Kirk Group Holdings Pty Limited v WorkCover Authority of NSW

Kirk Group Holdings Pty Limited v WorkCover Authority of NSW - [2008] NSWSC 251 - NSWSC 2008 case summary — Zoe

[26]

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)." An Administrative Process 5 Part 7 Crimes (Appeal and Review) Act 2001 has its origins in a legislative scheme which was an innovation in New South Wales - it is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice: Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151 at 154 [5], 155 [8]. An application under s.78 does not involve a judicial proceeding: s.79(4). In determining such an application, the Court performs an administrative act: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124]. 6 The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. 7 Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. 8 There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9].

[27]

Some Other Features of the Jurisdiction 9 The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result. 10 The jurisdiction which a judge is exercising under Part 7 Crimes (Appeal and Review) Act 2001 is an administrative function which may be activated when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence. The powers available under s.79 are limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. They do not extend to a power to quash convictions or direct acquittals (as the Applicant sought in this case). 11 The nature of the jurisdiction under Part 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss.78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s.475, it was observed that the fresh evidence rule had no application: Application of Esposito at page 2; Application of Visser at page 3. 12 If the judge refers the case to the Court of Criminal Appeal, however, that Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912: s.86 Crimes (Appeal and Review) Act 2001. On an appeal following referral, the test governing the reception of new and fresh evidence on appeal is applicable: R v Johns (2000) 110 A Crim R 149 at 151-153 [4]-[10], 165-169 [41]-[58]; R v Pollock [2005] NSWCCA 316 at [2]-[3], [24]ff.

[30]

16 It has been clear since the decision in Public Service Board of New South Wales v Osmond (1985-1986) 159 CLR 656 that, absent the imposition of a statutory obligation, the general law principles of procedural fairness do not require administrative decision makers to give reasons for the discretionary exercise of a statutory power: Commissioner of Police v Ryan [2007] NSWCA 196 at [38]. 17 I observe that the statutory scheme contained in Part 7 of the Crimes (Appeal and Review) Act 2001 is more elaborate than the scheme in s.475 Crimes Act 1900. In particular, the Supreme Court may refuse to consider or otherwise deal with an application (s.79(3)) or may defer consideration of a s.78 application (s.79(3A)). 18 The provisions contained in Part 7 suggest that where a judge declines to direct an inquiry or refer the case, some reasons for that decision should be provided. Section 79(3)(a)(ii) provides that the Court may refuse to consider or otherwise deal with an application if it appears that the matter has previously been dealt with under Part 7 or previous review provisions, and the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. It might be thought that a judge is in a better position to reach such a view if reasons have been provided by the first judge for refusing the previous review application. 19 Where a judge directs an inquiry under s.79(1)(a) of the Act, it might be expected that reasons will be provided for such a direction to allow an understanding of the circumstances giving rise to the doubt or question identified for the purposes of s.79(2) of the Act. Reasons might also be expected where a referral of the whole case is made to the Court of Criminal Appeal under s.79(1)(b) of the Act, although it will be a matter for the Court of Criminal Appeal to determine the appeal upon the grounds and materials before that Court: R v Vastag (Court of Criminal Appeal, 20 June 1997, unreported); R v Johns at 151-153. 20 I propose to give reasons for my decision on the application. I do not propose to address every argument advanced by the Applicant in his submissions. I will, however, address the significant topics advanced in support of the application.

[31]

The Trial and the Appeal 21 Before turning to the matters raised in support of the present application, it is appropriate to refer to the trial before the District Court and subsequent appeal by the Applicant to the Court of Criminal Appeal. 22 The Applicant was arrested and charged on 21 September 2001. He was committed for trial on 22 January 2002. 23 Between 13 and 21 May 2002, the Applicant stood trial before Shadbolt DCJ and a jury on an indictment containing five counts. The first was a charge of aggravated sexual intercourse without consent, the second and third were of attempted sexual intercourse without consent and the fourth and fifth of assault with acts of indecency. All offences were said to have been committed as part of a single, continuing course of conduct during the evening of 19 July 2001. The jury found the Applicant guilty on the first and second counts and not guilty on all other counts. The Applicant was represented by counsel at the trial. 24 On 27 June 2002, the Applicant was sentenced on the first count to imprisonment for four years with a non-parole period of 18 months and on the second count to imprisonment for two years with a non-parole period of one year with both sentences to be served concurrently and to date from 21 May 2002. 25 On 27 November 2002, the Court of Criminal Appeal (Simpson J, Carruthers and Mathews AJJ) dismissed an appeal against conviction: R v Holland [2002] NSWCCA 469. The Applicant did not seek leave to appeal against sentence. The Applicant was represented by senior and junior counsel (not being trial counsel) on the appeal. 26 Given the issues raised on the present application, it is appropriate to include the following extract from the judgment of Simpson J (Carruthers and Mathews AJJ agreeing) which summarises the evidence and issues at the trial (my emphasis added): "3 The Crown case, as given principally through the complainant's evidence, was that the appellant, who was then a member of the NSW Police Service, was engaged as a tutor at the Goulburn Police Academy. The complainant, who was then twenty-one years of age, was a student at the Academy. One of her classes was taught by the appellant. Until 19 July 2001 she had no social relationship with him. On the evening of that day the complainant had dinner with friends at a licensed establishment called Tully Park Tavern in Goulburn, and then returned to the Academy. She went to a liquor bar. There she encountered the appellant. They greeted each other in a friendly and physical manner. The appellant showed signs of intoxication. After a few minutes, at the complainant's invitation, the appellant joined her group. They talked for a time and the appellant rejoined the group with whom he had previously been. After a time the appellant and the complainant were again in the same group, and joined in playing some kind of game for about five minutes. The complainant purchased a drink for herself and one for the appellant.

[32]

4 The appellant left the bar and went to Tully Park Tavern. Just before leaving he pulled forward the clothing the complainant was wearing on the upper part of her body, indicated her breasts and made a sexually suggestive remark. After having another drink at the Academy Bar, the complainant also returned to Tully Park Tavern in the company of others. She encountered the appellant and again bought a drink for each of them. He then bought each of them a drink. The appellant and the complainant engaged in conversation for about 20 or 25 minutes. During this conversation the appellant hugged the complainant on two or three occasions. This caused her no concern. At this point the appellant's (male) companion stated that he intended to leave. The appellant asked the complainant what she intended to do. She said that she intended moving to another bar (identified in the transcript as 'Dingoes', also known as 'Bingo'. It may be that 'Dingoes' is a mis-transcription for 'Flamingos'.) In any event the complainant and the appellant left Tully Park Tavern and went to another bar called Flamingos. At Flamingos the appellant continued to behave in a sexually suggestive manner, and his behaviour became more sexually explicit. The appellant's hands were on the complainant's back and hips. He told her he wanted to go outside. She asked why and he said he wanted to talk. He took the complainant by the hand and led her outside. He led her to a gate, pressed her against it and made further sexually suggestive references to her breasts. He pulled down her upper clothing, continuing to make references to her breasts. He kissed her breasts. The complainant was protesting. The act of kissing her breasts was the act that gave rise to the fourth count on the indictment, the first in time. On this count the appellant was acquitted. The complainant stated that she wished to return inside, but the appellant held her by the wrist and walked down a hill. The complainant protested. The appellant continued to hold the complainant tightly by the wrist preventing her pulling away. The appellant again removed, or tried to remove, the top part of the complainant's clothing. The complainant continued to protest. The appellant put his hand in the front of the complainant's pants and inserted his fingers in her vagina. This caused the complainant some pain. The act of inserting his fingers in her vagina gave rise to the first count on the indictment (of which the appellant was convicted). At the same time he was attempting, using his other hand, to remove her clothing. The appellant told the complainant that she 'wanted it because she was wet'. The appellant pushed the complainant downwards until she was on her knees and attempted to insert his penis into her, but his penis was not fully erect and the attempt failed. This gave rise to the second count (of attempted sexual intercourse), on which, again, the appellant was convicted . The appellant again pulled the complainant down and attempted to insert his penis into her mouth. It was not fully erect, and touched her face. This gave rise to the third count on the indictment (on which the appellant was acquitted).

[136]

19 The appellant gave evidence in the trial . He denied having forced the complainant from Tully's Tavern. He denied having pulled down her clothing to expose her breasts and denied attempting to kiss her breasts. He said that such sexual activity as there was had been consensual . He adopted and relied upon the answers he had given when interviewed. He was asked to explain the content of the telephone conversations. Contrary to what he had there repeatedly said, he denied that he had been intoxicated, although he had earlier repeated (as he had said in his interview) that he was 'moderately affected' on the night and explained his responses in those conversations by saying that he accepted what had been put to him by the complainant . He said that he was ashamed of what had happened. He also claimed to have realised that sexual intercourse was not going to eventuate and that he told the complainant to 'just fuck off back to Tully Park'. He said he was ashamed of having said this also. In cross-examination the appellant went further. He agreed that he had put his hand down the complainant's pants and admitted that he had inserted a finger in her vagina. He claimed that it was the complainant who attempted to initiate oral sex and that he rebuffed her in this attempt. This evidence also sat uneasily with his responses to the complainant in the telephone calls ." 27 In the course of giving reasons dismissing the appeal against conviction, Simpson J observed at [39] (my emphasis added): "This was not, strictly, a case in which there was only one witness asserting the commission of a crime, although, plainly, the complainant was the only witness to the actual events. There was also the strong supporting evidence of the complainant's obvious distress immediately after the events of which she complained, and the medical evidence. Added to that was the evidence of the appellant's responses in the tape recorded telephone conversations, of which I say more below ." 28 In the course of rejecting grounds of appeal concerning the tape recordings and transcripts of the telephone conversations between the applicant and the complainant, Simpson J said at [45]-[47] (my emphasis added): "45 Two points were made on behalf of the appellant in relation to this evidence. They can be stated with relative simplicity. The first is that it was wrong to characterise the contents of the tape recordings as capable of establishing the absence of consent, as suggested in the extract from the summing up which appears at sub-paragraph (iii) above. The second is that a direction should have been given to the effect that the assertions made by the complainant to the appellant could not be used as evidence of the truth of what was contained therein and in particular of the absence of consent.

[138]

47 The second point, that the complainant's own assertions could not be treated as evidence of the truth of what was contained in them, and a direction to that effect should have been given, also, in my opinion, fails. While it is to be borne in mind that the complainant had an advantage in that she was aware that what she said was being recorded, and, indeed, was intended to provoke the appellant into making inculpatory responses, what she said was in no way inconsistent with the evidence she gave in the trial. The Crown case was not strengthened by the content of the complainant's accusations alone during the telephone conversations. Certainly, the Crown could not prove absence of consent, the central issue in the trial, merely by relying on assertions made by the complainant in these circumstances. But it was not her accusations that were the focus of this evidence: it was the responses made by the appellant. I do not think the jury could have been in any doubt about that. Particularly powerful in this respects was the appellant's response, at an early stage, to the complainant's assertion that she had told him that she wanted to 'go back'. His response was : ' Yeah, I know. It'll never happen again, 'Krusty'. I was just 'pissed off with the world', 'pissed off with my life '. Moreover, as she had already given, in much greater detail, her account of the events, what she said in the telephone conversations could not have added anything to the Crown case, other than to make sense of the appellant's responses." 29 In rejecting a ground of appeal which asserted that the verdicts of the jury on Counts 1 and 2 were unreasonable by reason of inconsistency with the verdicts on Counts 3, 4 and 5 and that a miscarriage of justice had resulted, Simpson J said at [52] (my emphasis added): "52 In my opinion the jury may well have concluded that the Crown had failed to negative consent in relation to the less serious assaults but had done so in relation to the more serious, of which he was convicted. In this respect I refer again to the supportive medical evidence, and to the evidence of the complainant's distress. Further, the appellant's own inconsistent position, as revealed in the tape recordings, his recorded interview and his evidence, could hardly have assisted him . In my opinion the varying verdicts in this case cannot be seen in the same light as those in Jones or Markuleski . Here, it seems to me, the salient issue is the jury's assessment of the complainant's willingness to participate at an early stage in the encounter. That is particularly borne out by the question asked by the jury. It is entirely consistent with the overall impression obtained from a reading of the evidence, even confined to the evidence of the complainant herself. This is not a case in which a verdict of not guilty on one count (or three counts) must be seen to cast doubt on the complainant's credibility on the other counts. The strong evidence of the complainant's evident distress on her return to the club provided a powerful balance to evidence of the kind referred to by counsel for the appellant ." 30 It does not appear that the Applicant has sought special leave to appeal to the High Court of Australia from the decision of the Court of Criminal Appeal. 31 Before turning to the present application, it is appropriate to observe that the issues raised in the trial of the Applicant were relatively straightforward. They may be summarised briefly in the following way, with references given to the evidence of Crown witnesses:

[157]

The Listening Device Evidence 41 The conversations recorded by warrant under the Listening Devices Act 1984 were admitted into evidence at trial subject to some editing. Unsuccessful objection was taken at trial to the tender of this evidence on the ground of relevance and s.137 Evidence Act 1995. No objection was taken at the trial, nor was any argument advanced on appeal, challenging the validity of the warrants or contending that, in some way, the evidence had been improperly obtained. 42 In support of the present application, the Applicant has raised questions about the issue of the warrants and the admissibility of the evidence in the trial. Reference was made to the decision of O'Keefe J in Ex parte NSW Police Service; re Listening Devices Act 1984 (2003) 140 A Crim R 415 concerning the discretion to grant a warrant and to the decision of the High Court of Australia in The Queen v Swaffield; Pavic v The Queen [1998] 192 CLR 159 concerning the admissibility of secretly recorded conversations. 43 I observe these arguments are being advanced for the first time on this application. Having considered the matters raised by the Applicant under this heading, no doubt or question arises in my mind concerning the Applicant's guilt or concerning any part of the evidence in the case. What occurred here is a not uncommon scenario. A police investigation is commenced following an allegation of crime, a warrant is obtained and conversations take place (often between the complainant and the suspect) which are recorded pursuant to the warrant. Frequently, incriminating evidence is obtained by way of the words used by the suspect in the recorded conversation with respect to the crime or crimes under investigation. This is such a case. 44 I do not consider that any of the principles considered in the authorities relied upon by the Applicant assist him on the present application. My conclusion to this effect on the merits is fortified by the fact that the Applicant's previous counsel at trial and on appeal have not seen fit to ventilate this issue. 45 The Applicant raised, in passing, the provision of the transcripts of the listening device conversations to the jury as aides memoire and referred to R v NZ (2005) 63 NSWLR 628. The transcripts were provided to the jury by consent. No relevant doubt or question arises in this respect.

[158]

Character Evidence 46 At various points in the Applicant's submissions, complaint is made that the Crown failed to disclose certain material concerning the outcome of an internal police investigation which had the effect that character evidence was not adduced at trial. The Applicant contends that the Crown knew, or ought to have known, that a particular complaint had not been sustained. 47 In support of this topic, the Applicant refers to a number of authorities concerning the Crown's duty of disclosure in a criminal trial. I have not found it particularly easy to follow the arguments of the Applicant on this issue. In the course of one of his submissions (page 158 of submission dated 18 March 2007), the complaint appears to be that the Crown indicated an intention to call a particular female witness to refute character if the Applicant raised it, but that what was not divulged to the defence was a document adverse to the character of that female witness. I will not attempt to summarise all the matters advanced by the Applicant in support of this topic. In the course of the submissions in this respect, reference was made to the decision of the High Court in TKWJ v The Queen [2002] 212 CLR 124. 48 In approaching this topic, a number of observations should be made about the trial and appeal. Firstly, the Applicant did raise his good character at the trial. In cross-examination, the officer-in-charge, Detective Sergeant Stewart Gray (T233) confirmed that the Applicant had never been convicted of a criminal offence. In the course of summing up, Shadbolt DCJ directed the jury that the Applicant had put his good character before them and gave the usual direction concerning use to be made of evidence of good character (SU6). 49 It appears that a ground of appeal to the Court of Criminal Appeal complained of the failure by trial counsel to call character witnesses. The written submissions of counsel (not being trial counsel) in support of that ground acknowledged that good character had been raised at the trial and that the trial judge had given the Applicant the benefit of a direction concerning the use of good character. The complaint was said to be that counsel had failed to call a number of witnesses who were available to give evidence concerning the Applicant's good character. This ground of appeal was abandoned prior to hearing in the Court of Criminal Appeal. 50 I have had regard to the material relied upon by the Applicant under this heading. Having done so, no doubt or question as to the Applicant's guilt or concerning any part of the evidence arises. I note that the Applicant had the benefit at trial of an appropriate direction concerning the use by the jury of good character. I do not see that the matters now advanced by the Applicant on this question would have assisted his case. Nor does it seem to me that the material provided on the application demonstrates any breach by the Crown of its duty of disclosure.

[159]

Material Concerning Injuries to Complainant 51 A topic which the Applicant has emphasised in his submissions is the question of injuries sustained by the complainant in the incident on 19 July 2001. Mr Turvey made comments concerning this topic. The medical material upon which the Applicant relies in this area has accumulated in 2006 and 2007 and now comprises reports from Dr Parker-Newlyn, Dr Reid and Dr Odell. 52 The starting point in this area is material from Dr Parker-Newlyn. In a medical certificate dated 14 August 2002 (supplied by the Applicant with his application on 28 May 2006), Dr Parker-Newlyn stated that she had been the Applicant's general practitioner since October 2001 but had known him through his partner prior to then. She stated that she had discussions with the Applicant concerning the charges against him. She expressed the view that there "was a huge inconsistency between the alleged events and the alleged injuries" and that "it would be very difficult to sustain the injuries" in the manner described by the complainant. Dr Parker-Newlyn expressed doubts to the Applicant about the ability of the complainant to examine herself in a public toilet and to see bruising so soon after the incident. The Applicant asked Dr Parker-Newlyn if she would be willing to say this in Court and she replied along the lines of "I'm no expert, but let me know whatever I can do to help". The doctor expressed the opinion that the "case was flimsy and inconsistent" and "was very surprised some time later when he was convicted, and also that this evidence was not challenged in court as, in my opinion, it was flawed". 53 The Applicant acknowledges readily in his submissions that Dr Parker-Newlyn was available to give evidence at trial. His submissions are critical of the decision of trial counsel not to call Dr Parker-Newlyn. No affidavit or statement is provided from trial counsel to explain that decision. According to the Applicant's submissions, the reason behind the decision was a perceived bias because Dr Parker-Newlyn was his wife's doctor. The Applicant returned to this topic regularly in the course of his written submissions. At one point, the Applicant said that at no stage did trial counsel inform him that Dr Parker-Newlyn would not be called (page 1, submission of 14 April 2007). Later, the Applicant stated that it was his understanding that trial counsel had made all arrangements to have Dr Parker-Newlyn give evidence. When the Crown case had been completed and the Applicant asked trial counsel about the medical evidence, counsel stated he would not call Dr Parker-Newlyn as she was the Applicant's wife's doctor and there was a distinct bias in her evidence (page 7, submission of 14 April 2007). 54 I note that no ground of appeal was raised in the Court of Criminal Appeal concerning the complainant's injuries and the failure of trial counsel to call Dr Parker-Newlyn at trial by reference to the principles in R v Birks (1990) 19 NSWLR 677 or otherwise. 55 The material from Dr Parker-Newlyn raised two broad questions:

[165]

(d) the injuries described on the medical report are not those one would expect from the assault described - forcible stretching of the vagina with three fingers would be expected to produce a tear or split in the posterior fourchette and no such injury is described; the abrasion on the right labia minora could have been produced from all manner of things; the lack of external injury is notable; the most unusual thing is the amount of bruising and contusion reported on the external genitalia four days after the alleged assault - even after elective vulval surgery, bruising and swelling are remarkably settled after four days - for the complainant to have bruising and swelling noted on Dr Harman's report after four days, it would have had to have been so severe immediately after the assault that any physical activity would have been essentially impossible. 57 The Applicant relies upon a report dated 25 September 2007 from Dr Morris Odell, Forensic Physician, Clinical Division of the Victorian Institute of Forensic Medicine. The Applicant provided Dr Odell with a range of documentation. Dr Odell commented upon a number of matters. He referred to Dr Harman's notes and observed there was no mention of the complainant's past history other than check boxes and a notation of the date of her last period. He observed that there was no other description of her activities between the times of the alleged assault and the examination other than that she had not had sexual intercourse recently. Dr Odell observed that there are considerations of genital healing that affect any opinion regarding the age of injuries and that it is not possible to put a precise time frame to the injuries described by Dr Harman on the basis of his description of the injuries. 58 Dr Odell expressed the opinion, based on his experience of conducting and documenting sexual assault examinations, that the medical notes and opinion did not provide enough information to confirm the complainant's account of the incident or to prove that there had been non-consenting penetration. He provided a number of reasons for this conclusion. Amongst other comments, Dr Odell observed that while it is possible to interpret physical findings in terms of the mechanism of injury and whether or not penetration has occurred, it is not possible to tell whether or not consent was involved from the injuries alone - it is possible for bruising, discomfort and genital injury to occur both in consenting and non-consenting sexual intercourse or penetration. He observed that any inference of consent or lack of consent from interpretation of genital injuries is quite fallacious and completely unreliable. 59 The Applicant submits that the reports of Dr Parker-Newlyn, Dr Reid and Dr Odell give rise to a doubt or question as to his guilt or, at least, a doubt or question concerning that part of the evidence concerning the complainant's injuries which was an important part of the Crown case. 60 The Crown submits that the material from Dr Parker-Newlyn, Dr Reid and Dr Odell does not give rise to any doubt or question concerning the Applicant's guilt or concerning any part of the evidence. The Crown submits that the opinions of Dr Parker-Newlyn and Dr Reid represent speculation as to what internal injuries the complainant actually suffered and speculation as to how the actual injuries suffered compared with the level of violence alleged. None of these medical practitioners examined the complainant. No medical practitioner (including Dr Harman) carried out an internal investigation of the complainant. 61 With respect to Dr Odell's report, the Crown points to the complainant's evidence that the Applicant had lifted her off the ground whilst penetrating her with three fingers and that this process was forceful. The Crown pointed to the complainant's account of being in significant pain and feeling swollen and tender after the incident. The Crown submits that Dr Harman's evidence was not to the effect that he could confirm the complainant's account of the assault or prove that there had been non-consenting penetration - he merely reported that the complainant's injuries were consistent with her version of events. Whilst the Crown does not dispute that it is not possible to exclude the complainant's genital injuries as having occurred at some other time, the Crown submits that this does not, in itself, raise a doubt or question as to the Applicant's guilt. 62 In recent submissions (12 and 26 February 2008 and 14 March 2008), the Applicant has emphasised the Crown submission that it "does not dispute that it is not possible to exclude the complainant's genital injuries as having occurred at some other time". The Applicant contends that this is, in effect, decisive of the outcome of the application. 63 I have set out, in summary form, the essence of the application by reference to the complainant's injuries. Issues have been raised concerning the ability of the complainant to examine herself in the manner described by her and concerning a comparison of the injuries observed by Dr Harman and the account of the complainant of the incident. Opinions are expressed as to whether the injuries observed by Dr Harman on 23 July 2001 could arise from the incident on the evening of 19 July 2001. 64 Do the issues raised concerning the complainant's injuries give rise to a doubt or question as to the Applicant's guilt or a doubt or question as to part of the evidence which bears upon the Applicant's guilt? There has to be available material which, as a matter of practical reality, causes unease, or a sense of disquiet in allowing the conviction to stand (see [8] above). In approaching this issue, it is important to have regard to the totality of the evidence which bears upon this question. I bear in mind that the medical practitioners who have provided reports to the Applicant are working off documentary material only. Of course, none of them has examined the complainant. It seems to me that the area presently under consideration is subject to a range of variables, so that there are limits to be placed upon the use of speculation and hypothesis, even experienced speculation and hypothesis. 65 I have set out earlier in these reasons a series of matters which need to be considered together on this application (see [31] above). In substance, soon after the relevant incident, the complainant displayed distress to a number of persons and made complaint of sexual assault upon her by the Applicant. The complainant states that she felt soreness so as to lead to self-examination in the women's toilet at the nightclub. Observations of the complainant's movements on 19 July 2001 and 22 July 2001 support her claim that there were physical consequences arising from the incident on 19 July 2001. Against this background, Dr Harman observed certain injuries on 23 July 2001 which he recorded and attested to in his evidence. As Dr Odell noted, the complainant informed Dr Harman that she had not had sexual intercourse recently.

[168]

Request by Applicant for Issue of Subpoena 74 In the course of his submissions, the Applicant requested that the Court issue a subpoena for production of documents in the possession of a named sexual assault counsellor at Goulburn Base Hospital. It is said that the complainant spoke to the sexual assault counsellor and that the sexual assault counsellor was said to have been present when Dr Harman spoke to the complainant. The Applicant submits that any notes or records of the sexual assault counsellor would be relevant to an assessment of the account given by the complainant of the incident. At one point, the Applicant went further and contended that the Crown had breached its duty of disclosure by not providing to the defence the notes or records of the sexual assault counsellor. 75 The Crown submits that no basis had been demonstrated for the issue of a subpoena if such a process was available on an application such as this. 76 The nature of this application was referred to earlier in these reasons ([5] to [12] above). I am not persuaded that the Court is authorised to issue a subpoena on a ss.78-79 application. Clearly, if an inquiry was directed or a referral of the case was made to the Court of Criminal Appeal, such compulsory powers as would be available might be exercised if considered appropriate. The present application, however, lies at an anterior stage. 77 I note that the Crown submissions (paragraph 34 of submission dated 22 March 2007) state that the Director of Public Prosecutions has indicated that no statement was taken from the relevant sexual assault counsellor, nor were her records at Goulburn Base Hospital accessed by the Director of Public Prosecutions for the purpose of the prosecution of the Applicant. In my view, there is no legitimate complaint concerning the Crown's duty of disclosure. 78 It seems that the Applicant was aware, from the complainant's statement, that the Applicant had spoken to a named sexual assault counsellor and told her what had happened. The Applicant did not seek, by subpoena in the Local Court or the District Court, documents from Goulburn Base Hospital referrable to the sexual assault counsellor's dealings with the complainant. Had such a subpoena been issued, it would have been necessary for a court to consider the application and operation of the sexual assault communications privilege provisions now contained in ss.295-306 Criminal Procedure Act 1986 and principles concerning legitimate forensic purpose (and a "fishing expedition") relating to subpoenas. 79 Even if the power to issue a subpoena existed on a ss.78-79 application, I do not consider that a basis has been demonstrated for the exercise of that power. This is not the trial of the Applicant nor an appeal against conviction. I decline the Applicant's request for the issue of a subpoena.

[172]

(c) suggested that the complainant's behaviour following the assault did not appear to be that of a bona fide victim. 83 The Crown submitted that the beliefs of Mr Bellis concerning the complainant's possible sexual relationships were speculative and, in any event, irrelevant to the present application. To the extent that the Applicant may be contending that the complainant was sexually active between 19 and 23 July 2001, the Crown submits that this is pure speculation and contrary to the evidence at trial. The Crown points to Dr Harman's report, referred to by Dr Odell, which indicated that the complainant had told Dr Harman that sexual intercourse had not taken place within seven days of the assault. The Crown points, in any event, to difficulties with admissibility of this evidence having regard to s.293 Criminal Procedure Act 1986. The Crown submits that no doubt or question as to the Applicant's guilt arises from this material. 84 With respect to the claim that the complainant was not in pain and appeared to be enjoying herself at the nightclub following the incident on 19 July 2001, the Crown observed that Mr Bellis did not vary his evidence at trial that, when he first saw the complainant at the nightclub, she was very upset and crying and that she put her head on his chest and cried (T177), that the complainant told Mr Bellis that she wanted to stay and "enjoy the rest of our night" (T179, T185), that they had stayed at the nightclub until approximately 2.00 am (T178), that he observed the complainant having a few more drinks, dancing and going out and enjoying herself (T179) and that they had walked home together (T179). The Crown submits, therefore, that the only new material concerning the complainant's conduct following the assault is the opinion that the complainant did not appear to be in pain and the statement that she was dancing with at least six police officers at one stage which involved straddling one male's leg whilst another was close behind. The Crown submits that none of these matters assist the Applicant on this application. 85 With respect to the claim that the complainant's behaviour following the incident was not that of a bona fide victim, the Crown submits that Mr Bellis' material concerning the behaviour and feelings of the complainant is inconclusive, unpersuasive and does not cause unease with respect to the Applicant's conviction. In a number of respects, the Crown submits that the recent material from Mr Bellis does not assist the Applicant. 86 In summary, the Crown submits that none of the material in the statement raises a doubt or question as to the Applicant's guilt or as to any part of the evidence in the case. The Crown submits the material is largely based on opinion and hearsay of doubtful admissibility and that, in any event, Mr Bellis was called as a witness at the trial and cross-examination on any of these matters could have been undertaken, if permitted by the trial judge. 87 I have had regard to the Applicant's submissions and material concerning the recent statement of Mr Bellis, together with the Crown submissions on that topic. The material concerning the complainant's possible sexual relationships is, in my view, entirely speculative. I do not consider that it assists the Applicant on this application. It is highly doubtful that it would be admissible, even if capable of demonstration as being objectively true. In any event, the material indicates that the complainant informed Dr Harman that she did not engage in sexual activity between 19 and 23 July 2001 (see [57], [83] above). 88 Mr Bellis was a significant Crown witness at the trial. His evidence pointed to early distress and upset on the part of the complainant together with early complaint by her of sexual assault on the part of the Applicant. No part of that testimony has been withdrawn by Mr Bellis. In my view, it was and remains potent evidence against the Applicant. It was the evidence of Mr Bellis at trial that the complainant remained at the nightclub and that dancing took place. It is necessary to maintain an air of reality and commonsense in considering this material. It is well known that the reaction of complainants of sexual assault may take a variety of forms. The explanations for this have been considered in the context of delay in complaint and associated issues. 89 In this case, there was early visible distress accompanied by complaint of sexual assault. The complainant did not assert at the time, or since, that she was entirely physically disabled by the actions of the Applicant during the assault. The fact that the complainant remained at the nightclub for a period and danced with persons does not, in my view, give rise to any question or doubt as to the Applicant's guilt or to any doubt or question as to part of the evidence in the case. The additional material from Mr Bellis provided on 30 June 2007 does not, in my view, cut across his evidence at the trial which was damaging to the Applicant in significant respects. 90 I agree with the Crown submission that the statement of Mr Bellis of 30 June 2007 in response to questions posed by the Applicant is essentially hearsay and opinion, and adds nothing to the present application which would assist the Applicant.

[173]

Circumstances of Aggravation 91 On 14 March 2008, the Applicant furnished a written submission which focused upon one aspect of the first count of which he was convicted. The first count alleged an offence under s.61J(1) Crimes Act 1900 of having sexual intercourse with the complainant without her consent, knowing that she was not consenting thereto, and in circumstances of aggravation, namely at the time of the commission of offence he did maliciously inflict actual bodily harm upon her. 92 The Applicant submitted that the actual bodily harm relied upon by the Crown was the small abrasion on the right labium. In view of the Crown submission with respect to the complainant's injuries (see [62] above), the Applicant contended that a doubt or question had arisen concerning that element, and thus the Applicant's guilt on this count. He relied upon submissions made by reference to the material from Dr Parker-Newlyn, Dr Reid and Dr Odell together with the material from Mr Turvey. 93 In his summing up, Shadbolt DCJ directed the jury that "actual bodily harm" included a bruise or abrasion (SU9). No challenge was made to this direction concerning "actual bodily harm" at the trial or on appeal or in submissions on the present application. 94 I have had regard to the material relied upon by the Applicant, and his submissions generally, on the issue of injuries to the complainant and the Crown submissions concerning that material. I have expressed conclusions with respect to those submissions earlier in this decision (see [64]-[69] above). 95 The Applicant contends that a doubt or question arises as to whether the injuries which are capable of constituting actual bodily harm to the complainant had resulted from his actions on 19 July 2001. Essentially, the Applicant's argument is based upon the same material already examined in this decision. I do not consider that a doubt or question exists on the issue of whether the injuries observed by Dr Harman on 23 July 2001 were caused by the Applicant during the incident on 19 July 2001. Bruising or an abrasion was sufficient to establish this element. In my view, no doubt or question arises with respect to the element of "actual bodily harm" in the first count.

[174]

Conclusion 96 I have approached the application upon the basis of individual consideration of the principal topics advanced in support of the application. I have expressed the view, in each respect, that no doubt or question arises concerning the Applicant's guilt, nor does a doubt or question exist as to any part of the evidence in the case. I have focused upon the essence of the application under the topic headings set out in this decision. 97 I have not sought to deal with every issue raised by the Applicant in his submissions. The Applicant's submissions touched upon a range of matters. I do not consider that these matters require separate consideration. In one way or another, they are connected to the topics which have been considered in this decision. 98 As I have mentioned, lengthy submissions have been made including references to many cases and literature which the Applicant seeks to call in aid on the application. I have considered all the material and submissions advanced by the Applicant, together with the Crown submissions. I have concluded that no doubt or question arises as to the Applicant's guilt. 99 Insofar as hypotheses or questions have been posed as to part of the evidence in the case, in particular, the injuries to the complainant, I am not satisfied that a doubt or question arises as to that part of the evidence in the case. An application based upon the claim that a doubt or question arises as to part of the evidence in the case requires consideration of the impact of the suggested doubt or question on the guilt of the Applicant. For reasons already given, I do not consider that any doubt or question arises as to the Applicant's guilt. 100 I am conscious that the Applicant has assembled lengthy submissions and material in support of his application. I have sought to provide every opportunity to the Applicant to advance his application. The material provided does not cause me unease or a sense of disquiet in allowing the Applicant's convictions to stand. Having considered all submissions and material, I decline to direct an inquiry or to refer the case to the Court of Criminal Appeal under s.79(1) of the Act. 101 The application is refused. **********

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