[1992] HCA 57
Duncan v R [2023] NSWCCA 223
Gould v Director of Public Prosecutions (Cth) (1992) 359 ALR 142
[2018] NSWCCA 109
Jafary v R [2018] NSWCCA 243
JL v R [2023] NSWCCA 99
M v The Queen (1994) 181 CLR 487
[1994] HCA 63
Mahmood v Western Australia (2008) 232 CLR 397
[2008] HCA 1
Marwan v Director of Public Prosecutions [2019] NSWCCA 161
McKenzie v R (1996) 190 CLR 348
Source
Original judgment source is linked above.
Catchwords
[1992] HCA 57
Duncan v R [2023] NSWCCA 223
Gould v Director of Public Prosecutions (Cth) (1992) 359 ALR 142[2018] NSWCCA 109
Jafary v R [2018] NSWCCA 243
JL v R [2023] NSWCCA 99
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Mahmood v Western Australia (2008) 232 CLR 397[2008] HCA 1
Marwan v Director of Public Prosecutions [2019] NSWCCA 161
McKenzie v R (1996) 190 CLR 348[1996] HCA 35 MFA v The Queen (2002) 213 CLR 606[2002] HCA 53
Nguyen v R [2021] NSWCCA 85
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
Penney v The Queen [1998] HCA 5172 ALJR 1316
R v Baden-Clay (2016) 258 CLR 308[2016] HCA 53
R v Kneebone (1999) 47 NSWLR 450[1999] NSWCCA 279
R v Markuleski (2001) 52 NSWLR 82[2001] NSWCCA 290
Reed v R [2006] NSWCCA 314
Richardson v The Queen (1974) 131 CLR 116[1974] HCA 19
S v The Queen (1989) 168 CLR 266[1989] HCA 66
The Queen v Apostilides (1984) 154 CLR 563[1984] HCA 38
Whitehorn v The Queen (1983) 152 CLR 657
Judgment (12 paragraphs)
[1]
JUDGMENT
BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Wilson J. I agree with her Honour's reasons in relation to all the grounds. In particular, in relation to grounds 1 and 2 and having reviewed the record of the trial, I am satisfied there is not "a significant possibility that an innocent person has been convicted" (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494). I agree with the orders proposed by Wilson J.
WILSON J: The applicant, anonymised in this judgment as "HO" to protect the statutory right to privacy of the complainant and her children, stood trial in the District Court at Sydney before his Honour Judge Frearson SC and a jury of twelve, from 20 May 2019 to 12 July 2019, indicted for multiple sexual and physical assaults. At the conclusion of the applicant's trial the jury returned verdicts of guilty to eight of the fifteen offences charged against him. An aggregate term of imprisonment of 12 years and 6 months imprisonment with a non-parole period of 8 years and 4 months was later imposed upon him.
By Notice filed on 7 February 2023, well out of time, the applicant seeks an extension of time and leave to appeal against conviction with respect to the eight offences of which he was found guilty. There is no application for leave to appeal against sentence.
The applicant advanced three proposed grounds of appeal, in terms that were amended with leave at the hearing of the application on 19 July 2023, as follows:
"1. The verdict and decision of the jury in the trial proceedings below was unsatisfactory and was uncertain;
2. The verdict and decision of the jury is incapable of being supported by the evidence or the weight of the evidence;
3. The trial miscarried in that the trial judge misdirected himself in the circumstances in which he permitted the matter to proceed to trial, where the allegations at the trial had not been properly investigated and where any reference to the person [Mr AS] was excluded from the trial."
The proposed grounds 1 and 2 raise the same complaint, differently expressed, that is provided for in what is sometimes described as "the first limb" of s 6(1) of the Criminal Appeal Act 1912 (NSW), "that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence". Those grounds will be dealt with last. Ground 3 raises a complaint as to wrong decisions of law, referring to the second limb of s 6(1) of the Criminal Appeal Act.
Although it will be necessary to consider the evidence in some detail to determine grounds 1 and 2, it is useful at an early stage to set out the broad nature of the charges against the applicant. The complainant in each instance is the applicant's former wife; the offences of which the applicant was convicted took place over a period of 10 years from 2001 to 2011, when he and the complainant were married. The charges on the indictment to which verdicts of guilty were returned, all of which are offences contrary to the Crimes Act 1900 (NSW), are as follows:
Count Offence Particulars
1 Assault occasioning actual bodily harm Kicking the complainant's toe causing a toenail to dislodge and bleed
s 59 Crimes Act 9 October 2001 at Sydney
4 Sexual intercourse without consent Oral penile penetration
s 61I Crimes Act Between 26 November 2002 and 31 December 2004 at Sydney
7 Aggravated sexual intercourse without consent (inflict actual bodily harm) Penetration of anus with a metal belt buckle
s 61J(1) Crimes Act Between 26 November 2004 and 26 June 2007 at Chester Hill
8 Sexual intercourse without consent Penetration of anus with the handle of razor blade
s 61I Crimes Act Between 1 January 2006 and 9 April 2008 at Chester Hill
9 Aggravated sexual intercourse without consent (inflict actual bodily harm) Penetration of anus with a cucumber
s 61J(1) Crimes Act Between 1 January 2006 and 9 April 2008 at Chester Hill
13 Indecent assault Rubbing anus with penis with a sock in the complainant's mouth
s 61L Crimes Act Between 1 January 2008 and 9 April 2008 at Chester Hill
14 Indecent assault Whipping vagina and anus with a belt
s 61L Crimes Act Between 1 January 2008 and 9 April 2008 at Chester Hill
15 Common assault Placing pillow over the complainant's head and holding it down
s 61 Crimes Act Between 1 January 2011 and 31 January 2011 at Chester Hill
[2]
The applicant disputed that the physical assaults alleged had occurred and, with respect to the sexual assaults, disputed the occurrence of such acts, or that any such acts took place without consent, or his knowledge of or recklessness to the absence of consent.
[3]
The Trial Proceedings
Prior to the empanelment of the jury on 29 May 2019 the trial judge heard and determined a number of pre-trial applications, one of relevance to ground 3. By Summons filed on 7 March 2019 the applicant sought orders including the following:
"A Declaration that the proceedings are (in so far as concerns the investigation and prosecution of them) constituted by a fundamental defect in the continued prosecution of them is an abuse of process, whereby in the event that the [applicant] was required to stand trial concerning them, it would bring the administration of justice into serious disrepute and thereby would cause the administration of justice to fall into public scandal, into public ridicule, and into contempt."
This oddly worded and rather overblown prayer for relief was accompanied by hundreds of pages of affidavits, telephone records, photographs, documents from the Family and Local Courts, police statements and other records, medical records, and voluminous other material. The applicant also provided a long list, by way of summary, of those things which it was said police had wrongly failed to investigate. Oral evidence was called on the application from the police officer in charge of the investigation, Detective Senior Constable ("DSC") Ashleigh McCudden, who deposed as to the steps taken to obtain statements from two witnesses nominated by the applicant as having relevant information, one of whom eventually - after refusing until immediately before the trial to do so - gave a statement (and was subsequently called in the Crown case).
The application was treated by the trial judge as an application for a temporary stay of the prosecution pending investigation of aspects of the matter that the applicant claimed were critical to his receipt of a fair trial. The application was determined by the trial judge on 24 May 2019 and dismissed. His Honour concluded that, insofar as there may be relevant evidence which did not form part of the Crown brief of evidence, the applicant had or was aware of all the material and, subject to the rules of evidence, could make such use of it at his trial as he saw fit. The applicant had not been able to identify, and nor could the trial judge discern, any significant forensic disadvantage or practical injustice in the matter proceeding to trial without further investigation by the prosecuting authorities. His Honour concluded:
"[…] the police investigation was a reasonable one and adequate having regard to the circumstances. […] the suggested deficiencies are not such as to give rise to any significant or real risk of any other than a fair trial, and I can see no utility at all in further delaying an old matter. I consider that would be an exercise in futility."
[4]
The Crown Case
The complainant, Ms Z, was the first witness called in the Crown case; she gave her evidence with the assistance of an interpreter. Her evidence in chief was taken on the first and second days of the trial, 29 May 2019 and 30 May 2019. Ms Z told the jury that she had met the applicant in 1996 in New Zealand when she was a teenager. The applicant was 11 years older. Some three or four months after meeting, the couple married in "the Islamic way". The following year a civil marriage ceremony in accordance with New Zealand law took place. The couple had three children, the first of whom was born in April 1999.
About six months after the child's birth the applicant left his wife and child in New Zealand and went to America, staying there for about 18 months. Ms Z visited her husband in America, discovering that he had been unfaithful to her. From about that time the marriage faltered, with the complainant expressing a desire to separate from the applicant. She returned to New Zealand, but the applicant persuaded her to travel to Jordan to meet him there. In Jordan, Ms Z agreed to continue in the marriage. She returned to New Zealand with her husband and son. The applicant re-located to Australia, with Ms Z joining him there soon after. Leaving her young son in New Zealand, she travelled to Sydney, arriving on 7 October 2001. The applicant was living in shared accommodation with two men and so Ms Z stayed in an hotel for the few days she remained in Australia.
On 9 October 2001 the couple went out for dinner. Ms Z was wearing open-toed shoes at the time. As the couple stood at the counter ordering their food Ms Z asked the applicant if he had been unfaithful to her. He responded aggressively, asking her, "Why are you asking me […] a stupid fucking question". He then kicked her, striking her bare big toe with his shoe, causing an injury that began to bleed. This conduct was reflected by count 1 of the indictment, the offence of assault occasioning actual bodily harm ("AOABH").
Ms Z told the jury that her toe immediately began to bleed, and the toenail "was moving". Ms Z went to St Vincent's Hospital for medical attention. The applicant accompanied her. Ms Z did not feel able to tell medical staff how she had sustained the injury to her toe, as she was frightened of the applicant. It was the applicant who spoke with hospital staff for Ms Z, giving a history and completing all necessary documentation.
[5]
The Applicant's Case
The applicant called Senior Constable ("SC") Brian Roberts who gave the jury an account of being called to the Hector Street property on the night of 6 November 2013 through telephone calls made by both the applicant and Ms Z, in that order. He said that the applicant told him that he had just returned from Dubai, but Ms Z would not permit him to enter the property. The applicant did not have keys to the house, stating he had left them inside the property. The officer understood from what was said that the couple had been married for 16 years but were "having issues" in the last three years. Ms Z told SC Roberts that she was frightened that the applicant would kill her if he was allowed into the house.
Zaynab Al Shamare gave evidence of a friendship with Ms Z. She said she had visited Ms Z and the applicant in Hector Street when they lived together there in 2014. She recalled their marriage ending late in 2014. Like Ms Saleh, Ms Al Shamare told the jury that Ms Z used to describe the sexual acts in which she engaged with the applicant, including a reference to the use of implements. The witness said that "every time" she spoke to the complainant Ms Z would "have a story" about these things. She could not, however, recall any of the words used or the details of the conversation, or the years in which they occurred.
Ms Al Shamare said that she received a subpoena from the applicant's solicitor to attend court in July 2018 [for an earlier trial listing that did not proceed to verdict] and later spoke with Ms Z about the subpoena, with Ms Z asking her to say, "I don't know anything, or to apologise" because, if Ms Al Shamare said anything, Ms Z could "go to gaol". In cross-examination she said she had received the subpoena and the next day, Ms Z had turned up at her house to talk to her about it. She did not take any steps to report what Ms Z said to her to the police, although she understood its seriousness. She agreed that her husband and the applicant were good friends, and they regularly went fishing together.
A number of witnesses were called to give evidence about attending various events, including "men-only condolences" held at Regents Park or Chester Hill to mark the death of a parent of the applicant, on dates in 2011 and 2013. Ms Z was said to be present or at least in the vicinity of these events.
The final witness in the applicant's case was Majeed Amin who had worked as a barber in a salon operated by the applicant during the period of his marriage. Mr Amin said he met the applicant's wife in 2012 when she came to the salon with her father and children so that their hair could be cut. Mr Amin saw her again in 2012 when she drove him to a supplier of hair products to collect some stock for the salon. On another occasion Mr Amin saw Ms Z at the salon when she came into the premises and asked to be directed to a bank. On that occasion, when the applicant was overseas, Mr Amin said Ms Z asked him to "help her take some of the properties belonging to" the applicant.
[6]
Ground 3
By Ground 3 the applicant complains that "the trial miscarried in that the trial judge misdirected himself in the circumstances in which he permitted the matter to proceed to trial, where the allegations at the trial had not been properly investigated and where any reference to the person [Mr AS] was excluded from the trial".
The complaint is twofold: it raises an error of law by the trial judge in refusing a stay of proceedings because of what is said to have been an inadequate police investigation; and an error of law in excluding evidence concerning Mr AS. These complaints will be addressed sequentially.
[7]
The Refusal of a Stay of Proceedings
This complaint relates to the refusal of the trial judge to stay the prosecution temporarily or conditionally, until such time as the matter was fully investigated. The application made to the trial judge was summarised by the applicant in this way:
"The Defendant, having provided an overwhelming level of assistance and information to the police from the day upon which he was charged and having given an ERISP interview on the first day that the allegations were raised with him, says that the material investigated, and that such information as he had provided has been used by the prosecuting authorities for the purpose of changing the version of the "facts" relied upon to fit with the information provided (to any extent possible). Material consistent with the proposition of innocence has been withheld from the Crown brief (by the police and prosecuting authorities). The defendant raises the concern that if the matter proceeds to trial with only half the evidence before the jury, that it runs the risk of a perverse verdict."
The applicant contended that the "whole of the evidence" pointed to "an elaborate story of fabrication" by the complainant and her and the applicant's eldest son, intended to result in the applicant's imprisonment. He referred to some of the material listed at [9] above as evidence that the Crown had either failed to investigate or failed to include as part of its case at trial, to assert that any trial would be impossibly unfair to the applicant. He gave partial names for six witnesses, such as "Hanan" and "Sabah", from whom he said the Crown had failed to obtain statements, breaching its duty to the applicant. Referring to the purported failure by the Crown to obtain and analyse telephone records, the applicant asserted that the Crown was obliged to "inspect the records with Mr [HO]" and "examine" him on the subject. He submitted to the trial judge that:
"The (unbelievable) refusal of prosecuting authorities to meet with Mr [HO] and to take a statement from him as to what emerges from the telephone records or to seek to ascertain the accuracy of those matters with him is telling as to mala fides and as to their improper conduct."
Notably, despite the use of language that bordered on the overwrought in his application for a temporary stay, the applicant never identified any prejudice to him that flowed from the way in which the complainant's allegations had been investigated by police, or which arose because of the way in which the Crown conducted its case. Similarly, at the hearing of the application for leave to appeal before this Court, the applicant could not point to any practical injustice or unfairness that had been occasioned to him because of the supposed failure of the police to fully investigate the matter. The highest Mr Hall, for the applicant, was able to put his argument was that, had the Crown investigated all the information provided to it by the applicant, the Director of Public Prosecutions might have decided not to proceed to trial against the applicant.
[8]
Evidence Concerning Mr AS
Mr AS was asserted to be the person to whom the complainant was married at the time of the trial. The applicant's complaint with respect to him, as part of ground 3, is that the trial judge erred in excluding "any reference to the person" [Mr AS] from the trial. That complaint is factually wrong and, insofar as it could be legitimately advanced, it is made contrary to law.
The complaint is derived from a question that the applicant put to Ms Z in cross-examination, which was rejected by the trial judge, as the question infringed s 293 of the Criminal Procedure Act 1986 (NSW), as it then was. [3] The following is recorded in the transcript of the trial proceedings for 11 June 2019:
"Q: You told police that you started a relationship with [Mr AS] in about 2014, is that correct?
CROWN PROSECUTOR: Your Honour, I object.
HIS HONOUR: Stop there. The jury can go out, thank you very much.
HALL: Your Honour, I'm not going to the subject-
HIS HONOUR: You've already gone to the subject. You've already gone to the subject."
The jury was sent out after this exchange, and discussion between the Bench and Bar Table continued.
"HIS HONOUR: It's a 293 matter.
HALL: All I was going to ask-
HIS HONOUR: You've already gone to the subject, you said, "You started a relationship" […] That offends 293. You haven't got leave to do any of that.
HALL: Your Honour, what I was going to do was put it to this witness that [Mr AS] used to be employed with my client as a hairdresser and he then together with the complainant started up a hairdressing business just down the road.
HIS HONOUR: You could have put that without putting their relationship. You've put in something that offends the section, you could have put the rest of it. […] the question and answer about the relationship there is struck out."
After the jury returned to the court room the applicant asked Ms Z about Mr AS having been an employee of the applicant's hairdressing business who had, with her encouragement, left that employment to establish his own business. She agreed that was the case. She denied, however, a suggestion that she had discussed taking over the applicant's business with Mr AS in 2013. The applicant did not raise anything further about Mr AS during the course of the trial until the very end of the evidence, on 26 June 2019, just before he closed his case. At that time the applicant's solicitor returned to the issue of the relationship between Ms Z and Mr AS, asserting that his Honour's s 293 ruling of 11 June 2019 had "operated to prevent any reference being made to the involvement of the person [Mr AS]". Mr Hall continued:
"HALL: […] our difficulty becomes that we were prevented from cross-examining [Ms Z] as to her personal relationship but we were never really interested in that, but we were, because of-
HIS HONOUR: You're prevented from doing something you had no interest in?
HALL: Well we weren't interested in cross-examining in relation to the sexual experience or otherwise of these two persons […] What we had an interest in was simply asking the question about the relationship and putting to the complainant that there was a discussion with [Mr AS] to whom she is now married [that there was a discussion between them in 2013 concerning taking over the applicant's business]."
[9]
Grounds 1 and 2
The applicant contends that the "verdict and decision of the jury in the trial proceedings below was unsatisfactory and was uncertain", and "incapable of being supported by the evidence or the weight of the evidence". He submitted that the evidence in the Crown case was entirely lacking in credibility and should not have been accepted by the jury. He pointed to some specific features that he argued applied in this trial; including:
1. Inaccuracies as to the dates upon which, and the residences where, some of the offences were said to have occurred;
2. The improbability that offences such as those described could have been committed in close proximity to others without having been discovered;
3. The "stated intentions" of the complainant to seek revenge against the applicant;
4. The CCTV footage of uncharged conduct (in the street following Family Court counselling and in a bank); and
5. The fact that the jury acquitted the applicant of some counts even though the only evidence for all counts was given by Ms Z.
The principles to be applied to a ground under this limb of s 6(1) of the Criminal Appeal Act were conveniently summarised in Crickitt v R [2018] NSWCCA 240, (relevantly) at [12], thus:
"1) This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality.
2) It must be borne in mind that the tribunal of fact in the court below […] had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence.
3) If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside.
4) A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the appellant's guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion.
5) A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable.
[…]."
Applying those principles, I do not conclude that the jury must have entertained a doubt as to the applicant's guilt of these offences. On the contrary, particularly bearing in mind the significant advantage of the jury over this Court in having seen witnesses give evidence, in my view the verdicts were well open.
[10]
Extension of Time and Leave
The applicant relies upon impecuniosity as providing the explanation for the lengthy delay between the finalisation of the proceedings before the District Court and the filing of his application for leave to appeal. An initial application was filed on 31 May 2021 but, as the matter was not ready to proceed in 2021, the applicant was directed to file a fresh application when he was ready. That occurred on 7 February 2023, over three years after the period in which to bring any application had expired. The applicant says that he was not able to secure assistance through the Legal Aid Commission, and the readying of his application was unfunded, thus taking much longer to prepare than would ordinarily be the case.
Although the reason for the delay is not explained in an entirely satisfactory way, given the difficulties that the applicant experienced in securing legal representation, I would grant an extension of time in which to bring the application for leave to appeal until 7 February 2023.
Having regard to the seriousness of the charges, but particularly to ensure the finality of these proceedings, I would also grant leave to appeal. For the reasons that I have set out, the appeal should be dismissed.
[11]
Proposed Orders
Those being my conclusions I propose the following orders:
1. Extend the time in which to bring an application for leave to appeal against conviction until 7 February 2023;
2. Grant leave to appeal;
3. Dismiss the appeal.
R A HULME AJ: Having reviewed the evidence at the trial for myself I agree with the analysis and reasons of Wilson J and the orders she proposes.
[12]
Endnotes
During the complainant's evidence the interpreter assisting her told the court that the Arabic word used to refer to hitting was also used for kicking.
The applicant sought leave to adduce this evidence, and leave was granted pursuant to the then s 293 of the Criminal Procedure Act 1999 (NSW) [now s 294CB of the Act].
Section 293 has since been renumbered as s 294CB. Its operation is unchanged.
"Counts 2 & 3 have been directed to consider Stanley Street as the location within the period. Is there any possibility of the location consideration possible as Hector Street?": MFI74.
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Decision last updated: 06 October 2023
Evidence before the jury commenced on 29 May 2019 and continued until 27 June 2019. What follows is a summary only of the most significant evidence, or evidence of most relevance to consideration of the grounds of appeal proposed by the applicant.
On returning to New Zealand soon after this incident, Ms Z told her mother what had happened, saying that she and her husband had argued and the applicant had hit her with his leg, causing the injury that was still visible at that time.
The complainant discovered that she was pregnant and so she returned to Australia to resume life with the applicant. She was initially accompanied by her father and, after he left to travel to Iraq, by her mother. The family lived at an apartment in Stanley Street at Bankstown. Ms Z and the applicant's second child was born in November 2002.
The couple's marriage continued to be an unhappy one, with Ms Z telling the jury that the applicant had been unfaithful. There were disputes between them about this.
On an occasion after the birth of Ms Z's second child and before the end of 2004, the incident reflected by count 4 took place. Ms Z recalled an occasion when the applicant grabbed her by her hair and demanded that she "just suck it". Ms Z said that that the applicant pushed her head "strongly" and his penis went into her mouth. She recalled the sensation of his pubic hair in her mouth and the applicant pushing forcefully on her head.
The trial judge was obliged to adjourn proceedings at that point as Ms Z was taken ill, visibly vomiting as she sat in the remote witness room. When her evidence resumed Ms Z said that the applicant had been holding her by the hair when he pushed his penis "hard" so that "it reached to the end". This had caused her to vomit onto the floor. The applicant had said, "You disgust me. Go clean it". She had gotten cleaning products and cleaned up the vomitus.
Ms Z said that incidents such as that had occurred on other occasions, both at Stanley Street and after the family moved to Chester Hill. She initially described count 4 as occurring at the Stanley Street apartment, but corrected herself to say it had happened at the Hector Street Chester Hill premises. She recalled getting a brush to clean the vomitus from her kitchen at Chester Hill.
The family had moved to Hector Street Chester Hill prior to the first birthday of her middle child, the latter occurring in November 2003. Ms Z's father bought a house for her there, and Ms Z thought that the incident the subject of count 4 occurred after November 2003, although she told the jury that she "lost the days" and did not remember clearly.
Ms Z told the jury that when living at Hector Street the applicant had watched "sex movies" and then "copied" what he had seen in the movies upon her, "many times". She said that he had used objects on her, including a cucumber, a shaving razor, and a belt. The incident with the belt, being count 7 on the indictment, occurred at Hector Street. The applicant told the complainant that he wanted to try a "new thing" that he had seen in a movie. He removed the belt that he was wearing and, having lubricated the belt buckle with baby oil and raised Ms Z by her legs, he forced the buckle into Ms Z's anus. The buckle was square in shape and the forcible movement of it in and out of Ms Z's anus caused bleeding. The applicant told Ms Z, "You started bleeding, you're disgusting […] go and wash". Ms Z was in pain. She told the jury,
"You don't feel you are a married woman, you feel like you are an object, it's been used but it's all to fulfill his sexual desire. […] I was crying, I was screaming inside myself [… I wished if I die just to finish that."
The trial was adjourned briefly at this point as Ms Z could not continue.
Ms Z travelled to Syria for a family wedding in 2008. Her and the applicant's third child was born in May 2009.
Prior to going to Syria, in 2006 or 2007 when the family lived in Chester Hill, the incident reflected by count 8 of the indictment occurred. The applicant had a new battery-operated shaving razor which vibrated. Ms Z said that he treated the razor as a sex toy. On this occasion in 2006 or 2007 the applicant told Ms Z that he wanted to try the device "as a fake penis". Although she protested that the object would hurt her, he applied baby oil to her anus and, turning the razor on, put "the stick part" into her anus. Ms Z said that she did not say anything,
"…I just still crying because if I say anything he start on me, you're a slut, you're a bitch, things like that so I just cry. I'm begging him twice."
On another occasion at Chester Hill, before the birth of her third child in May 2009, and about a year or more before the Syria journey, the applicant again used the electric razor as a sex implement. Ms Z began to describe this offence, reflected by count 9 of the indictment, during her evidence given on 29 May 2019, but was not able to continue that afternoon. Her evidence resumed on 30 May 2019. She told the jury that the applicant obtained a cucumber from the kitchen, telling Ms Z that he wanted to use it "as a penis". She objected, describing such an act as "a sin". Ms Z said that the applicant ignored her and, lifting her legs as if "changing the baby nappy", he put oil onto her anus and widened it with his fingers. He then forced the cucumber, which was about 20 centimetres long, into her anus, moving it backwards and forwards until he was not able to move or extract the cucumber, which "got stuck". Ms Z said,
"I was crying and was that god forgive me for what is happening."
Being unable to remove the cucumber, Ms Z said that the applicant got the battery operated shaver and, using the bladed end, dislodged the vegetable. This caused Ms Z intense pain, and some injury that began to bleed. The applicant told her, "You are disgusting. Go and clean yourself".
Ms Z told the jury that there were many occasions at Stanley Street and Hector Street when the applicant put an object into her mouth, and one such occasion, reflected by count 13, occurred prior to the Syrian trip. She said,
"All of the times he woke me up that was the most difficult day. I was choked and I felt like I was a prisoner and then tortured. He brought the socks and put it in my mouth, and he ask me just to keep it and to close my mouth. […] I begged him and every time I beg him, I told him "Please stop"."
The applicant then put a movie on and rubbed his penis around the complainant's anus until he ejaculated. Ms Z was whispering as she gave this evidence, and had to be asked a number of questions about what had occurred before she could give an account of it. The complainant was not able to immediately continue, and the court was obliged to adjourn briefly.
On returning to the remote witness room Ms Z said that the applicant had rubbed his penis around her anus until he ejaculated, with the ejaculate deposited onto her back. As he did this the complainant had said, "Please stop". She was choking at the time and felt as if she would vomit. When the applicant allowed her to get up, she went to the bathroom where she was sick.
Count 14 referred to an incident that occurred in 2008 before the complainant went to Syria, when she was living in Hector Street. She described what had happened in this way:
"This is one of the nights he just woke me up and he say to me "I want to have pleasure with you" and he grabbed the belt and I asked him "Are you going to use this again to choke me or to put it?". He said to me "No, I'm going to use it in a different way". He made me sleep on my back. He lifted my legs. He opened the vagina with both fingers and in the middle part the first time he hit me softly. And he hit it twice. He hit it twice and he started to hit it strongly. You cannot imagine the amount of pain, it was very painful and I needed to scream. He said to me, "Don't scream" and I was just all in tears."
The applicant struck Ms Z with the strap section of the belt a number of times to her genital and anal area, causing her intense pain and inflammation. As the applicant struck Ms Z he masturbated, eventually ejaculating on her back.
Ms Z told the jury that she did not consent to any of these incidents. She said:
"[…] when I see him I see him as a pig and I just want to kill him. Because he was hurting me, hurting my body over and over and over. Who can I talk to? Because he is the husband, he is the king. He always calls himself the king. And I am his slut and I have to obey."
She said she could not tell anyone about what was happening to her.
Although Ms Z regarded her marriage as having ended when the applicant began to abuse her, she said that it ended formally in 2011, after an argument about the applicant's intention to travel to Thailand. The applicant told Ms Z that he wanted her to go with him to Thailand where they would find a woman to be involved with them sexually. He described what he wanted to occur. Ms Z protested that she could not do that and wished instead to travel to Mecca. The applicant became angry and threw a television set against the wall in the Hector Street home. Taking up a pillow, he held it over Ms Z's face until she felt as if her "throat is just coming out" and that she would die. This assault was reflected by count 15 of the indictment.
When the applicant released the complainant from the hold he had on her with the pillow she told him she wanted to divorce and that he should go. The applicant did not leave and so, after he went out for a time, Ms Z packed her things and left herself, taking the children to stay with a friend whose address the applicant did not know. She told her friend, Roula Mostafa, that the applicant had wanted to kill her.
After a time spent staying with friends and family, Ms Z was later able to return to Chester Hill, as the applicant moved away. Until she was able to divorce the applicant Ms Z did not discuss what had happened. She told the jury:
"As long as I'm still his wife, he didn't get a divorce, I have to obey him. Because he's threatened me that if I don't do what he ask me then he's going to put on the Facebook that I was not virgin and you know that in our culture what people say about it. So I just wanted to keep everything quiet just to keep him away from me."
Ms Z did not make her separation from the applicant known to others. She said:
"….I never used to talk about him. I always say that he's good, I love him, and even when the divorce come some of the girls say they got surprised, how come, you always act - you used to say that you were happy, that you love him.
[…]
This is happening inside you, you cannot tell it to people. Until now, people don't know I'm coming to court. This thing like make embarrass you don't say it. According to our culture if now we are in our Arabic countries the judgment of as read to men a room, I am disobeying and they say I am not good woman."
Ms Z said that her culture did not recognise separation, but only divorce by a sheik or divorce by a court. Until she was religiously divorced, she accompanied the applicant to social events on occasion, as that was what was required of her. Even after her divorce she told no-one about what had occurred during her marriage. She disclosed the assaults in 2015, only when asked questions by police officers who were assisting her with a complaint concerning an alleged breach by the applicant of an apprehended domestic violence order ("ADVO").
The complainant was cross-examined over nine days. Much of the cross-examination was tangential, and not of direct relevance to the facts in issue. Ms Z made some concessions, such as that her calculation of her age at the time of her marriage to the applicant had been wrong, and she had been about 19 years of age and not 17. She accepted that some of her rough estimates of time were not precise, and that she may have been mistaken as to the dates on which she moved from Stanley Street to Hector Street, and out of Hector Street with the children. She firmly denied, however, having been untruthful in her evidence concerning the assaults.
Ms Z was cross-examined at length about the circumstances in which she came to report the assaults to police. She agreed that on 24 May 2016 she had taken her children to a counselling session at the Family Court at Parramatta where the children were to see their father. When she went out at lunchtime with the children to get something to eat, they had seen the applicant who spat and sworn at Ms Z and her eldest son. Ms Z went to the Police Station to report the abuse, which was in breach of an ADVO.
Footage obtained from street security surveillance cameras that showed Ms Z and the children passing the applicant on 24 May 2016 was played to Ms Z. She did not accept that the footage, which did not have sound, was not consistent with her complaint. Rather she pointed out that her son had turned and looked angrily at the applicant, prompted by what the applicant had said and done. The footage became Exhibits ("Ex") 4 and 5.
Footage of an earlier incident in a bank, on 18 September 2015, was also played to Ms Z. Ms Z had complained that on this occasion the applicant, whom she had seen when doing some banking, had softly sworn at her. Ms Z was shown the footage and it was suggested to her that the applicant had not sworn. She rejected that suggestion, pointing out that her daughter could be seen to run to Ms Z, apparently in fear. This footage became Ex 24.
There was a great deal of cross-examination concerning telephone records, much of it of limited relevance. Ms Z denied sending various text messages to the applicant from a particular mobile telephone that, on the evidence, was used by several family members from time to time, including Ms Z and the applicant.
When asked about the individual incidents reflected by the indictment, Ms Z denied that she had fabricated her allegations; she maintained the truth of her account of the assaults.
The complainant's parents both gave evidence. The complainant's father, Mr H, deposed that he recalled speaking with Ms Z about an injury to her toe. He said that she told him that her husband had hit [1] her and damaged her toe, and that she had received treatment for it. They had discussed whether Ms Z should leave the damaged nail in place or have it removed. The witness did not recall when this discussion occurred, or whether it had been over the telephone or in person.
The complainant's father said that he had transferred money to Australia for the complainant and her husband to buy a house and business, and later he, his wife and his son all lived in the house at Chester Hill. He thought his daughter separated from the applicant in 2011 and divorced in 2013.
The complainant's mother, Ms H, was called before the jury on 13 June 2019. Ms H said she had been living with the complainant and her young son in New Zealand when the applicant was living in Australia. She recalled the occasion when Ms Z travelled to Australia for a short stay with the applicant, and recalled her return to New Zealand, telling the jury that when she collected Ms Z from the airport, she observed that her leg was bandaged. She told the jury:
"[…] I said to her, what's - what's happened to your leg, because she could not walk. She said that I went with [the applicant] to the restaurant and there was an argument between them - a verbal argument - and he hit her with his foot on her toe. She said to me, I felt that I was hit - I knew that I was hit - and something sort of lifted up; and then the next thing I knew, there was blood everywhere. And then he took her to hospital and she wasn't in a good state at all, but she was in a lot of pain. And then they took her quickly. And she said that afterwards, it was bleeding - her toe's actually bleeding. And they took her and they bandaged the wound, but her - her toenail had come off. It came off."
Ms H said that, when she had stayed with her daughter and the applicant in Hector Street, she often heard the applicant in the bedroom he shared with Ms Z speaking words that were "not good". He frequently said words like "bitch" in a very loud voice. Ms H heard similar things when she stayed with the couple at the Stanley Street apartment. She heard "fighting" coming from the bedroom her daughter and the applicant shared and heard him saying things like "You're disgusting", and "You're a bitch". She said that the applicant spoke very loudly so that it could be heard in the street. Ms H heard these arguments constantly when the applicant was at home.
Ms H recalled Ms Z coming to her, she thought some time in 2011, shaking, crying, and frightened. Ms Z told her mother that the applicant had held a pillow over her face and tried to kill her. Although her mother pressed her to go to the police, Ms Z refused, saying she was terrified of the applicant. The witness was asked if Ms Z had told her what the argument had been about. She responded:
"No, honestly, she didn't tell me. Not at all. I really wanted to know the reason behind it but she remained silent, she did not speak, and up until now I still don't know the reason for it. Because she's always - been very private, she never really discuss her private life."
The witness said she believed that her daughter had come to her after leaving the family home at Chester Hill; then gone to stay with Ms Z's friend Ms Mostafa for a time, before returning to her. Later she stayed with her brother.
Ms H rejected the suggestion put to her in cross-examination that Ms Z had a chronic problem with her big toe which had troubled her since childhood. She said that Ms Z had always been very healthy.
The complainant's brother was also called to give evidence. He said that he had lived in Australia since 2003 and had stayed with his sister for a brief period on arriving in Sydney. He had been aware that her marriage to the applicant was not happy and thought the couple had separated in 2011. Ms Z had stayed with their mother for a short period, and then had come to stay with him, living at his home for two or two and a half years. The witness said that his sister and the applicant first divorced religiously, later divorcing through the courts. During the period of their separation the family had tried to keep the situation confidential, as it would be viewed negatively within their culture. Ms Z was "always sad" and would not discuss the reason her marriage had ended.
A neighbour from Hector Street told the jury that his home and that of the applicant and Ms Z had shared a common wall and, when the applicant was still living at the property, he had frequently been disturbed by the sounds of screaming and yelling after the applicant arrived home from work. The voices he heard, at a frequency of every second or third night, were those of the applicant and Ms Z. He could not make out the words being said. Another neighbour regularly heard loud arguments from the complainant and the applicant's home, with the voices sounding angry; whilst a third heard "the wife" speaking loudly and the sounds of aggressive arguments between a man and woman.
From 2002 to 2004, Ms Mostafa lived in an apartment on the floor below that of the applicant and complainant at Stanley Street in Bankstown. She told the jury that she heard the applicant "screaming and shouting" almost every night. Although she could not distinguish much of what was said, she frequently heard the applicant swearing. In the period following the birth of the complainant's second child, Ms Mostafa observed the complainant had difficulty sitting. Ms Mostafa urged Ms Z to see a doctor, but she refused. When she asked Ms Z if her problems were connected with childbirth Ms Z responded, "if you know you would be very upset". Ms Mostafa thought that Ms Z seemed scared and embarrassed when having this discussion. After Ms Z moved away from Stanley Street, she told Ms Mostafa that the applicant "used to sleep with her forcibly", and "sometimes from the back".
Ms Mostafa said that Ms Z moved out of Hector Street and came to stay with her, bringing the children. On that occasion Ms Z told Ms Mostafa that there had been a "big fight" with the applicant, who had tried to kill her by placing a pillow over her face. Ms Mostafa saw some redness to one side of Ms Z's face. She told the jury:
"She was very, very tired and stressed. I was very concerned for her, I gave her my room to sleep in and while I was going in and making sure she was okay, and I would see that her whole body was shaking."
Later, Ms Z gave Ms Mostafa some account of having been sexually abused by her husband on a particular bed from about 2002.
Ms Mostafa agreed in cross-examination that she had not included this information in a statutory declaration that she signed in 2014 relevant to Ms Z's Family Court proceedings as Ms Z had told her that she did not want her parents to know, fearing it might give them "a heart attack". Ms Mostafa was also asked about a reference she made in her statement to police as to having seen Ms Z's foot bleeding on the occasion Ms Z came to stay at her home after leaving her husband. She denied making it up. She said that Ms Z had been scared and embarrassed when she arrived at her home.
Dr Rafik Dimitri operated a general medical practice which Ms Z attended between 2002 and 2007, with one later attendance in 2009. The doctor had no memory of having seen Ms Z in that period, but told the jury that he had not, in the notes he had taken of consultations with her, made any reference to a complaint of sexual abuse having been made by her. He said that, had the patient referred to her husband wishing to "sleep with her from behind" he would not regard that as a complaint of abuse. Dr Dimitri said that Ms Z had been treated for stress and anxiety, although there was no note as to the cause of the anxiety from which she suffered.
Dr Matthew Hearps examined Ms Z in the Emergency Department at St Vincent's Hospital. Although the doctor had no memory at all of Ms Z or the circumstances of her attendance at the hospital, he recognised his handwritten notes on a registration form. He could not say where he had obtained the history he had recorded, although said information was usually sought from the patient or person accompanying the patient. He had recorded a history of a toenail "ingrown (black and crumbly since child, deformed L first toenail)". His observations were recorded as "traumatic displacement" of the nail, with "part of nail protruding", "opaque and discoloured". A cosmetic false nail attached to the nail bed was recorded as "dorsiflexed" or bent backwards. Dr Hearps recorded the word "hyperkeratotic" in the notes, which he said ordinarily referred to an "overgrowth of tissue" such that the nail could appear thickened and irregular, that could be consistent with chronic infection. Under a local anaesthetic the nailbed was cleaned, and the nail trimmed and flattened. A bandage was applied to keep the nail in place. The doctor said that the injury observed was consistent with having been caused by an impact between the toe and an object.
Constable ("Con.") Benjamin Buchanan took a complaint from Ms Z on 18 September 2015 about an incident that occurred that day at the Westpac Bank in Bankstown. He obtained details from Ms Z about the incident and then asked her a series of standard questions that are asked of any person complaining of some offence committed in the context of a domestic relationship. One of the questions he asked was "Has your partner ever done things to you of a sexual nature that made you feel bad, or physically hurt you". Con. Buchanan said:
"She became quiet and she looked away from me, stopped making eye contact with me and she didn't say anything for a short period and then she said, "Yes"."
Ms Z was reluctant to discuss her answer and was allowed to leave the police station without further questioning. The officer was concerned about what she had said however, and referred the information to another officer, Con. Carlile, who spoke to Ms Z before arranging for a female detective to speak with Ms Z. When Con. Carlile spoke with Ms Z he observed:
"[…] her voice began, became quite shaky. She didn't - she didn't want to answer anything or give me any details. I started asking more vague questions to see if that would give her a stronger sense of security, or for lack of a better term, to try and encourage her to give me enough information. Eventually, after speaking to her for a while, she disclosed, I believe it was that she said that, "He put things in me" at which point I made contact with supervisors and organised for detectives to come out and speak with her further, in particular, female detectives."
Ban Saleh told the jury that she had been a friend of Ms Z, having met her in 2002. She said that they had maintained a friendship until 2014. In the period when they were in regular contact, Ms Saleh said they both visited each other and spoke frequently on the telephone.
In cross-examination Ms Saleh agreed she had attended various functions including a wedding, at which Ms Z and the applicant appeared to be a normal couple. She was not able to say in what year these celebrations occurred, although accepted the suggestion put to her that it was in 2012. She was asked about a conversation with Ms Z in 2013 when Ms Z told her that she wished to separate from the applicant due to his infidelity. She also said that in another conversation the following year, 2014, at a funeral, Ms Z said again she wished to separate from the applicant as he had "married another woman overseas". It was suggested to her that Ms Z had told her that she wanted to put the applicant in gaol and she agreed. She was also asked whether Ms Z discussed her sex life with her and said that Ms Z had done so. She was then asked if particular things (of an explicit sexual nature) had been said and agreed they had. [2]
Under cross-examination by the Crown pursuant to s 38 of the Evidence Act 1995 (NSW), Ms Saleh agreed that her husband and the applicant were friends and regular fishing companions. She was not able to give clear information as to the years in which particular events had taken place, and nor could she explain why she had volunteered to make a statement to police concerning Ms Z's account of apparently pleasurable consensual sexual activities with her husband in circumstances where she had not been told what was under investigation. She denied having said some things recorded in her statement to police.
DSC Ashleigh McCudden was the police officer in charge of the investigation. She gave evidence about aspects of the police investigation and of the arrest of the applicant on 22 February 2016. The applicant was interviewed on that day and the recording of the interview was played to the jury. In it the applicant denied the allegations and denied ever having engaged in anal intercourse with the complainant, stating that it was a "dirty practice". He said that "if the woman use it [anal sex] with the man she will be divorced… she can't be a wife and we all know that". When asked whether he had told the complainant to "suck it" before forcing his penis into her mouth, he denied using swear words. He told police that he had never asked the complainant for sex, that she was more sexually interested than him, and it was in fact him "who was running away from her". He referred to the complainant as "a spoilt girl" and "a drama queen" who needed help.
In his interview with police, the applicant said that up until November 2013 his marriage to Ms Z was "very happy, nice, raising up the kids and we never have a problem." On that date and upon his return from an overseas trip, he claimed that the complainant accused him of infidelity, so he packed his belongings and chose to "walk away, as a gentleman".
The Crown closed its case on 24 June 2019.
The evidence concluded on 26 June 2019.
That possibility can be immediately set aside since, with the benefit of all information that could be reasonably obtained, either through the efforts of police in investigating the allegations made by Ms Z, or through the applicant himself in providing the documentary material tendered to the District Court in support of his stay application, the Director nevertheless proceeded to trial.
The absence of any practical injustice to the applicant caused by the conduct of the prosecuting authorities is a complete answer to this part of the proposed ground 3.
The applicant's complaint goes beyond practical injustice, however, to address what he says is the principle, which he articulates as "a very important protection" that an accused person has in the "duty and the responsibility of the police to undertake a fair and impartial investigation". Reliance upon this "principle" can also be quickly dismissed since there is no principle or rule of law of the nature advanced by the applicant.
In refusing the application for a temporary stay, the trial judge referred to the decision of the High Court in Penney v The Queen [1998] HCA 51; 72 ALJR 1316. In Penney, the appellant challenged his conviction for the attempted murder of his wife, an offence carried out by the ignition of a petrol-soaked rag pushed into the petrol tank of a car the intended victim was driving. The competence and adequacy of the police investigation was an issue at trial, as investigations that could have produced important evidence had not been carried out. For example, the match used to ignite the petrol had not been retained for forensic examination, and nor had the clothes or person of the appellant, who had been arrested very shortly after the fire, been examined. On appeal to the South Australian Court of Criminal Appeal, Mr Penney contended that the police investigation into the causes of the fire and his responsibility for it had been attended by so many absences and failures as to vitiate the fairness of his trial. The argument before the High Court was that the trial process, which began at the inception of the police investigation, had been so defective as to infect the trial process such that he did not receive a fair trial. The appellant contended that, because of the inadequate investigation, the verdict was unsafe and unsatisfactory, or there had been a miscarriage of justice entitling him to an acquittal or a retrial. Those contentions were dismissed by the High Court, with Callinan J stating, at 1319, with the agreement of the other members of the Court:
"The appellant's submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial."
What the law protects is the right of an accused person to a fair trial; whether a trial has been fair will depend upon the circumstances of the individual proceedings. The conclusion of the trial judge prior to the commencement of the trial that there would be no unfairness to the applicant is borne out by the record of trial.
The applicant, unlike Mr Penney, was not deprived of any relevant or material evidence because of the way in which the police investigated the allegation made by Ms Z, or because of the way the Crown conducted its case at trial. The applicant had access to all the information and evidence that he claimed to be of relevance, and he was, subject to compliance with the Evidence Act, able to raise it in cross-examination with appropriate witnesses, or adduce the evidence in his own case. It would appear that the only information he did not have were statements of persons whom he had nominated as having relevant evidence, although without ever outlining the nature of the evidence these persons could or might be able to give. Oral evidence called by the Crown before the trial judge was to the effect that all persons the applicant had referred to in his application for a stay had been the subject of police inquiries. Statements had been obtained from some, such as Vesna Hunt and Ban Saleh (and the Crown called those persons in its case). Others had not been identified, such as "Sawsan - dentist" and "Sabah" or had been located but refused to speak to police, such as Boshra Noshad.
There was nothing available to the trial judge or, indeed, to this Court, to establish at least a reasonable possibility that these latter persons had anything relevant to say if found and called before the jury. There was nothing in the Crown case, or in the information raised in the documentation the applicant provided to the trial court and the Crown, to even raise a prospect that the named persons had material evidence to give. There was no obligation on the Crown to identify, locate, or call these persons as witnesses in its case at trial.
The obligation of the Crown in bringing an accused person to trial does not extend to a duty to investigate an accused person's case on his or her behalf, or to present that case at trial. The Crown has an obligation of fairness within the context of an adversarial system of criminal justice, but that does not mean that it is bound to pursue every matter said by an accused to be relevant to the subject of the trial, or to secure the attendance of every person nominated by the accused as a potential witness. As the High Court said in Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19 at 120:
"It is […] a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged."
The obligations on the Crown with respect to leading evidence and calling witnesses are well established, from decisions including Richardson; Whitehorn v The Queen 152 CLR 657; [1983] HCA 38; and The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38. In summary, the principles to be drawn from these and other authorities, noting the fundamental obligation of the Crown to treat an accused person fairly, are these:
1. It is for the Crown and not the court to decide which witnesses the Crown will call in its case: Richardson at 119; Whitehorn at 663.
2. That decision is to be made in conformity with the dictates of the obligation of fairness to the accused, and having regard to other material considerations, such as whether the evidence is necessary to the unfolding of the Crown case; whether the evidence is truthful and credible; and whether it is in the interests of justice to subject the evidence to cross-examination by the Crown: Richardson at 119.
3. The Crown is not bound to call a witness, even an eye-witness, whose evidence is judged to be unreliable, untrustworthy or otherwise incapable of belief: Whitehorn at 674.
4. Criminally involved witnesses can be regarded prima facie as unreliable, and there is no principle of law that requires the Crown to call such a person in its case: Allchin v R; Skepevski v R [2019] NSWCCA 278 at [127].
5. A judgment not to call a witness must be based on identifiable features, including the assessment made of the witness after a conference with that person where appropriate: Whitehorn at 664; R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [49] and [102].
6. Tactical considerations can play no part in the decision to call a witness: Whitehorn at 664.
7. Where the Crown decides not to call a witness who has been nominated by the service of the brief of evidence as a Crown witness, the decision must be communicated to the accused at a reasonable time and the witness made available at trial to the accused: Whitehorn at 664.
8. The reasons for the decision not to call the witness should be disclosed if sought: Whitehorn at 665.
9. There is no authority for the proposition that the Crown has a duty to actively seek out material not in its possession so that the material might be made available to the accused: Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [45] to [50].
10. Where a witness who might have been expected to be called by the Crown and to give evidence on a matter is not called, the jury may take the fact that there was no evidence from that witness into account when deciding whether the Crown has proved its case: Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27].
11. A decision of the prosecutor not to call a particular witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice: Apostilides at 575.
Nothing in those principles suggests that the Crown has any obligation to investigate an accused's case on his or her behalf, or to take over the burden of presenting that case to the jury. It did not have that obligation or that burden with respect to the applicant at his trial. As the trial judge surmised in dealing with the application for a temporary stay, there was no basis to conclude that the applicant's trial would be anything other than fair.
A temporary stay of prosecutions may be granted by a court, but only where there is reason to believe that the trial of the accused is likely to be unfair: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. To borrow from Gould v Director of Public Prosecutions (Cth) (1992) 359 ALR 142; [2018] NSWCCA 109 at [64]:
"In the present case, the applicant did not establish, or even assay the task of establishing, that a trial, absent production of the [evidence] sought, would be likely to be unfair, or even (if a lower standard could be sufficient) that there was a tangible risk that it would be unfair."
On the material before this Court, including as it now does the record of the trial, no unfairness was occasioned to the applicant at his trial. He had access to all known material evidence, and he was able to use that evidence, either in cross-examination of the complainant and other witnesses, or by calling witnesses or tendering documentary evidence. Even without giving evidence himself, the accused advanced a substantial defence before the jury and the jury was able to assess the testimony of Ms Z in the context of the whole. He was not prejudiced or placed at any forensic disadvantage. His Honour was correct to dismiss the application and no error of law has been established, much less an error that led to a miscarriage of justice.
Mr Hall accepted that it was open to him to call Mr AS if he anticipated that Mr AS could give relevant and admissible evidence, but maintained that his client was prejudiced by being unable to cross-examine Ms Z as to her relationship with Mr AS. The trial judge observed:
"HIS HONOUR: I was dealing with sexual matters and what sexual imputations and things that disclosed were implied sexual activity or lack of sexual activity during the time of the relationship, that's what I was dealing with then, I wasn't dealing with any other aspect […] And you say it's an entirely independent matter which I don't believe I ever precluded you from cross-examining about."
Mr Hall accepted that, confirming, "I don't believe that your Honour did directly". Apparently thinking aloud, Mr Hall then listed a number of possibilities open to him to deal with the issue in his case. One of those possibilities was to recall a witness, Mr Amin, to ask Mr Amin if he knew whether Ms Z and Mr AS had discussed taking over the applicant's hairdressing business. His Honour refused leave to recall the witness to ask a question of him of that nature. Obviously, Mr Amin could have had no personal knowledge of a discussion conducted in his absence between others.
The applicant complains that the refusal of leave prevented him from exploring the suggestion that Ms Z had a motive to manufacture her allegations, as a means of assisting her and Mr AS to take over his business. As is clear from the transcript of the exchanges between his Honour and Mr Hall extracted above, the applicant was never prevented from asking questions, or adducing evidence, about a business relationship between Ms Z and Mr AS.
It is not clear precisely what evidence might have been led from or which related to Mr AS. The applicant did not outline the nature of the evidence he now suggests he was precluded from leading, and nor was it outlined during these proceedings. The most that could be gleaned from the applicant's submissions was that the applicant wished the jury to know that Ms Z had entered into a personal relationship with Mr AS at some time after the commission of the offences set out in the indictment, and that it was that relationship that "perhaps motivated some of the events that led to the allegations in the trial". Mr Hall for the applicant conceded that he could put it no higher than that. It must be at least unlikely that Mr AS would have deposed to a conversation of the nature put to and denied by Ms Z (that they discussed taking the applicant's business from him) had the applicant called him in evidence.
That was not, however, the evidence that was excluded by the trial judge. Evidence which implies that a complainant may have had sexual experience was precluded at the time of the trial by the operation of s 293 of the Criminal Procedure Act. Although Mr Hall for the applicant did not accept that in asking Ms Z about her personal relationship with Mr AS there was necessarily an implication of sexual experience, that is to deny the ordinary and accepted meaning of the term "relationship" when it is applied to the personal bond between a couple. The question the applicant asked Ms Z, and which his Honour rejected, certainly infringed s 293. His Honour was obliged to exclude the question and any answer to it. There can be no error in the proper application of the law by a trial judge.
Even had s 293 not prevented the question from being asked and answered at trial, it is difficult to see what relevance a personal relationship formed by the complainant long after the commission of the offences alleged at trial and, significantly, long after the incident reflected by count 15 and the complaint about it and forced anal intercourse to Ms Mostafa, could have to the determination of the fact in issue before the jury - that being whether the applicant had assaulted Ms Z as alleged between 2001 and 2011.
As the applicant accepted before this Court, the trial judge did not prevent him from asking Ms Z about any business relationship she may have had with Mr AS, and whether some feature connected with the business relationship, assuming there was one, gave rise to a motive held by Ms Z to fabricate her allegations, and some questions about the business relationship were put to Ms Z, although with no real effect. Since the issue was revisited before the applicant closed his case, it was open to him to call such admissible evidence as he wished concerning any business operated by Ms Z and Mr AS, and how the business may have motivated a false complaint. He made an informed forensic choice not to do so.
The trial judge was not responsible for that decision, and there was no error on his Honour's part. Neither could the absence of evidence concerning Mr AS and his and Ms Z's business arrangements be said to have occasioned a miscarriage of justice. Nothing was placed before the trial court or this Court that establishes that the evidence was relevant, admissible, or of significance. There was no miscarriage of justice.
The issue of dates and places falls to be assessed in circumstances where time was not of the essence, and against a background where the complainant said that offences such as those particularised occurred on other occasions, and that she was "lost" in time. When each sexual offence occurred during the marriage, at one of the two homes the couple shared, in the marital bedroom of those homes, and in the marital bed, some imprecision as to date and location may well have been regarded by the jury as of little significance. It is unremarkable, and certainly not uncommon, that a victim of multiple offences of a similar nature might be unclear as to precisely when, in what order, or even where a particular assault occurred. The indictment in its final form - having been amended after the complainant's evidence due to the lack of clarity as to dates and places - averred many of the individual counts within a wide timeframe and, for some counts, giving the location only as greater Sydney, rather than a particular suburb.
The applicant focused heavily on the frailty of the complainant's evidence of time and place, with considerable cross-examination and evidence directed to this aspect of the allegations. Much was made of any inaccuracy and the applicant went to considerable lengths in his closing address to highlight them. That was an approach that was open to him, and it had effect for those counts where the precise location had to be proved by the Crown beyond reasonable doubt, with acquittals entered. It was for the jury to consider the complainant's sometimes poor recall of dates and places and determine what weight to give to this part of her evidence. It was a feature of her evidence that was, however, in no way fatal to acceptance of her evidence of the occurrence of the assaults.
When an offence occurred is important but may yet be considered as a feature peripheral to the detail of what an accused person is alleged to have done. It is whether the charged act occurred that is the critical issue that the jury must determine. As was recognised in Reed v R [2006] NSWCCA 314, at [64]:
"Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person's reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory."
See also JL v R [2023] NSWCCA 99; AS v R [2022] NSWCCA 291 at [137]; and Duncan v R [2023] NSWCCA 223.
A jury may regard imprecision as to time and place, or details other than the criminal act alleged against an accused, as indicative of unreliability; but equally, a jury could legitimately set aside such imprecision as of little significance to the overall assessment of the reliability of the complainant's account of the alleged assault. The latter proposition was affirmed recently in Bolton v R [2023] NSWCCA 211, where Harrison J said at [46]:
"[…] inconsistency in the evidence of a witness does not of itself establish that a jury ought to have entertained a doubt about the balance of a witness's evidence. The resolution of such matters is the recognised role of the jury: RA v R [2020] NSWCCA 356 at [15]. Juries are well able to evaluate evidentiary conflicts and imperfections: MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [96]."
The issue as to the date upon which the marriage between Ms Z and the applicant ended was also a live one at trial, and one that the applicant submits should have raised a real doubt as to the reliability of the complainant's evidence. Ms Z deposed that the marriage ended after the applicant had suffocated her with a pillow, in January 2011. The applicant tendered documents and photographs, cross-examined witnesses, and called witnesses in his own case, including SC Roberts as to his attendance at Hector Street on 6 November 2013, to demonstrate that the marriage had continued until about that date.
Ms Z's evidence as to her flight from the marital home after the suffocation incident was supported by the evidence of family and Ms Mostafa, from whom she had sought assistance. There was also documentary evidence that established that Ms Z had sought government rental assistance in June 2011 when living with her brother. A Chester Hill neighbour thought Ms Z left the family home in 2010 or 2011 and understood it to be because she and the applicant were going to divorce.
The applicant cross-examined Ms Z about her evidence on this point, adducing photographs of her and the applicant at various social functions, evidently after January 2011, and suggesting that she had lived with the applicant at an address in Regents Park after this time. Ms Z explained her ongoing occasional association with the applicant by reference to their shared parenting obligations, and by referring to the shame that would be caused to her and her family if it was known within her community that she was living apart from her husband without divorcing, separation not being recognised. She said she had done her best to maintain appearances, and told no-one other than family and Ms Mostafa that she had separated from her husband.
These were all matters for the assessment of the jury.
Similarly, the asserted improbability of some of the charged offences occurring at times when others were living in the family home was something for the jury to consider. It is not a feature that points inevitably to the unreliability of the complainant's account of these events. Neither did the evidence of Ms Saleh and Ms Al Shamare dictate a conclusion that Ms Z had lied in her evidence. There was a dispute for the jury to consider as to what, if anything, Ms Z may have told these witnesses about (consensual) sexual activity between her and the applicant, and whether she had told either that she intended to put the applicant in gaol. The jury was the tribunal best able to resolve those disputes, having seen all three witnesses give evidence on these matters. Contrary to the applicant's submission, the jury was not obliged to conclude that these women were Ms Z's close friends, given the latter's evidence contradicting that. The ongoing relationship of both witnesses and their respective husbands with the applicant, and the unwillingness of each to speak to DSC McCudden prior to trial, were matters to be taken into account in assessing the credibility of Ms Saleh and Ms Al Shamare.
The account of each witness of Ms Z purportedly boasting about sexual acts with her husband, where she was said to have given explicit accounts of what took place, was denied by Ms Z, who maintained that she had told no-one of the abuse by the applicant until she spoke with police. Both Ms Saleh and Ms AL Shamare were effectively cross-examined by the Crown on this and Ms Z's asserted claim about gaoling the applicant, and there was a sound basis for the jury to have rejected the evidence of these witnesses.
The applicant relied at trial on surveillance footage of two occasions on which Ms Z had said the applicant accosted her in a public place to submit that the evidence contradicted Ms Z's testimony and demonstrated that she was not a witness of truth. I have viewed the footage a number of times and do not accept that submission as in any way accurate; the jury must have reached the same conclusion. The footage, from 18 September 2015 and 24 May 2016, suffers from being silent. It is necessary to carefully examine the movements of the individuals shown to attempt to determine what was occurring at the time. With respect to the footage of 18 September 2015, the movements of the complainant's young daughter, who runs to her mother and appears frightened, suggests that something occurred when the applicant entered the bank to cause alarm. It does not demonstrate that Ms Z lied about the applicant swearing at her. The footage of 24 May 2016 captures Ms Z and her children passing the applicant in the street. What can be seen of the applicant's son as he turned to look at his father suggests that something may have been said or done by the applicant as he passed the group that caused the boy to react as he did; the footage is not proof that Ms Z lied about the encounter.
The applicant also points to what he says are inconsistent verdicts - that the jury found the applicant guilty of counts 1, 4, 7-9, and 13-15, but not guilty of counts 2, 3, 5, 6, and 10-12 - to submit that the jury must have rejected Ms Z as a reliable witness, and thus should have returned verdicts of not guilty to all counts. As has been explained in many decisions of the High Court and this Court, that a jury returns mixed verdicts in a sexual assault matter does not of itself establish that it did not accept the complainant as a witness of truth: McKenzie v R (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]; Nguyen v R [2021] NSWCCA 85 at [63]; Jafary v R [2018] NSWCCA 243 at [37]. In Markuleski, Spigelman CJ observed at [34] that:
"In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above."
The jury was properly directed by his Honour in accordance with Markuleski to consider each count separately but, if a finding was made by it adverse to the credibility of the complainant with respect to one count, that conclusion should be taken into consideration by its members when determining the verdict to be returned against other counts. Against the background of that direction, there exist matters in the evidence, distinct from the reliability of the complainant, that explains why the jury were not satisfied that the Crown had proved some counts to the criminal standard, but was so satisfied with respect to others.
With respect to counts 2 and 3, the jury were directed that the place at which the offences were alleged to have occurred - Stanley Street in Bankstown - was an essential part of the charge that the Crown must prove beyond reasonable doubt if verdicts of guilty were to be returned. There was reason in the complainant's and other evidence to conclude that these incidents may have taken place after the family moved to Hector Street in Chester Hill, and the jury in fact asked a question of the trial judge about the significance of the location of the incidents. [4] Having been directed that the Crown had to prove the incidents occurred at Stanley Street, it is open to conclude that the jury, accepting the complainant's account of what had happened, could not be similarly satisfied as to where it had happened.
With respect to counts 5 and 6, the complainant described events such as those particularised as occurring frequently, and her evidence as to the incidents reflected by these counts had the air of a composite or general memory of similar and frequently occurring events, rather than a specific memory of a specific incident, distinguishable from other similar events. In cross-examination she made some concessions, saying that these things had happened all the time. The jury was directed in accordance with S v The Queen (1989) 168 CLR 266; [1989] HCA 66 that its members had to be satisfied that the particular incident relied upon by the Crown for each count had occurred, and it was not permissible to accept what the trial judge described as "a generalised allegation".
The complainant's accounts of the events the subject of counts 10, 11, and 12 lacked the sort of detail that she gave with respect to those counts accepted by the jury as proved. In each instance, and bearing in mind the background to the individual allegations of a marital relationship, it was open to entertain a doubt as to whether the applicant had known or was reckless to the absence of consent. Ms Z gave no evidence that she said or did anything to clearly convey a lack of consent and these incidents were not accompanied by force from the applicant or apparent distress from the complainant. The elements of consent and knowledge or recklessness as to the absence of consent was the subject of another question to the trial judge from the jury, and it may be inferred that it was a topic exercising the jurors' minds.
It is reasonable to conclude that the verdicts of not guilty returned against these counts reflected the jury's conclusion that, accepting that the incidents had occurred as Ms Z deposed, the Crown had failed to prove to the criminal standard that the applicant knew or was reckless to the fact that his wife did not consent to the acts charged, in circumstances where she did not say or do anything to convey that refusal of consent.
In each instance it is possible to identify a logical basis for doubt as to proof of an essential element of the offences, even in circumstances where Ms Z's testimony was accepted as credible. The verdicts of not guilty returned with respect to counts 2, 3, 5, 6, and 10-12 do not establish that the jury must or should have entertained a doubt as to the reliability of Ms Z as a witness; rather, the verdicts demonstrate the care with which the jury approached its difficult task, and the assiduity with which the directions of the trial judge were applied.
Each of the matters raised by the applicant as demonstrative of the unsafe nature of the convictions recorded are matters that went to Ms Z's credibility. The assessment of a witness's credibility is a jury issue, and one where an appellate court is disadvantaged in not having seen witnesses examined and cross-examined in the trial court, in the atmosphere of the trial. Transcript makes a poor substitute by which to evaluate the reliability of a witness, highlighting the significance of the role of the jury in our system of criminal justice.
As the High Court observed in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53, at [65]:
"It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. ... " (footnotes omitted).
In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, the Court said at [39]:
"The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt" (footnotes omitted).
Having examined the record of trial, I am not satisfied that the inconsistencies, discrepancies, and other inadequacies identified by the applicant, taken in light of other evidence that was before the jury, are such that the tribunal of fact should have entertained a doubt as to the applicant's guilt. Having reviewed all the evidence, I do not have a doubt as to the applicant's guilt of these charges.