The Crown case
Evidence of the complainant
16The complainant was born in 1970. In 2007 she lived in an apartment in Birriga Road, Bellevue Hill, Sydney. On an evening in March of that year, after she had been at a hotel with a friend, consuming alcohol, she and her friend encountered the appellant (who she did not previously know), and a male friend of his. After the four had had a pizza, the complainant and the appellant shared a taxi. Both alighted at the complainant's address at Bellevue Hill and the appellant stayed overnight. A sexual relationship developed. In about April, the appellant moved into the apartment. Initially, the complainant thought that she had met "the man of my dreams". However, the appellant became "quite possessive". He persistently telephoned the complainant, and accused her of associating with other men. Arguments developed. On one occasion, the appellant smashed the complainant's telephone. He began using physical force on the complainant.
17In June 2007 the complainant became pregnant, but, by agreement between the complainant and the appellant, the pregnancy was terminated.
18At some time after this termination, the appellant went out with friends, without the complainant. When he returned home he was intoxicated. He had non-consensual penile/vaginal sex with the complainant. This was not the sexual intercourse the subject of the first count on the indictment. The appellant then either went to sleep or passed out. The complainant showered and slept on a couch. A couple of hours later the appellant joined the complainant. She said "You raped me". He denied the accusation and said "Prove it. Where are the marks?" (T 70).
19Notwithstanding this event, the relationship continued. The complainant said that this was because the appellant told her that if she reported him to the police, he would "come after me or my family" and that she would "have to live with that" (T 71). Threats of this nature, she said, were constantly made.
20In September the complainant was again pregnant. Initially, she and the appellant decided to proceed with the pregnancy. However, on 16 October, the pregnancy was terminated.
21Throughout the relationship the appellant was both physically and verbally abusive. There were other occasions when he had sexual intercourse with the complainant without her consent. In about September 2007 he pulled out a clump of her hair, and again had sexual intercourse with her against her will (T 72-73). This also was not the subject of the charge on the indictment. On this occasion the complainant contacted police, but did so anonymously. She spoke to a Constable Kylie Westfallen at the Rose Bay Police Station. The complainant said that she made the complaint anonymously because the appellant had told her that, if she went to the police, he would:
"... go after my family and he'd gut my dad like a fish ..." (T 75/1-5)
He threatened her with iron bars, which he thrust towards her, under her chin, while at the same time making threats of assault on her, her father or her brother. This happened more than once (T 76).
22Eventually, the complainant did disclose her identity to Constable Westfallen, but did not proceed with any action, and signed a notebook entry stating that she was not in fear for her life, and that the appellant would be vacating the apartment that week. She said that she did this because she was frightened of what the appellant would do if he knew that she had been to the police, and that he would know that she had been to the police (T 75) because he had been assisting them with another matter, and therefore had access to information (T 156). She said that after that event, she and the appellant reconciled. (Evidence subsequently given by Constable Westfallen established that the complainant's first contact with her was on 15 October 2007, and the notebook entry was signed on 16 October, the same day as the second termination.)
23In October, after being threatened with an iron bar, the complainant told the appellant that the relationship was over and asked him to find alternative accommodation. This was shortly before the second pregnancy termination. The appellant did not vacate the premises. The complainant slept on the couch, the appellant in the bedroom. He told the complainant that he was looking for somewhere else to live. The complainant fixed the date of the termination of the relationship as 16 October, the date of the termination of the second pregnancy.
24These living and sleeping arrangements continued until December. Just before Christmas, the complainant travelled to Goulburn to visit her parents. (Later evidence suggested that this was on 22 December.) While she was in Goulburn, the appellant repeatedly rang her on her mobile telephone. He suggested that he might come to Goulburn to deliver a Christmas card to her parents (who he had never met) and the complainant told him not to do so. Although the complainant had never given the appellant her family's addresses in Goulburn, the appellant came to her sister's house at lunchtime on Christmas day; he did not enter the house. The complainant had a conversation with him outside the house about how he had obtained the address. Initially, he told the complainant he had obtained the address from an internet search; later, he said that he had obtained her parents' address from electoral rolls at a library, that he had gone to that address, and had been given the complainant's sister's address by a neighbour. The appellant's arrival in Goulburn terrified the complainant. She told him to leave. He told her that he had travelled to Goulburn by taxi, which he had paid for on a credit card. The complainant gave him a small amount of money and some food from her sister, which he consumed sitting in the gutter at the end of the driveway. The appellant then left. (The circumstances of this event featured prominently in the appellant's second ground of appeal.)
The events of 2 January 2008
25The sexual intercourse offence charged in the indictment was alleged to have been committed on 2 January 2008.
26The complainant returned to Sydney at about midday on that date. Her parents drove her from Goulburn. Because there was only one set of security keys to the apartment block, the complainant telephoned the appellant and asked him to leave the keys out for her. She told him that it was inappropriate for him to be present when her parents dropped her at the apartment because their relationship was over. Nevertheless, he was present.
27The complainant had a hair appointment at Bondi Junction for later (4.00pm) that afternoon; it was her intention that her parents would drive her there on their way home. However, the appellant told the complainant that the appointment had been cancelled by the hairdresser and she remained at the apartment. Her parents then left (at about 12.15pm or 12.20pm) and the complainant remained at the apartment with the appellant. The complainant later re-booked the appointment for an earlier time. (In cross-examination it was established that this call was made at 2.46pm.)
28After farewelling her parents, the complainant walked into the apartment, with the appellant following closely behind her, so closely as to be pushing at her with his body. The complainant walked into the living room, the appellant to the kitchen on the other side of the apartment where the complainant heard him rummaging in the drawers. The appellant turned and pushed towards the complainant, his hand against her face, pushing backwards into the bedroom and on to the bed; he did this with sufficient force that a pair of sunglasses that had been on the back of the complainant's head fell forward onto her face and broke. The appellant was shouting at the complainant. He said:
"Think you're a smarty do you. Think you can play games with me. You will do what you're told. You will be my girl and we will be having a baby. That slut dog Dunne is off limits and don't think that you won't be getting fucked." (T 96-97)
("Dunne" was a female friend of the complainant's.) At this time the appellant had a pair of scissors in his hand. As he pushed her on to the bed, he said:
"Your stupid fucking plastic hair, you think that's better than me, I'll cut it all fucking off." (T 98)
29The appellant struck the complainant in the face, in a slapping or cuffing motion. He said:
"Get them off, get them off" (T 97/40)
and pulled her sneakers from her feet. The complainant sought to retreat from him, saying:
"No, Simon, it doesn't have to be like this, please don't do this." (T 100/15)
30The complainant told the appellant that she needed to use the toilet. The appellant said:
"I don't care, piss the bed." (T 100/20)
31The appellant then moved on to the bed, and lay on top of the complainant, his hand over her face, pushing it into the mattress. The complainant was crying. She asked him not to "do this". The appellant pulled the complainant's pants off. He told her to take off her dress. She refused. He repeated the instruction to take it off. She struggled, but took off the dress. The appellant was sitting between the complainant's legs, on top of her, alternately pushing and slapping her. He put his hand over her face, preventing her from breathing and screaming. At times he momentarily released his grip to allow her to breathe. She tried to scream. The appellant took a pillowcase, with which he gestured, indicating that he would put it in the complainant's mouth or over her face, and said:
"Scream again and it will be your last." (T 101/35)
32He removed his shorts and with his hand he guided his penis into the complainant's vagina. This was the act of sexual intercourse the subject of the first count on the indictment. The complainant had both hands clenched under her chin. The appellant told her to kiss him. She said that her mouth hurt. He said:
"Touch my balls while you're being fucked and then I won't kiss you." (T 102/30)
He took her hand and placed it on his testicles.
33After a short time the appellant ejaculated. The complainant again said that she needed to use the toilet - urgently - and the appellant again told her to:
"piss the bed" (T 103/15)
The complainant then gave the following evidence:
"and then I said, 'well, please, can you get something for me to go to the toilet in." And he went to the wardrobe and I had a glass jar with my hair ribbons in it and he handed that to me. And I said, 'I'm not going to the toilet in my ribbon jar. Just let me go to the toilet.' And so I started to get up and I was sliding myself on my bottom across the bed to get up and I went to grab my pink sundress so I could put my dress back on and he said, 'You won't be needing that.' And I said, 'Well, Simon, what do you think I'm going to do? You've deadlocked the flat. I can't get out anyway.' And then he said, 'I'm coming with you.' So I went to the bathroom and I went to the toilet and the window in the bathroom was open but he reached over and shut it, shut the window. And then after I had been to the toilet he kind of I guess herded me back to the bedroom. And I was just sitting on the bed and then it was like he completely calmed down. His demeanour completely changed and then he passed me my sundress and he said, 'Okay, you can put this on.'." (T 103/15-25)
34She walked back into the bedroom and sat on the bed. The appellant handed her her dress. Her face was hurting, her head was throbbing and her mouth was sore (T 116).
35The complainant dressed and walked to the living room and sat on the couch. She was feeling giddy and strange. The appellant walked past and asked if she was all right. She said she was not. He gave her a cold pack wrapped in a tea towel.
36The two then had a conversation about some photographs of a boat that the appellant had on his computer. The complainant said that she was trying to speak "softy and gently" to him, because past experience had taught her that this was the best way of curbing violent outbursts on his part (T 118).
37The complainant examined her face in a mirror. She observed abrasions to her face, and that her lip was swollen. She saw a cut under her left eye where the sunglasses had broken on her face. These constituted the actual bodily harm that was the circumstance of aggravation alleged in the indictment.
38The complainant walked into the bedroom and saw the scissors on the floor. She kicked them under the bed. She then walked to the telephone, intending to cancel the hair appointment she had earlier made. The appellant demanded to know what she was doing, and set the telephone on loudspeaker. (In cross-examination it was established that this call was made at 2.56pm.) He then told the complainant that he was in love with her, and wanted to marry her and have children with her. He asked why she had stopped loving him. She told him that it was because of his anger and violence, and said:
"This isn't love" (T 124)
gesturing to her face. He said to her:
"[Name of complainant] this is not violence, you don't know what violence is." (T 124/25)
He told her that one day she would meet somebody who would be really violent with her and that she would miss what he (the appellant) did.
39The complainant then raised the subject of the appellant moving out of the apartment. She suggested looking at an Internet accommodation site, which the appellant did. He located an advertisement for a room to let in a boarding house in Double Bay. At the complainant's suggestion, the appellant telephoned and made an appointment to see the room at 6.00pm that afternoon. The two left the apartment and walked to the address in Double Bay. Before doing so the complainant applied make-up to conceal the marks on her face. The walk to Double Bay took about 20 minutes.
40They were let in to inspect the room by a male (in later evidence identified as) Peter Smith. After the inspection they walked back to the Birriga Road apartment. Both the appellant and the complainant stayed in the apartment that night. The complainant intended to sleep on the couch, but the appellant told her that she could have the bed. He then joined her in the bed; when she resisted, he said:
"Oh look I'm not going to touch you, I'm not going to do anything." (T 130/20)
They both slept in the bed.
3 January
41The following day, 3 January, the complainant rose at about 7.00am, in order to prepare to return to work that day. She later noticed that the appellant had removed the sheets from the bed, and turned on the washing machine. She presumed, but did not see, that he had washed the bed linen (T 135). She packed an overnight bag with sufficient clothes for the week, showered and dressed. She did not intend to return to the apartment and told this to the appellant. She told him that she intended to terminate the lease on the apartment. She left the apartment alone, carrying her overnight bag, but the appellant followed very closely after her. He caught up with her at the bus stop. He took the overnight bag from her and said:
"Don't think you won't be coming home tonight." (T 133/5)
He carried the bag to the bus stop. The complainant entered the bus. The appellant remained at the bus stop. The complainant began screaming (although her voice was hoarse from screaming the previous day), telling the appellant to return her bag. The complainant left the bus, still screaming, and attempted to retrieve the bag. The appellant asked if she was mad, but eventually surrendered the bag. The complainant again entered the bus, as did the appellant. There followed an argument on the bus, in which the appellant accused the complainant of stealing money from him, and claimed that the contents of the bag were his.
42The fracas over the bag appears to have lasted for some time, and involved the bus driver, who ordered them to cease or to leave the bus. After they left the bus in Bondi Junction, the complainant, on the instruction of the appellant, opened the bag to demonstrate that she did not have any of his possessions in it. He shouted at the complainant:
"You want to go down this road, do you?"
and:
"Call the police."
He snatched the complainant's mobile telephone from her hand. She took the bag and ran towards her workplace. The appellant followed, and attempted to return the telephone. She refused to take it. On arrival at her workplace, the complainant encountered a female colleague, Julie Martire. After a moment's pleasantries, the complainant broke down and told Ms Martire that she was:
"in trouble, in big trouble." (T 152)
She fell to the floor, crying, and pointing to the bruises on her face.
43Eventually, on the urging of Ms Martire, the complainant rang Rose Bay Police Station, and then Paddington Police Station, where she spoke to Constable Westfallen. The complainant was taken to the Police Station and then the hospital, where she was medically examined by Dr Patricia Brennan.
Other evidence in the Crown case
44I will in due course return to deal with the cross-examination of the complainant. Evidence was also given in the Crown case by Dr Patricia Brennan, Mr Vincent Lopez, Mr Michael Bailey, Ms Julie Martire, Mr Peter Smith, Ms Annamaria Galimi, Ms Louise Humphries, and police officers Mark Reynolds, Kylie Westfallen, Anthony Whyte and Kay Whitty.
45Dr Brennan was the medical director of the Liverpool Sexual Assault Service and a staff specialist in forensic medicine at the Royal Prince Alfred Hospital in Sydney. She examined the complainant, and took a history from her. The history includes the following:
"On 3 January 2008 between the hours of 1440pm and 1630pm ... I attended an interview with [the complainant]. When asked what happened [the complainant] described how she had been in a violent threatening relationship with a male she has lived with for nine months. She stated she'd previously rung the police but signed a disclaimer as being 'too terrified to proceed with police'. When asked to describe the violence [the complainant] states that three weeks ago the male struck her on the forehead, a large egg shaped bruise came up on the right side of the forehead and then yesterday after about 1pm when her parents left he shut the door, grabbed her by the clothes, punched her face and head back hard such that her glasses broke. He then proceeded to slap her hard across the head, over the ears and face, she was sitting on the bed crying and he then threatened her with scissors which he had on the bed. He pulled her shoes off and then her underpants, she took her dress off and he proceeded to have forced penile-vaginal intercourse without a condom. At some stage he punched her in the abdomen ..." (T 219-20)
46On physical examination Dr Brennan observed "abrasioned bruises" above and below the left eye, pin point bruising near the ear, a bruise over the right eye, an abrasion on the neck, abrasions to the right hand and bruising to the lips. Dr Brennan formed the opinion that the injuries she observed were consistent with the history given by the complainant of having been slapped heavily over the ears and the face.
47Dr Brennan took a number of specimens from the complainant's body, including low and high vaginal swabs and smears, and vulval swabs and smears. (These were later analysed and DNA tested by the Division of Analytical Laboratories.)
48Mr Lopez was the driver of the bus taken by the appellant and the complainant on the morning of 3 January. He recalled picking up a male and a female (accepted as having been the appellant and the complainant). The complainant was "acting a bit distressed". He said that she entered the bus, and then alighted to get something from the appellant. She was screaming at him on the bus. She took a bag from him and re-entered the bus, followed by the male. They argued, the appellant speaking loudly to the complainant, and asking if she wished to make a scene. Mr Lopez pulled into a bus stop and told them to separate or leave the bus. The complainant thanked him and walked to the back of the bus. The appellant started speaking loudly to her again, "cursing" and swearing. They left the bus at Bondi Junction, the complainant holding the bag.
49Mr Bailey was a passer-by in Bondi Junction on the morning of 3 January. He observed a female (accepted as having been the complainant) walking towards him in an upset and distressed state, and looking over her shoulder. She was carrying a black bag in her right hand and attempting to use a mobile telephone with her left. A male (accepted as having been the appellant) ran past Mr Bailey, and in front of the complainant, and grabbed her with both hands around the arms. She told him to let her go; he demanded to know what was the matter with her.
50Ms Martire worked with the complainant in Bondi Junction. She was the first person to whom the complainant spoke when she arrived in the office on the morning of 3 January. She said to Ms Martire:
"Julie, I'm in so much trouble"
and began to cry (T 374).
51Ms Martire asked what had happened, the complainant replied:
"Simon raped me."
The complainant then told Ms Martire that, the previous day, her parents had dropped her off at her apartment, but that as soon as they left:
"... she got dragged into the unit by her hair ... Then he [the appellant] just started hitting her around the ears",
held scissors at her throat and held her down on the bed. The complainant told Ms Martire that she tried to push the appellant away and had her hands on her face in attempting to do so.
52Ms Martire observed some bruises to both sides of the complainant's head, especially around the tops of the ears, and a little mark under her left eye. She told Ms Martire she had tried to conceal the injuries with make up.
53The complainant then telephoned police.
54Mr Smith was the caretaker of the boarding house in which the appellant and the complainant had inspected a room in the afternoon of 2 January. He recalled the appellant and the complainant arriving at the premises but noticed that they were not talking to each other. He was able to give a description of the complainant as having a small frame and blonde hair, and wearing a dress. He noted that she was attractive.
55After they inspected the room the appellant and the complainant left. The next Mr Smith saw of the appellant was on the following Sunday, 6 January. The appellant returned to Mr Smith's premises, and wanted to talk to him. He asked Mr Smith if he remembered him. The appellant said:
"I was here, came around looking at a room for my girlfriend. She's accused me of assault. It's a frame up. Could you say that nothing happened between us while we were here?" (T 379)
Mr Smith replied:
"Nothing happened between you while you were here."
The appellant then pulled out a document, which he asked Mr Smith to sign, as he said:
"... to verify that nothing happened while we were here."
Mr Smith declined to do so, saying that the appellant was a complete stranger to him and that, as he had not made the statement himself, he would not sign it.
56Ms Galimi was a hairdresser working in the salon at which the complainant had an appointment on 2 January. She recalled an occasion towards the end of 2007 when she was attending to the complainant's hair, when she noticed a bald patch at the back of her head. She described it as:
"It was just, it was just a missing patch of her hair, very, very short, it was very, very obvious." (T 385)
57Ms Humphries was a neighbour of the complainant. She rented an apartment immediately above that of the complainant. She recognised but did not know the complainant. She was aware that the appellant moved into the apartment in about April 2007. She recalled a conversation with the appellant on 22 December 2007, during which the appellant said:
"... yes, I know, it's over, we're not together anymore. She's told me I have to be out by 1 January." (T 389)
58Ms Humphries also recalled 2 January 2008. She could hear an argument from the complainant's apartment between a male and a female that involved:
"... just a whole heap of yelling and crying."
The female was crying, and the male was yelling. She said that this took place between 4.00 and 5.30pm.
59She had heard arguments from that apartment previously, perhaps in October.
60Constable Reynolds gave evidence of having attended at the complainant's apartment on 4 January. He saw a pair of broken sunglasses in a cupboard in the bedroom, and a pair of scissors on the floor in the bedroom, to the left of the bed.
61Constable Westfallen was the police officer with whom the complainant had a conversation on 15 October 2007, and another the following day, 16 October. On that date the complainant signed a statement in Constable Westfallen's official notebook. That statement is:
"On Monday 15 October 2007 I had a conversation with Constable Westfallen over the telephone. I held this conversation in confidence and wanted police to be aware I was separating with my partner Simon. I do not have any immediate fears for my safety in the future. I and Simon have discussed separation and Simon is moving out by Friday 19 October 2007 and Simon has agreed to this. At this stage I do not want any police action." (T 398)
62Constable Westfallen spoke to the complainant again at about 8.30am on 3 January, and later in the morning she met the complainant at the Paddington Police Station. She observed bruising and swelling around the complainant's left eye and abrasions to her face. She accompanied the complainant to the hospital where she was examined by Dr Brennan.
63Constable Westfallen also gave evidence that on the same day, 3 January, she received a telephone call from the appellant, and that he walked into the police station at 9.20am that day. She observed a superficial scratch across his left cheek, and a faded bruise on his left leg.
64On 3 January Constable Whyte was rostered for duty at Paddington Police Station. At 9.20am on that day, the appellant entered the police station, saying that he wished to report an assault. He said:
"My girlfriend has assaulted me and she's making claims that she's going to tell police that I've raped her." (T 416)
The appellant named the complainant, and said:
"It's an ongoing thing, have a look at this, she's had a real good go at me",
indicating scratch marks on his face,
"[name of complainant] is trying to make it look like I've been raping her. She's threatening to tell the police that I bashed her and raped her. She reckons I've drugged her with medication."
65The appellant then raised his shorts and indicated five to eight pale yellow bruises, of golf ball size, between his thighs. He said:
"See, she's hit me with a baseball bat, she's mad ... I've been teaching her to box, you know I'm a fighter, I like to keep fit. She asked me to teach her to fight. I tried to teach her but the marks on her face are because she wouldn't listen to me and she gets hit in the head all the time." (T 416)
Exhibit J is a series of photographs of various parts of the appellant's body taken at the Waverley Police Station on 8 January.
66The appellant told Constable Whyte that he did not wish to pursue assault charges, but preferred to make a report. He said that he had spoken to Constable Westfallen, and another police officer, and "they know what she's like".
67The following day Constable Whyte attended the complainant's premises and took part in a search of the apartment. On the floor under the bed he found a pair of scissors. The bed was "dishevelled", the mattress off the base, draping down to the floor.
68In cross-examination, Constable Whyte said that when he came to the police station on 3 January, the appellant was in possession of a pillowcase, containing clothing, which he showed to the constable. Constable Whyte did not see any blood on the pillowcase. The appellant told him that the sheets (which he did not produce) had his blood on them.
69Detective Whitty was the officer in charge of the investigation of the complainant's allegations. She was contacted by Constable Westfallen during the afternoon of 3 January, and at 4.30pm on that day, she spoke to the complainant. She observed some bruising behind the complainant's right ear. On that day, and the following day, Detective Whitty took a statement from the complainant. With other police she attended at the complainant's apartment.
70In that statement the complainant told Detective Whitty that she had seen the scissors on the bed (the implication being that she had not seen them previously). Thereafter, from time to time, Detective Whitty received emails from the complainant. In one email, dated 4 February, the complainant told Detective Whitty that she had been giving some thought to where she had first seen the scissors. Her clear recollection at that date was (in accordance with her evidence) that she had heard the appellant rummaging in the drawers in the kitchen, and that she was "certain" that that was when and where the appellant had obtained the scissors, and that they were not already on the bed (at the time the two entered the bedroom).
71On 8 January Detective Whitty went to the Waverley Police Station where she saw the appellant. He was cautioned and declined to answer any questions. A buccal swab, for the purpose of DNA testing, was taken from him; since, in the trial, the appellant accepted that there had been sexual intercourse on the day, the result of that testing did not assume great prominence in the trial, although, as will appear below, it had indirect relevance.
72In cross-examination, Detective Whitty said that a canvass had been made of the residents in the apartment block; only one witness (Louise Humphries) emerged as having any relevant information.
73In cross-examination, Detective Whitty was able to give evidence of two telephone calls made by the appellant to the emergency number, 000. These were made at 10.23pm on 14 October and 3.18pm on 31 December 2007 respectively. Transcripts of the telephone calls were in evidence as Exs H1 and H2.
74In the first call the appellant asked the operator if there was "a reference number" for the call. He confirmed that calls to that number were tape-recorded. He then gave his first name and his date of birth and said:
"I've a girlfriend that is threatening me. She threatened me with an iron bar. She's threatened me that she's going to set me up with the police because she knows if she makes a complaint to the police, the police will come and arrest me. So I just want to put this on record that that's what ..."
The transcript then shows that something untranscribable was said in an unidentified female voice, followed by the appellant saying:
"No she doesn't want to talk to you. I just want to put ..."
The operator then asked for his address but the appellant declined to give one. The operator said that the only way he could put it on record was for the police to come to see him. There was then some further speaking from an unidentified voice in the background, followed by the appellant saying:
"Excuse me, excuse me. I'm just telling the lady. Excuse me, madam. So that's all I'm doing, I'm putting it on record, thank you. Bye."
75In the second call the appellant again confirmed that what he said was being recorded and said:
"Oh good, okay, so there'll be a record of it."
The operator confirmed that. The appellant said:
"Okay, goody. Now, I'm very sorry to occupy your emergency line ... I've made a complaint of a domestic violence matter, and also threats from my girlfriend to say that she was going to say that I raped her and all of this ..."
He gave his full name and date of birth and was asked by the operator to identify his complaint. He said:
"My complaint is now that, that I'm obviously, um, thinking that this person is trying to set me up with the police to get me, um, ah, charged with something I didn't do. So I'm calling the police ..."
The operator asked if he would like police to attend, to which he replied:
"No, well, I want to be able ... I'm just putting on record, because I know this is recorded, and I'm sorry to call 000 ..."
76There was then an exchange between him and the operator about the call being recorded, and the appellant said that he did not mean "to take up your time ...". He then said:
"I'm in fear, I'm in fear of being set up by this ... with this woman for something I didn't do and I want it on record that I've spoken to you about it, that she's threatened me to say that she's going to make up a story to say that I raped her and all this type of thing, and I want it on record because, I've got ... don't worry I've got letters and everything, there's no way she's going to get around this."
The operator confirmed that the appellant did not wish police to attend and the call ended. I note without comment that this second call was made on 31 December, at a time when the complainant was still in Goulburn with her family.
77Detective Whitty also gave evidence (somewhat imprecise) that in early December the appellant had spoken by telephone to a Detective Sergeant Krisafuli, who recorded in the duty book that the appellant was concerned that the complainant was threatening "that she would set him up for rape" or words to that effect.
78Exhibits G1 and G2 were Certificates of Analysis from the Division of Analytical Laboratories. The first certificate established an overwhelming probability that the appellant's DNA was present in the high vaginal swab taken from the complainant.
79The second certificate provided an answer to a question posed by Detective Whitty. The question was:
"What is the estimated time frame for the persistence of spermatozoa in the vagina?"
After explaining the progressive process of dilution and degradation of seminal fluids, the analyst indirectly answered the question as follows:
"I would estimate the time since intercourse in this case as most likely to be less than 24 hours and possibly less than 12 hours."
(The sample had, on the evidence of Dr Brennan, been taken between 2.40pm and 4.30pm on 3 January.)
Cross-examination of the complainant
80The complainant was extensively cross-examined. In the first questions asked of her, it was established clearly that the appellant's response to the allegation was that the sexual intercourse that had (apparently admittedly) taken place on the afternoon of 2 January was consensual, and that the complainant's assertion to the contrary was a lie.
81It was then put to the complainant that after consensual sexual intercourse she and the appellant went to Double Bay, then returned to the apartment, and that, while the appellant was in the bedroom, the complainant rushed at him in a "very, very angry" state, brandishing scissors with which she attacked the appellant, accusing him of having had a female in the apartment, and that, in order to protect himself, and stop the attack, the appellant slapped the complainant.
82This, no doubt, was an attempt to explain a number of circumstances in the Crown case - the injuries to the complainant's face (observed by Dr Brennan and Constable Westfallen), the presence of scissors in the bedroom (seen by Constable Reynolds and Constable Whyte), the excursion to Double Bay (confirmed by Mr Smith), and the presence of the appellant's DNA in the complainant's body. The complainant emphatically denied the proposition put, labelling the scenario "a lie".
83At one point in the cross-examination counsel asked the complainant about her psychiatric condition. She said that she had consulted a psychiatrist "maybe six or seven years ago" (T 202) (from the date of her giving evidence, December 2008). She denied having been referred because of "massive mood swings", but was not expressly asked what she understood was the basis for the referral. She agreed that she was prescribed medication to control mood swings. She said, in response to a series of questions:
"I was under the impression that it was because I'd had a really crappy year and I was feeling a bit down, that was it as far as I understood it ...
... as I understood it, it was because I was having a really crappy year. I didn't ever hear the term mood swings, sorry.
...
I went there [to the psychiatrist] because I was having a crappy year and I wanted to talk about it." (T 203)
She said that she was prescribed an anti-depressant.
84Counsel also cross-examined at considerable length about the relationship between the appellant and the complainant. The complainant agreed that the appellant had been working on a film project, called "Plastic Fantastic", for which he was seeking sponsorship, and with which she was assisting by typing documents.
85One subject of cross-examination concerned the complainant's second pregnancy, which she acknowledged was not accidental. It was put to her that, as at September 2007, the relationship was sufficiently close for her to become pregnant. She said that the appellant wanted to have a baby; she did not want to make him angry, and that she did not wish to have a baby with him. She said:
"... I did what I needed to survive ..." (T 238)
86Another subject of cross-examination concerned inconsistencies or discrepancies in the various accounts given by the complainant to Dr Brennan, Detective Whitty and Ms Martire, and the evidence she gave in the trial. Dr Brennan recorded that the complainant said that the appellant "grabbed her by the clothes"; the complainant did not give evidence to that effect. Nor did she say that to Detective Whitty when interviewed. Ms Martire said that the complainant told her that the appellant dragged her into the unit by the hair. The complainant did not give evidence to that effect, and denied having said so to Ms Martire.
87As to the events of 2 January, the complainant was expressly asked whether any incident in which she was crying or screaming had occurred at a time after the 2.56pm telephone call to the hairdresser. Her answer was definite, that no such incident had occurred after that time.
88The complainant agreed that in email communications with Detective Whitty at some (unspecified) time after 3 January, she had said that the first time she saw the scissors they were on the bed, and that it had occurred to her that the whole scenario had been planned by the appellant. In her evidence she said that she first saw the scissors in the appellant's hand in the bedroom.
89The complainant was also cross-examined about telephone records that showed that a call had been made from the appellant's mobile telephone to her own at 4.22pm on 2 January. The call lasted 12 seconds. This was intended to contradict her assertion that, from the time she returned from Goulburn on that day, she and the appellant were constantly and continuously in one another's company. After some thought (overnight) the complainant explained this by saying that the appellant was in the habit of taking her mobile telephone from her. If he were unable to find it, he called it so that it could be located from its ring tone.
90A good deal of the material that provided the basis for the cross-examination consisted of electronic communications between the complainant and the appellant, either email or SMS messages. In considering this cross-examination it is important to bear in mind that the complainant fixed the date of the termination of the relationship as 16 October 2007. She was adamant that, from that date, she and the appellant had no romantic relationship. It is, however, also relevant that her evidence had been of an abusive and violent relationship for some time before that date. It is also relevant that, in her evidence in chief, the complainant said that she and the appellant had reconciled, after the day that she signed Constable Westfallen's notebook (T 78). (That was 16 October.)
91Exhibit 5 was a folder of emails that passed between the complainant and the appellant. To the casual observer, these appear to be the communications of a loving, untroubled, couple. It is worth taking a little time on their contents. On 24 September 2007 (when she was pregnant) the complainant sent an email to the appellant. She gave as the subject line "Cub Cub". The message was:
"This is what we have made so far ..."
and was accompanied by a photograph of a foetus.
92On 2 October the complainant sent another email, headed "Daddy Update". The message read:
"Good morning baby, here is some information for you. The photos are spread over two pages, in case you miss some.
Love you Mr Monteiro x
..."
The balance of the email gave information about her pregnancy.
93Both of these emails pre-date 16 October, the date the complainant claimed the relationship ended, and are, therefore, perhaps, unsurprising. However, the tone appears to have remained unchanged after that date. On 25 October the complainant forwarded to the appellant an email headed "Mental Feng Shui" that she said contained "words of wisdom that make a good deal of sense" and that she thought was worth sending on. The tone is friendly and affectionate.
94On 29 October the appellant emailed the complainant, commencing "Hi baby", and concluding:
"I love you, thank you for this."
95On 30 October the appellant emailed the complainant, telling her she was getting "a little testy", and concluding "Love you always", followed by a line and a half of x's and "And 1 million more". The complainant replied, commencing "Sime darling", saying that she was not "testy", just "frikking busy", and signing "Your [complainant's abbreviated first name] xox". (The x's and o's that permeated the emails represented kisses and hugs.)
96On 28 November the complainant emailed the appellant, saying "check out how clever your girl is", and saying "Love you ... xo".
97Later the same day she again emailed the appellant, beginning "HONEY", and saying:
"This is EXCELLENT!! This will all come together. Your efforts will pay off. I am SOOOOOOOOOO PROUD of you. Good Job ..." (bold and upper case in original)
She signed:
"Love you ... xoxo"
98On 3 December the complainant emailed the appellant, commencing "Baby", and saying (after the main message):
"I hope you are having a wonderful and positive day ... Love you,
[abbreviated name of complainant] xox"
99Another email on 11 December she commenced "Babe".
100On 13 December a number of emails passed between the two. In one, the complainant sent the appellant:
"... an idea for a double sided business card for you",
and finished with:
"Love you xoxo."
101On 14 December the appellant emailed the complainant, calling her "Honey", and asking her to do some artwork for him for Plastic Fantastic. The last line was a long row of x's and o's.
102There were indications of a different tone on some occasions. On 12 December the complainant emailed the appellant about the Plastic Fantastic project. After a personal message, she wrote:
"By the way Simon, contrary to your preferred opinion , I am not a fool. I am well aware that it has been your modus operandi over the past period to secure a means or reason to gain access to telephone records to try and find a reason not to trust me. Sorry to disappoint you and your ever fervent efforts, but there is nothing to hide here. I do not believe that having the aforementioned documentation will gain any weight to your defense, but then again, I am not a lawyer - but I am not a dummy either!
Do you have any idea what it is like to be CONSTANTLY doubted by you. If I say I am not on the phone Simon, I am NOT on the phone. Simple. I have no reason to lie to you Simon. Maybe you are so paranoid because you have been lied to in the past, or perhaps, because you lie, you presume it is my mode of operation too. If you are trying to catch me out or set me up Simon, I am afraid you are not only wasting your time, but pushing me away. At a rate of knots. STOP tarring me with a brush that carries a paint different to my own.
..." (bold and upper case in original)
103When asked about why, if she was, as she claimed, attempting to finish the relationship and get away from the appellant, she complained that he was pushing her away, she said:
"... all of this was part of my survival manual, I didn't know how to manage the abusive situation that I was in and so I was trying to keep things peaceful, I wanted him to be successful so he'd just leave." (T 333)
104In the morning of 17 December she emailed the appellant. The purpose was to make arrangements for the payment of a telephone bill. But the complainant added:
"One last thing -
All I ever really wanted Simon was to be respected by you. That's all. You cannot love somebody if you don't respect them. If I asked you not to do something to something that was not yours, I wanted you to honour that. That's' all. As I said to you Simon, it was never about the juice, or the diet coke, or WHATEVER. Just about the fact that you always did what you wanted, with whatever you wanted, whenever you wanted. You constantly second guessed me and went through my belongings. Don't get me wrong, Simon, I have nothing to hide, it is just horrible, to have somebody going through your stuff, taking it, hiding it, doing whatever with it. That is why I react Simon. I don't think that is a very nice way to treat anybody. Let alone, a person you profess to love. It just does not stack up.
You are right about most things Simon. I am fat. I am ugly. My use by date has been and gone. I am an 'egg'. You are right about most things. One thing you are wrong about is the lump in my breast. Perhaps the wish you made aloud to your mum about me getting cancer of the 'twat' or whatever rude word you called it, has just misplaced itself. We will just have to wait and see. Perhaps you are far more powerful than I gave you credit for. I stand corrected." (bold and upper case in original)
105On 18 December the complainant emailed the appellant, attaching some documents that she said she had found on her computer. She gave some advice about available food in the apartment, reminded the appellant about arranging payment of the telephone bill, and added:
"I am so sad that we were such a disaster Simon. In answer to your question this morning, yes, I do love you Simon. My love for you has never been in question. Print it, shout it to the world, subpoena it, if you must, but, sometimes, love just aint enough. I need so much more than I have received from you - and no, I am not talking materially, although, it is relevant ..."
106The final email in the series was a short one from the appellant to the complainant dated 22 December enclosing, for her to show to her family, a synopsis of the Plastic Fantastic project.
107On the evening of 17 December the complainant sent to the appellant a series of text messages. Although the evidence is not easy to follow, it seems that the appellant had gone out without the complainant and she was unable to contact him on his telephone. At 9.03pm she sent a text message saying that she would leave the keys in the usual spot, and repeated this just two minutes later. At 9.23pm she sent the following message:
"I know it's none of my business but a part of me is sad that you have moved on so quickly as you said you were leaving an hour ago. I hope she is nice."
When asked about this message, the complainant said, repeatedly, that she sent it because she wanted the appellant to think that she was disturbed, so that this would make him "move on" and that she wanted him to think that she was sad that she did not want them to be together any more.
108At 9.53pm she sent a further message about the keys; at 10.23pm she sent the following message:
"Simon, I'm sick of your selfishness and lack of respect for anybody but yourself. Borrow some money from your uncle and get the hell out of my life. You've well and truly outstayed your welcome. This charity has closed its doors. Go and find somebody else to sponge off. You should be ashamed of yourself. I have a huge bruise on my forehead from you and you can't even bother to call. You are a loser."
At 10.48pm she sent the last of the messages for that evening. It read:
"Don't bother coming back here. You are horrible. I was even arranging a Christmas present for you as you will be on your own. What was I thinking? As you've turned your phone off you dirty alcoholic I can't tell you where I've put the keys. I was explaining the whole respect thing to you and you can't even hold the ball for one day. Very sad. Not angry Simon, just supremely disappointed. Please don't come back here tonight as I need to sleep. x"
109She said that she sent this message out of exasperation because there was only one set of keys to the apartment, and she could not go to bed until the appellant knew whether she was going to leave the keys, and she could then lock the door. When asked about contemplating buying a Christmas present for the appellant in the circumstances she claimed to exist, the complainant reasserted that she was terrified of him and said that she would have done anything to keep him "peaceful" (T 210).
110She said that when the appellant finally arrived at home late that night, she opened the door for him, and, out of frustration, slapped his face.
111Also in evidence as Ex 2 was a rather lengthy handwritten note from the complainant to the appellant, the provenance of which is not clear, but which needs to be re-produced in full. The note reads:
"beautiful boy, a beautiful Soul who deserves to and will shine. I am really sad and heartbroken at the moment but ultimately am blessed to have shared this small part of my journey. I have learned much of love and life at your hand and hopefully, when my wounds have healed, I will look back and smile and understand why things turned out like this. I am not quite sure what lesson the Universe is trying teach me through this experience but hopefully, one day I'll get it. I meant what I said in my sms. My love for you is boundless and not in any diminished by our human experience. If at any time, for whatever reason, you feel sad or alone, or if the demons that haunt us all from time to time come, just close your eyes and you will feel my love - wherever you are and whatever your circumstance or situation may be you just called and said you want to talk to me this afternoon but I don't know what else there is to talk about. If you are worried that I would ever be vindictive or nasty - please get those thoughts out of your head. You can keep them there if you want but they are unnecessary and unfounded as I will hold no malice. Perhaps that is why I am alone and perhaps will always be alone as my very nature enables people to take advantage of me - whether that be emotionally or financially. Maybe I am just too messed up and insecure that I keep on giving because I am scared to be alone or rejected. I don't know the answer(s) but from now, at least in solitude, I will always know who I can count on, where my support will come from and learn that neither acceptance or love come from another person or life experience. I am tired - exhausted in fact - of being let down. Of indulging momentarily and believing in happiness and excitement - only to find once more - that it is a journey that nobody wants to share with me - other than Bosley. I just realised this is turning all soppy and it is not serving any due purpose - self-indulgent twaddle - as you would say. I know that anything we have shared - and any secrets we have told - are safe with me. I am not a nasty person and genuinely wish you all the best.
I meant what I said about you leaving and not having to pay back the money you theoretically 'owe' me. I did not support us with a tit for tat mentality. There are lessons in every situation and I have to teach myself the hard way. Besides - I am not a victim and always have and always will land on my feet.
With regard to our c.c. I don't expect you to give me money. I will work things out. There are government pension things that can help and I have paid my taxes for 20 years so it is time for the system to work for me.
I don't understand how legal things work in situations like this but I think if I initial and date each page it should be enough so you don't have to ever worry but when you make it big time that I will change my mind.
I checked the flights because you didn't tell me which one you have changed to but I will go out (the last one lands at 11.10pm) as I don't want to make things worse for either of us. Please let me know when you have sorted out your things. I know it will take some time (but I understand why you want to move to QLD - you need a new start like you said and you will like it there). I will just pop in and out to get some clothes etc and leave you your space to do your things. I know you have a big meeting on Monday - so I imagine you won't put anything in place until after that time. Let us do this peacefully and quietly as we both did our best and for whatever reason it didn't work out and is obviously not meant to be. Sometimes it is hard but you just have to let things go as hanging on just hurts your fingers."
112The note bears on the bottom of each page the date "22/10/07". The complainant acknowledged that she had written the letter, and thought that she had left it in the apartment for the appellant but queried the date. She said that she did write a date but it probably would have been "more like the second" (ie 2 October). She also said that it was written at a time when she and the appellant were going to separate, and that he was supposed to vacate the apartment on 19 October. She said she took this view about the date of the letter because there were references in the note to her being pregnant and that she had had the pregnancy terminated on 16 October. (I assume that what she said were references to the pregnancy are those to "our c.c." and government pensions.)
113The complainant agreed that, in August 2007, she had, at the request of the appellant, purchased a baseball bat for the appellant. It was put to her, in effect, that it was unlikely that she would do this if she had been, as she asserted, "terrified" of the appellant. She replied:
"I lived on egg shells the whole time ..." (T 273)
and said:
"I was surrounded by iron bars anyway, so what's a baseball bat?" (T 274)
114Also in evidence were two bundles of photographs. The first, Ex 4, were said to have been taken on 27 October 2007 by the appellant and the complainant. They are portrait shots of one another, and do not suggest any animosity; indeed, each appears to be very happy. The second set of photographs, Ex 3, was said to have been taken on 3 November, by a friend of the appellant's. They depict the appellant and the complainant in apparently loving embrace. (The dates on which the photographs were taken were never established; the dates mentioned above are drawn from counsel's questions. The nearest the complainant came to giving a date was:
"it would've been towards the end of last year"
ie the end of 2007.)
115The complainant was also cross-examined about her contact with the appellant during the time she was in Goulburn over Christmas. Mobile telephone records revealed extensive telephone calls between the two of them, on one occasion continuing over more than an hour and a half. It seems, from the evidence, that most of the calls emanated from the appellant's telephone, although there were some, much shorter, calls from the complainant to the appellant. It was suggested that this was because the complainant had limited credit on her telephone, and may have called the appellant only in order to have him call her back. The complainant said that she participated in these conversations because she was frightened of what the appellant would do. She denied a proposition put to her that she and the appellant were attempting a reconciliation.
116Although the complainant agreed that the emails extracted above had been exchanged between herself and the appellant, she was not asked to explain the apparent contradiction between their consistently (until 12 December) loving tone, and her assertion that the relationship had ceased by 16 October. And although, at the end of cross-examination, the Crown Prosecutor sought and was granted an opportunity to confer with her, specifically for the purpose of preparing for re-examination, no question was asked to elicit such an explanation. I do observe, however, that, although the complainant pinpointed the date of cessation of the relationship as 16 October (by reference to the date of the second termination) she also said, in her evidence in chief, that the couple reconciled after the day on which she signed Constable Westfallen's notebook (which was also 16 October).
The defence case
117The appellant did not give evidence. No evidence was called on his behalf. Since, when arrested on 8 January and given the opportunity to participate in an interview, he had declined that opportunity and exercised his right to silence, there was no indication, other than what was put to the complainant in cross-examination, of his response to the complainant's allegations. There was no version of events given in his own words. Those propositions, where rejected by the complainant, were therefore entirely without evidentiary foundation. Counsel said, in the presence of the jury, that he was "content to rely on the matters elicited in cross-examination" (T 455). (That was supplemented by the documentary material admitted into evidence during the course of cross-examination.)
118The appellant's case was encapsulated in a series of questions put to the complainant at the end of her cross-examination. It is convenient to re-produce the questions, together with her answers:
"Q When you came back to the apartment, the true position is this. That there was no sexual assault, it was consensual sex that started off with you giving him a massage. That's the fact isn't?
A Absolutely not.
Q After the sex, which took some little time, when you were talking about various things there was then discussion of separating and you wanted some money didn't you?
A Absolutely not.
Q You told him that you had been speaking with your friend Tanya about being able to claim as a de facto --
A Absolutely not. Sorry, absolutely not Mr Jeffreys.
Q After the sexual intercourse had taken place we've established have we not that the sexual assault that you claim took place you say that you rang the hairdresser?
A At 3.00pm in the afternoonish.
Q At 3.00pm alright and then after 3.00pm you say you were trying to calm the accused - you weren't calming the accused down, you were going through Domain with him to see if you could find accommodation and talking to him about accommodation and things of that nature, correct?
A Yeah.
Q Between the time of the phone call and when you left to go to Double Bay was there any incident where you were crying or screaming or making a noise about anything? After the phone call.
A After I'd called the hairdresser?
Q Yes.
A No.
Q So after the phone call we've established that as 2.46 [sic - this may be a transcription error; earlier evidence established the phone call as having taken place at 2.46pm]
...
Q I suggest to you that after the phone call some couple of hours, maybe an hour after the phone call you had this discussion with the accused which I've put to you about getting some money?
A No Mr Jeffreys.
Q You told the accused that he was leaving you and you were broke and he was going to get money from Plastic Fantastic, he was going to get money from the property deal and you wanted a share. That's the fact isn't it?
A There was no such conversation Mr Jeffreys.
Q You'd certainly thought about it earlier because you wrote about it in your letter or note of 22 October hadn't you?
A I'm sorry I don't follow.
...
Q You said that the legal things that that was referring to was any suggestion that you might make a de facto claim, remember that?
A That is correct.
Q This was something I suggest to you that you raised on 2 January after you'd had the phone call to the hairdresser?
A That's not true Mr Jeffreys there was no such conversation.
Q He told you that you weren't entitled to anything because you'd only been together for a short of period of time and then you started bursting out crying, what do you say to that?
A No Mr Jeffreys.
Q The accused was saying to you 'Look you're not entitled to that, you're not getting it' and he was talking down to you in that fashion, now what do you say to that?
A No Mr Jeffreys.
Q That was some time between 4.00pm and 6.00pm, probably closer to 6.00pm, 5.30, 6.00 o'clock what do you say to that?
A Nothing like that happened Mr Jeffreys." (T 340-342)
and:
"Q Now once you got back to the unit in Birriga Road [from Double Bay] I suggest to you that you then started doing some of your art work and Mr Monteiro went into the bedroom. What do you say to that?
A Absolutely not.
Q I suggest to you that at some stage you came into the bedroom and confronted him with a hair clip, that's a female hair clip. What do you say to that?
A Absolutely not.
Q I suggest to you that you said words to the effect of, 'Whose is this? You've had a female or a woman in the flat.' What do you say to that?
A Absolutely not.
Q ...
And you asked him if he had any females in the flat, what do you say to that?
A Absolutely not.
Q He told you that he had a person from the Marrickville Council in relation to the Plastic Fantastic project?
A There was no such conversation.
...
Q You also asked him if he'd been seeing any other women?
A No I didn't.
Q He told you that he'd seen a friend Vanessa and he'd had a coffee with her, and you said, 'You've been fucking her.'?
A No, Mr Jeffreys.
Q You just got yourself worked up and angry and then you had your scissors in your hand and you attacked him whilst he was on the bed?
A No, Mr Jeffreys.
Q You told him that you were going to gouge his eyes out with scissors?
A. No, Mr Jeffreys.
Q That's when he slapped you?
A No, Mr Jeffreys.
Q He slapped you a number of times and tried to push you away as you were attacking him with the scissors and you were biting him at the same time, what do you say to that?
A No, Mr Jeffreys.
Q Now the next day you say don't you that when you got on the bus, or before you got on the bus, Mr Monteiro was claiming that you'd stolen some money?
A That is correct.
Q You had in fact taken his money hadn't you?
A No, Mr Jeffreys.
Q You told him that you were leaving the flat?
A I told him I was leaving the flat, yes.
Q That you were going to stay out until you found somewhere else?
A That I would not be returning, correct ... Sorry, to be precise, I wouldn't be returning and I was arranging for a removalist to come on the Saturday to collect my belongings, and I did not return other than to get my stuff.
...
Q I suggest to you that after you'd attacked him with the scissors and he'd slapped you, you calmed down and he told you that he hadn't had sex with anybody through his entire relationship other than you, what do you say to that?
A There was no such conversation, Mr Jeffreys.
Q He told you that what you'd done to him, 'This is assault, I'm sick of this shit' what do you say to that?
A Absolutely not.
Q And a number of times whilst you were attacking him and also afterwards you said to him 'I hate you, I hate you' what do you say to that?
A No, Mr Jeffreys.
Q You said to him 'I'll say you raped me, you're sperm or cum is inside me' what do you say to that?
A No, Mr Jeffreys.
Q And he said to you 'You're insane'?
A There's no such conversation Mr Jeffreys.
Q A discussion continued in you said 'After tonight I'll stay somewhere else until you move out' and the accused said 'Whatever' what do you say to that?
A I said that I was not returning and that removalists would be getting my stuff on the day after, that was the only conversation that we had in anything to do with that." (T 346-348)
119There was other cross-examination about the events of 3 January but I do not propose to extract it.