McKECHNIE v. REGINA [2006] NSWCCA 13

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

RTB [2002] NSWCCA 104 Kelleher (1971) 131 CLR 534 Coles (CCA, unreported 16 September 1993) Gallagher (1946) 41 SASR 73 Murray (1987) 11 NSWLR 12 Longman (1989) 168 CLR 79 Burt (2003) 140 A. Crim. R. 555 CASES CITED: BRS (1997) 191 CLR 275 Dziduch (1990) 47 A. Crim. R. 378 Veen (No. 2) (1988) 164 CLR 645 Berg (2004) 41 MVR 399 Hayes [2001] NSWCCA 358 Rushby (1977) 1 NSWLR 594 Simpson (2001) 53 NSWLR 504 Pearce (1998) 194 CLR 610

PARTIES: JOHN MICHAEL McKECHNIE v. REGINA

COUNSEL: App: S. Kluss Crown: G. Rowling

SOLICITORS: App: Ross Hill & Associates Crown: S. Kavanagh

IN THE COURT OF CRIMINAL APPEAL 2005/1493

MASON, P. BARR, J. HALL, J.

WEDNESDAY 15 FEBRUARY 2006 McKECHNIE, John Michael v. REGINA Judgment 1 MASON, P: I agree with Hall, J. 2 BARR, J: I agree with Hall, J. 3 HALL, J: The appellant, John Michael McKechnie, appeals against the conviction and sentence in the District Court (Nield, DCJ.) and a jury. The trial proceeded over a number of days, between 11 and 13 August 2004 and on 16 August 2004. 4 The appellant faced two charges:- Count 1: Attempt to choke with intent to have sexual intercourse without consent: s.37 Crimes Act 1900 , maximum penalty: 25 years imprisonment. Count 2: Aggravated sexual assault (occasioning actual bodily harm): s.61J(2) Crimes Act 1900 , maximum penalty: 20 years imprisonment. 5 On 16 August 2004, the jury returned a verdict of guilty on both counts. 6 Proceedings on sentence took place on 4 February 2005 and on 18 February 2005, the sentencing judge imposed, on each count, a term of imprisonment of 15 years to commence 6 May 2004 and to expire 5 May 2019. A non-parole period of 11 years was fixed to commence on 6 May 2004 and to expire on 5 May 2015. 7 The appellant appeals against his conviction and sentence. In the appeal against conviction, he relies upon the following grounds of appeal:- (i) His Honour erred with respect to his directions as to the use that the jury could put the evidence of Dr. Good and failed to adequately warn the jury as to the use of the evidence. (ii) His Honour erred in his directions as to the way that the jury should consider the evidence of the complainant and the accused. (iii) His Honour erred in failing to warn the jury that they should scrutinise the evidence of the complainant with great care. (iv) His Honour erred in his directions as to self-defence. 8 Before dealing with each of these grounds, I will set out the relevant factual circumstances

Factual outline 9 On 2 October 2002, the complainant was staying with her parents in the Toormina area. She had been staying with her parents for four of five days prior to that date, having previously worked in the Falls Creek area of Victoria. She had, in recent weeks, suffered an injury to her spine and hand and as a result resigned her job. By 2 October 2002, she was able to walk, although with limitations. 10 About 5.30 pm on 2 October 2002, the complainant left her parents' house to walk along the beach at Sawtell, some 20 to 25 minutes away. 11 Before walking on to Sawtell beach, she noticed a man on Sawtell Road and looked at him to see if she recognised him (she had grown up in the area) but did not. 12 After walking along the beach at the water's edge, she said that she "got a weird vibe" and decided it was not a good idea to go further away from people and accordingly turned back. The appellant approached her and asked "do you want to go for a walk", to which she replied, "no, I'm going to go home". 13 She walked towards the stairs with the appellant walking a little behind. She felt nervous so she slowed her walk to let him walk ahead of her so that she could see what he was doing. The appellant commenced to walk up the ramp leading from the beach. While the complainant was near the first posts of the stairway, he turned and grabbed her with both hands around her throat so she could not breathe. 14 The appellant pushed the complainant into the corner of a sandbank and pushed her down. She was trying to scream but he was sitting on top of her with his hands around her throat. She felt she could not breathe and feared for her life. 15 Following the exchange between them, which is not necessary to reproduce, the complainant convinced him to release her from the position in which he held her. On letting go his grip, she turned and attacked his eyes, nose and throat with her hands. One of her fingers went straight up his nose, causing it to bleed. He let the complainant go enough to enable her to run towards the ramp. He followed and grabbed her by the throat, saying "you've fucking made me really angry now you bitch". 16 The appellant dragged the complainant across the sand and pushed her head in the sand so that she could not breathe. 17 The appellant continued to squeeze the complainant's throat and through a series of coercive acts, sexually assaulted her by putting his fingers into her vagina and forcing her to have sexual intercourse. He twice inserted his penis into the complainant and asked her name. She said "Helen", although that was not her real name. 18 In due course the complainant was allowed to get up and walk towards the Boambee Headlands. At the Hill Top Shop, the complainant approached the shopkeeper, Bruce Chowdhury, and told him she had been raped. He called the police and Mr. Chowdhury informed her that she had blood on her face. She washed it off because she did not want it on her. 19 Constable Therese Carroll and other police arrived and took the complainant to Coffs Harbour Hospital. On arrival at the hospital, they realised that the complainant's long-sleeved top was still on the beach, so they returned to retrieve it. 20 Constable Carroll gave evidence that she observed that the complainant was very upset and had sand all over her, her hair was messy and that she had red marks around her neck. The complainant gave her an account as to what had happened. 21 At Coffs Harbour Hospital, Constable Carroll noted that the complainant was still upset and shaky and when examining the marks on her neck, noted that she had some blood on the rear of her shirt on the right hand side and also some blood in her hair. Subsequently, a presumptive test was performed on the area of spotting over the right shoulder of the top that the complainant had been wearing. 22 It was not contested that DNA obtained from the appellant subsequent to his arrest on 8 January 2004 matched DNA obtained from semen located in the high vagina of the complainant. 23 The appellant's case at trial is summarised in the written submissions made on his behalf in this appeal as follows:- "The accused's case was that there was a sexual encounter with the complainant, but that it was consensual, and that after he had ejaculated inside (the) complainant, that she had attacked him and the injuries sustained by her were at his hand as he attempted to defend himself from her attack. The evidence other than from the complainant was largely uncontested."

The witnesses at the trial 24 The written submissions on behalf of the appellant record that essentially the Crown case depended upon the jury accepting the complainant. She, of course, gave evidence as well as the following:-

(a) Mark Griffiths, officer in charge of the investigation (evidence as to the investigation immediately following the allegations);

(b) Therese Emily Carroll, police officer (evidence as to contact with the complainant and evidence as to complaint approximately 30 minutes after the attack);

(c) Andrew Ronald Martin, police officer (evidence of his observations and activities as crime scene photographer. Forensic and DNA evidence was led through him. No issue was taken as to the identification of the accused);

(d) Therese Emily Carroll (called in relation to notes made by her in her police notebook and COPS entries);

(e) Margaret Turnbull Good, medical practitioner (evidence as to the examination of the complainant and the history of the injuries observed. The injuries were said to be consistent with the history provided by the complainant);

(f) Bruce Chowdhury, local shopkeeper (concerning the almost immediate complaint evidence of the complainant and his observations of her);

(g) The father of the complainant (evidence as to her financial circumstances and her bank accounts);

(h) The appellant (evidence as to the circumstances of meeting the complainant, conversation with her and the alleged voluntary decision by the complainant to have sex with him and the alleged violent attack by the complainant on him and evidence that he defended himself against the complainant's attack). 25 I now turn to the grounds of appeal.

Ground 1: His Honour erred with respect to the directions as to the use that the complainant could put the evidence of Dr. Good and failed to adequately warn the jury as to the use of the evidence 26 The appellant's submissions extract the following passage from the trial judge's summing up (at p.18):- "As I have said already, and I know I am repeating myself, Dr. Good took a history from the complainant, which she recorded, and which she read to you. She examined the complainant and noted the marks upon the complainant, and she expressed an opinion as to the consistency between the complainant's history and the examination findings. Dr. Good was not cross-examined by learned counsel for the accused, and that means that you can accept Dr. Good's evidence in its entirety. You can accept that she recorded the complainant's history. You can accept she was accurate in her examination. And you can accept her opinion as to consistency between history and examination findings." 27 The trial judge later, again directed the jury that they could act on Dr. Good's evidence, as it had not been challenged. 28 The argument on this ground on behalf of the appellant is that the medical evidence was, in effect, equivocal, that is:- "… was, however, equally capable of being considered consistent with the account provided by the accused, ie., of consensual intercourse (albeit vigorous intercourse) and his subsequent defence of the attack upon him by the complainant. As submitted by counsel for the accused in address, the medical evidence could be considered as supporting either account of the incident and his Honour's directions strongly favour the Crown to elevate the credibility of the complainant." (appellant's written submissions, p.4) 29 In the submissions for the appellant, it is contended that the medical evidence was "either neutral or capable of supporting each version to different degrees". The submission was also made that, as such, the evidence fell into a similar category as that described in Regina v. RTB [2002] NSWCCA 104. For reasons which I will shortly identify, the submission is incorrect both as a matter of fact and as a matter of law. In short, the evidence was not neutral or capable of supporting each version as asserted. Nor were the observations of this court in RTB (supra) applicable to the circumstances of the present case. 30 The medical evidence of Dr. Good, far from being equivocal or neutral, corroborated the complainant's evidence that the appellant had sexual intercourse with her without her consent and by the application of physical force. 31 Dr. Good gave evidence on 12 August 2004 as to the history received from the complainant on 3 October 2002 and her observations on physical examination. The evidence as to the history received was consistent with the evidence of the complainant at trial. 32 The evidence as to the physical observations on examination of the complainant fell into two categories. The first related to observations as to physical signs observed by her in seven locations on the complainant's body. These included physical signs such as reddened and bruising or red marking in the following areas:-

(a) a reddened hyperaemic area in the front of her mouth below her lower teeth;

(b) reddening and bruising on the right side of the neck;

(c) horizontal lines where the skin was actually broken with reddening on the left side of the neck;

(d) signs of tenderness on the lateral side of the right arm just below the elbow with reddening consistent with pressure;

(e) similar markings on the left arm, but less pronounced than the right, in a similar position;

(f) bruising on the left side in the area of the left hip bone;

(g) red marking on the right side in the middle of her back. 33 Dr. Good stated in relation to some of these areas, that pressure testing revealed tenderness. 34 The second area of examination and observations related to the complainant's genitalia. In particular, examination revealed a small abrasion which was triangular, approximately half a centimetre at the posterior fourchette, in the area between the anal canal and the vagina. 35 Dr. Good also stated that examination revealed reddening in specific areas of the vagina. 36 Dr. Good's evidence was that her findings were consistent with the history given to her by the complainant. 37 As earlier observed, there was no challenge or attempted contradiction by cross-examination of Dr. Good on her evidence. 38 In the course of his summing up, the trial judge directed that Dr. Good, not having been cross-examined, meant that the jury could accept her evidence in its entirety. As already noted above, he stated:- "… you can accept that she recorded the complainant's history. You can accept she was accurate in her examination. And you can accept her opinion as to consistency between history and examination findings." (summing up, p.18. See also summing up at p.20) 39 In the appellant's written submissions (p.5) the following submission appears:- "Whilst it is conceded that injury could be considered as corroboration, the nature of the injury and the circumstances in which it was described to have been inflicted was susceptible of more than one explanation and it is submitted that in the circumstances a warning was required." 40 Reference is made to Kelleher v. The Queen (1971) 131 CLR 534 at 555 and Regina v. Coles (CCA, unreported 16 September 1993), Regina v. Gallagher (1946) 41 SASR 73. 41 The appellant's submissions also refer to the trial judge's reference to the medical evidence in the summing up at p.54 where he stated:- "… you might ask yourselves, members of the jury, how did the complainant suffer an injury, described by Dr. Good as a small triangular abrasion in the area of the posterior fourchette, if the sexual intercourse was consensual. Of course, the fact of sexual intercourse may result in the external genitalia being reddened and the internal genitalia being tender. The Crown relies upon the small triangular abrasion in an area external to the genitalia and between the genitalia and the anal canal as indicating, if you accept it, and only you can decide, that there was force used beyond consensual sexual intercourse." 42 Counsel for the accused at trial described this paragraph as mistaking the evidence and as quite unfair to the accused, stating that "the force used in sexual intercourse is not a function of consent, but is a function of the enthusiasm with which the parties to the sexual congress participate". 43 It is important to observe that the evidence as to the triangular abrasion at the posterior fourchette was of significance for four reasons:-

(a) The location of the abrasion being, as the trial judge identified to the jury, between the external genitalia and the anus.

(b) The pressure required in order to cause that kind of abrasion.

(c) The fact that the whole of the relevant area was reddened as well as the other areas described by Dr. Good.

(d) Dr. Good's observations, including the triangular abrasion, were consistent with the history given by the complainant. 44 On the evidence, the nature, extent and the location of the injury, in particular, the triangular abrasion, were, individually and in combination, consistent with one cause, namely, with forced, non-consensual sexual intercourse. That was, in particular, the opinion evidence of Dr. Good (referred to in the extract set out in paragraph [26] above) and she was not cross-examined to suggest that damage or injury of that kind could be explained or caused by consensual sexual intercourse. 45 Reliance upon the approach of this court in RTB (supra) is, with respect, quite misplaced. In that case, the evidence concerning the penile penetration in question was consistent with what the complainant had said occurred but was also equally consistent with it not having occurred. In other words, as the trial judge stated, the doctor's evidence was neutral. The examination by the doctor failed to reveal any physical indicator of an incident such as that alleged. As the court explained (at [26]), the import of the doctor's evidence was there would not necessarily be any such indicator. The court observed:- "No doubt evidence of this character will often be appropriate in order to ensure that a jury does not speculate about the absence of medical evidence." 46 In RTB (supra), the evidence accordingly, was of limited materiality and was, as the court stated "essentially 'neutral'". This referred to the fact of the absence of a physical indicator as being neutral evidence. That is a very different circumstance to what the evidence established here. There was, on the doctor's evidence, unmistakably physical evidence consistent (including in particular the medical evidence), and only consistent, with non-consensual sexual intercourse. 47 Before leaving this ground of appeal, I should also state that reliance upon the need to provide a Kelleher warning (supra) at 555, is in my respectful opinion, misplaced. That case involved a question as to whether a direction should have been given to the jury by way of a warning of the danger of convicting on the uncorroborated evidence of the complainant in sexual cases on a question of identification of the accused. In the present case, no circumstance arose attracting or requiring a warning of that kind as the very evidence in question (the physical signs of trauma including the triangular abrasion) was itself corroborative evidence, that is to say, corroborative of the complainant's evidence. Understandably in the circumstances, no direction was sought by counsel for the accused at trial for a Kelleher warning to be given. 48 I accordingly would dismiss the first ground of appeal.

Ground 2: His Honour erred in his directions as to the way that the jury should consider the evidence of the complainant and the accused 49 The written arguments submitted on behalf of the appellant is considered under two separate headings as follows:-

(a) His Honour made numerous references to the jury, choosing between (the) account of the complainant and the accused.

(b) His Honour posed rhetorical questions to the jury such as to elevate the credibility of the complainant and create unfairness to the accused. 50 In relation to the argument under the first sub-heading, the submissions of the appellant focused upon several statements by the trial judge that, in essence, the members of the jury were required to determine whether the complainant was telling the truth or whether the accused was telling the truth, that either was either lying or both were lying but that they could not both be telling the truth. 51 The complaint is that the trial judge's remarks to which reference is made in the submissions diverted the jury from its fact-finding task. The submission is sought to be supported by an extract taken from RTB (supra) at [54]. 52 The extracted passage, with respect, does not support the suggested diversion resulting from the remarks. The particular extract quoted is taken from a case that was concerned with a particular category of case, namely, a case concerned with young children where the complainants were, respectively, eight years of age and five years of age. 53 The directions given to the jury in RTB (supra) were held to lack the requisite or appropriate balance. They have no relevance to the issue raised in this appeal. The references to the directions of the trial judge choosing between the account of the complainant and the accused were nothing more than stating the obvious, namely, that the issue of contention was whether or not the complainant consented to the sexual intercourse, as the accused contended, or whether she was coerced and forced into submission to have sexual intercourse as the complainant had consistently reported and as she related in evidence. The jury's task was to decide on the evidence which account they accepted. In other words, the references complained of were stating nothing more than the issue to be decided and far from diverting the jury from its task, I am of the opinion appropriately and necessarily identified the essential nature of the issue that the jury were required to consider and determine. 54 I do not consider there is any substance in the complaint made in this respect and the submission in support of it should be rejected. 55 In relation to the use of rhetorical questions, there is no principle which constrains a trial judge from employing rhetorical questions in addressing a jury as a means of posing an issue for its consideration and determination and which, in effect, invites critical examination or testing. 56 The trial judge directed the jury in relation to the acceptance or rejection of the evidence of any witness in part as follows (at pp.25-26):- "… and you can look at the evidence generally to see whether there is something independent from what the accused has told you which supports or undermines what he has said. You do, in relation to his evidence, what you will do in relation to the complainant's evidence." 57 On the other hand, if a rhetorical question were posed in a way which unfairly suggests an unfavourable answer to an accused, then, depending upon the circumstances, there may be grounds for complaint. It is therefore necessary to consider the actual terms employed in the rhetorical question. The appellant's submissions identify one particular passage in which the trial judge stated:- "Members of the jury, when you consider what the accused told you, you might ask yourself why did the complainant lie to (the) accused about her name, and whether a young woman who had lied about her name, would confide in a young man whom she had just met that she had an argument with the mother or her brother about money." (at pp.49-50) 58 The reference to the question of money relates to the appellant's evidence that the complainant had appeared to be upset and was crying so he walked up to her and asked her what the problem was. He claimed that she told him that she was having "an argument with her mother or her brother, I'm not sure, over money". 59 The evidence from both the complainant and the appellant was that the complainant, when asked by the appellant as to her name, replied, "Helen", which, of course, was not her first name. The rhetorical question was one way in which the jury were invited to consider and analyse the cogency of the evidence, in the context of the appellant's case that she had consented to sexual intercourse, as to the significance of the evidence that she had given an incorrect name. The inference appears to be that, if the appellant's account was correct, that is, that there had been an amicable interchange between them, there would be no apparent reason for her to proffer an incorrect name. The question of inconsistency was one, therefore, placed before the jury for its consideration. The question is whether or not it was, as claimed, put in a way which elevated the credibility of the complainant and created unfairness to the accused. 60 The rhetorical question, in my opinion, posed the apparent conflict in the appellant's account and did so quite legitimately and without unfairness to the appellant and placed it before the jury for its consideration with the other evidence. In doing so whilst it focused the jury on a relevant piece of evidence, in doing so, there is no substance, in my opinion, to the contention that the focusing on the issue elevated the credibility of the complainant. The trial judge was entitled, in my opinion, to squarely put before the jury an aspect of the appellant's case for its critical examination in assessing whether or not the appellant had been truthful. 61 As to the contention that the rhetorical question created unfairness to the accused, the principal point raised appears to be that his Honour's comments invited the jury to accept the complainant's evidence unless a positive answer could be given by the accused, thus reversing the onus of proof. 62 I disagree that it was an invitation to accept the complainant's evidence. Rather, as I have just explained, the rhetorical question framed for consideration an issue relevant to the cogency of an aspect of the appellant's evidence. Ultimately, the question was whether or not the jury, taking into account the subject of the rhetorical question point along with the other evidence including that given by the appellant, was sufficient to have satisfied the jury beyond reasonable doubt. In doing so, the rhetorical question did not reverse the onus of proof but rather exposed for critical examination an aspect of the appellant's evidentiary case. In that context, the further contention that the rhetorical question unfairly bolstered the complainant's credibility by the absence of evidence is, in my view, quite unsustainable. 63 I would reject the second ground of appeal.

Ground 3: The trial judge erred in failing to warn the jury that they should scrutinise the evidence of the complainant with great care 64 Reliance was placed upon the failure by the trial judge to direct the jury in accordance with the decision of this court in Regina v. Murray (1987) 11 NSWLR 12. In that case, Lee, J. stated that the trial judge should:- "… stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime, it is customary for judges to stress that, where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in …" (at p.19) 65 Reliance was also placed upon the High Court's decision in Longman v. The Queen (1989) 168 CLR 79, in particular, at p.91 per Brennan, Dawson and Toohey, JJ. 66 The submission acknowledges that while s.164 of the Evidence Act provides that it is not necessary for the judge to warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect, a direction based on what was said in Murray (supra), it is contended, should be given when a conviction requires the acceptance of the complainant's evidence. 67 The trial judge gave a number of directions concerning the complainant's evidence as well as the appellant's evidence. These included:-

(a) In relation to both the complainant and the accused, the jury were told that they would ask themselves whether a particular witness is a reliable witness (at p.21).

(b) That reliability depends upon overlapping consideration, the first of which is the honesty of the witness and the second is the accuracy of the witness's memory of the event or events.

(c) That they could only find the accused guilty of the counts in the indictment if they accepted the complainant's version of the encounter (at p.47).

(d) The jury were concerned primarily, but not primarily with assessing the complainant and the accused, assessing the evidence that they had given, looking within the other evidence to see whether there is something which supports or undermines what they have said (at p.48).

(e) That the Crown's case relies upon the jury's acceptance of the complainant and being satisfied beyond reasonable doubt by her evidence of the accused's guilt (at p.48). 68 Before considering the question as to whether relevant authority mandates the giving of the abovementioned warning, it is important to consider the evidence that was relevant to the truthfulness of the complainant. Apart from her own evidence, there existed objective circumstances which effectively meant that the complainant did not stand alone as proof of the Crown case. The evidence which independently supported the truth of the complainant's evidence included:-

(a) The evidence of Mr. Bruce Chowdhury, the proprietor of the shop when he saw the complainant at the shop at 6.45 pm. She appeared to be dazed and told him that she had been raped. Additionally, Mr. Chowdhury noticed things about her including blood on her face.

(b) The evidence of complaint, apart from that concerning Mr. Chowdhury, included complaint made to Senior Constable Carol as well as the account given to Dr. Good.

(c) The evidence of injury to the complainant's genitalia and the posterior fourchette. 69 The trial judge emphasised in his address to the jury that they had to be satisfied, amongst other things, as to the honesty of the complainant and that:- "… a criminal trial is not something in which the jury determines which of two competing version is the preferred one. A criminal trial is something more than just deciding that 'this is the version that we prefer'. You have to consider all of the evidentiary material. You have to look at what all of the witnesses have said. You have to weigh up what all of the witnesses have said. When you have done that, it may well be that you will prefer what one witness has said over what another witness has said …" (Remarks on sentence, p.26) 70 The trial judge went on to emphasise that, having decided, in relation to all of the evidence:- "… what it is that you accept and will act upon, if it should be that you prefer the evidence presented by the learned Crown Prosecutor, ask yourselves this question, and it is important that you do so, 'does the evidence that we accept satisfy us beyond reasonable doubt of the guilt of the accused in relation to each or both of the charges with which he stands charged?' …" 71 The trial judge's directions included an appropriate caution should the jury have a doubt about the complainant's evidence. In this respect, he, with my emphasis added, stated:- "If it should be, upon your consideration of the evidentiary material, you accept the complainant's evidence and that evidence satisfies you beyond reasonable doubt then, and only then, will you find the accused to be guilty of both counts in the indictment. If, upon your consideration of the evidentiary material, you reject the complainant's evidence or you have a doubt about it , then in those circumstances you would find the accused to be not guilty of both counts of the indictment. Obviously, if it is that you accept the accused's version of the encounter, then you will find the accused to be not guilty of both counts of the indictment. (emphases added) 72 In Regina v. Burt (2003) 140 A. Crim. R. 555, Wood, CJ. at CL. (with whom Greg James and Howie, JJ. agreed) observed that in that case, as in the present, no request for a Murray direction was made, noting that that of course did not necessarily foreclose the issue as a trial judge is under a duty to give such directions as the case properly requires: BRS v. The Queen (1997) 191 CLR 275 per Gaudron, J. at 302, McHugh, J. at 306 and Kirby, J. at 330. 73 His Honour also observed (at paragraph [74]) that whilst it is obviously desirable and common practice for a Murray direction to be given in cases of sexual assault, where there is a conflict between the evidence of the complainant and the accused, the authorities do not mandate the giving of such a direction:- "… the need for it and the nature of any warning, depend upon the circumstances of the case: Regina v. Connors [2000] NSWCCA 470." 74 I am of the opinion that the clear tenor of the directions given in this case to the jury were that they were required to evaluate the complainant's evidence in order to determine whether they accepted the evidence and if they had any doubt about her evidence then they would find the accused to be not guilty of both counts of the indictment. 75 There was, as observed above, independent evidence that constituted corroboration as to both the truthfulness of the complainant and as to the facts which she related in evidence. Her evidence in this sense did not stand alone and I do not consider that the particular circumstances required that a Murray direction be given. I accordingly would reject the third ground of appeal.

Ground 4: His Honour erred in his directions as to self-defence 76 This ground of appeal does not seek to challenge the trial judge's specific directions on the issue of self-defence. The complaint is that the issue of self-defence was not dealt with at the time of or in the context of directions given on the element of the offences. Accordingly, in the written submissions, it is stated:- "His Honour described the element of the offences at p.31-35 ROS 13/08/04 and again in part summarised at p.55-56; in both of these passages there is no reference to the issue of self-defence. Instructions regarding this issue were dealt with on the second day of the summing up at p.45. In separating the issues, it is submitted that his Honour's directions were deficient and did not give the concept its due weight and significance and offended the principles set out in Regina v. Dziduch (1990) 47 A. Crim. R. 378 at 380 (CCA NSW)." 77 As the submission correctly points out, the directions of the trial judge in relation to the essential elements of the offences occurred on 13 August 2004 and the directions in relation to the issue of self-defence were given early (when the hearing resumed) on the following Monday, namely 16 August 2004. 78 A reading of the relevant pages of the summing up reveals that the sequence of the directions was as follows:-

(a) The trial judge gave directions in relation to the essential elements of the first count of the indictment (attempting to choke with intention of enabling himself to commit the indictable offence of sexual intercourse without consent) (at pp.30-33).

(b) The trial judge then proceeded in relation to the second count (sexual intercourse with the complainant without her consent, knowing she was not consenting, in circumstances of aggravation) to address by way of directions the four essential elements (at pp.33-36).

(c) The trial judge then referred to evidence of complaint which was relevant to the credit of the complainant in relation to the first and second counts (at pp.36-38).

(d) The trial judge resumed his summing up on 16 August 2004 with reminding the jury of his references to the evidence as to the complaints made by the complainant (at pp.33-34). The trial judge then went on to instruct the jury in relation to the issue of self-defence (at pp.45-48)

(e) The trial judge then proceeded to review parts of the evidentiary material relevant to the first and second counts (at pp.48-54). 79 I do not consider that the trial judge did in fact separate his directions in relation to the elements of the offence from those bearing upon the issue of self-defence in a way in which was contrary to the approach said to be the correct approach in Regina v. Dziduch (1990) 47 A. Crim. R. 378. In that case (involving a charge of malicious wounding with intent to occasion grievous bodily harm) the appellant claimed that he had been attacked in an altercation by the victim and that he had produced a knife for the sole purpose of getting the victim off him. Hunt, J. (as he then was) (with whom Enderby and Sharpe, JJ. agreed) stated that the directions on the issue of self-defence must be placed in the setting of the factual issues which have arisen at the trial. Hunt, J. stated:- "The issue of whether the Crown had established that the accused was not acting in self-defence should be listed with all of the other issues which the Crown had to establish, and it should not be dealt with entirely separately. It is very unwise ever to refer to the issue of self-defence as a 'defence', unless it is only to point out that it is not really a defence at all." 80 In Dziduch (supra), unlike in the present case, the directions of the trial judge on self-defence did not follow upon or occur in the context of directions on the elements of the offence in question. So much is indicated by the summary given by Hunt, J. of what had occurred in the course of the summing up in that case:- "In the present case, the judge did not deal with the issue of self-defence, he did not mention it until after he had given all the directions required of the charge of malicious wounding with intent and for the alternative verdict of malicious wounding (without intent) permitted by s.34 of the Crimes Act 1900, and until after he had reviewed the whole of the evidence in the case. He first mentioned the issue only when he turned to consider the arguments which had been put during the course of addresses. This was unfortunate, for the separation of the issue of self-defence from the other issues which the Crown had to prove tended to underline a number of unfortunate statements made in relation to the onus of proof." 81 In the present matter, the only relevant "separation" in the directions was a separation in terms of time, namely, the intervening weekend. A proper reading of the summing up reveals, in fact, that the directions on self-defence did substantially follow upon the directions given in relation to the elements of the two offences charged and it was only after directions on all of those issues were given that the trial judge turned to review the evidence in the case. That was quite different from the circumstances that arose in Dziduch (supra), as there the directions on self-defence occurred both after the review of the evidence and only in the context of a consideration of the arguments that had been made by counsel during the course of their addresses. That was "the separation of the issue of self-defence" from the other issues to which Hunt, J. referred and in my view bears no resemblance at all to what transpired in this case. I accordingly am of the view that there is no substance to the fourth ground of appeal. 82 I need only add that no application was made on behalf of the applicant to the trial judge for a re-direction on the issue of self-defence and that, no doubt, by reason of the fact that counsel then appearing for the appellant was satisfied that the trial judge had addressed the issue of self-defence properly and in the correct sequence.

Leave to appeal against sentence 83 The maximum penalties for the offences was 25 years for the offence pursuant to s.37 of the Crimes Act 1900 and 20 years for the offence pursuant to s.61J(2) of that Act. 84 The offences in question were undoubtedly of great gravity involving the attempted choking of the complainant with an intention of enabling the appellant to commit an indictable offence (sexual intercourse without consent and having sexual intercourse with the complainant without her consent knowing that she was not consenting in circumstances of aggravation, namely, that he occasioned actually bodily harm to her). 85 In the Crown's written submissions, it is pointed out, correctly, that each of the offences was aggravated and the applicant rendered liable to a more substantial penalty by reason of the following matters:-

(a) The appellant had an extensive record of previous convictions, including convictions for offences of violence and for offences involving choking, such that retribution, deterrence and the protection of society indicated that a more severe penalty was warranted (see remarks on sentence, pp.6-8; Criminal Record, Exhibits H, J and K; s.21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 ; Veen v. The Queen (No. 2) (1988) 164 CLR 645, 477; and Regina v. Berg (2004) 41 MVR, 399, paragraph 29 per Howie, J.).

(b) Each of the offences was committed by the appellant while he was on conditional liberty on bail or in breach of bail (see remarks on sentence, p.7; Criminal Record, Exhibit H, J and K; and s.21A(d) of that Act).

(c) The injury and emotional harm suffered by the complainant and caused by the offences was very substantial (remarks on sentence, pp.4-5; Victim Impact Statement, Exhibit G; s.21A(2)(g) of that Act). 86 It is undoubtedly true, as the Crown has submitted, that the trial judge was required to impose sentences that properly reflected the very serious objective circumstances of the offences: Regina v. Hayes [2001] NSWCCA 358 at [51] per Sully, J. and Regina v. Rushby (1977) 1 NSWLR 594, 597D-598E per Street, CJ. 87 The sentences in the circumstances of the present case necessarily required the applicant to spend such time in custody as reflected all the circumstances of the offences including their objective seriousness and the need for general deterrence: Regina v. Simpson (2001) 53 NSWLR 504 at [65] per Spigelman, CJ. 88 In the written submissions on behalf of the applicant, it is contended that the trial judge erred in his consideration of the offences occurring at what was described as "above the mid range of seriousness" and gave little or no consideration to any subjective material raised on behalf of the applicant. It is further submitted that accordingly the sentences imposed were manifestly excessive. 89 It is, in my opinion, impossible to arrive at the conclusion that the offences in question were below the mid range of seriousness and nothing has been advanced to substantiate the contention that, having regard to all the relevant circumstances, these offences were not above the mid range of seriousness as stated by the sentencing judge. It is sufficient to have regard to those matters to which the Crown has drawn attention and which I have extracted above to indicate that plainly his Honour's finding in that respect is not only not open to challenge but it was plainly correct. I should also observe that the Crown has contended that the sentencing judge in fact extended leniency in failing to require that the sentences by served cumulatively, or partly cumulatively. Whether or not, as contended, his Honour erred in that respect, having regard to the principles stated in Pearce v. The Queen (1998) 194 CLR 610 at [45] per McHugh, Hayne and Callinan, JJ., is not an issue that is required to be resolved. It is sufficient to conclude in relation to the application for leave to appeal against the sentence imposed to conclude, as I do, that the sentences imposed appropriately reflected the seriousness of the offences and that such seriousness was clearly above the mid range of seriousness and therefore could not be held to be manifestly excessive. 90 I accordingly would propose the following orders:-

(a) The appeal by the applicant against his conviction be dismissed.

(b) That the applicant be granted leave to appeal in respect of the sentence imposed on him but that the appeal be dismissed. **********

20/02/2006 - Amendments required by directions - Paragraph(s) 9, 10, 18, 19, 20 & 24(g)

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.