Kapanadze v R

Judgment

1. HOEBEN CJ at CL: Offences and sentence The appellant was convicted after a trial before Townsden DCJ and a jury in the District Court at Parramatta. He was found guilty of the following offences: Count 1 - Aggravated sexual assault without consent (person under 16), contrary to s 61J(1) Crimes Act 1900 (NSW), for which the maximum penalty was imprisonment for 20 years with a standard non-parole period of 10 years. Count 2 - Aggravated indecent assault (person under 16), contrary to s 61M(2) Crimes Act, for which the maximum penalty was imprisonment for 10 years with a standard non-parole period of 8 years. Counts 3 and 4 - Attempt aggravated sexual intercourse without consent (person under 16), contrary to s 61P/s 61J(1) of the Crimes Act, for which the maximum penalty was imprisonment for 20 years with a standard non-parole period of 10 years.
2. The appellant was sentenced on 21 August 2015 to an aggregate sentence with a non-parole period of 7 years, commencing 27 September 2014 and concluding 26 September 2021, and a balance of term of 2 years and 4 months concluding 26 January 2024.
3. The indicative sentences were: Count 1 - 7 years imprisonment with a non-parole period of 5 years and 3 months. Count 2 - 2 years imprisonment with a non-parole period of 18 months. Counts 3 and 4 - 4 years imprisonment.
4. The appellant appealed against his conviction on the following grounds: Ground 1: His Honour erred in admitting as Tendency Evidence against the appellant, evidence of an event, allegedly witnessed by the complainant's mother, in a garden shed at the rear of the residence occupied by the complainant, her mother and from time to time the appellant. Ground 2: His Honour erred in refusing an application by counsel for the appellant to discharge the jury subsequent to the introduction of inadmissible evidence by an expert witness. Ground 3: His Honour, in summing up to the jury, misdirected the jury as to what constituted tendency evidence and how the jury was to approach the evidence led by the Crown as tendency evidence. Ground 3A: His Honour, in summing up to the jury, misdirected the jury by erroneously equating and describing one of the matters, the subject of the Tendency argument, as being a "crime" when it was neither the subject of a conviction nor a criminal charge. Ground 4: His Honour failed to instruct the jury that in a case involving "word on word" between the complainant and accused, the jury had to look closely at each individual count and in the event that they were not satisfied as to the complainant's veracity in respect of one or more of the counts, they could use that in assessing her overall veracity - R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82. Ground 5: His Honour, in summing up to the jury, misdirected the jury as to what constituted "knowledge" within the context of the elements of Counts 1, 3 and 4 of "… knowing she was not consenting …".
5. When the appeal came on for hearing, counsel for the appellant advised the Court that he was no longer relying upon Grounds 3, 3A and 5. The Crown case
6. The complainant was born in 1997 and was aged 14 at the time of Count 1, and 15 at the time of Counts 2, 3 and 4. At the time of the offences, the appellant was in a relationship with the complainant's mother, (the mother). That relationship began in April/May 2008 and in August 2008 the appellant moved in with the complainant's family at Merrylands. The appellant and the mother were married in September 2008. The appellant lived with the family until March 2012 at which time he left the marital home. Despite having moved out, the appellant continued to visit the mother and used to enter the house using his own key.
7. The four Counts on the Indictment reflected the first and last sexual incidents between the appellant and the complainant. The complainant's evidence was that between October 2011 and late February 2012, incidents occurred approximately two to three times per week, during which the appellant would force her to expose her vagina or her bottom to him while he masturbated, or he would attempt, usually successfully, to insert his penis into her anus. Because there were so many incidents, the complainant was unable to provide details of further individual occasions. She stated that it had happened so many times that there may be incidents that she was confusing with other incidents. She was unable to specify times and dates for these events.
8. When, at times, the complainant refused to co-operate with the appellant's advances or demands, he would be physically violent towards her. During this period, the appellant asked the complainant to send him photographs of her naked. In order to appease him, the complainant on a number of occasions copied images of female genitalia and buttocks that she had found on the internet and sent them to the appellant from her mobile phone.
9. The offence in the first Count took place in mid to late October 2011 and involved forced penile/anal intercourse in the appellant's car on the way home from the pharmacy.
10. The offences in Counts 2, 3 and 4 took place on 13 July 2012 in the lounge room of the Merrylands home and involved the appellant touching the complainant on her naked breast (Count 2); attempted penile/vaginal intercourse (Count 3); and attempted penile/anal intercourse (Count 4).
11. In early April 2012 the complainant made a complaint to her older sister, E, who immediately notified the police. At that stage, the complainant did not wish to be interviewed, and did not make any further disclosures.
12. On Friday, 13 July 2012 after the last incident, the complainant rang her older sister and told her what had happened. On Sunday evening 15 July 2012 the complainant told her mother what had happened. Her mother subsequently contacted the police.
13. On 18 July 2012, the complainant was interviewed at the Parramatta Joint Investigation Response Team (JIRT) offices. The appellant was arrested that same day at his residence in Cabramatta and was conveyed to the Cabramatta Police Station. The complainant was again interviewed by JIRT on 9 January 2013.
14. After the appellant's arrest, several mobile phones belonging to him were examined by police and found to contain text messages to and from the complainant, as well as a number of indecent images that she had sent to him at his request.
15. The video recordings of the complainant's two interviews with police, were played to the jury and the transcripts were marked MFI1 and MFI3 respectively. She was aged 15 at the time of the interviews. The effect of the interviews was that the complainant was being sexually and physically abused by the appellant, who was her mother's partner. The appellant would hurt her, punch and kick her at home, in the car, and at the park. The sexual assaults took place in the car, in the house, in the shed and behind the shed in the backyard. There were fewer occasions in the car than in the other places. The complainant said the appellant would verbally force her to go to the shed or the backyard. The sexual assaults mainly occurred at night, but not always.
16. The complainant said that the appellant would sexually assault her two or three times a week. He would touch her inappropriately (front and back - genitals and breasts) and say inappropriate things. He would ask her to show him her "body parts" - back, front or both. He would then masturbate while she did this. She tried her best to avoid doing so but the appellant would get angry and they would have an argument, and their shouting would wake her mother. She said that the appellant put his penis in her anus on many occasions and it was hard to differentiate each occasion. On three or four occasions he ejaculated inside her.
17. In order to better understand the grounds of appeal, it is necessary to provide some more detail about the offences which made up the Counts charged against the appellant.
18. The first time something happened was on a day in mid to late October 2011. The complainant and the appellant had been to a chemist in Parramatta and were driving home in the appellant's car. The appellant stopped the car in an unknown street. The appellant told the complainant to get into the back seat. She thought that he might have asked her to show him a part of her body. The complainant did as she was told. The appellant also got into the back seat, entering by the same door as the complainant. The complainant did not know or understand what was going to happen. She went into the back seat because the appellant verbally forced her to.
19. The appellant pushed her and she was "kind of" lying down and he then removed her pants and underpants. The appellant put his penis into her anus and had penile/anal intercourse with her. While this was occurring, the complainant tried to get away from the appellant and told him to stop and to get off her. She tried to cover herself and the appellant became angry. The complainant was unable to escape due to the awkward position in which the appellant had placed her. After a period of time the appellant got off the complainant. He told her to get into the front seat and opened the door and pushed her with his hands. They then drove home (Count 1).
20. On Friday, 13 July 2012 between 3pm and 5pm the complainant was at home. She had just had a shower and left the bathroom with a towel around her body. She went into the lounge room to iron her clothes before going out for the evening. The appellant had arrived at the house while the complainant was in the shower. He had moved out of the house in March 2012 but had a key that he used to let himself in. His relationship with the complainant's mother was continuing and he would go to the house every day or two.
21. The appellant entered the lounge room and asked the complainant to show him her bottom. The complainant lifted up her towel and showed the appellant her bottom. The appellant undid his pants and began to masturbate. The appellant then asked the complainant to bend over more, which she refused to do. The appellant asked the complainant to show him her vagina, and again she refused.
22. The appellant became aggressive, and the complainant began to walk out of the lounge room. The complainant was very scared. The appellant grabbed the complainant and pushed her onto a lounge, causing her to fall backwards. The appellant then lay on top of the complainant. The complainant screamed, "Get off me" and "I can't breathe". The appellant pressed his body weight onto the complainant and was "grinding" his body against hers, and touching her everywhere. The towel slipped off the complainant at some point, leaving her naked.
23. The appellant removed his jeans and underwear at some point. The complainant said that she remembered that when he was lying on top of her she could not feel his jeans on her and he felt bare against her. She said that at one point the appellant covered her mouth with his hand and told her to be quiet because he could see out the window that someone was walking past the house.
24. The appellant put his hand on the complainant's bare breast and felt it aggressively (Count 2).
25. The appellant was "going crazy" grabbing hold of the complainant's legs and trying to spread them apart. The complainant tried to cover her vagina and anus with her hands. The appellant continued to "hump" the complainant, and tried to insert his penis into the complainant's vagina (Count 3) and her anus (Count 4). At this time the complainant was attempting to move away from the appellant and she was also putting her hands in the way to prevent him from putting his penis into her vagina or anus.
26. At one point while trying to get away, the complainant fell onto the floor. The appellant however got her back onto the couch and continued his assault.
27. The complainant managed to get up off the lounge and ran to the bathroom. She locked the bathroom door and got into the shower to clean herself. The appellant yelled to her from outside the bathroom "Open the door, open the door". The complainant did not respond and remained in the shower for about half an hour. After about ten minutes, she heard the door slam as the appellant left the house. The incident lasted for about two to two and a half minutes from the time she was pushed onto the lounge to when she broke free and ran to the bathroom. The case for the defence
28. The appellant was born in 1961 in Georgia and arrived in Australia in June 1998. Initially, he worked on a farm in Victoria and later moved to Sydney and worked as a bricklayer. He and the mother married in September 2008. When he moved into the family home E was living there with her boyfriend, as was the mother and the complainant. E and her boyfriend moved out about two months after the appellant moved in.
29. The appellant gave evidence at trial and denied the allegations by the complainant. The effect of his evidence was as follows. E and the complainant did not accept him and his relationship with them was poor and difficult. They would not speak to him, except through their mother. However, after about six months his relationship with the complainant improved, and they became friends.
30. It was a family decision for E to move out because she behaved inappropriately - she drank alcohol in her room and she and her boyfriend could be heard having sexual intercourse in her room. The appellant regarded E as a bad influence on the complainant.
31. When his relationship with the complainant improved, the appellant "looked after" her. He drove her around and gave her the things she never had when growing up. He would take her out to dinner but only if her mother was present. The complainant had an issue with acne and he would buy her medication for it.
32. In early 2010, the appellant's relationship with the complainant was still good. However, in mid 2010 E moved back into the home and soon after the complainant's behaviour deteriorated. As a result, he and the mother decided that E should move out because she was a bad influence on the complainant. E used to drink and go out at night without saying where she was going. After she moved out, she would take the complainant back to her place. The complainant's behaviour changed in that she would not do anything at home, would be disobedient and would make demands for money from him.
33. E and her boyfriend moved back into the family home in March 2012 because they had nowhere else to live. The appellant's relationship with E was not very good. He said she continued to drink and would come home drunk and would sometimes take the complainant out at night. This time, despite his requests, E did not move out of the family home.
34. The mother agreed that he should discipline the complainant. The appellant believed that if he ceased helping the complainant financially and providing her with transportation, she would be better behaved at home and would start studying. The complainant would deceive him by asking for money and saying that the money was for school or for functions. In 2011 he confronted the complainant when he discovered that she was not going where she said she was going and that she wanted to have a boyfriend.
35. By 2012 the complainant's demands for money were more frequent. She threatened to report him to the Department of Immigration for deportation because he was not an Australian citizen. She would demand money for her dance lessons, which took place three times per week. The lessons started at 5.30pm and lasted for four or five hours. The appellant would wait there until they finished and drive her home. He often used to drive the complainant to school, although she would come home by herself.
36. On a day in 2012 the complainant came home from school upset and distressed. The complainant asked him what would happen if she took a lot of tablets to which he replied that she would die. Sometime later she came out of her room and asked him how long it would take to die. Shortly thereafter, the complainant asked the appellant to take her to hospital because she had swallowed a lot of tablets. She remained in hospital for about a week.
37. While she was in hospital, he told hospital staff about the complainant's behaviour at home and the hospital gave him contact details for the Youth Mental Health Team. He could not remember if he was told that she was depressed. When he was doing housework and cleaning the complainant's room while she was in hospital, he came across a box beneath her bed which contained, amongst other things, a vibrator. He told the mother about it and she told him to put it away and that it was none of his business.
38. In 2012 the appellant became aware that the complainant had not been attending school. He spoke to the complainant about it and told her that if she was going to miss school, he would no longer provide her with help. A heated argument took place between the mother and the complainant about her truancy.
39. The appellant gave evidence that police had come to the Merrylands home on a number of occasions in 2012 and that he had called them on about four of those occasions. He had sought their help on one occasion to look for the complainant who would disappear from home at 1 or 2am. The first time he called police was in April 2012.
40. In May 2012 the complainant trashed the house. He and the mother were at church at the time and a neighbour telephoned police after hearing noise from the house. When the appellant arrived home, he found that the police were already there. He saw that the house had been turned upside down especially the bedroom he shared with the mother. While he was at church that morning before he returned home, he had received 16 messages from the complainant asking for money.
41. The appellant gave evidence about a number of other occasions of bad behaviour on the part of the complainant. He gave examples of the complainant having a boyfriend named "George" and of spending considerable amounts of time at his home in Fairfield, both during the day and at night. For a brief period the complainant worked at Kentucky Fried Chicken on the evening shift, but was dismissed from that employment. The appellant stated that the complainant's behaviour in 2012 was "like a war". She demanded money and on occasions physically attacked him. On one occasion she attacked him in the car causing him to lose control and have an accident.
42. The appellant denied punching the complainant to the head and kicking her to the legs. He did admit to slapping her once on the cheek because she was pushing her mother. One night at about 10pm the complainant was screaming. When he went to her room, she was throwing clothes on the floor and saying that they did not love her and did not want to help her. When the mother went to remonstrate with the complainant, the complainant pushed her causing the appellant to become upset and slap the complainant's face.
43. The appellant denied assaulting the complainant in the back seat of his car and denied sexually assaulting her two or three times a week. He denied the incident in the shed. His wife could not have seen what she claimed because he had turned the lights off at that stage because he and the complainant were about to leave the shed. He kept his work clothes in the shed and sometimes had friends in there. He denied sexual intercourse with the complainant at the back of the shed.
44. The appellant's evidence, with regard to the final incident on 13 July 2012, was that he was returning home from work when he got a call from the mother, who was at the shopping centre. She asked him to go home first and give the complainant some money and then come back to pick her up, which is what he did. When he got home, the complainant was in the shower. When he gave the complainant $50, as the mother had requested, she demanded that he give her more money. As he was about to leave, the complainant said that she "urgently needed $300". The complainant was ironing her shirt at the time.
45. His evidence on this issue is at T.643.32-T.644.10 as follows: "A. … She said, "I urgently need $300.00." I said, "I don't have it. When I have the money I will give it to you but now I don't have it." ""You want this hot iron to be on face?" I said, "You think about what you are saying." "You understand perfectly that if you don't give me money you will upset me." I said, "Do what you want." At that point I was standing about in the middle of the home; I was planning to leave; I said, "I'll leave, I'll bring back your mum and then you can say to her what you like." She began to shout from there, "Don't say anything to mother; she has no money anyway; I want you to bring me money." I said, "I have no money" and I began to move out. She left everything on the ironing board and she stood in my way shouting. "Promise me that you will find me money." And she began to push me, "Promise, promise, promise." I said, "Leave me alone; your mother is waiting." But she didn't stop pushing me and shouting. I got upset - very upset, not just ordinary, but I never shouted at her. I took her by the shoulders and I pushed her; I said, "Get away from me." At that point she fell onto the couch but unfortunately the towel in which she was dressed, if you like, fell off. She started screaming wildly. I picked up the towel and covered her. She continued to scream. I said, "Look, there are people out there; what are you screaming about?" And screaming she ran back to her room. I also didn't quite know what to do but I went; picked up the wife at the shopping centre, and I said to her, "I had an argument with [the complainant]; we had a very bad argument." But I didn't describe the situation to her; didn't consider it necessary because I was embarrassed to tell the story."
46. The appellant denied ever asking the complainant to send him rude photographs of herself. The complainant did send him rude photographs of herself in an attempt to extort money from him. He forbade her from sending him such photos, but she continued to do so. He kept the photos on his phones which he surrendered to his lawyers following his arrest and said to them "This is evidence of what [the complainant] has done to me and you know what to do with it". His lawyers told him that they would be giving the phones to the police. The appellant said that he kept the pictures and messages received from the complainant as "evidence" of the complainant's behaviour and her mental condition.
47. There was evidence in the appellant's case from Professor Hilton, an Associate Professor of Forensic Science at the University of Western Sydney. This evidence was to counter that of Dr Christine Norrie, who gave evidence in the Crown case. Dr Norrie was from the Child Protection Unit at Westmead Children's Hospital. Her experience included the physical examination of patients, including their genital and anal areas. She had seen thousands of patients and as of 2004 she had seen the most children of anyone in Australia.
48. Dr Norrie had conducted an anal and perianal examination of the complainant and reported the presence of "a 0.5cm healed recessed laceration (tear) at [the] 6 o'clock position (if lying on her back) just above the perianal verge with a 1cm surrounding raised scar tissue extending around the perianal margin". Dr Norrie regarded the perianal examination results as abnormal in that they showed a recessed 0.5cm fissure or laceration with surrounding raised scar tissue. She said that such a laceration occurred when blunt force trauma exceeded the stretching properties of the tissue causing it to tear. Such a result could be caused by anal penetration by an object such as a penis, fingers or other objects.
49. Professor Hilton did not examine the complainant. His evidence was based on photographs, which had been shown to him. He opined that there were a number of causes of an anal fissure, and trauma was only one possibility. He stated that it would not take much force to cause a fissure. Professor Hilton said that there was no fissure present in the photos which he observed. There was something that had healed but no actual fissure. He identified a number of other possible causes of a fissure of that kind. CONVICTION APPEAL Ground 1: His Honour erred in admitting as Tendency Evidence against the appellant, evidence of an event, allegedly witnessed by the complainant's mother, in a garden shed at the rear of the residence occupied by the complainant, her mother and from time to time the appellant.
50. In support of that ground, the appellant noted that on the first day of trial the Crown sought leave to call evidence from the mother of what she said she saw in a shed at the back of the property which was occupied by the complainant and the appellant. The evidence was to be led as tendency evidence to support a direction sought by the Crown that the appellant had a sexual interest in the complainant and a tendency to act towards her in a certain manner.
51. The Crown's application was opposed. The trial judge granted the application. In doing so, his Honour summarised the evidence as follows: "Secondly, the Crown also seek to lead tendency evidence of incidents said to have occurred in what is described as the shed in the backyard of the complainant's house. The complainant, in her record of interview, recalled on one occasion her mother walked into the shed when the complainant was pulling up her shorts after an incident with the accused. The Crown seek to lead evidence from the complainant's mother which is said to corroborate this incident. According to her statement, she recalled going into what she described as the converted garage and recalls seeing both the accused and the complainant close together. She describes seeing "the lower part of his body as being open, then he let go of the string and his shorts went back to his body". She recalled asking what was going on at the time. Although I would accept the evidence of the mother as somewhat different to that of the complainant, both the complainant and the mother do not recall any other time the complainant's mother came into the shed or garage in similar circumstances. I would accept this evidence, which tends to corroborate the complainant's version of events. … The evidence in respect of what is said to have occurred in the shed of the complainant's house is similarly highly probative of both the accused's state of mind and also whether the accused did in fact have sexual intercourse with the complainant as charged with respect to count 1, and whether the accused indecently assaulted the complaint with respect to count 2, and whether the accused attempted to have sexual intercourse with the complainant as charged with respect to counts 3 and 4. The allegation is said to have occurred at the complainant's residence and during a period between the first and remaining counts. The alleged conduct in this instance is in fact similar in nature to the allegations contained in the counts. Pursuant to the considerations as set out in 101 of the Evidence Act, I am satisfied the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The application to adduce tendency evidence as set out in the amended notice is granted." (R v Kapanadze (District Court, Townsden DCJ, 1 December 2014, unrep) at 1-2, 5-6)
52. It is against that background that the appellant relied upon the evidence of the mother on day 11 of the trial, and which is set out at T.482.40 - 483.20, and refers to an occasion when an argument took place between the appellant and the complainant which involved the complainant shouting and the appellant kicking her in the stomach and in the legs. The confrontation was so violent that eventually the mother poured a jug of water over both of the participants, in order to bring the confrontation to an end.
53. The appellant submitted that this evidence was unrelated to any tendency issue and was irrelevant to any issue in the trial. He submitted that it was only capable of being evidence of bad character and that it should have been objected to and rejected and a discharge of the jury sought. The appellant submitted that the only reason that evidence was admitted was because it was part of the "tendency evidence" which was to be given by this witness. Consideration
54. Apart from the general objection to tendency evidence on which his Honour ruled, no objection was taken at trial to this evidence. Accordingly r 4 of the Criminal Appeal Rules (NSW) apply and it is necessary for the appellant to have leave to make this submission.
55. In any event, the submission is misconceived. The evidence directly corroborated the testimony of the complainant to the effect that on occasions the appellant resorted to violence to coerce her into behaving in a certain way. This was evidence of a resort to violence, although the motivation for the violence was not identified. In that regard, the evidence was relevant and went far beyond evidence of "bad character".
56. Had an objection been made pursuant to s 137 of the Evidence Act 1995 (NSW) it would also have been admitted. Its probative value substantially outweighed the danger of unfair prejudice to the appellant. Its capacity to rationally affect an issue in the proceedings was clear and there was nothing unfair to the appellant in it being led.
57. The absence of an objection to the evidence at trial causes another difficulty for the appellant if the objection was based on s 137. Although there is a decision to the contrary (Steve v The Queen [2008] NSWCCA 231; 189 A Crim R 68) the better view, in my opinion, is that subject to the overriding obligation to ensure a fair trial according to law, there is no obligation on a trial judge to reject evidence of his or her own motion when no objection is taken and the accused is legally represented (R v FDP [2008] NSWCCA 317; 74 NSWLR 645 at [16] ff; Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at [66]; Penza and Di Maria v Regina [2013] NSWCCA 21 at [194] - [199]; Poniris v R [2014] NSWCCA 100; Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 at [261] - [263]). The qualifications to that approach in Tieu v R [2016] NSWCCA 111 at [41] - [42] and in Perish at [272] have no application to the facts of this case.
58. It follows that this part of appeal ground 1 has not been made out.
59. The balance of ground 1 is directed at the evidence of the mother at T.493.40 and following. The particular evidence was: "Q. Had you ever witnessed a sexual assault upon [the complainant] by [the appellant]? A. INTERPRETER: Yes. Q. When was that? A. INTERPRETER: That was in July 2012. My daughter was trying to talk to me and I was trying to postpone that conversation to get another day. In ­­- on Saturday, we still hadn't had that conversation, [the complainant] was still in bed and I went on the bus to Merrylands. And on Sunday [the appellant] brought me back from the church where we had gone together according to his wishes and [the complainant] told me "Mother, are you ready to talk to me?".
60. The appellant submitted that the balance of that answer which occupied over a page of transcript was unresponsive to the question and related to what the mother had been told by the complainant about another issue and did not relate to what she had witnessed. The appellant submitted that it was not until T.496.18 that any evidence as to what the mother saw in the shed was forthcoming. That evidence, which the appellant relied on, was: "Q. When you saw them did you see them do anything? A. INTERPRETER: I saw that [the appellant's] shorts were pulled away from his body. He had fingers inside pulling away and there was cable to pull away the shorts from his body so everything that he had inside the shorts would be visible. Q. Did you see what he did next if anything? A. INTERPRETER: Yeah, those shorts. When they became aware that I came in both of them, he turned his head and [the complainant] was looking straight because she could see my face. When that happened he removed the fingers and the string of his shorts collapsed against his body and that was very loud noise. Q. Was the noise of the band of the shorts? A. INTERPRETER: It was the short. Q. So if I understand your evidence correctly he was wearing shorts but he pulled them away from his waist, is that correct? A. INTERPRETER: Yes, but quite a long way, about the same distance that I have here. Q. When you saw this, did you see [the complainant] doing anything? A. INTERPRETER: No. Q. Was there a conversation at this point? A. INTERPRETER: I asked "What's going on here?". (T.497.30 - 498.4)
61. The appellant submitted that this evidence could not constitute "tendency evidence". He submitted that the non-responsive material at its highest was "complaint evidence" and as such did not warrant a tendency direction as was given by his Honour in the summing up. The appellant submitted that this misdirection encouraged the jury to use the complaint evidence in an impermissible manner, i.e. as tendency evidence.
62. As part of this ground of appeal, the appellant also relied upon the following evidence: "Q. You spoke to [the complainant] about what happened in the garage on the Sunday when you had the talk in your bedroom? A. INTERPRETER: Yes. Q. After you had that talk with [the complainant] in your bedroom did you continue your relationship with [the appellant]? A. INTERPRETER: No, I was beside myself and I didn't know how to save my child; I was … Q. I'll stop you there - you didn't continue? A. INTERPRETER: No, we didn't sleep together. That kind of relationship had been interrupted long ago. A. WITNESS: Before Christmas." (T.498.13)
63. By reference to that evidence, the appellant submitted that the unsolicited evidence of the breakdown of the sexual relationship between him and the mother was unfairly prejudicial to him as it had the potential to create in the mind of the jury a motive for him to have formed a sexual interest in the complainant. Consideration
64. It needs to be kept in mind that the evidence of what happened in the shed was evidence in relation to an uncharged act and was part of the evidence of the factual context which gave rise to the offending in the counts relied upon against the appellant. Apart from the mother, the complainant had given evidence of what happened in the shed in her first police interview on 18 July 2012 at Q. and A.291. That evidence was to the effect that the appellant had verbally pressured her into entering the shed where anal intercourse took place. At the end of the incident, the complainant's mother had entered the shed.
65. In those circumstances, for the reasons given by his Honour in his ruling as to the admissibility of the tendency evidence, the evidence of what the mother saw the appellant doing with his shorts and the fact that the complainant and the appellant were standing close together at the time, was capable of providing a basis for the identified tendency, i.e. that the appellant had a sexual interest in the complainant. That is sufficient to deal with this aspect of the ground of appeal.
66. There are, however, other bases which made the evidence admissible. The incident in the shed was important to the Crown case because it alone of all the uncharged incidents was corroborated by the mother. The mother's evidence strengthened the complainant's evidence about this incident. Although the evidence was largely circumstantial in nature, and although the mother's evidence of this incident standing alone could not prove indecency, it did not have to, in order to corroborate the complainant's evidence (Doney v The Queen [1990] HCA 51; 171 CLR 207 at 211; IMM v The Queen [2016] HCA 14; 257 CLR 300).
67. The mother's evidence, which was described by the appellant as non-responsive, was in fact evidence of what she had been told by the complainant concerning Counts 2 - 4. It was evidence of complaint by the complainant to her. As such it was not hearsay (s 66 of the Evidence Act 1995 (NSW)) and was relevant to establishing the impugned conduct of the appellant. Accordingly, although it was unresponsive to the particular question which was asked, it was relevant evidence. Importantly, the appellant's counsel did not object to the evidence, nor did he seek a redirection at the time of the summing up.
68. The evidence from the mother concerning the breakdown of her relationship with the appellant was not led as tendency evidence and was not the subject of the tendency direction given by his Honour. The evidence was clearly relevant and had substantial probative value. The only basis for any objection to its admissibility would be reliance upon s 137 of the Evidence Act, i.e. that its unfair prejudicial value outweighed its probative value.
69. If that is the basis of the appellant's submission, it fails on two bases. Firstly, the probative value of the evidence clearly outweighs any prejudicial effect and certainly does not give rise to any unfair prejudice. Moreover, the fact that no objection was taken by counsel for the appellant when the evidence was given has the consequences already referred to. Leave to rely on the issue is required by rule 4 and is probably precluded by the failure to object in any event.
70. It follows from the above that this ground of appeal has not been made out. Since the matters raised in the ground of appeal were not raised at trial and rule 4 applies, I would refuse leave under rule 4 for the appellant to rely upon this ground. Ground 2: His Honour erred in refusing an application by counsel for the appellant to discharge the jury subsequent to the introduction of inadmissible evidence by an expert witness.
71. The appellant noted that the Crown called Dr Christine Norrie as an expert witness to give evidence of the likely cause of an injury to the complainant's anus which was found on physical examination. During cross-examination of Dr Norrie, during the course of the trial, the following evidence was given: "Q. The reality is that there are some females who do engage in anal sex; isn't that right? A. Some females? Q. Yes. A. There are also some males to whom it's the preferred method. Q. That's right, but I'm asking you please concentrate on females. A. It's about 8% of women. Q. When you say it's about 8%, what is about 8%? A. That prefer anal intercourse. Q. Whereabouts did you get that statistic from? A. Margaret Stark, forensic medicine handbook. Q. There is then, a percentage of the population, female population who do engage in that kind of sex; isn't that right? A. I believe that it was a case of - from what I gather, [the complainant's] mother did. Q. I'm not asking you about her mother, I'm asking you as a broad proposition, there is a percentage of the female population who engages in that kind of sex; isn't that right? A. I've answered that, Yes." (T.418.9 - .32)
72. When this evidence was given, counsel for the appellant sought a discharge of the jury. This application was refused by his Honour.
73. The appellant submitted that his Honour was in error in failing to discharge the jury. The appellant submitted that the prejudice created by that answer was such that it could not be remedied by a direction from the trial judge. This was because Dr Norrie's evidence left it open to the jury to draw an inference that the appellant had a predilection to engage in "anal sex with women". This was never the subject of any tendency application by the Crown and would normally have been an impermissible course of reasoning. The appellant submitted that there was a further difficulty in allowing the trial to proceed. The introduction of the hearsay opinion as to the sexual practices, not of the complainant but of the mother, would excite speculation by the jury that anal sex with a female was the appellant's preferred form of intercourse. This could be wrongly used by the jury to conclude that the allegations by the complainant of anal sex and attempted anal sex were more likely than not to be true, bearing in mind that the appellant engaged in sexual practices of this kind with his regular sexual partner, the mother.
74. The appellant submitted that the direction which his Honour gave to the jury in relation to this evidence was inadequate. The appellant submitted that with prejudicial evidence of this kind before the jury, the only fair thing the trial judge could do was to discharge the jury. His failure to do so meant that a miscarriage of justice occurred in that he did not have a trial according to law. Consideration
75. In rejecting the application for the discharge of the jury, his Honour said: "Dr Norrie, during the course of cross-examination, was asked a question concerning the percentage of female population who engage in anal sex and replied that from what she understood the complainant's mother did also. Counsel for the accused submits that the evidence is prejudicial and cannot be cured by any direction of the Court. By inference, the jury could well conclude that the accused, who was the partner of the complainant's mother, engaged in penile/anal intercourse. Given the evidence that only a relatively small percentage of females engage in this type of sexual intercourse the jury may well use such evidence that is consistent with the complainant's account. The Crown submit however that the evidence could be cured by a redirection and note that there is no suggestion of lack of consent when compared with the present allegations. The evidence was hearsay and was in no way relevant to the witness's evidence. Although, I would accept the evidence as prejudicial, I am of the view that it can be cured by an appropriate direction informing the jury that no such evidence is produced by the Crown nor is it intended to be produced by the Crown. The evidence was hearsay and was not relevant to the witness's testimony. The evidence will be struck from the record and I would ask the jury to disregard it. In those circumstances I am not persuaded that the jury, properly instructed, would not discharge its duties properly. The application is refused." ((R v Kapanadze (District Court, Townsden DCJ, 10 December 2014, unrep at 1-2)
76. The direction given by his Honour to the jury was as follows: "HIS HONOUR: Members of the jury thank you again for your patience. There was an issue that needed to be resolved - that now has in fact been resolved. Members of the jury there is an important direction that I need to give you at this stage. You may recall the evidence of Dr Norrie. At one stage during the course of cross-examination she was asked the question concerning the percentage of the population or female population engaged in the kind of sex that was referred to as "penile anal intercourse". And she gave the response "I believe that it was a case from what I gather [the complainant's] mother did". Now, members of the jury no such evidence is produced by the Crown, nor is it intended to be produced by the Crown. The evidence was in fact hearsay and was not relevant to the witness' testimony at all. The evidence will therefore be struck from the record and I will direct you as members of the jury to disregard that evidence totally. Thank you." (T.471.3)
77. His Honour did not refer to that evidence of Dr Norrie again, nor did counsel.
78. The jury had been empanelled on Tuesday 2 December. Opening addresses were made and the complainant commenced giving her evidence on that day. She continued to give evidence until Friday 5 December after which her sister and a police officer gave evidence. Dr Norrie commenced giving evidence on Monday 8 December. It was during Dr Norrie's cross-examination that the response under consideration was made. The application to discharge the jury was made on 10 December.
79. An important consideration in that brief review of the progress of the trial is that the complainant had given her evidence over a considerable period of time and that substantial parts of that evidence involved matters of considerable sensitivity. Had the jury been discharged, as requested by counsel for the appellant, it may have been necessary for the complainant to give that evidence again in a subsequent trial. That was likely to have presented considerable difficulties for her.
80. The question raised by this ground of appeal is whether the result of the refusal to discharge the jury has occasioned the risk of a substantial miscarriage of justice (Crofts v The Queen [1996] HCA 22; 186 CLR 427 at 441; TO v R [2017] NSWCCA 12 (Price J with whom Button and Fagan JJ agreed) at [152]).
81. In Qing An v Regina [2007] NSWCCA 53 Beazley P (with whom Hislop J agreed) identified the following factors as relevant to a consideration of whether there was a substantial miscarriage of justice arising from an irregularity in a trial: "25 … the nature of the irregularity; the relevance of the irregularity to the issues before the jury; whether the material was prejudicial; and the extent of the prejudice. Given those considerations, the question was what was called for in the proper exercise of the discretion; namely, a discharge of the jury, or appropriate directions to the jury. That last matter in turn raised the question whether the directions given were adequate."
82. The impugned evidence from Dr Norrie was clearly prejudicial. It was, however, adduced not as part of the Crown case but as an unresponsive answer in cross-examination. There was no basis in the evidence available to the jury for Dr Norrie's "belief". It is quite properly to be described as "unattributed hearsay". The trial judge gave an unqualified direction to the jury to ignore what Dr Norrie had said on that issue. The direction was not inadequate. It was clear and the reasons for it were explained to the jury. Once the direction was given, there was no need to return to the irregularity in the summing up. To have done so would have only exacerbated the potential problem created by the evidence.
83. It is trite to observe that in the administration of the criminal law it must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the judge's directions. This has been stated on many occasions by the High Court. There is no indication that the jury in this case did not fully comply with his Honour's directions.
84. This ground of appeal has not been made out. Ground 4: His Honour failed to instruct the jury that in a case involving "word on word" between complainant and accused, the jury had to look closely at each individual count and in the event that they were not satisfied as to the complainant's veracity in respect of one or more of the counts, they could use that in assessing her overall veracity - R v Markuleski [2001] NSWCCA 290.
85. The appellant submitted that while his Honour did give a "Murray" type direction, because of the nature of this trial and the multiple allegations made, a direction in the nature of that set out in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 would have been appropriate and ought to have been given. Consideration
86. His Honour in fact did give a R v Markuleski direction in the following terms: "I will now turn to the direction in relation to multiple counts and how they should be considered. Giving separate consideration to individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome. If you were to find the accused not guilty of any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts."
87. No application for a redirection or modification to that direction was sought at the conclusion of the summing up. In those circumstances, no error has been identified. In any event, this was not a case where a R v Markuleski problem arose in that the jury found the appellant guilty of all counts.
88. This ground has not been made out. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
89. Originally the applicant relied upon the following grounds of appeal in relation to sentence: Ground 6: The sentence imposed by his Honour Judge Townsden of the District Court on 21 August 2015 was manifestly excessive. Ground 6A: His Honour erred when sentencing the offender in failing to find "special circumstances" due to the fact that it was his first time in custody and his prior good character.
90. At the hearing of the appeal, the appellant abandoned Ground 6 and proceeded only in relation to Ground 6A.
91. The appellant submitted that his age at the time of sentencing (51), absence of prior convictions and the fact that he had not been in custody before, required that a finding of special circumstances be made in his favour and that the ratio between the non-parole period and the balance of sentence be adjusted accordingly. No further submissions were made. Consideration
92. The concept of "special circumstances" was considered by a five judge bench in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704. There, Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman AJ agreed) said: "59 The words "special circumstances" appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. The sentencing context in which they appear in the present legislation must be understood against the background of a long-standing line of decisions in the High Court, commencing with Power, which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected. 60 Statutory words of such generality usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulation. While certain considerations might not often be sufficiently "special", so that an exceptional justification is required for them to attain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that "special circumstances" are made out on the facts of a particular case. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a "special circumstance". 61 The statutory proportion constitutes a 'fetter' or 'constraint' (to use the words of the Court in GDR, quoted above) on the exercise of what would otherwise be an unfettered and unconstrained discretion. It does not, however, alter the discretionary nature of the judgment for which the statute provides in s44(1)(b) of the 1999 Act, requiring the Court to fix a non-parole period, subject to s45 of the Act. 62 The issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting "special circumstances" of the requisite character, i.e. that it is capable of justifying a variation in the statutory proportion which the legislature has enacted. 63 More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence."
93. At [73] the Chief Justice said: "73 One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive."
94. The three matters identified by the appellant could, with some qualifications, have been taken into account by the sentencing judge as "special circumstances". His Honour was not obliged to do so. It was a matter fully within his sentencing discretion as to whether his Honour would so find. In the exercise of that discretion, his Honour declined to make any such finding.
95. In order to challenge his Honour's decision on that issue, it is necessary to identify error of the kind in House v The King [1936] HCA 40; 55 CLR 499. The appellant has made no attempt to identify such error.
96. In Regina v Fidow [2004] NSWCCA 172 Spigelman CJ (with whom RS Hulme and Adams JJ agreed) said at [22]: " … Simply because there is present in a case a circumstance which is capable of constituting a "special circumstance" does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation."
97. In this case there is an added difficulty for the appellant. One of the matters relied upon by him for justifying a finding of special circumstances is his otherwise "good character". It has been said by this Court on many occasions that less weight is to be given to good character in sexual offences against a minor since it is that very good character which has often enabled an offender to get access to the victim. Given the repeated nature of the appellant's offending in this case, his character was not of such a kind as to warrant a finding of special circumstances.
98. In relation to the other two factors identified, the fact that this is his first time in custody does not necessarily amount to special circumstances (Collier v R [2012] NSWCCA 213 at [36] per McClellan CJ at CL (R A Hulme and Schmidt JJ agreeing).
99. Similarly, the appellant's age was not of particular significance. The appellant has not shown that imprisonment would be more onerous for him on account of his age, nor that his health or life expectancy had any bearing on the assessment of the sentence.
100. This ground of appeal has not been made out.
101. The orders which I propose are: 1. In relation to the conviction appeal, I would refuse leave under rule 4 of the Criminal Appeal Rules for the appellant to rely upon Ground 1 and I would dismiss the appeal in relation to Grounds 2 and 4. 2. In relation to the application for leave to appeal against sentence, I would grant leave to appeal against sentence but dismiss the appeal.
102. WALTON J: I agree with Hoeben CJ at CL.
103. R A HULME J: I am in general agreement with Hoeben CJ at CL that none of the grounds of appeal against conviction or sentence can succeed. The appeal against conviction should be dismissed and leave to appeal against sentence should be refused.

Ground 1 (admissibility of evidence of the complainant's mother as tendency evidence)

1. The complaint in relation to this ground is confined to the evidence of the complainant's mother. The Crown relied upon the evidence of the complainant (her interview of 18.7.12 at Q 283-291) of being sexually assaulted by the appellant in the shed in the backyard of the home on multiple occasions and upon the corroborative evidence of the complainant's mother in relation to one such incident. The trial judge ruled that such evidence by both the complainant and her mother was admissible as tendency evidence (see the passage of the judgment quoted by Hoeben CJ at CL at [51]).
2. Four issues were raised by counsel for the appellant in relation to this ground.
3. First, there was a complaint about evidence of the mother witnessing what counsel described as a "violent confrontation" between the appellant and the complainant on some other occasion (T482.40 - 483.20). This was not part of the tendency evidence led by the Crown and, accordingly, was not relevant to this ground of appeal. It was admissible nevertheless for the reasons given by Hoeben CJ at CL at [54]-[57].)
4. Secondly, reference was made to evidence by the complainant's mother (at T493.40 - 496.15) of a complaint made by the complainant about the incident with which Counts 2 to 4 were concerned. This has nothing to do with the correctness or otherwise of the ruling on the admissibility of tendency evidence. The mother's evidence on this topic was admissible evidence of complaint (per s 66 of the Evidence Act 1995 (NSW) and see Hoeben CJ at CL at [67].) The fact that the passage of evidence commenced with an unresponsive answer to the prosecutor's question ("Have you ever witnessed a sexual assault upon [the complainant] by Mr Kapanadze?") is irrelevant.
5. Thirdly, reference was made to the evidence by the complainant's mother about witnessing her daughter and the appellant together in the shed (see the extract in the judgment of Hoeben CJ at CL at [60]). Counsel for the appellant submitted that this evidence was not admissible as tendency evidence because it was what the mother had been told, not what she had seen (AWS p. 4.9). The proposition must be rejected; the evidence was quite clearly an account of what the mother had seen for herself.
6. A related complaint was that this evidence "did not warrant a tendency direction as was given by his Honour at SU 28" and the judge thereby misdirected the jury and encouraged them to use the evidence in an impermissible manner (AWS p. 4.9). This proposition must also be rejected. The judge gave a standard tendency direction concerning the evidence of both the complainant and her mother about the shed incident. In the course of this, he briefly reminded the jury (in a single sentence) that the complainant had later made a complaint to her mother about the incident (SU 28-29).
7. In oral submissions, counsel contended that the shed incident amounted to "context evidence" but it was not "tendency evidence" because "it doesn't show a tendency to do anything". The point was not developed beyond that bare assertion. The tendency asserted by the Crown was that the appellant "had a sexual interest in the complainant and was willing to act upon it in the way that the complainant alleges" (SU 28.4). The evidence of what occurred in the shed was capable of supporting a finding of such a tendency. Having regard to the fact that its source was not simply the complainant (cf IMM v The Queen [2016] HCA 14; 257 CLR 300) it had significant probative value (for the purposes of s 97(1)(b) of the Evidence Act) having regard to the issues in the trial (the defence case being that no sexual improprieties occurred at all).
8. Counsel for the appellant accepted that the mother's evidence was corroborative of her daughter's evidence concerning this incident and submitted that if the mother's evidence had been put to the jury as such there would be no complaint (29.3.17 at T3.24 - 4.2). It is difficult to understand this point in circumstances where the shed incident went to the jury as tendency evidence and the jury was reminded that the complainant had given evidence of it, as had her mother (SU 28). There is no merit in this aspect of the appellant's argument.
9. The final issue concerned evidence given by the complainant's mother about the cessation of her relationship with the appellant and the two no longer sleeping together. As with the first two issues, this has nothing to do with the admissibility of tendency evidence. Moreover, despite what was said in written submissions, counsel conceded at the hearing that this evidence "was always going to be admissible" (29.3.17 at T5.16)
10. As part of the third issue was the subject of the objection raised at trial, I would not refuse the appellant leave under r 4 of the Criminal Appeal Rules. Nevertheless, this ground must be rejected.

Ground 2 (refusal to discharge jury)

1. I agree with Hoeben CJ at CL that the trial judge's determination to deal with this issue by way of striking out the evidence, directing the jury to disregard it and refusing to discharge the jury did not occasion a miscarriage of justice.

Ground 4 (failure to give Markuleski direction)

1. I would refuse leave for the appellant to rely upon this ground pursuant to r 4 of the Criminal Appeal Rules for the simple reason that it is completely baseless. The direction was in fact given. Moreover, having regard to the fact that the verdicts were all guilty, the jury cannot have doubted the complainant's credibility in respect of any of the counts in the indictment.

Ground 6A (failure to find special circumstances)

1. It was contended in written submissions that age, prior good character and no prior imprisonment entitled the appellant to a finding of special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
2. Counsel for the appellant acknowledged at the hearing that this was a discretionary matter but argued that the primary judge was "bound" to make such a finding. No authority was cited for this contention, which is unsurprising; it is simply untenable.

Conclusion

1. I propose the following orders:
2. Leave to appeal against conviction on Ground 4 refused.
3. Appeal against conviction on Grounds 1 and 2 dismissed.
4. Leave to appeal against sentence refused.

---

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: 13 April 2017