodial motive to lie that he had advanced at trial). It is submitted that, even in circumstances where the complainant had asserted to have no recollection as to some of the messages, the inability to reveal the content of those messages to the jury during the cross-examination was a profound impediment to the proper presentation of the applicant's case at trial.
The applicant submits that the effect of many of the messages was "utterly at odds" with evidence given by the complainant as to the relationship being one involving unreasonable financial control by the applicant; and that the messages were capable of being seen as complaints about perceived lifestyle restriction due to actual budget constraints. In that regard, the applicant refers to the following two messages.
First, a message on 8 April 2018 from the complainant to her sister ("SoulSistaz") that "He added up all our expenses (bills etc) to see what we're left with so at the end we only have $750 pw to spend so he gets $150 and I get $600" (Ex 11). The applicant says that that message was at odds with the evidence the complainant had given to suggest that the figure in question was some form of arbitrary control that he reduced when they argued (30/08/2022; T 224.5-225.15) (cf the trial judge's question as to the relevance of this evidence - see 5/09/2022; T 638.32-33).
Second, a message on 31 March 2020 sent by the complainant to her sister that "Its his fucking job to provide the money!!the tucker [sic] not for anyone else to do it!!!" (Ex 11).
The applicant says that, although the messages in question were ultimately admitted on 19 September 2022, the forensic impact of that material was profoundly reduced in circumstances where trial counsel was denied the opportunity to explore the content of those messages with the complainant during the course of cross-examination.
The applicant also complains as to the injustice said to be inherent in a determination not having been made (at the time of the cross-examination of the complainant's sisters, Ms M Rachwan and Ms S Rachwan) as to the admissibility of the text messages later admitted as Exhibit 11. The applicant says that the exchange during the cross-examination of Ms M Rachwan when objection was taken by the Crown first pursuant to s 43 of the Evidence Act and then pursuant to s 44 of the Evidence Act on the basis that counsel was not properly putting the particulars of those previous representations (7/09/22; T 819.28-31) highlights the injustice inherent in a determination not yet having been made as to whether the messages in question would be admitted into evidence. Reference is also made to the exchange in the absence of the jury (7/09/2022; T 822.26-823.11) as to the need for defence counsel to comply with s 44(3) in relation to previous representations of the complainant, since s 44(2) could not yet be satisfied when the expert evidence had not been taken.
The applicant says that it is unclear why defence counsel at the trial did not ask the trial judge to determine the issue of whether the messages had been unlawfully or improperly obtained prior to the completion of the complainant's cross-examination. Although suggesting that the likely explanation is that, given the way in which the issue of s 138 of the Evidence Act had been raised "but never clearly determined", it may not have occurred to trial counsel to do so "in the particularly difficult atmosphere of this trial" and with the mounting time pressure given that the trial was heading towards substantially exceeding the original 3 week estimate, the applicant maintains that there was no apparent rationale or forensic reason for trial counsel not having done so.
The applicant acknowledges that defence counsel appears to have accepted at various times that the limitations ultimately imposed on his cross-examination were appropriate (referring to 7/09/22; T 833.21-46; T 835.1-43) but the applicant nevertheless maintains that the cross-examination itself (and the contrary indication that defence counsel required "consideration" of the voir dire before cross-examination of Ms S Rachwan (7/09/22; T 835.20)) was at odds with that. The applicant suggests that trial counsel may have become overwhelmed by the issue and the perceived need to proceed expeditiously with the evidence.
The applicant also says that the forensic limitations placed on trial counsel by virtue of the uncertainty as to whether the messages would be ultimately admitted was recognised by the trial judge (7/09/2022; T 832-833) by reference to the questions raised by her Honour as to whether defence counsel wished to be heard as to whether his cross-examination had been unduly fettered.
The applicant complains that the failure to obtain a ruling, such that the contents of the alleged messages could be properly explored pursuant to s 44(2) of the Evidence Act, substantially impaired trial counsel's ability properly to advance the applicant's case at trial; and that the issue continued to arise, referring to objections during questioning (9/09/22; T 890-891; T 897-8) as to compliance with s 44(3) of the Evidence Act.
The applicant accepts that, implicit in ground 4, is the proposition that trial counsel ought to have sought a ruling as to the admissibility of the messages at an earlier stage (though the applicant submits that this is to be understood in the difficult circumstances prevailing at the trial). The applicant refers to the principles summarised in Alkheir v R [2016] NSWCCA 4 by Macfarlan JA at [31] (Rothman and Bellew JJ agreeing) and submits that there appears to be no objectively rational basis for trial counsel not seeking a determination in relation to the admissibility of those messages at an earlier stage, such that he could then properly cross-examine the complainant and her two sisters on that evidence.
The applicant says that the transcript reveals that the atmosphere of the trial had become highly adversarial (particularly as between the solicitor advocate and trial counsel) which he says was likely a substantial distraction; and suggests that, given the "protracted and sporadic fashion" in which the issues relating to the admissibility of the messages were ventilated at trial, the necessity for a timely ruling might have been less than clear in the atmosphere of the trial. The applicant also says that it was apparent from a relatively early stage that the original estimate of 3 weeks was problematic (referring to 30/08/22; T 244.38; 1/09/22; T 406 juror dismissal judgment pp 3-4; 2/09/22; T 554.23; T 585.16-18, 5/09/22;T 606.11-18; and 9/09/22; T 933.10).
The applicant argues that the messages provided the only independent evidence supportive of the applicant's contention at trial that the complainant's allegations were false because the complainant had a financial motivation and a desire to retain custody of children upon separation; and that acceptance of the complainant's evidence beyond a reasonable doubt was central to the Crown case. It is also noted that both Ms M Rachwan and Ms S Rachwan were important complaint witnesses. The applicant complains that trial counsel was largely prevented from putting the content of the alleged messages to the witnesses so that the jury could understand the cross-examination in its proper context; and that it followed that counsel was prevented from asking any further questions in relation to any evidence those witnesses may have given in response.
It is noted that when the messages in Exhibit 11 were ultimately admitted on 19 September 2022, it was almost two weeks after the complainant's evidence had concluded on 6 September 2022 and some 10 days after the evidence of Ms S Rachwan. The applicant relies on this as meaning that the evidence was "utterly" divorced from the jury's assessment of the witnesses themselves.
Reference is made to the recognition in the authorities of the importance of trial counsel being able effectively to cross-examine witnesses in the overall pursuit of a fair trial (Stack v Western Australia [2004] WASCA 300 per Steytler J (with whom Templeman J agreed) at [77]-[82], including reference to the observations of Cory J in the Supreme Court of Canada in Osolin v R (1993) 86 CCC (3d) 481 at 516-517; and at [128]).
The applicant submits that the inability of trial counsel to cross-examine effectively on the Exhibit 11 messages occasioned a miscarriage of justice; and that this is not a case for the application of the proviso. The applicant submits that, given the Crown case depended almost entirely upon the evidence of the complainant whose credibility was in issue, there could not be satisfaction that there was no substantial miscarriage of justice or that a conviction was inevitable (referring to Glennon v The Queen (1994) 179 CLR 1, 8‑9; [1994] HCA 7 (Mason CJ, Brennan and Toohey JJ); Crofts v The Queen (1996) 186 CLR 42; [1996] HCA 22); and that therefore ground 4 is established.

Crown's submissions

The Crown emphasises that the messages in Exhibit 11 were ultimately admitted into evidence despite the fact that the trial judge ruled that they had been improperly obtained; and that defence counsel placed significant weight on the text messages in his closing address.
The Crown submits that there were obvious forensic advantages in the course taken by defence counsel, including the fact that he retained the element of surprise when questioning Crown witnesses and avoided the risk of the evidence being excluded by virtue of a pre-trial ruling or a final ruling made during the cross-examination of the complainant. The Crown argues that, at the very least, which cannot be said that the course taken did not represent a rational forensic decision.
It is noted that defence counsel was permitted to, and did in fact, cross-examine the complainant and the other parties to the messages as to the content of various messages recorded in Exhibit 11; and that general questions were also asked of the complainant and other witnesses in cross-examination concerning themes and topics said to be raised by the messages.
To the extent that the contents of particular messages were not put to the complainant or the other witnesses, it is noted that defence counsel was able to rely on those messages in his closing address without them ever having been put to the witness in question (so as to give the witness the opportunity to comment on that particular message). The Crown notes that no comment was made by the solicitor advocate in closing, nor the trial judge in the summing up, to the effect that particular messages had not been put to the complainant (or any other witness) so as to deprive her of the opportunity of commenting on that particular message. No application had been made for the complainant or any other witness to be re-called after Exhibit 11 was admitted and the Crown says that there were obvious forensic benefits that flowed to the applicant in not doing so. The Crown submits that any forensic disadvantage largely flowed to the Crown as a result of the way in which the tender of Exhibit 11 was dealt with by defence counsel.
The Crown also argues that the messages themselves were arguably not of great significance, notwithstanding the extensive reliance that was placed on them in the defence closing address.
Further, the Crown says that it is clear that defence counsel "absorbed in the atmosphere of the trial saw no injustice or error in what was done" (in part relying on the fact that defence counsel referred to aspects of Exhibit C as noted above) (and citing Aravena v R [2015] NSWCCA 288 at [121] (Beazley P, Hall and Wilson JJ); GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 at [24]-[25] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) in this context). Reference is also made in this context to IW v R [2019] NSWCCA 311 at [168] per Bellew J (Bathurst CJ and Fullerton J agreeing).
The Crown points out that the complainant was subject to a lengthy and rigorous cross-examination over six hearing days (occupying over 300 pages of trial transcript) and that defence counsel cross-examined the complainant on a wide range of topics (said not to be directly relevant to the charges themselves) including: whether she had, in collaboration with her mother, falsely implicated her father in an assault charge (30/08/22; T 274-275); whether she had regularly drunk to excess, leading to vomiting, and, particularly in relation to the incident the subject of counts 6, 7, and 8, whether she had drunk to excess on this occasion and had told the applicant that she was about to throw up (31/08/22; T 338-339; T 370; T 372-373; 6/09/22; T 747); whether there were occasions where she would go out with her friends or her sisters until 4am or 5am in the morning, where the applicant would be required to look after the children, or the complainant would stay at her maternal home after these late nights and not return to her home with the applicant until the next day (31/08/22; T 268; 6/09/22; T 722); whether the complainant had, in the context of count 21, been wearing "revealing" and "provocative" clothing (1/09/22; T 491-492); whether she had "suicidal tendencies" (6/09/22; T 733); and whether she had excessive spending habits or an expectation of wanting the applicant to provide a life of luxury for her (5/09/22; T 510; 6/09/22; T 705, T 721).
The Crown notes that the complainant's cross-examination commenced on 30 August 2022; and says that it is apparent from the transcript that the first time the trial judge and the solicitor advocate became aware of the existence of messages that had been obtained from the phone previously used by the complainant was on 31 August 2022, during an exchange in the absence of the jury concerning documentation that had been provided to court staff in the remote room by the applicant, for the purpose of cross-examination (31/08/22; T 351-352) (see above as to the chronology of events in this regard).
The Crown says that, from at least 1 September 2022, when the solicitor advocate put on record the concern that the evidence may have been improperly obtained (1/09/22; T 478.20-24), defence counsel was on notice that an issue had been raised (supported by evidence from the complainant) as to the potential inadmissibility of the text messages. It is submitted that, had the issue been ventilated immediately, defence counsel ran the risk that the evidence would be excluded. In that context, the Crown says that it was (at least) a rational forensic decision for defence counsel not to press for a final resolution of the issue.
The Crown cavils with the applicant's suggestion that the objection taken by the Crown to this material was "difficult to understand and highly problematic" (referring to [108] of the applicant's written submissions dated 31 July 2023), given that the issue had been raised by the complainant herself; that the complainant had given evidence relevant to the issue; and that the solicitor advocate was largely "in the dark".
As to the further exchanges on 2 September 2022 (2/09/22; T 531-534; T 537; T 539), the Crown says that the tactical position adopted on behalf of the applicant is there illuminated, noting that defence counsel confirmed that the Crown had been provided only with some text messages and not the expert report relating to them. In particular it is noted that defence counsel said that the reason why the expert report had not been served a month ago was that there were matters that the defence required the expert to prove (such as that no one had tampered with the information) (2/09/22; T 537.34-46) and that this was in circumstances where "the Crown could have had as many conferences as they like with the complainant about matters that are on her phone" (2/09/2022; T 537.39-41); and that if the report had been served earlier, the Crown would have been entitled to go through all of the emails (that the applicant says were inconsistent with the complainant's evidence) and that if the Crown was aware of that and had conferences with the complainant "then really, the complainant, as we've seen, adjusts her evidence" (2/09/22; T 540.1-2).
The Crown says (and the above submissions make such a conclusion almost inescapable) that it was clearly part of defence counsel's strategy to limit the amount of information provided to the Crown for as long as possible and to retain the element of surprise in relation to the text messages. It is noted that the (first) expert report of Mr Sobbi was only served, after obtaining express instructions to do so, on 2 September 2022 (2/09/22; T 540.41).
As to the specific complaints made by the applicant concerning ground 3, the Crown says as follows.
The basis of the objection to the complainant being asked about the message to her sister ("I might come over soon") contained in the document provided to her to read as she gave her evidence was that "the witness is being cross-examined on a document that is not hers, and being asked to adopt it" (5/09/2022; T 622.34-35). It is noted that the complainant was, in any event, shortly thereafter asked whether she was "corresponding with her sister on 16 April 2017" and she said she did not remember; and that it was also put to her (without objection), that (in a message) "you told your sister and you well remember it, that the accused had left the keys on the bench for you and you were maybe going to go and visit her", to which she responded "he eventually gave me my things back", although she was unable to remember how long the applicant had them before he eventually gave them back (5/09/2022; T 623.20-36). The Crown says that, as such the substance of what defence counsel sought to achieve, was in fact, achieved.
The Crown says that a number of general propositions were also put to the complainant which were relevant to the forensic objective sought to be achieved in relation to the text messages; for example, it was suggested to the complainant that she was not "trapped" in the house in 2019 (5/09/2022; T 631.4-5), and that she was able to go out with her friends and her sisters whenever she liked, until whatever time she liked (5/09/2022; T 631.18-32).
The Crown points out that defence counsel took no issue with the trial judge's indication (5/09/2022; T 640.36-44) that the two particular messages could be dealt with in the same way as the discrete messages that her Honour had earlier identified (5/09/2022; T 614.5-615.18).
Further, the Crown says that concerns about the possible admissibility of the documents were ultimately borne out when the trial judge, although allowing the tender of the messages through Mr Sobbi, made a finding that the messages had been improperly obtained pursuant to s 138(1)(a) of the Evidence Act. The Crown also points out that, in allowing the evidence, her Honour also noted "concerns that the evidence in some ways supports the complainant's credibility" (referring to the ex tempore judgment p 5).
The Crown says that, even if it is established by the applicant that, in respect of a particular question or questions, objections were upheld by the trial judge that should not have been, the applicant has not established that any such error or errors occasioned miscarriage (i.e., that the impugned conduct did not have the capacity to cause practical injustice and that there was not a "real chance" that the jury's verdict was affected).
As to the passages set out by the applicant in his submissions from the cross-examination of the complainant's sisters, Ms M Rachwan and Ms S Rachwan, the Crown says that legitimate concerns were expressed by the solicitor advocate arising out of the impermissible use of a document by defence counsel, yet to be admitted, and in respect of which an issue as to admissibility had been raised. Those concerns included: first, the use of the document by holding it up, and reading from it, then referring to "text messages" in the document, when questioning the witness, before the document had been tendered (see for example 7/09/2022; T 790-794, T 819; 9/09/22; T 883-885, T 889-892); and, second, the provision of the document to the witness, asking the witness to read the document and making reference to "text message" or identifying the content of individual texts sent by others (as above and also 9/09/22; T 896-897).
The Crown points out that both of those witnesses were, in fact, asked about a number of messages. In particular, it is noted that: Ms M Rachwan was asked about the text messages relating to the Easter 2017 incident, the circumstances in which she and others spent the evening with the complainant following the intimidation the subject of count 21, and the messages relating to the allowance that the complainant received from the applicant, the complainant having a concern that the applicant "provide" for her, and the issue of divorce; and Ms S Rachwan was questioned about the text messages relating to the complainant's "allowance" and its reduction, as well as the issue of divorce and the complainant benefitting her finances by moving back to the familial home, in addition to the complainant's concern about the applicant "chasing her for the kids" or taking the children from her. The Crown also notes that the complainant's mother (Mrs L Rachwan) was questioned about exchanging text messages with the complainant during Easter in 2017 and the issue of the "allowance" that the complainant received from the applicant; and Ms C Rachwan was questioned about whether the complainant made mention of the applicant "chasing her for the kids".
The Crown notes that the complainant was also taken to the text messages insofar as they referred to her having access to her phone during Easter 2017, it being suggested that they were contrary to her evidence, as well as to specific messages (1/09/22;T 465, T 480, T 481); and that the complainant was also taken to a message that she sent Janet Akl after the evening concerning count 21 (5/09/22; T 632-633), and also to her dissatisfaction with the "allowance" that she received from the applicant, and to her discussions of divorce with her sisters in these messages (30/08/22; T 225; 5/09/22; T 671).
The Crown points to the defence counsel's closing address, in which defence counsel made wide-ranging submissions as to the significance of Exhibit 11. It is noted that the exhibit was one of the last pieces of evidence tendered in the trial. The Crown says that, although the applicant complains that the timing of the tender prejudiced the applicant, viewed from another perspective it might be thought that there were advantages in having "the last word" forensically speaking, shortly before closing addresses.
Reference is made to the following submissions made by defence counsel in the closing address were as follows: that the text messages evinced that the complainant's sole interest was in money and that she was "obsessive" about it and was not interested in the applicant (23/09/2022; T 1822.17); the text messages demonstrated that the complainant was thinking about money, whether the money was good enough, whether the applicant was providing enough, and linking that to custody and access (23/09/2022; T 1822.32-36); the complainant was begrudging of the luxury lifestyle that she lived and whingeing about the amount of money the applicant allocated her (23/09/2022; T 1822.38-45); the complainant was a person who "if the money is not right she's out", and if she was "out" she was taking the children away from the applicant (23/09/2022; T 1822.45-48); when the complainant and her sisters were confronted with the text messages and were "caught out lying", all they could say was, "I can't remember, I can't remember, sorry, can't help you there," (23/09/2022; T 1826.42-44), see also a similar submission challenging the complainant's credibility at 26/09/2022; T 1909-1910; the messages demonstrated that the complainant and her sisters were communicating with each other about the complainant's statement and colluding with each other to concoct evidence (23/09/2022; T 1826.46-1827.2); and the complainant was motivated by hatred, malice money and being a "contact frustrater" (23/09/2022; T 1829.26).
The Crown emphasises that no comment was made by the solicitor advocate in the closing address, or by the trial judge in the summing up, concerning the fact that some messages had not been specifically put to the complainant (or any other witness, as applicable), so as to afford her the opportunity to comment on them (cf Dedeoglu v R [2023] NSWCCA 126 at [164]-[165]).
Finally, the Crown says that the text messages the subject of Exhibit 11 did not take on any particular significance in light of the real issues in the trial. By way of example, with respect to the applicant's case that the complainant had access to her phone at Easter 2017 and that this was inconsistent with her evidence, the complainant responded to this contention by maintaining that the applicant had taken her phone but stating that he gave it back to her at some point, such that she was able to send and receive messages. The Crown says that the messages did not have the capacity significantly to undermine the Crown case by their nature, regardless of the extent to which they were the subject of cross-examination. Further, the Crown says that (as noted by the trial judge) some of the text messages were just as capable of advancing the Crown case as they were capable of advancing the applicant's case.
The respondent submits that rule 4.15 of the Criminal Appeal Rules is engaged in relation to Grounds 3 and 4 and that the applicant requires leave to advance these grounds of appeal.
As to ground 3A, the Crown contends that the way in which the issue of the tender of Exhibit 11 was dealt with by defence counsel was well capable of explanation by reference to rational forensic choices made; and submits that it is clear that defence counsel "absorbed in the atmosphere of the trial saw no injustice or error in what was done".
If, contrary to the Crown' submissions, the Court finds that there was a miscarriage of justice in relation to these grounds, or any one of them, the Crown relies on the proviso to s 6(3) of the Criminal Appeal Act.

Determination

True it is that an examination of the transcript reveals some confusion, or perhaps overlapping, of the objections made in relation to the cross-examination sought to be made by the defence counsel as to the Exhibit 11 messages (namely, as to whether the perceived vice in the questioning was by reference to the messages being prior inconsistent statements of the witness (requiring compliance with s 43) or previous representations of other persons (requiring compliance with s 44); or the overarching objection based on s 138 of the Evidence Act). However, ultimately, defence counsel was permitted to cross-examine on the topics raised by the text messages that were ultimately admitted; and there must have been a forensic decision taken not to seek to recall the witnesses for further cross-examination once those messages had been admitted.
Sections 43 and 44 of the Evidence Act provide that: 43 Prior inconsistent statements of witnesses (1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or no - - (a) complete particulars of the statement have been given to the witness, or (b) a document containing a record of the statement has been shown to the witness. (2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examine - - (a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and (b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence. (3) For the purpose of adducing evidence of the statement, a party may re-open the party's case. 44 Previous representations of other persons (1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness. (2) A cross-examiner may question a witness about the representation and its contents i - - (a) evidence of the representation has been admitted, or (b) the court is satisfied that it will be admitted. (3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follow - - (a) the document must be produced to the witness, (b) if the document is a tape recording, or any other kind of document from which sounds are reproduce - -the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents, which) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given, (d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents. (4) A document that is so used may be marked for identification.
Insofar as the text messages were sought to be relied upon to cross-examine the complainant about prior inconsistent statements, the complainant was clearly required to be shown the record of those messages. The trial judge was clearly cognisant of this requirement (and the Crown repeatedly emphasised it). The distinction sought to be drawn by the defence counsel in questioning as to the "topic" rather than the text messages themselves was clearly difficult to maintain in circumstances where the defence counsel appeared to be reading from the document containing the text messages themselves but in any event cross-examination as to the topics was not precluded.
Insofar as text messages were relied upon in respect of previous representations of other persons, the procedure has been explained in cases such as Antouny v R [2020] NSWCCA 203 (at [63]-[67], per Hoeben CJ at CL, Cavanagh and Fagan JJ agreeing) to which the Crown has here referred. In that context, the trial judge was clearly concerned from the outset as to the provenance of the text messages and whether they had been unlawfully or improperly obtained.
That concern was quite properly drawn to the defence counsel's attention as soon as the attempt to rely on the text messages was made. It was clearly a forensic decision of defence counsel not to forewarn the Crown (or the complainant ahead of her cross-examination) of those messages - as the defence counsel's submissions make pellucidly clear. Thus it cannot be said that there was not a rational forensic decision open to defence counsel not to seek an earlier ruling as to the admissibility of the text messages; and complaint cannot now be made at the fact that defence counsel did not do so.
In those circumstances, grounds 3, 3A and 4 are not made good. Leave should be refused for each of those grounds (and were leave to have been granted they would be dismissed).

Sentence appeal

Turning then to the sentence appeal, as noted earlier, her Honour sentenced the applicant to conditional release orders in respect of counts 6, 21, 28 and 30. The period of the conditional release orders was 2 years from the date the sentence was imposed, 17 February 2023, with the standard conditions applying. There is no appeal against those sentences.
Her Honour imposed community correction orders for counts 2, 5, 8, 10, 13, 14, 15, 17, 18, 19, 20, 24, 31 and 32. Each community correction order was for a period of 3 years from the date of sentence with the standard conditions of the order applying. There is no appeal against those sentences.
In respect of counts 3, 7, 9, 11, 16, 23, 26, 27, 33 and 34, her Honour considered that the s 5 threshold had been crossed, and that an aggregate sentence should be imposed. The aggregate sentence was imprisonment for 10 years commencing 4 October 2022 and expiring 3 October 2032 with a non-parole period of 6 years expiring 3 October 2028.

Grounds 5 and 6 Ground 5: The trial judge erred in sentencing the applicant for counts 3 and 11 on a basis of findings that constituted a more serious offence. Ground 6: The trial judge erred in failing to give sufficient reasons to demonstrate that she did not sentence the applicant for counts 3 and 11 on a basis of findings that constituted a more serious offence.

Counts 3 and 11 were offences of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the CDPV Act). The maximum penalty for this offence is 5 years' imprisonment and/or 50 penalty units. There is no standard non-parole period.

Remarks on sentence (ROS)

Count 3, as summarised by the sentencing judge, occurred in this way: The offence occurred in February 2013. The victim had been shopping and there were grocery bags in the kitchen area. The appellant forced the victim down onto the ground so that she was face down on the polished concrete floors. She was positioned between the back of the couch and the kitchen bench. The victim struggled against the appellant but he had kneeled on top of her hands which were behind her with her palms facing upwards. The appellant had a plastic bag which he put over the victim's head, and then used duct tape to secure the bag around her neck. The victim tried to get out of the bag, but every time she took a breath, the bag would get sucked into her mouth. She thought each breath was going to be her last. When the appellant got off her, she ripped the bag open over her mouth so that she could breathe. She then went into the bathroom and used scissors to cut the bag and duct tape.
When assessing the objective seriousness of this offence, the sentencing judge noted that the Crown submitted that it fell at the top of the range of objective seriousness. The Crown submitted that the use of the plastic bag to restrict her airways and the securing of it in place with the duct tape caused extreme fear and distress. The Crown submitted that the complainant believed the applicant was trying to kill her. The sentencing judge noted that there was no suggestion by the Crown that the offence was aggravated by any attempt to kill the complainant, and her Honour said that that would otherwise breach the principle of The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
The sentencing judge noted the submission on behalf of the applicant that the offending was serious offending and would have caused a high level of anxiety to the victim, as evidenced by her thoughts that, "This is my last breath". The sentencing judge noted the submission on behalf of the applicant that count 3 was significantly aggravated by the use of tape and a plastic bag.
The sentencing judge then said: That it is charged as an offence of intimidation causes some difficulty, states counsel for the offender, in placing it on the scale of objective seriousness. It is objectively the most serious offence of intimidation before the Court in the instant matter, but the offender must be sentenced for the offence of intimidation. In the Court's assessment, this offence is a particularly serious example of an offence of intimidation due to the use of the bag and tape and the extreme fear caused to the victim. It is also made more serious by the context of domestic violence. The offence is aggravated by virtue of having been committed in the victim's home. The Court is careful not to breach the principle in The Crown v De Simoni (1981) 147 CLR 383 at 389; that is, this offence is not aggravated by circumstances which would warrant liability for the more serious offence under s 37 of the Crimes Act as it applied at the time of the offence. Nonetheless, the objective gravity of this offence of intimidation falls well above mid-range towards the upper range for the offence category of intimidation.
The sentencing judge specified an indicative sentence of imprisonment for 2 years 6 months.
The sentencing judge first described the events constituting counts 9 and 10 (namely, the offending on 2 November 2013 where the applicant had assaulted the victim and damaged her phone by throwing it onto the ground; and then when the complainant went into her bedroom and locked the door behind her, the applicant then broke the door down to get into the bedroom).
Her Honour then said: The appellant then ran at the victim and dragged her away from the window. He dragged her backwards onto the floor between the bed and the wardrobe. The victim was flat on her back and the appellant crouched behind her. He put one hand over her mouth tightly and with the other hand he pinched her nose so that she could not breathe. The victim was thrashing and kicking, and trying to move his hands. She was scratching his wrist trying to get them off but he would not move. Eventually he let go and she gasped deeply for breath and started screaming for help.
The Crown submitted to the sentencing judge that that offence fell well above the mid-range of objective seriousness. As noted above, the applicant had submitted that the offending was serious and would have caused a high level of anxiety to the complainant. It was also said on his behalf that, whilst suffocation was inherently serious, what had occurred was not the most serious form of suffocation.
In assessing the objective seriousness of the offence, the sentencing judge said this: In the Court's assessment, the focus needs to be maintained on the type of offence, namely, intimidation. As for count 3, the Court is careful not to breach the principle in De Simoni. Whilst suffocation may be committed in different ways, this is an offence of intimidation. It is a particularly serious example of intimidation due to the fact that after breaking down the bedroom door, the offender threw the victim onto the floor and placed one hand over her mouth and used the other hand to pinch her nose. Her screams and struggles are evidence of the victim's extreme fear. The context of domestic violence and location of the offence in the victim's bedroom aggravate the offence. The offender's post-offence conduct in telling the victim not to say anything to police does make the offending more serious, just as the Court has recognised in other cases that the objective gravity of a sexual assault offence is rendered more serious if the offender directs the victim not to tell anyone about it, particularly in the context of child sexual assault offences. As this post-offence behaviour is entirely in the same context as the offender putting his hand over the victim's mouth to stop her screaming, the post-offence conduct does not add to the objective gravity in a significant way, but is still taken into account. For all of the reasons identified, this intimidation offence falls in its objective gravity well above the mid-range and towards the upper range.
The sentencing judge specified an indicative sentence of 3 years' imprisonment.

Submissions

The applicant submitted that a sentencing judge ought to make careful findings, where the potential for De Simoni error is manifest, to demonstrate that such has not occurred: The factual findings on sentence may demonstrate De Simoni error inferentially even where the elements of the more serious offence are not specifically referred to. The applicant submitted that simply asserting that such has not occurred, or that the De Simoni principle has been adhered to, will generally be insufficient where the facts otherwise found are consistent with the commission of a more serious offence. Reference was made in particular to R v Esho [2001] NSWCCA 415 (Esho) at [160].
The applicant submitted that the practical effect of the factual findings on sentence appears to support a conclusion that the applicant had suffocated or had attempted to suffocate the complainant for a period or, alternatively, had rendered or had attempted to render her incapable of resistance in circumstances where the intended offence was that with which he was charged, that is, intimidation.
The applicant submitted that the charged offence required proof that the applicant intended, or at least knew, that his conduct was likely to cause fear of physical or mental harm in the complainant. On the other hand, an offence contrary to s 37 of the Crimes Act required proof of an intention to commit an indictable offence. Section 13(1) of the CDPV Act is an indictable offence. The applicant submitted that a finding ought to have been clearly made to the effect that the applicant was being sentenced on the basis that he knew his conduct was likely to cause the complainant to fear, but not on the basis that he had intended to do so.
The applicant submitted that a similar problem attends count 11. Although this was charged as an act of intimidation, on the findings made, the applicant was being sentenced on the basis of conduct constituting the more serious offence contrary to s 37 of the Crimes Act. The applicant submitted that, again, the reasons did not demonstrate how that was achieved.

Determination

As the ROS clearly demonstrate, the sentencing judge was aware of the De Simoni principle in relation to both counts 3 and 11. The issue had been raised by the solicitor advocate for the Crown at the sentence proceedings and the following discussion ensued: Her Honour: Is there anything else either party wishes to advance? MAXWELL-WILLIAMS: Your Honour, very briefly, and it is set out in my written submissions, but my friend raised it. I just wanted to clarify that the Crown doesn't submit that the offender should be sentenced on any other basis for counts 3 and 11 other than the fact that they are charges of intimidation. The offending conduct is, however, choking and suffocation. HER HONOUR: Well, it's not Desimone [sic] because back then there wasn't a choking or suffocation offence. MAXWELL-WILLIAMS: There was, but it was worded in a way that was very difficult to prosecute. It required proof of rendering of being capable of resisting and doing so with intent to commit an indictable offence. That's off the top of my head. HER HONOUR: But the Crown hasn't relied on evidence that would bring that offence into Desimone [sic] territory? MAXWELL-WILLIAMS: No, your Honour. No, your Honour. HER HONOUR: You say it's not a breach of Desimone [sic] to regard the fact of choking or suffocation as rendering that type of offence at the upper end? MAXWELL-WILLIAMS: Yes, thank you, your Honour. HER HONOUR: Okay.
The sentencing judge subsequently asked counsel for the applicant if there was anything further he wished to say. Although counsel did not directly address the De Simoni principle, he said this: Anyway, your Honour would be much more circumspect on any consideration of death or otherwise in terms of choking. The s 37 itself makes it perfectly clear that there are levels of choking, and you've got three different, as it were, offences, with three different levels of penalty.
It is perfectly clear, however, that counsel there was addressing count 26 which was the offence contrary to s 37(1A) of the Crimes Act. Further, nothing had been said in submissions on behalf of the applicant either in writing or orally in relation to the De Simoni principle and counts 3 and 11.
It is difficult to see how the sentencing judge could have more clearly indicated that she was conscious of the De Simoni principle and that she was careful to sentence the applicant for the offence of intimidation and not a more serious offence that had not been charged in relation to that count. Nothing in Esho at [160] assists the applicant; indeed what is said there provides support for the way the sentencing judge dealt with the problem.
In that case, Simpson J (as her Honour then was) (Spigelman CJ and Smart AJ agreeing) said at [160]: The next two matters raised on behalf of Esho concerned Abadee J's evaluation of the gravity of his conduct. The first of these challenges the finding that his conduct should be categorised as falling within the worst class of case. The second challenges the conclusion that the finding that Esho's liability was accessorial, not direct, did not diminish his culpability. In considering the first of these matters it is necessary carefully to avoid classifying the s 35 offence as, in reality, a s 33 offence - that is, an offence committed with an intention to cause grievous bodily harm. The potential for De Simoni error is manifest. However, Abadee J carefully, and on more than one occasion, reminded himself that he was not sentencing for an offence that involved the element of specific intent; at the same time, he recognised that malice was an element of the offence proved. This court needs to take the same care, but, nevertheless, it is entitled to have regard to what Abadee J described as "the ferocity" of the attack that constituted the second phase. This was a circumstance in which a large number of young men surrounded Constable Carty, who had already been stabbed fatally, who was lying defenceless on the ground, and who was repeatedly kicked and stomped upon with such force as to cause the injuries earlier described. While I recognise the difficulty in approaching this question on the basis that there was no intention to inflict grievous bodily harm, I am nevertheless satisfied that the offence may properly be characterised as a worst case scenario: that is, a worst case under s 35. The sheer number of participants is a significant factor in this regard. I am satisfied that concluding that this was a worst case example of an s 35 offence does not fall foul of De Simoni principle. There must, after all, be room for a "worst case" under s 35 without crossing the boundary of s 33. In my opinion Abadee J's finding that this was such a case was open to him and is not vulnerable to the challenge now made.
The sentencing judge in the present case took into account all aspects of the acts constituting the intimidation, including the suffocation, without concluding that there was any intention on the part of the applicant to suffocate the complainant. Her Honour noted, however, the complainant's screams and struggling which manifested her extreme fear, from which it was clear that the applicant was being sentenced on the basis that he knew his conduct was likely to cause fear. Further, as in Esho, the sentencing judge referred on more than one occasion to the fact that she was not sentencing for the more serious offence.
There was no error, however, in her Honour determining that the objective gravity of the offence was high because the offence involved behaviour that could be said to amount to suffocation. So much was conceded in the submission made by counsel for the applicant in both his written and oral submissions. In addition, the objective seriousness was increased by the applicant telling the complainant not to say anything to the police, as the sentencing judge noted.
When the sentencing judge came to deal with count 11, her Honour expressly referred again to what she had said in relation to count 3 about being careful not to breach the principle in De Simoni.
In our opinion, the findings made by the sentencing judge did not result in her sentencing for a more serious offence for counts 3 and 11, and her Honour's reasons were entirely sufficient to make clear the approach she took in that regard.
These grounds should be rejected.

Ground 8 Ground 8: The trial judge erred in her determination as to the objective seriousness of count 34.

It is convenient to deal first with ground 8 because that determination is likely to assist in that part of the determination of ground 7 that involves count 34.

The offending

Count 34 (see above) was a charge of common assault for which the maximum penalty is 2 years' imprisonment. It was also the fourth of four counts said to constitute episode 16 in the history of the offending (those other counts were counts 31-33).

Sentencing remarks

The sentencing judge noted that the Crown submitted that the count 34 offence fell at the mid-range of objective seriousness. The Crown submitted that the offence was highly distressing to the complainant and was made serious by having been committed in the doorway of the complainant's home, in front of her two children and in the context of domestic violence of a persistent nature. The applicant submitted to the sentencing judge that the court would bear in mind that the offence occurred in a course of conduct.
The sentencing judge assessed the offence as falling at the mid-range of objective seriousness.

Submissions

The applicant submitted in this Court that, even accepting the context was a domestic one and the latitude afforded to sentencing judges in their determination as to objective seriousness, it was not open to the trial judge to find that this offence fell at the mid-range, particularly having regard to what the applicant actually did.
The Crown submitted that count 34 was the last offence committed by the applicant against the complainant after years of domestic violence. It was committed in front of the children, at the complainant's home, and the distress experienced by the complainant was shown on the BWV footage taken by the police.

Determination

In Salafia v R [2015] NSWCCA 141 Wilson J (with whom Hoeben CJ at CL and Hall agreed) said: 89. In Ali v R [2010] NSWCCA 35, this Court said at [33]: "This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R, at [37], [46]-[47]." 90 A ground of appeal asserting error in the assessment of objective seriousness should be advanced only where specific error of the sort referred to in House v The King can be identified rather than, as seems to be commonly the case, a complaint routinely made. Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively "correct" answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment. 91 The ubiquity of a ground of appeal such as this does not suggest that the breadth of the discretion is well understood or, if it is, that it is properly acknowledged.
The sentencing judge had the very considerable advantage of having presided over the trial of the applicant who was charged and convicted of a large number of offences, many of which were offences of common assault. The sentencing judge was therefore well able to compare the relative seriousness of a number of different assaults perpetrated on the complainant by the applicant.
The offence constituting count 34 was not the first time the applicant had assaulted the complainant. It was, in fact, part of the final episode of intimidation and violence inflicted upon the complainant by the applicant, following nine years of domestic violence. The fact that it occurred at the complainant's home and in front of the children were both aggravating factors. The assault was far more serious than some of the previous assaults including the two others committed in this final episode. The assault involved the applicant jamming the complainant in the door, having just threatened to throw her off the balcony he was preventing her from leaving. The extent of the complainant's distress from the episode including count 34 can be seen in the police BWV which was Exhibit P.
For all of these reasons, it cannot be concluded that it was not open to the sentencing judge properly to conclude that the offence fell within the mid-range.

Ground 7 Ground 7: The aggregate sentence imposed for counts 3, 7, 9, 11, 16, 23, 26, 27, 33 and 34 is manifestly excessive.

Ground 7 of the appeal is that that aggregate sentence was manifestly excessive. The ground appeared to be put on two bases. First, the indicative sentences for the individual counts were themselves manifestly excessive. Secondly, independently of the indicative sentences, the aggregate sentence was manifestly excessive when the whole of the criminality was taken into account. That may have been because the notional accumulation was said to be too great, although the matter was not argued on that basis. To deal with the first of the bases, it will be convenient to refer to the individual counts for which that aggregate sentence was imposed and the indicative sentences for each such count.

Count 3

Count 3 was the offence of intimidation contrary to s 13(1) of the CDVP Act. The circumstances of the offending and the sentencing judge's assessment of its seriousness has been set out above. The indicative sentence was 2 years 6 months.

Count 7

Count 7 was the offence of common assault, and it formed part of what the sentencing judge described as episode 4, consisting of two common assaults and one count of intimidation. The sentencing judge indicated a sentence of 9 months for that common assault.

Counts 9 and 11:

Count 9 was an assault occasioning actual bodily harm. It was part of what the sentencing judge described as episode 5, involving count 10 (damage to property) and count 11 (intimidation). It occurred on 2 November 2013. The sentencing judge indicated a sentence of 18 months for count 9 and 3 years for count 11.

Count 16

Count 16 (the offence of intimidation) formed part of episode 7 on 26 January 2016.
The sentencing judge assessed the intimidation offences falling well above the mid-range of objective gravity by reason of the way the applicant used the car in an extremely dangerous way. The sentencing judge said that the presence of the child in the car was an aggravating feature and the threat to remove the child from the complainant was an example of the applicant using the children to manipulate and control the complainant. The sentencing judge held that the very dangerous act caused the complainant to fear she would be crushed between the car and the gate. The sentencing judge indicated a sentence of 18 months' imprisonment.

Count 23

This was the offence of choke and render incapable of assistance contrary to s 37(1) of the Crimes Act. This was the most serious offence with which the applicant was charged. The offending occurred on 30 January 2018. The Exhibit G photographs show bruising and marking around the complainant's neck.
The sentencing judge said that the offence was a serious one and that the objective gravity fell well within the mid-range. Her Honour was careful not to breach the De Simoni principle by taking into account any aggravating factor that would render the applicant liable for an offence under s 37(2), but her Honour observed that being rendered incapable of resistance might in the circumstances elevate the terror of the complainant.
Her Honour indicated a sentence of 4 years 6 months' imprisonment.

Counts 26 and 27

These were both offences of intimidation and formed part of what the sentencing judge described as episode 13, consisting also of count 24 of common assault, and count 25 of common assault in respect of which the applicant was found not guilty. The offences occurred on 14 July 2019.
The sentencing judge found that count 26, by reason of the combination of all of the circumstances, fell well above the mid-range of objective seriousness. Her Honour indicated a sentence of 3 years' imprisonment. For the offence constituting count 27, the sentencing judge found that it fell within the mid-range of objective gravity and indicated a sentence of 12 months' imprisonment.

Counts 33 and 34

The facts of these offences constituting, with counts 31 and 32, episode 16, have been set out above. Her Honour found that both offences fell at the mid-range of objective gravity and, for reasons given earlier, there was no error on her Honour's part in respect of count 34 in that regard. No challenge is made to the finding of objective gravity for count 33.
Her Honour indicated a sentence of 12 months' imprisonment for count 33 and 9 months for count 34.
A table setting out the counts, the charges, the maximum sentences, the objective seriousness and the indicative sentences, is set out below for convenience: Count Charge Maximum Objective seriousness Indicative 3 Intimidation s 13(1) CDPVA 5 years Well above mid-range and towards upper range 2 years 6 months 1 Feb 2013 to 15 March 2013 7 Common assault s 61 CA 2 years Mid-range 9 months 30 March 2013 to 2 April 2013 9 Assault occ/ ABH s 59 CA 5 years Mid-range 18 months 20 Nov 2013 to 24 Nov 2013 11 Intimidation s 13(1) CDPVA 5 years Well above mid-range and towards upper range 3 years 20 Nov 2013 to 24 Nov 2013 16 Intimidation s 13(1) CDPVA 5 years Well above mid-range 18 months 26 Jan 2016 23 Intentionally choke render incapable of resistance s 37(1) CA 10 years Well within mid-range 4 years 6 months 30 Jan 2016 26 Intentionally choke s 37(1A) CA 5 years Well above mid-range 3 years 14 July 2019 27 Intimidation s 13(1) CDPVA 5 years Mid-range 12 months 14 July 2019 33 Intimidation s 13(1) CDPVA 5 years Mid-range 12 months 29 August 2020 34 Common assault s 61 CA 2 years Mid-range 9 months 29 August 2020

Submissions

The applicant submitted regarding counts 3 and 11, that the sentencing judge found that the objective gravity of count 3 was well above mid-range towards the upper range for the offence, but also found that it was objectively the most serious offence of intimidation before the Court in the proceedings. Count 11 was described in almost identical terms as being well above the mid-range and towards the upper range, but the applicant submitted that count 3 had already been described as the most serious offence of intimidation. The applicant submitted that it was difficult to understand how an indicative sentence of 3 years was reached in relation to count 11 when count 3 (described as the most serious), had an indicative sentence of 2 years and 6 months.
In relation to counts 3 and 11, the Crown submitted that what was asserted by the applicant to be a finding by the sentencing judge (that count 3 was "objectively the most serious offence of intimidation before the court in the instant matter") was in fact a submission made on behalf of the applicant. The Crown submitted that her Honour's assessment was that the objective gravity fell well above the mid-range. The Crown submitted that the sentencing judge's finding in relation to count 11 was that the offence fell well above the mid-range and towards the upper range. In that way, an indicative sentence of 3 years for count 11 (6 months higher than that indicated for count 3) was entirely explicable.
In relation to count 7 (slapping the complainant across the face causing her to fall onto the bed), although the sentencing judge found that the offence fell at the mid-range, the applicant submitted that the s 5 threshold was not crossed in relation to that offending. Further, it was submitted that an indicative sentence of 9 months was excessive.
In relation to count 7, the Crown submitted that the finding that the slap to the complainant's face had enough force to knock her to the bed entirely justified the finding that the offence fell at the mid-range. In the circumstances, an indicative sentence of 9 months on a maximum sentence of 2 years could not be said to be excessive.
In relation to count 23, the sentencing judge found that the offence fell well within the mid-range. The applicant submitted that an indicative sentence of 4 years and 6 months where the statutory maximum was 10 years suggested that little if any weight was attributed to other sentencing considerations, including the subjective circumstances of the applicant.
In relation to count 23, the Crown submitted that an indicative sentence of 4 years and 6 months for an offence found well within the mid-range, where the maximum penalty was 10 years, was within the broad range available to the sentencing judge.
In relation to count 27, the applicant submitted that the threat, which was a qualified threat ("If I was going to choke you… If I was going to hurt you…") was not dissimilar to the threats constituting counts 14 and 15 where the applicant threatened in the same way, saying, "If I could, I would throw you off the balcony". Counts 14 and 15 were punished by community correction orders whereas count 27 was held to have crossed the s 5 threshold and a sentence of 12 months' imprisonment was indicated.
In relation to count 27, the Crown submitted that this offence occurred in the same episode as counts 24-26. Count 26 involved the applicant putting his hand over the complainant's mouth and nose so that she could not breathe. The threats that constituted the offence in count 27 had to be seen in that context, being described by the sentencing judge as a "chilling threat to the victim" in the context of counts 24 and 26. A determination that the offence fell within the mid-range of objective gravity entirely justified an indicative sentence of 12 months' imprisonment.
In relation to counts 33 and 34, the applicant submitted that the Crown did not submit to the sentencing judge that those counts crossed the s 5 threshold as the trial judge ultimately found. Whilst accepting that the sentencing judge was not precluded from adopting a different position from that of the Crown, the applicant submitted that it was difficult to see how a sentence of imprisonment was the only appropriate outcome for these offences. In that regard count 33 was a similar threat to what was made that constituted counts 14, 15 and 27, even though it was not qualified by "If I could" or "If I was going to". The challenge to count 34 particularly related to the assessment of its objective seriousness which has been determined against the applicant.
In relation to counts 33 and 34, the Crown submitted that the findings of mid-range of objective gravity for the threat and the assault by jamming the complainant in the door were open to the sentencing judge, particularly when seen in the context of the two earlier assaults that occurred in the same episode. In that way, the indicative sentences of 12 months and 9 months respectively were not excessive.
The applicant submitted that the aggregate sentence was manifestly excessive, first by examining the indicative sentences for the specified counts, and secondly, by asserting that the aggregate sentence in any event was manifestly excessive. The applicant accepted that, given the number of offences and the circumstances, it is not possible to identify any meaningful comparative cases so as to establish a range.
The Crown submitted that the aggregate sentence was not manifestly excessive, considering the number of offences, the period over which they were committed, the seriousness of a number of the offences, that they involved domestic violence and coercive control, the harm done to the complainant, particularly as evidenced in her Victim Impact Statement, and the significance of general deterrence and denunciation.

Determination

In XY (A Pseudonym) v R [2023] NSWCCA 50 Wright J (Kirk JA and Harrison J agreeing) summarised the principles applying to a ground alleging manifest excess in the context of an aggregate sentence as follows: 65 The principles relating to manifest excess are well established and were recently summarised by Bell P (as the Chief Justice then was) with Gleeson JA agreeing in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (He v Sun) at [41]-[42]. It is not necessary to repeat here all of what was said there. It is sufficient to observe that intervention by this Court on a ground that a sentence is manifestly excessive is only warranted where it can be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. Generally, for an applicant to succeed on a ground asserting manifest excess, it must be established that the sentence was unreasonable or plainly unjust. 66 Where an aggregate sentence is imposed, as in this case, the operative sentence is the aggregate sentence and it is this sentence which must be shown to be manifestly excessive if an applicant is to succeed on such a ground of appeal. Indicative sentences are not themselves amenable to appeal but they may be a guide as to whether the aggregate sentence reflects error: Benn v R [2023] NSWCCA 24 (Benn) at [81] (Gleeson JA, N Adams and Ierace JJ agreeing) citing JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]. 67 In an appeal from an aggregate sentence on the ground of manifest excess, a principal focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved: Aryal at [49]-[50], citing JM v R at [14]. 68 As to reliance on sentencing statistics and previous cases, it is important to bear in mind that a history of sentencing can establish a range of sentences that have in fact been imposed but that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. Nonetheless, past sentences can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed or impugned sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) expressly approving Simpson J's comments in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]‑[305]. 69 Most importantly, however, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 (Wong) at [59] (Gaudron, Gummow and Hayne JJ). The "unifying principles" are to be discerned in light of the whole of the circumstances that have given rise to the past sentences that are being considered: Hili at [54].
In Kirby v R [2021] NSWCCA 162, Beech-Jones J (Harrison & Cavanagh JJ agreeing) said at [45]: In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; "JM") although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The ultimate question will be "whether [or not] the aggregate sentence reflects the totality of the criminality involved" (JM at [40]).
In relation to counts 3 and 11 and the relativity between them, a reading of the ROS makes clear that, when the sentencing judge said "It is objectively the most serious offence of intimidation before the Court in the instant matter", the sentencing judge was repeating what appeared in the written submissions provided to her on behalf of the applicant. In those written submissions under the heading "The Suffocation Offences" the following appears: Count 3 is significantly aggravated by the use of tape and a plastic bag. That it is charged as an offence of intimidation causes some difficulty in placing it on the scale of objective seriousness. It is objectively the most serious offence of intimidation before the Court in the instant matter, but the Offender must be sentenced for the Offence of Intimidation. [emphasis added]
After her Honour had quoted from the applicant's submissions, her Honour went on in the following paragraph commencing "In the Court's assessment" to determine that the objective gravity was well above the mid-range towards the upper range.
In those circumstances, there is no basis to the applicant's complaint about the relative indicative sentences for counts 3 and 11. It was certainly not unreasonable that the indicative sentence for count 11, being the second offence involving similar suffocation behaviour, should carry a slightly increased sentence.
In relation to count 7 the sentencing judge assessed the objective gravity at the mid-range, and there is no challenge to that assessment. An indicative sentence of 9 months imprisonment on a maximum sentence of 2 years' imprisonment was open to the sentencing judge, even in circumstances where an offender had a strong subjective case.
It could not be concluded that the applicant had a strong subjective case. He had no prior criminal history, but there was nothing in his background and upbringing that could provide any explanation for the offending. The sentencing judge noted that he continued to deny the offending with the result that a finding of remorse could not be made. Whilst he started with good character, that diminished over the period of the offending. The sentencing judge found that there were circumstances that favoured his prospects of rehabilitation but those prospects were guarded for the reason of the repeated offending over a significant period and the unknown position as to the applicant's insight into the offences. Her Honour further found that his risk of reoffending was guarded.
Count 9 was an offence of assault occasioning actual bodily harm. It involved the applicant grabbing the complainant by the shoulder and head and ramming into the tiled wall. She was dazed and there was a laceration to her shoulder. The offence was found to fall at the mid-range and there is no challenge to that assessment. An indicative sentence of 18 months on a maximum sentence of 5 years in the context of a more prolonged episode of domestic violence involving other counts (counts 10 and 11) cannot be considered as excessive as being outside the appropriate range for the sentence.
Although count 16 was one of the counts in respect of which an aggregate sentence was imposed, no submissions were made in relation to the indicative sentence for count 16. It was assessed by the sentencing judge at well above the mid-range, and a sentence of 18 months was indicated. In the circumstances of the offending, the indicative sentence can only be seen as lenient.
In relation to count 23 the sentencing judge found that the objective gravity fell within the mid-range. There was no challenge to that assessment. An indicative sentence of 4 years and 6 months where the statutory maximum was 10 years is not outside the broad range available to the sentencing judge, particularly when there was nothing in the applicant's subjective case which could mitigate the sentence to any significant degree.
In relation to count 27, the point made by the applicant is that the threats made that constituted this count were no different from those that constituted counts 14 and 15, and those offences were punished by community correction orders. That is to ignore, however, the context of the threat constituting count 27. The threats constituting counts 14 and 15 occurred, first, just after the time that the applicant had kicked the complainant out of bed, and secondly, at a time later that evening, referring back to what he had earlier said. By contrast, at the time of the threat in count 27, the applicant had intentionally suffocated the complainant whilst he said that he would stop her breathing. The threat that was subsequently made, constituting count 27, made reference to the fact that he had just intentionally suffocated her, and was likely for that reason to have significantly increased the complainant's fear that he would do it again.
The sentencing judge found that the choking offence was well above the mid-range of objective seriousness. There was no challenge to that assessment, nor to the assessment that count 27 fell at the mid-range.
The circumstances in which the offence constituting count 27 was committed meant that it was entirely open to the sentencing judge to consider that the s 5 threshold had been crossed. Further, an indicative sentence of 12 months' imprisonment on a maximum penalty of 5 years where the offence was found to fall at the mid-range, could be considered a lenient sentence.
In relation to counts 33 and 34, the complaint made was similar to that in relation to count 27, namely that the threats were similar to those in counts 14 and 15 which were found not to exceed the s 5 threshold. Again, the context of the threats must be considered. At the time the threats in count 33 were made, the applicant and the complainant were on the balcony and the applicant had already assaulted the complainant on the balcony by pushing her. A threat to throw her off the balcony in those circumstances would have engendered much more fear and concern than a similar threat made when the parties were in the bedroom or another room of the house as they were for counts 14 and 15. The sentencing judge found that count 33 fell within the mid-range of objective gravity and there is no challenge to that assessment.
In our opinion, the applicant's challenge on the basis of the indicative sentences for the specified counts fails for the reasons given.
In our opinion, the aggregate sentence of 10 years with a non-parole period of 6 years, whilst a stern sentence, is not manifestly excessive. The offending involved domestic violence over a nine year period. Two of the offences were suffocating or choking offences contrary to s 37 of the Crimes Act, 15 of the offences were intimidation offences contrary to the CDPV Act, two of which involved acts of suffocation, and a number of other offences of common assault. The applicant received a generous adjustment to the statutory ratio from 75% to 60%. The aggregate sentence is not plainly unjust.

Conclusion

In our opinion the following orders should be made: 1. In relation to the conviction appeal: 1. Leave is refused in relation to each of the grounds of appeal. 2. Dismiss the appeal. 1. In relation to the sentence appeal: 1. Grant leave to appeal. 2. Dismiss the appeal.

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: 15 December 2023

Crimes Act 1900(NSW)ss 37, 59, 61, 308

Evidence Act 1995(NSW)ss 38, 43, 44, 55, 56, 76, 137, 138, 192

A 15 Glennon v The Queen (1994) 179 CLR 1; [1994] HCA 7 Hamilton (a pseudonym) v R [2020] NSWCCA 80 Hanna v R [2022] NSWCCA 7 Hilton v Legal Profession Admission Board [2017] NSWCA 232 IW v R [2019] NSWCCA 311 James v The Queen [2014] HCA 6 Kapanadze v The Queen [2017] NSWCCA 69 Kirby v R [2021] NSWCCA 162 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 McIlwraith v R [2020] NSWCCA 274 Nudd v The Queen [2006] HCA 9 Osolin v R (1993) 86 CCC (3d) 481 Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93; (2017) 319 FLR 228 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 Poniris v R [2014] NSWCCA 100 R v Esho [2001] NSWCCA 415 R v Miletic [1997] 1 VR 593 Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429 Salafia v R [2015] NSWCCA 141 Severino v The Queen [2017] NSWCCA 80 Stack v Western Australia [2004] WASCA 300 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tsiakas v R [2015] NSWCCA 187 XY (A Pseudonym) v R [2023] NSWCCA 50 Category: Principal judgment Parties: George Habambo (Applicant) Rex (Respondent) Representation: Counsel: S Holt KC with D McMahon (Applicant) G Newton SC (Respondent)

Conviction appeal: (1) Grounds 1, 1A and 2: The text messages constituting Exhibit C were both admissible and relevant in circumstances where there was a dispute raised as to the complaint made by the complainant to Ms Harb (the Court at [222]). The messages were relied upon as relevant to Ms Harb's credibility in respect of her evidence that all the complainant had told her was that the applicant had forcefully pushed her (the Court at [223]). The trial judge was not required to intervene to reject the evidence (the Court at [227]), nor had there been a miscarriage of justice due to defence counsel's failure to object to the admission of Exhibit C (the Court at [232]-[233]). FDP v R [2008] NSWCCA 317; Hanna v R [2022] NSWCCA 7; Tsiakias v R [2015] NSWCCA 187 applied. (2) Grounds 3, 3A and 4: While there was some confusion or overlapping of the objections made in relation to defence counsel's cross-examination as to the Exhibit 11 messages, defence counsel was permitted to cross-examine on the topics raised by the messages, and did not seek to recall the witnesses for further cross-examination once those messages had been admitted, for which there must have been a forensic decision (the Court at [292]). The trial judge's concern as to the provenance of the text messages was appropriate, and defence counsel's decision not to forewarn the Crown or the complainant of the Exhibit 11 messages was clearly a forensic decision; as such it cannot be said that there was not a rational forensic decision open to defence counsel not to seek an earlier ruling as to the admissibility of the messages (the Court at [296]).

Sentence appeal: (3) Grounds 5 and 6: The Remarks on Sentence demonstrate that the sentencing judge was aware of the De Simoni principle; and was careful to sentence the applicant for the offences of which he had been convicted, and not of a more serious offence which had not been charged (the Court at [316], [319]). There was no error in the sentencing judge determining that the objective gravity of the offence was high because the offence involved behaviour that could be said to amount to suffocation, and because the applicant told the complainant not to say anything to the police (the Court at [322]). The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31; R v Esho [2001] NSWCCA 415 considered. (4) Ground 8: The offending constituting count 34 was far more serious that some of the previous assaults: it was part of the final episode of intimidation and violence inflicted on the complainant following nine years of domestic violence; it occurred at the complainant's home in front of their children; and it involved the applicant jamming the complainant in the door, having threatened to throw her off the balcony (the Court at [334]). The sentencing judge had the very considerable advantage of having presided over the trial, and was able to compare the relative seriousness of a number of different assaults; it cannot be concluded that the sentencing judge erred in determining the objective seriousness of count 34 (the Court at [333], [335]). Salafia v R [2015] NSWCCA 141 applied. (5) Ground 7: The applicant's complaints as to the indicative sentences of counts 3, 11, 27 and 33 had not been made out, having regard to the overall pattern of behaviours and the context surrounding each incident (the Court at [367], [373] and [376]). Given the nine-year period of offending and the seriousness of the offences, the aggregate sentence, while stern, was not manifestly excessive (the Court at [378]). XY (A Pseudonym) v R [2023] NSWCCA 50; Kirby v R [2021] NSWCCA 162 considered.

JUDGMENT

THE COURT: On 6 October 2022, the applicant (George Habambo) was convicted, following a jury trial in the District Court before Culver DCJ, on a large number of counts relating to domestic violence offences against his former wife (Ann-Marie Habambo). The offences included acts of assault, intimidation, damaging property, choking and suffocation. Of the 34 counts on the indictment, the applicant was convicted on 28 counts (all other than counts 1, 4, 12, 22, 25 and 29). The Crown then made a detention application pursuant to s 22B of the Bail Act 2013 (NSW) and the applicant was bail refused.
On 17 February 2023, the applicant was sentenced in relation to counts 3, 7, 9, 11, 16, 23, 26, 27, 33 and 34 to a total aggregate sentence of 10 years imprisonment with a non-parole period of 6 years pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), that sentence commencing on 4 October 2022.
As to the remaining counts, a 2 year conditional release order was imposed in relation to counts 6, 21, 28 and 30 and a 3 year community correction order was imposed in relation to counts 2, 5, 8, 10, 13, 14, 15, 17, 18, 19, 20, 24, 31 and 32. Both community based orders commenced on 17 February 2023.
The applicant now appeals (and, where necessary, seeks leave to appeal) both in relation to conviction and in relation to the aggregate sentence imposed on him, pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). Leave is required for both the sentence appeal and for those grounds of the conviction appeal that involve determinations of fact (see s 5(1)(b)-(c) of the Criminal Appeal Act; Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 at [2] (Basten JA, Latham and Rothman JJ agreeing); Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] (Basten JA, Latham J agreeing); [68]-[71] (Rothman J)).
As to certain of the grounds raised in the conviction appeal (grounds 1, 2, 3 and 4), leave is also required pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules), as no objection was taken by defence counsel during the trial to the matters about which complaint is now made (the admission of Exhibit C - grounds 1 and 2; and the manner in which the admissibility of Exhibit 11 was dealt with - grounds 3 and 4).
In supplementary submissions, the applicant sought to raise further grounds of appeal, being grounds 1A, 3A, 9 and 10. Grounds 9 and 10 were abandoned shortly before the hearing of the appeal.

(2021) 104 NSWLR 518

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