Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Fresh evidence - Recanting witness - Whether a miscarriage of justice had occurred

Criminal law - Appeal against sentence - Multiple counts of unlawful assault occasioning bodily harm and multiple counts of sexual penetration without consent - Whether net effective head sentence infringed the totality principle - Whether sentencing judge obliged to find whether offender had an honest but unreasonable belief that the complainant was consenting to the sexual penetrations - The significance of an honest but unreasonable belief for sentencing purposes

Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387

Barnes v The State of Western Australia [2004] WASCA 258

Bryer v The Queen (1994) 75 A Crim R 456

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

CJ v The State of Western Australia [2009] WASCA 42

Davies v The King [1937] HCA 27; (1937) 57 CLR 170

Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154

Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260

Hutchins v The State of Western Australia [2006] WASCA 258

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Langridge v The Queen (1996) 17 WAR 346

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Mahmood v The State of Western Australia [No 2] [2008] WASCA 259

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Nguyen v The State of Western Australia [2009] WASCA 8

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Abboud [2005] NSWCCA 251

R v AHK [2001] VSCA 220

R v DD [2005] VSCA 308

R v Gill; Ex parte Attorney-General (Qld) [2004] QCA 139; (2004) 146 A Crim R 12

R v Lobban [2001] SASC 392; (2001) 80 SASR 550

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Stephens (1994) 76 A Crim R 5

R v Storey [1998] 1 VR 359

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Re GAM [2005] VSCA 234; (2005) 12 VR 177

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Wickham [2009] WASCA 137

Thorn v The State of Western Australia [2008] WASCA 36

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

Warburton v The State of Western Australia [2009] WASCA 113

WCW v The State of Western Australia [2008] WASCA 232

WCW v The State of Western Australia [No 2] [2009] WASCA 5

White v The Queen [2006] WASCA 62

3 BUSS JA: The appellant was charged with 10 counts in an indictment which alleged that he had unlawfully assaulted and sexually penetrated the complainant, RJ, as follows:

(1) On 14 November 2006 at [a Perth suburb] [the appellant] unlawfully assaulted [RJ] and thereby did her bodily harm.

(2) On the same date and at the same place [the appellant] again unlawfully assaulted [RJ] and thereby did her bodily harm.

(3) On the same date and at the same place [the appellant] again unlawfully assaulted [RJ] and thereby did her bodily harm.

(4) On the same date and at the same place [the appellant] again unlawfully assaulted [RJ] and thereby did her bodily harm.

(5) On the same date and at the same place [the appellant] sexually penetrated [RJ] without her consent, by penetrating her vagina with his penis.

(6) On 15 November 2006 at [a Perth suburb] [the appellant] sexually penetrated [RJ] without her consent, by introducing his penis into her mouth.

(7) On the same date and at the same place as count (6) [the appellant] sexually penetrated [RJ] without her consent, by penetrating her vagina with his penis.

(8) On 16 November 2006 at [a Perth suburb] [the appellant] unlawfully assaulted [RJ] and thereby did her bodily harm.

(9) On the same date and at the same place as count (8) [the appellant] sexually penetrated [RJ] without her consent, by penetrating her vagina with his penis.

(10) On 17 November 2006 at [a Perth suburb] [the appellant] sexually penetrated [RJ] without her consent, by penetrating her vagina with his penis.

4 Initially, the appellant pleaded not guilty to all counts in the indictment. On 21 April 2008, however, at the commencement of his trial, the appellant pleaded guilty to the five counts of unlawful assault occasioning bodily harm. He was tried before Eaton DCJ and a jury on the five counts of sexual penetration without consent. On 23 April 2008,

the jury returned verdicts of guilty on the five sexual penetration charges and verdicts of conviction were entered.

5 On 21 November 2008, the trial judge imposed sentences of imprisonment as follows:

6 The trial judge ordered that the sentences on counts 1 - 5 be served concurrently, the sentences on counts 6 and 7 be served concurrently with each other but cumulatively on the sentence for count 5, and the sentences on counts 8, 9 and 10 be served concurrently with each other but cumulatively on the sentences for counts 5, 6 and 7. His Honour also ordered the appellant to serve, concurrently with the sentences on counts 1 - 5, a sentence of 6 months 1 day's imprisonment which had previously been suspended. The suspended sentence was breached by the appellant committing counts 1 - 10 on the indictment.

7 The trial judge therefore imposed a net effective head sentence of 12 years' imprisonment. His Honour made a parole eligibility order and provided for the sentences on counts 1 - 5 to commence on the date of sentencing, that is, 21 November 2008.

8 At the time of sentencing by the trial judge, the appellant was serving a term of 3 years 4 months' imprisonment, with eligibility for parole. That sentence had been imposed by Blaxell J on 1 February 2008 for one count of armed robbery. The sentence for the armed robbery had been back-dated to commence on 13 December 2006.

9 The evidence of RJ was critical to the appellant's conviction on the sexual penetration charges.

10 By letter dated 30 July 2008 (that is, after the appellant's trial and conviction but before his sentencing), RJ recanted material aspects of her evidence at the trial. RJ confirmed and elaborated upon the recantation in an interview with the police on 2 April 2009.

11 The appellant appeals to this court against his conviction on the sexual penetration charges and against the trial judge's sentencing decision.

12 It is convenient to deal, first, with the appeal against conviction, and then with the appeal against sentence.

Appeal against conviction: ground of appeal

13 Initially, the appellant appealed on two grounds. At the hearing his counsel abandoned ground 2. The remaining ground reads:

The verdict of the Jury in respect of the conviction should be set aside, because, having regard to the fresh evidence it is unreasonable or cannot be supported, or alternatively the fresh evidence discloses that the conviction has resulted in a miscarriage of justice.

Particulars

1. The evidence of [RJ] at trial was that she did not consent to having sex and only had sex out of fear of being assaulted.
2. The appellant admitted having sex with [RJ] but believed she was consenting. [RJ] and the appellant had been in a violent relationship.

1. After conviction on 23 April 2008, [RJ] by letter dated 30.7.08, stated in essence that the allegations she made against the appellant were untrue. The letter also confirms that [RJ] suffers delusional episodes.

1. Further on 2 April 2009 [RJ] was interviewed by Police on video and confirmed the evidence she gave at trial regarding lack of consent was untrue.

Appeal against conviction: RJ's evidence at the trial

14 At the trial, RJ gave evidence-in-chief, relevantly, as follows:

(a) RJ was aged 32 years at the time of the trial (ts 45).

(b) RJ met the appellant on 4 June 2006. At the time she was living in a Perth suburb (ts 45).

(c) Soon after RJ met the appellant her two children commenced living with her parents in another Perth suburb. She still visited the children and wanted them to return and live with her at some stage (ts 45 - 46).

(d) At the material time, RJ was in the process of 'getting off marijuana'. She was seeking employment and 'doing regular drug tests'. She was not using marijuana or taking any other illicit drugs for some period before the offences were committed (ts 46).

(e) RJ met the appellant when he came to her house with a friend. Within a week, RJ and the appellant commenced a relationship and started living together. They resided at RJ's house and also, from time to time, at the appellant's parents' house in Mirrabooka (ts 46 - 47).

(f) During the first couple of weeks of the relationship 'everything was nice'. At the time RJ was hoping to obtain employment. She did 'office and cleaning work'. The appellant was not working at the time and he was not doing anything to obtain employment. RJ and the appellant commenced Year 11 studies at the Joondalup TAFE. RJ had previously undertaken secondary studies up to Year 10 (ts 47 - 48).

(g) Although relations between RJ and the appellant were 'nice' for the first couple of weeks, they soon ceased to be 'nice'. RJ discovered that she was pregnant and she was not sure that the appellant was the father. RJ disclosed these matters to the appellant and he became violent. She explained:

When you say violent, what sort of violence?---There was times he threatened to punch me, punch me in the stomach to try and hope there would be [a] miscarriage.

So did you end up terminating that pregnancy?---Yes.

Can you express now why you did that?---Because he was going to kill it.

So how were you feeling at that time after he started getting violent towards you?---I was scared of him.

At that time you said you weren't using any drugs. What about him. What was his situation?---Yeah, he was still smoking.

What was he smoking as far as you were aware?---He was smoking marijuana heavily (ts 48).

(h) RJ noticed that when the appellant was smoking marijuana he would become 'nasty', and start threatening her for sleeping with other people even though she had been faithful to him. He became violent. She did not complain to the police because the appellant said he would kill her. RJ believed that he would make good this threat. She was scared and did not know what to do (ts 49).

(i) At the material time, RJ had been prescribed medication for her mental state. However, the appellant would not permit her to take it (ts 50 - 51).

(j) At the material time, RJ was being treated by a mental health nurse. RJ thought that her mental state had improved as a result of her ceasing to use marijuana. She was not 'talking to [herself]' as often (ts 50 - 51).

(k) Before November 2006, the appellant had been sexually violent towards RJ on one occasion. She asked him to stop but he 'kept going'. On another occasion he threw a rock at her head (ts 52).

(l) At some stage before the commission of the offences, RJ obtained a restraining order against the appellant. The restraining order was in place for about four weeks. RJ then arranged for the restraining order to be discharged because the appellant had threatened to kill her if he was not permitted to see her again. The restraining order was in place in about October 2006 (ts 52).

(m) As at 14 November 2006, the appellant was becoming violent. He had threatened to kill RJ. He said he would slit her throat. He always carried a stanley knife (ts 53 - 54).

(n) On 14 November 2006 (being the date on which counts 1 - 5 allegedly occurred), the appellant was smoking marijuana. His mood was 'nasty and violent'. He accused RJ of sleeping with other people. She denied this assertion and insisted that she had been faithful. The appellant told her she was lying. He kicked her in the leg. The appellant then took a metal dart from his backpack and commenced digging and scratching initials into RJ's arm and breasts. He said he was going to make her 'ugly' and told her 'this is what they can look at when they see you naked'. He engraved 'RN is a dog' on her left breast and 'MN sux' on her left arm. Before commencing the engraving, the appellant pulled down RJ's top. During the engraving she was 'screaming for him to stop', but he continued. The engraving caused her to bleed. After the appellant had finished, he told RJ that he would kill her unless she went and sat on the lounge. She obeyed (ts 54 - 57).

(o) After RJ went and sat on the lounge, the appellant continued to abuse her. He then punched her on the nose. This caused bleeding (ts 57).

(p) Later that day, the appellant and RJ fell asleep. Before they went to sleep, the appellant wanted sex. RJ gave this evidence:

How did you know he wanted sex?---Because he said he wanted sex.

What did you do or say?---I had to agree I wanted sex.

How were you feeling at that point?---Sore and scared to say no to sex.

Did you want to have sex?---No.

So what happened?---He would have just had sex with me while I was laying there.

Okay. Don't talk about what he would have done?---He did.

Can you actually remember what he did?---Yes. He did.

So what did he do. What can you remember him doing?---He just pulled down my pants and pulled down his shorts, then he just laid on top of me.

What did he do there?---Until he ejaculated. Put his penis inside me.

Which part of you?---Into my vagina.

Did you want him to do that?---No. I was too scared to say no.

How was your nose feeling at that time?---Sore.

How long did that go for?---About 10 - three minutes.

What were you doing during that time?---Concentrating on pretending that I liked it.

Why were you pretending?---Because he would get violent if I didn't look like I liked it.

How did you know he would get violent?---Because he had been violent before.

What happened next? Did he finish?---We went to sleep.

Where were you sleeping that night?---We slept on the lounge floor on mattresses.

What time would it have been by the time you went to sleep?---About 8 o'clock.

Did you sleep through the night?---Yes (ts 59 - 60).

(q) On the morning of the next day, 15 November 2006 (being the date on which counts 6 and 7 allegedly occurred), the appellant rubbed olive oil on the wounds he had inflicted on RJ 'so they wouldn't scar' (ts 60).

(r) RJ was feeling confused and scared. She was scared of leaving the appellant and she was scared to 'dob on' him (ts 60).

(s) RJ did not make a complaint to the police on 15 November 2006 because she 'was too scared and [the appellant] promised he would change and [would start] crying and [the appellant] would say sorry, but he would also threaten [RJ]' (ts 61).

(t) Late on the afternoon of 15 November 2006, the appellant told RJ that he did not feel she was attracted to him any more. RJ pleaded with the appellant that she was attracted to him. She 'just wanted him to stop being violent' (ts 62).

What was his response to that?---He just didn't say anything. I remember telling him I wanted to go to sleep because I was tired and he told me he was sick of me being tired, that's when he forced me - he told me I had to give him a head job.

What do you mean by that?---I had to suck his dick.

His penis?---Yes.

So how did that - did you?---I was too scared not to. My face, my nose was sore and there was not much I could do.

What did he do after he said he wanted you to suck his penis?---He pulled down his pants and I started to. He said to me if I didn't suck it he would cave my face in and I had to suck it like I enjoyed it.

Is that what he was saying?---Yes.

Did you want to do that?---No. I was sore and I wanted to go to sleep.

Did you want his penis in your mouth?---No. I said no.

You said no?---Yeah, I said, 'No, I want to go to sleep.'

What was his response to that?---He got angry, so I did, so he wouldn't keep hitting me.

How long did that happen for - did that go on for?---Only happened for one - not even a minute and then I preferred to hop on top of him because it was hurting my face because he would pull me by the hair. It was hurting my face so I said to him, 'I'll hop on top of you instead.'

Did you actually want to do that or not?---He would get violent if I didn't give him some sort of sex.

What happened at that stage?---I was on top until he ejaculated.

So his penis was in you?---Yes.

In your vagina. How were you feeling throughout this incident?---I just felt scared, a piece of meat, I felt worthless, I felt like no matter what I did it wasn't good enough. I only tried to do the right thing by [the appellant].

Was he doing anything when you were on top of him? What was he doing?---He kissed me.

Did you want him to kiss you?---When he wasn't violent, yes.

But at this time?---I don't know, don't know.

How were you feeling physically at that point?---Physically my face and my head was sore, I was stinging, my arms were stinging, I was also emotionally tired of it all.

Do you recall anything else - how long did that go on for, that you were on?---On a couple of minutes.

What time would that have been? Do you know?---Probably about 5 o'clock.

Do you recall anything else happening on that Wednesday?---That was the day [the appellant] asked me to engrave his penis.

What did you think about that when he said that?---I was scared not to.

How did he bring it up?---He mentioned that, 'You're mine,' and he mentioned that he had branded me.

What was he referring to there as far as you knew? What was he talking about then?---Probably putting initials on me. He kept saying that he loved me and he asked me to do this, I was too scared not to do it.

So what did you actually do?---I engraved my name onto his dick.

Your whole name or?---My first three initials.

...

Did anything else happen after you did that?---I was scared to do it because I thought if I hurt him he would get violent and if I didn't do it, he'd get violent and if I didn't put my name on there he would think I was sleeping with other people and I did it but I was scared of hurting him and I was expecting to be punched but I did it and after it was done he then accused me of putting some other people's initials on there and I screamed, screamed and pleaded with him that it wasn't true, that I put my initials on there. That's when he tried to put his initials on me.

Whereabouts on you?---Down my vagina area.

Did he put his initials down there or not?---Yes, but that didn't scar.

What were you using to put your initials on his [penis]? How were you doing it?---We were just using his stanley knife.

What did he use on you?---He was using a stanley knife.

When did that happen in relation to the events that you have spoken about him making you perform oral sex on him and you being on top of him?---I didn't hear you, sorry?

Sorry, when did that happen? Can you say when that happened in relation to those acts of sex that you talked about?---It happened after those acts of sex.

It was after the sex?---Yes.

After that happened, what came next? Did you stay at home, did you sleep the night at home?---No, he punched me again in the nose. I went down to the bathroom, recall him hitting me again in the same place where he'd hit me in the day before on the nose. I thought he was going to kill me then (ts 63 - 65).

(v) On the afternoon of the next day, 16 November 2006 (being the date on which counts 8 and 9 allegedly occurred), the appellant accused RJ of having sex with people she did not know. He told her he could see other people's initials on her face. RJ pleaded with the appellant that she was faithful and honest. He told her not to lie. He then tried to strangle her. First, he punched her in the nose and then he grabbed her by the throat. She thought he was going to kill her (ts 65 - 66).

(w) After this assault, RJ's nose was sore and her head was 'banging constantly'. The appellant ignored her when she said she needed to go to hospital. RJ had a duress alarm in her house. The appellant told her that if she activated the alarm he would have enough time to slit her throat before the police arrived. She believed that he would make good this threat (ts 66).

(x) That evening, the appellant wanted to have sex with RJ. She gave this description of what occurred:

How did you know he wanted to have sex?---Because he would just take his pants down and have sex with me and I said I was sore and he said, 'Just enjoy it.'

Did you want to have sex with him?---There was nothing I could do, no. Not straightaway, as soon as he - was violent.

So how long was it between you - him putting his hands on your neck to when he had sex with you that day?---About 15 minutes.

So did he say anything to you when you said, 'My head hurts et cetera'?---Told me to just rest and I told him I wanted to go to the doctors and he told me to just rest.

When you say he had sex with you, what do you mean by that on this occasion?---I was just laying on the lounge. I was laying on the floor, the mattresses, because my head was sore and my nose was sore and [the appellant] would just pull down his pants and have sex with me and lay on top of me and put his penis inside me until he ejaculated. I had to give some sort of impression that he - that I enjoyed it otherwise he would punch me. I was fearing for my life at this time. [The appellant] would just keep hitting me if I looked like I didn't enjoy it.

Why did you think he would do that?---Because that's all he had done previously.

When you say 'previously', can you say when that sort of thing had happened previously?---He was violent for the whole time of knowing him. As soon - yeah, always threatened he would find me and kill me if I dobbed on him - that he would kill me.

So how long did that sexual act take?---Only about a couple of minutes.

What happened after that?---He went to sleep (ts 67 - 68).

(y) On the next morning, 17 November 2006 (being the date on which count 10 allegedly occurred), RJ asked the appellant whether she could go to the doctor. The appellant wanted to have sex again. RJ asked to go to the doctor because she wanted to get away from him. She was sore, frightened and 'emotionally tired of it all'. She was 'coming up with some excuse to get away from him for good so [she] could press charges or inform police'. As to the appellant wanting sex again, RJ gave this evidence:

You said he wanted to have sex?---Yes.

What was your response to that?---I didn't really talk. It was what he wanted in the end.

Did you want to have sex with him?---No.

So what happened?---Once again I laid there and he pulled his pants down and laid on top of me and put his penis inside my vagina and ejaculated and then hopped off.

How long did that take?---About five minutes - not even five minutes.

Was there any reason why you didn't say no or do anything to stop him if you didn't have to have sex?---Because he would turn violent and he would have sex with me anyway - because he would be violent.

After that act, what happened then?---I kept asking - I wanted to go to the doctors. I kept telling him I wanted to go to the doctors. My head was hurting. We walked to the bus stop. It was there I rang my mum. I couldn't talk much on the phone because [the appellant] was standing right beside me, but I gave her some sort of idea that I was hurt and she told me she would be - - -

Don't talk about what she said?---Okay.

But did you make some arrangement?---Yes.

Where was he when you were talking to your mother on the phone?---He was standing beside me.

How were you feeling at that point?---I was scared that he would take the phone off me. I was frightened. I was scared to talk to my mum.

So how long was that conversation for with your mother?---About - not even about a minute.

Then what happened?---[The appellant] apologised again and I couldn't - bus came and we said our goodbyes and he said, 'Is it over?' And I just walked away.

So you didn't answer him when he said that? So where were you walking?

EATON DCJ: I didn't actually hear what was said.

O'CONNOR, MS: Sorry.

What was it that [the appellant] said? You might have to just speak up a bit so everyone can catch that?---He - [the appellant] just said, 'I love you and is it over?'

EATON DCJ: Is that, 'Is it over'?---Yes, and I couldn't answer him. So he walked on the bus. I said, 'My mum's coming.'

O'CONNOR, MS: Then what did you do?---I just walked away.

Did you meet up with your mum?---Yes (ts 71 - 72).

(z) After 17 November 2006, and before the commencement of the trial on 21 April 2008, RJ did not have any face to face contact with the appellant, but they did speak by telephone. RJ recounted some of the telephone contact at about Christmas 2006 and New Year 2007:

How did that come about?---[The appellant] rang me between Christmas and New Year apologising, not being able to explain his actions towards me and mentioning to me that if I had any problems I could call him on this number any time.

What did you think about all that?---I started crying and he's - he has got very emotional and - I didn't know what to do.

So did you use that number that [he] had given you?---Yeah, I rang back because I was wondering - I wasn't sure what he was up to. I wasn't sure what his plans were, what his steps were. I was frightened from him.

So did anyone respond when you rang the number?---Yeah, I rang the number and then he told me that I couldn't ring the number, that it was his new girlfriend's number. But I couldn't - he told me I could ring the number at first and then me and

Sorry?---Me and his girlfriend had words. His girlfriend said she was his new girlfriend and that was it.

...

[RJ], you said there was some phone contact between you and the accused. That was around Christmas, was it, of 2006?---Yes.

Then after that did you see him again?---No. I didn't see him again, no. I haven't seen him again.

When I say 'see him', I don't mean talk to him but did you actually have any contact with him or did he have any contact with you?---We spoke on the phone in January. He told me he was coming to my house. He knocked on my window and I called triple zero.

Okay - sorry. He knocked on your window. Did you let him in?---He knocked on my door. I pretended I wasn't home.

So did you have him come and stay at your place again after you gave your statement to the police?---Never, no. I have never seen him since (ts 78 - 79, 84).

(a) Counsel for the appellant put to RJ that the sexual intercourse on 14 November 2006 (count 5) was consensual. RJ denied that the intercourse was with her consent (ts 103 - 104). The following exchange occurred:

I put it to you that at the time in that lounge room, the two of you simply had sex on the basis that you agreed and the two of you?---I was too scared to not agree. I needed to - personally I would have liked to see more of a change in [the appellant] before I had to have sex with him, but I was too scared to not have sex with him.

Did you say something to him in the lounge room there about, 'No, I don't want to be doing this'?---Yeah, I said I was tired.

You didn't indicate to him in any way at all, did you, that you didn't want to have sex?---I said I was tired, I wanted to sleep.

I put it to you that you simply?---I couldn't say no to sex because [the appellant] would be violent.

You didn't say anything to him to indicate, or you didn't do anything either, did you, to indicate that you didn't want to have sex?---I told him I was tired.

You participated in [the] sexual act, didn't you?---I did, because he threatened he would punch - cave my face in (ts 104).

(b) RJ said that after the appellant had punched her on the nose on 14 November 2006, the appellant 'cried and was sorry for what he had done to me ... and said he had to stop being violent towards me ... and that he loved me, and he laid me down and got an icepack for my nose'. She added that it was 'a bit cuddly then' (ts 105).

(c) As to the acts of oral and vaginal intercourse on 15 November 2006 (counts 6 and 7), the cross-examination was, relevantly, this:

What I put to you is that you were there with a vibrator and [the appellant] in the context of you using that on yourself invited you to take his penis into your mouth?---No.

And you did?---No.

And very soon after you had done that you stopped doing that and got on top of him as he sat there on the couch. Isn't that what happened?---No.

The sex acts on the couch involved his penis in your vagina with you on top of him in those circumstances. Isn't that how it occurred?---No.

A vibrator?---No.

And so on, and the sex act came to an end quite quickly. Isn't that the case?---No.

...

Certainly the sexual activity that occurred on the Wednesday, the oral and the intercourse, was simply activity that you were quite happy to be involved in, weren't you?---I didn't want [the appellant] to be violent.

You stimulated him orally at his request. He asked?---Or he would cave my face in.

He didn't say that at all, did he?---Yes, he did.

That's simply something that you're making up, isn't it?---No, it's not (ts 109 - 110).

(d) Counsel for the appellant referred to RJ and the appellant being together in public on 16 November 2006, notwithstanding that, on RJ's evidence, there had been three acts of sexual penetration without consent on the previous two days:

Three acts; one on the Tuesday and two on the Wednesday and there the two of you are together in public on public transport?---I was tired and sore and I didn't want to have sex with [the appellant] because he was being too violent and I wasn't sexually active.

...

You say that you're going home now with a man who in the past two days, the Tuesday and the Wednesday, sexually assaulted you. That's your evidence, isn't it?---Yes, sir.

The fact of the matter is this, isn't it: that you had been involved in consensual sex with [the appellant] on both those days?---Not on those days, no. I had consented to sex in the past in a relationship - while I was having a relationship with [the appellant], but not on those four days. Enough was enough, of his violence and not accepting - having to hide the fact that I did not want to have sex any more with him while he was being violent like this (ts 114, 118).

(e) RJ denied the cross-examiner's suggestion that on the afternoon of 16 November 2006, 'things settled down at the house'. She said she was sore, in pain and scared. She added that things 'were still the same, things hadn't changed'. She did accept, however, that at that time she was not being hit (ts 126).

(f) The following exchange occurred in relation to the act of sexual intercourse on 16 November 2006 (count 9):

And the sex that occurred was simply consensual between the two of you?---No, it wasn't.

You showed him that you were enjoying what was happening?---No, I wasn't. I was in pain and scared.

You showed him - the way you behaved in the course of that act of sex was to indicate, was it not, that you were enjoying yourself?---No, I wasn't.

The impression you were trying to give was that you were enjoying yourself, isn't that the case?---[The appellant] would get violent if I didn't look like I enjoyed myself.

So are you saying that it would have looked as though you were enjoying yourself?---I just laid there, on my back.

But the truth of the matter is that you were quite happy to be having sexual intercourse with him, at that time, weren't you?---It's better than being punched. I didn't want sex at that time.

You certainly didn't indicate that to [the appellant], did you?---He wouldn't accept 'no'. I couldn't tell him 'no'.

Indeed, your behaviour was such as to indicate that you were enjoying it, isn't that the case?---No.

After you had had sex that particular night, you slept there?---Yes.

The two of you woke up there in the morning?---Yes (ts 127).

(g) The cross-examination in relation to the act of sexual intercourse on 17 November 2006 (count 10) was this:

Then in the morning, the two of you were lying there awake?---Yep.

Sexual intercourse occurred?---Again, yes.

Again, it was simply a matter of having a cuddle, wasn't it?---No.

He kissed you, or you kissed him?---He kissed me.

The previous night it had been the same. He had been kissing you during sex?---

Yep.

Yes, and you were responding, the previous night, kissing him back?---Yes, but it wasn't nice.

EATON DCJ: What was that?

SUTHERLAND, MR: But it wasn't nice. In the morning - this was the way things happened between you. If you were having sex there was kissing going on?---Yeah, most occasions.

I will go back to the Wednesday, for example, after there had been oral sex. You were on top of him, is that right? Do you remember that afternoon?---Because he was hurting my face, yes.

And you kissed him during that act of intercourse as well I think, didn't you?---Yes.

In the morning, going now to the Friday, the two of you woke and there was kissing and cuddling and sexual intercourse?---[The appellant] promised that he would be sorry again.

And because of that you agreed to have sex. Is that the?---I didn't agree, I couldn't talk.

Well, are you saying that he spoke to you in bed that morning, the Friday?---Yeah, he wanted sex again and I said I needed to go to the doctors.

Or is it the case that the two of you - he said nothing about wanting sex, he just cuddled you and one thing led to another. That's the situation, isn't it?---No. I said, 'I wanted to go to the hospital - go to the doctors.'

I suggest to you that you may have said that later but you didn't say it while the two of you were laying down in bed together?---Yes, I did.

[RJ], the situation I suggest to you was that the two of you simply woke, cuddled and had intercourse. Isn't that the position?---No.

The two of you got out of bed later?---Straight away [the appellant] would get up and get ready to go.

And he did kiss you and say he was sorry, didn't he?---[The appellant] always - yeah, [the appellant] did say he was sorry five minutes after hitting me all the time.

Well, this is in the morning. He hadn't hit you in the morning had he?---No, I was in horrific pain. My head was throbbing.

He cuddled you, said he was sorry?---Said he's sorry, he didn't want to do this to me any more.

And the two of you cuddled and then had sex. Is that right?---We had sex, yes.

He kissed you?---He kissed me.

You kissed him, yes. And it was consensual sex that morning wasn't it?---I was too scared to not have sex with [the appellant]. He would get more violent. I didn't want another hit to the nose.

There was no aggression, it was just all peaceful in bed that morning, wasn't it?---No, I thought he was going to kill me.

Well, did he say so?---He told me he would kill

There? Then and there in the bed?---No.

Right. After you had sex, you lay there, the two of you, for a while. Eventually got up, isn't that the case?---Yes (ts 128 - 131).

16 I have read the whole of the transcript of RJ's evidence and I have listened to the audio record of her evidence.

Appeal against conviction: the appellant's case at the trial

17 The appellant gave sworn evidence at the trial. As I have mentioned, he pleaded guilty to the five counts of unlawfully assaulting RJ and thereby doing her bodily harm. He admitted that the five acts of sexual penetration, the subject of the indictment, had occurred. He asserted, however, that each act of sexual penetration was consensual, alternatively, he honestly and reasonably (but mistakenly) believed RJ was consenting.

Appeal against conviction: the letter dated 30 July 2008

18 As I have mentioned, the appellant was convicted on 23 April 2008.

19 RJ's letter dated 30 July 2008, which was sent to the Director of Public Prosecutions, reads, relevantly:

I was made to appear in the Perth Central Law Courts back on the 21st April to give evidence to a jury on sex charges against my partner [the appellant].

As a result of this matter, [the appellant] was found guilty on all these charges.

I am hear [sic] by right to state that the allegations made against [the appellant] where [sic] untrue.

I [RJ] was undergoing intense special treatment due to my medical condition at the time schizoaffective disorder biopola [sic] type.

I was undergoing and was experiencing major delusional episodes and suffering alot [sic] of stress, when making my statement to Detective Lena Powell and Prosecutors and dury [sic], as a result I have made false accusations in the Perth Central Court against my Partner.

It has resulted in five sex penetrations and other charges against my will, which are untrue.

Whylst [sic] during the relationship and the past few years before hand [sic], I was experiencing alot [sic] of problems with certain suburbia [sic] police force members, traced and raid'd [sic] on false allogations [sic] made against me. This started again once [I] tried comencing [sic] a relationship with [the appellant]. Whylst [sic] we both new [sic] this was corruption, and discriminating, we both were frightened and started to argue.

I felt like I had to testify against my Partner [the appellant], as I was to [sic] scared not to for the safety of my life, with these problems I was experiencing.

I have experienced alot [sic] of trama [sic] and violence against me, discrimination, sexual harassment, death threats and have called the police on a number of occasions and Police did not take my children into consideration and offered no help. But once [the appellant] and I started a relationship, Police forced their way into my house with no warrent [sic] and the next day took my Children from me. This made me and [the appellant] start to argue, as we both were feeling helpless and felt like we had no chance with each other and our children. I do have proof of medical reports stating my medical condition (WAB 14 - 15).

On 31 July 2008, the Director made available a copy of the letter to the trial judge and counsel for the appellant.

Appeal against conviction: RJ's interview with the police on 2 April 2009

20 On 2 April 2009, RJ was interviewed by the police in connection with the letter dated 30 July 2008. It is necessary to reproduce relevant parts of the transcript of the interview.

21 The police officers asked RJ about the letter dated 30 July 2008, the allegations she had made in her witness statement and at the trial concerning the sexual penetrations without consent, and the medication that had been prescribed for her from time to time:

Q. Um, and as a result of you giving that evidence [the appellant] was found guilty of five counts of sexual assault or sexual penetration without consent upon yourself, all right, and, as I said, then at a later stage you then delivered a letter to the DPP outlined, basically saying that, um, he didn't sexually assault you. All right?

A. Yep.

Q. All right. Now in relation to what I've discussed have you - is there anything that you want to say in relation to that?

A. Um, under the - under the influence of medication I was on at the time I felt pressured into making the statements against [the appellant], um, and pressured into making the five allegations about the sex charges.

Q. All right. So - - -

A. And I never - I never mentioned to anyone, like I mentioned before, that he - [the appellant] raped me.

Q. Yep.

A. I was in a relationship with him and I wanted - wanted to have [sexual] intercourse with him. I just wanted us to stop arguing about the things that were going on in our life at the time with, um, just intruders into our relationship, um, ex-girlfriends which is why [the appellant] done this, asked me to engrave him.

Q. Yep.

A. Um, but other than that, it wasn't - it wasn't rape. I did want [sexual] intercourse with him because I wanted him to be my partner at the time and through sexual intercourse he was kissing me and I was kissing him back.

...

Q. [W]as it a case that you did not want sex with him at all - - -

A. No.

Q. - - - or that you didn't feel like having sex?

A. Um, I didn't want to be on that medication.

Q. Right.

A. Um, the medication was not giving me a sex drive - - -

Q. Yep.

A. - - -and I didn't - I wasn't able to perform properly.

Q. Yep.

A. Um, but I still wanted to be with [the appellant].

Q. All right.

A. And I just - and I was having a lot of problems with his ex-girlfriend and other people - - -

Q. All right.

A. - - - causing jealousy and that in our relationship which is why I wanted to be with [the appellant]. Not because of that, I just wanted to stop - I just wanted us to stop arguing.

Q. Yep.

A. Um, other girls not taking no for an answer from [the appellant] and other men not taking no for an answer from me which caused us to argue.

Q. Yep.

A. Um, it definitely wasn't rape.

...

Q. So you wanted him to be charged with, what, the assault occasioning bodily harm.

A. Not the sexual penetration.

Q. All right.

A. I just wanted him charged with, um, just engraving me, - - -

...

Q. Okay. What sort of medication were you on?

A. Um, I was on antipsychotic and I was also on sleeping tablets, I was on mood stabilisers and there was a few other ones I don't recall.

Q. All right and what - what were all they for?

A. Um, the doctor at the time diagnosed me with schizophrenia bipolar and then he's changed my diagnosis a few times.

Q. All right. Are you in fact schizophrenic?

A. No, I'm nothing. I was just having a bad time at the time due to the, um, violence I was having before [the appellant].

Q. All right.

A. I was under a lot of, um, stress.

Q. Okay. So this - - -

A. Before [the appellant], before I started a relationship with [the appellant].

Q. Yep. So this all happened in 2006?

A. Mm'hm.

Q. So when were you, I suppose, correctly diagnosed then?

A. I was correctly diagnosed about a year ago.

...

Q. All right. So when - when you, ah, were giving evidence in court back in, ah, April 2008, - - -

A. Mm' hm.

Q. - - - so we're talking, um, almost, yeah, 12 months ago now, were you still on medication back then or were you off the medication or were you weaning off or - - -

A. Yes, I was - I was on tablets then. I was on tablets for people with epilepsy. He had me on epilepsy tablets as well.

Q. All right.

A. And I've never had epilepsy.

...

Q. All right. So in 2008 at around the time of the trial you were only taking epilepsy tablets, is that correct?

A. Yeah.

...

Q. Yep. Okay and - okay. So how long ago - you said before it was about six months ago that you've actually stopped taking all of those tablets as such. So - - -

A. Yep.

Q. - - - at the moment all you're on is the thyroid - - -

A. Yeah, thyroid and heart tablets.

Q. - - - and heart? That's it?

A. Yep.

...

Q. All right and when you were on the epilepsy only tablets, how did they affect you?

A. Um, they made me feel stoned.

Q. Yep.

A. They just made me feel stoned and, um, - but with energy.

Q. All right and just going to the actual trial, okay, - - -

A. They sort of took away all the pressure out of my head, like, - - -

Q. Yep.

A. - - - all my thinking, because I think all the time, I think too much about what's happened in my past.

Q. Yep.

A. And, um, by taking those tablets it sort of stops me from thinking so much.

Q. All right.

A. It just makes me, like, a bit floaty.

...

Q. [W]hen you gave that evidence was that the whole truth?

A. Um, not the whole truth.

Q. And what do you mean by that?

A. I didn't - I didn't get to mention anything about my medication. I didn't get to state the things that I only wanted to say. I was told I was only allowed to answer yes or no and not to give the full, you know, the full story.

Q. All right and who told you that?

A. The DPP.

Q. So the DPP told you not to give the whole story?

A. Mm'hm, not to go into too much detail.

...

A. I was having problems with my doctor at the time [of the commission of the alleged offences], um, and I was - I was having - me and [the appellant] were arguing about my doctor at the time.

Q. Yeah.

A. Because he was having - he had me on a whole pile of pills which, um, were just not agreeing with me and I was arguing with [the appellant] that it wasn't - that it was taking my sex drive away.

Q. Yeah.

A. So it wasn't that I didn't want sex with [the appellant], it was I didn't want to have to live on those pills and, um, I had - um, I had welfare telling me if I didn't take my pills - - -

Q. Yep.

A. - - - and if my pills weren't in my urine test, um, I wasn't to be able to talk to my children.

Q. Yep.

A. So I had to take those pills to be able to talk to my children and the pills weren't agreeing with me and [the appellant] could see that and, um, we were arguing about that as well as ex-girlfriends and a lot of past problems (interview ts, 2 April 2009, 8 - 10, 13 - 19).

22 The police officers then asked RJ about her understanding of 'rape', how the allegations of sexual penetration without consent came to be made, why RJ had alleged that the sexual penetrations were non-consensual, and whether she had in fact consented to them:

Q. All right. So when you were asked by the prosecutor, you know, did you want to have sex with [the appellant] on these occasions and you said that you said, no, I didn't, - - -

A. Mm, I did (indistinct).

Q. - - - can you expand on that answer now, like, can you explain what you meant by, no, I didn't?

A. Um, it was mainly just the medication. I did want to have sex with him. No, I didn't want to have sex. I wanted to be able to feel, like, have my sex drive back - - -

Q. Yep.

A. - - - to have sex - to have sex properly.

Q. Yep. So - but at the time, I suppose (indistinct).

A. At the time it didn't really matter.

Q. Yep. Did you - all right, but at the time did you want to have sex with [the appellant]?

A. Well, see, I - I was a mess, I can't answer that question.

Q. All right.

A. But I know he didn't rape me because I was kissing him.

Q. Yep and how would you define rape?

A. I would define rape that you just get raped and left and just - and when - and you ring up and say, I've been raped and I've never done that.

Q. All right.

A. Or go to SARC and say I've been raped and I never said it at SARC either.

Q. Yep. All right. Do you - okay. There's one thing I'm just trying to - do you understand what - when we talk about sexual penetration without consent, that's when you have sex and the other party says no.

A. Mm, but through our relationship, like, that was - through our relationship it was like that. Um, sometimes he'd say no and I'd just say, come on and then I'd just pull him into the room - - -

Q. Yeah.

A. - - - and just start on him.

Q. Yeah.

A. So sometimes the no word didn't really make any - it didn't really stand in our house.

Q. All right. Have you got any - - -

A. Otherwise if I said no I could have just walked out if I really didn't want to that much. I stayed with him four or five days. Well, the statement says five days.

Q. Yep.

A. In that five days I had lots of opportunities to get away.

Q. Yep, but was it a case of you - because I think in your trial you were asked that question and you said that you were too scared to leave.

A. Yeah, because I didn't want to break up [with] him.

...

Q. So it's fair to say that mum - your mum made the report to police?

A. Yeah.

Q. Without your knowledge or with your - - -

A. Yeah, without my knowledge.

Q. Without your knowledge?

A. Yep.

Q. So the police have just followed up on a complaint they've received - - -

A. Yes.

Q. - - - from your mum.

A. Yep.

...

Q. - - - and the declaration on the bottom of the statement, did you ever say to the - Lena Powell or any other police officer that you didn't want to sign that statement?

A. No. No, because I was more - I was more interested in just the engravings. I thought that was always going to be (indistinct).

Q. So your statement that you gave to police, it covers the engravings, as you call it?

A. Yep.

Q. And it covered the allegations of the sexual penetration without consent?

A. Yeah, she insisted in having them put in there otherwise they couldn't have him charged with the engravings. So I just thought that was part and parcel at the time when I was on all that medication. Um, I just thought to be able to have him charged with these engravings then she's had to go back five days and it wasn't until after it was signed, um, they said they were going for counts of rape.

Q. Was there any time after you signed the statement that you had the opportunity to go back to the police and say, listen, I'm not happy with that statement, I want to have this bit amended or removed and I'll sign another statement?

A. Um, I was - I thought about it but they'd already put him in custody and I thought I was going to be charged if I changed it.

Q. Did you seek advice from the police?

A. No.

...

Q. When you had sex with [the appellant], was there any occasion where you said to him, no, I don't want to have sex?

A. No, I didn't say that to [the appellant].

Q. You've never - in that five day period that this - this matter that we're discussing covers, at any time when you had sex with [the appellant] did you say, no, I don't, and he had sex anyway?

A. Um, there was one time I said I had a headache when he had hit me and - and then he said - and then - but he was gentle when he was kissing me and he was saying - but I never said to him, no, I didn't want sex because we spent - we had good days together during these four days.

...

Q. So do you understand the meaning of the term, sexual penetration without consent?

A. It means he had sex with me when I said, no.

Q. You don't have to say, no, but you can just - it can be an action, you can push somebody off, you can try to walk away and they continue their actions.

A. No, I didn't try and push him off and I didn't try to walk away.

Q. No?

A. No, and I - - -

Q. So you willingly had sex with him?

A. Yeah, he laid on top and I was kissing him while we were having sex. I didn't try and walk away and I didn't - I didn't try and stop him.

Q. Yep. So you were quite happy to have sexual intercourse with [the appellant] - - -

A. Yeah.

Q. - - - on the occasions that we're discussing here, that five day period?

A. Yep. I just wish I didn't have to have sex with him while I was on those pills in my own mind, I didn't mention that to him.

Q. So you - - -

A. I did mention to him, I wish my sex life was back to normal fast.

Q. So you were happy to have sex, it was just the way that you were mentally feeling that you thought, oh, I'd probably - I would enjoy this - - -

A. Better if I wasn't on these pills.

Q. - - - better if I wasn't on all these medications.

A. Yeah.

Q. But I'm quite happy to have sex with - - -

A. Yeah, because - because he wanted to still.

Q. Yeah.

A. He still wanted to have sex with me.

Q. But did you still want to have sex with him?

A. Well, yeah, I did still want to have sex with him. I just wanted to have my sex drive back.

Q. All right.

A. And not have to be on those pills.

Q. Yeah. So you - as I say, so that we both understand what you're saying is basically you would have enjoyed the sex better if you weren't on the medication - - -

A. Yeah.

Q. - - - but you- but you were quite happy to have sex - - -

A. Yeah.

Q. - - - regardless?

A. Yeah, because he was my man.

...

Q. So did you understand the question when it was asked in court regarding did you want to have sex with [the appellant] and you said, no, because that - - -

A. Not to [the] full extent, no.

Q. Did you ask for a clarification in it, in the wording of the question?

A. No, because I wasn't allowed to. I just had to answer yes or no (interview ts, 2 April 2009, 21 - 22, 24 - 26, 28 - 31).

23 The police officers then asked RJ about her contact with the appellant before and after the trial, and when she became aware that the appellant had been charged with the five counts of sexual penetration without consent:

Q. All right. Okay. So between when he was charged, arrested by the police, okay, - - -

A. Mm' hm.

Q. - - - and the day of the trial back on the 21st of April, - - -

A. Mm' hm.

Q. - - - did you have any contact with [the appellant] between that period?

A. No, I wasn't allowed to.

...

A. And as soon as he was sentenced I was straight into the prison to see him.

Q. Okay. So the first time you seen him in - - -

A. Straight after the trial when I found out he was found guilty of five counts of rape that's when I went straight in there.

...

Q. Okay. So why did you restart the relationship after the 23rd then, after the trial?

A. Because I was allowed - because they'd sentenced him.

Q. Yep.

A. And I found out that they'd sentenced him with rape.

Q. Yep.

A. Or they charged him with rape.

Q. Yep.

A. And I went in there because I knew it was wrong.

...

Q. All right? So my question is were you lying when you gave evidence in court or were you lying - - -

A. Yeah, I was lying - - -

Q. - - - when you wrote the letter?

A. I was lying when I was giving evidence in court.

...

Q. - - - [the appellant's] still in custody.

A. Yeah.

Q. Ah, he's currently at Casuarina.

A. Mm'hm.

Q. All right. With - have you been visiting him?

A. Yeah, I go twice a week.

Q. Twice a week? Telephone calls?

A. Yeah, he rings every day.

Q. Every day?

A. Yep (interview ts, 2 April 2009, 33, 35, 37, 43 - 44).

24 Finally, the police officers asked RJ whether she had been placed under any pressure by the appellant or anyone else to write the letter dated 30 July 2008:

Q. Okay. Have you discussed this at all?

A. Yeah, he just said, just tell the truth, babe. He said, just tell them what - he said, you know it's not rape and I said, yeah, I know it's not rape. He said, just tell them the truth, there's nothing, like, - he said, if the worst comes to worst you're going to be done with perjury.

...

Q. Yep. All right. Has [the appellant] put any pressure on you to give this letter, to write this letter?

A. Um, [the appellant's] asked me to write the letter but also he didn't pressure me. I - like, I- he's in gaol, I can just walk away, you know, I can just say, stuff ya, I'll put the letter in and walk away. I can go anywhere, you know?

...

Q. Yep. All right. So has anyone else asked you to write this letter?

A. No, no-one else has asked me to write the letter.

Q. All right. Has anyone put any pressure on you to write this letter?

A. Nup.

Q. Like, have any threats been made to you to write this letter?

A. Nup, no threats (interview ts, 2 April 2009, 44, 46 - 47).

25 I have read the transcript of RJ's interview by the police and I have watched and listened to the video/audio record of the interview.

26 It is a feature of the interview that the police merely asked RJ questions on various topics. She was not, in any relevant sense, interrogated or cross-examined. That is, her answers or explanations were not challenged.

Appeal against conviction: RJ's evidence before this court

28 During evidence-in-chief, RJ said that the contents of her letter dated 30 July 2008 were true and correct and that she gave truthful and honest answers to the questions put to her by the police during the interview on 2 April 2009 (appeal ts 11).

29 RJ was cross-examined by counsel for the State. It is necessary to reproduce relevant passages from the cross-examination.

30 Counsel for the State began by cross-examining RJ in relation to medication that had been prescribed for her, illicit drugs she had used and her mental state, at material times:

[RJ], are you on any medication at present?---Thyroid tablets.

Do those tablets affect your ability to understand questions?---No.

Have you had any effect on your memory since you've been on the thyroid tablets?---I was diagnosed with Grave's disease about six months ago and I'm just on thyroid tablets - overactive thyroid tablets - now.

Since you've been taking those, have you found any difficulty in your memory?---No.

At the time that you came to give evidence at the trial, [RJ], were you on medication at that time?---Different medication, yes.

What sort of medication were you on then?---I was on a number of pills. I was on schizophrenic tablets, epilepsy tablets, sleeping tablets and mood stabilisers.

How long had you been on those?---I've been - Dr Upton had been changing my medication for about a year.

Before the events that were the subject of the charges at the trial - events that happened on 14 to 17 November 2006 - were you on any medication?---Yes.

What sort of medication were you on at that time?---I don't recall.

Would you agree with me that whatever medication you were on at that time, you weren't taking it?---There was times, on and off, I wasn't taking my sleeping tablets.

Were you on any medication for any psychiatric condition that had been diagnosed at that time? This is before 14 November 2006?---Yes.

Can you tell us what that medication was?---I don't remember all of them, no. I was on six or seven different tablets a day.

WHEELER JA: Can you tell us the ones you do remember?---I remember he had me on sleeping tablets, mood stabilisers, epilepsy tablets. That's all I recall. There was a few other ones. I don't remember all of them.

FIANNACA, MR: Had you had problems with your mental state before you had started taking that medication that you've just described?---Before that I was - I had been using speeds - had been using speed before I started the tablets.

And you'd been using marijuana as well, hadn't you?---Yes.

...

You hadn't been using marijuana or speed for some time before November [2006]?---I hadn't (appeal ts 13 - 14).

31 Counsel for the State then cross-examined RJ on whether she had been given any instructions in relation to the giving of her evidence at the trial:

When you were asked questions during the trial would you agree with me that you did your best to tell the truth about what you could remember?---I was only allowed to answer short questions 'yes' and 'no'.

We'll come to that, [RJ]. Do you say to this court that you were only asked to answer questions 'yes' or 'no'?---Yes, I was told to only answer 'yes' or 'no'.

You were told that, were you?---Yes.

Who were you told that by?---By Louise Turner.

Louise Turner?---Louise from DPP.

[RJ], before you came to give your evidence, would you agree with me that you were told that you had to tell the truth and only the truth?---I could only answer yes or no, yes.

Just listen to the question: were you told before you came to give your evidence at the trial that it was important that you only told the truth about what you could remember?---Yes.

...

When you were giving your evidence at the trial, [RJ], you could understand the questions that were being asked of you. Correct?---The trial? Yes.

...

And you knew, before the trial, that [the appellant] was charged with a number of sexual offences relating to events that happened on 14 to 17 November 2006?---No.

When you say 'No,' are you suggesting that you did not know what charges [the appellant] was facing during the trial?---No. I - if any was - wanted him charged with assaults. I said to Lena Powell I wanted him charged with assaults and she said she couldn't have him charged with assaults, unless she went back five days on my sex life.

...

When you say went back five days, you're referring to that five-day period - it's a bit less, but - from 14 through to 17 November, in fact four days, were the days that things actually happened, weren't they? That's the period that you're referring to, anyway, isn't it?---Yes.

Because that's the period you then gave a statement about when things happened to you, when [the appellant] assaulted you and sexually assaulted you. Correct?---I never went anywhere saying [the appellant] had sexually assaulted me.

No, but you said that he had had sex with you, without your consent. You did say that in your statement, didn't you?---In my statement for the trial. That's what was written.

Sorry?---That was written in Lena Powell's words, yes.

And you signed the statement with a declaration at the end saying that it was true and correct to the best of your knowledge and belief. Correct?---At the time, yes.

That was true, was it not?---At the time I have - I can't answer that.

At the time that you signed the statement, [RJ], you believed that all the things that were in that statement were true and correct, didn't you?---I signed it, yes.

And you signed it, because at that time you believed the contents to be true and correct?---At that time, under that medication.

I just want to go back for a moment to medication, because was it true that between June and November of 2006 you felt that your mental state was getting better from what it had been before?---Definitely not, no.

...

I'm asking you about your mental state. How would you describe your mental state between June and November of 2006?---It was the worst I've ever been.

...

Could I ask you to look at page 50 of the transcript of the trial on 21 April 2008, [RJ]. Do you have that in front of you?---Yes.

Do you see the question at the very top of the page? It reads, 'Just in that period, starting off in June, going through to November, how would you describe your mental state?' Do you see that?---Yes, it says I wasn't talking to myself as often.

It says, 'It was getting better, where I wasn't talking to myself as often.' Correct?---That's because I was very sedated, yes.

You were getting better, [RJ]. Was that true?---No.

Why would you not tell the truth about that at the trial, [RJ]?---I didn't get to talk at the trial.

...

What do you mean you didn't get to talk?---Just answer yes and no.

Well, you say you were just told to answer yes or no, but that very question and answer, [RJ], do you not see that you didn't just give a yes or no answer? You were asked to describe your mental state. Correct?---Yeah.

And you describe your mental state as getting better. Correct?---That's what the doctor was telling me, yes.

You weren't just asked yes or no questions at the trial. Do you agree?---Mostly, yes.

...

Do you mean you agree that you weren't just asked to say yes or no?---I was asked to say yes or no, but I obviously didn't on this occasion.

All right, and the question doesn't ask you just to say yes or no, does it?---No.

...

The next question was, 'So that was something that you had been doing around the time that you met up with him?' Do you see that question? Just look at it?---Yes.

And your answer was, 'Yes'?---Yes.

So what you were saying was, at the time that you had met up with [the appellant] you had been talking to yourself?---Yes.

What you were saying, when you were asked about your mental state between June and November, was that you were getting better, because you weren't talking to yourself as often at that time. Correct?---Yes.

So you certainly weren't the worst that you had ever been, were you?---I was on sleeping tablets. I was sleeping most of the time.

Do you agree with my proposition that you were not the worst that you had ever been, [RJ]?---I can't remember.

...

Were you taking medication?---Yes.

You see that you were asked the question, 'Were you on any sort of medication for that or not?' and you said, 'I was prescribed medication, yes.' Do you see that?---Yes.

Can you just turn over the page. Do you see you were then asked, 'Were you taking it?' You said, 'No.' Was that true, [RJ]?---I remember sometimes I wasn't - [the appellant] didn't want me to take it, because it was scaring him, because I wouldn't wake up and I couldn't talk properly.

Was it true when you said, 'No,' when you were asked the question, 'Were you taking it'?---Taking all of it, no.

When you were asked 'Why was that?' your answer was, '[the appellant] wouldn't allow me.' Is that true?---He didn't want me to, yes.

Well, did he actually prevent you?---No.

When asked the question, 'Did he say anything about that?' you said, 'He said it would make me worse.' Correct?---Yes.

So you were asked the question again, 'So did you take the medication?' and your answer was, 'No.' Correct?---Yes.

And that was true. Do you agree?---I needed some, so I was taking it without [the appellant] knowing.

Why did you say, 'No,' when you were asked the question, 'Did you take the medication,' [RJ]?---I wasn't taking it all appropriately every day.

I'm sorry?---I wasn't taking it every day like asked.

But that's not what you said, was it? You didn't say, 'Well, I wasn't taking it every day.' You simply said, 'No.' Correct?---I'd say yes, yep.

[W]hy, at the trial, would you lie about whether you were taking the medication?---I have no idea.

Do you agree that your memory back in April of 2008 was better in relation to things that happened in 2006 than it is now?---I can't answer that. I don't remember (appeal ts 14 - 16, 18 - 22).

32 RJ was then cross-examined as to any contact or communication she had with the appellant after the commission of the offences in question and before the trial:

Can I ask you then to turn to page 84 and the first question after where Ms O'Connor appears, do you see you were asked the question:

[RJ], you said there was some phone contact between you and the accused. That was around Christmas, was it, of 2006?

And your answer was 'Yes'?---Yep.

So would you agree that that was when the telephone call happened?---Yes.

Around Christmas of 2006?---Yeah.

You were then asked the question: 'Then after that, did you see him again?' and you said, 'No, I didn't see him again. No, I haven't seen him again.' See that?---Yep.

And the next question:

When I say see him, I don't mean talk to him but did you actually have any contact with him or did he have any contact with you?

We spoke on the phone in January. He told me he was coming to my house. He knocked on my window, and I called triple zero.

You then went on to say: 'He knocked on my door. I pretended I wasn't home.' Do you see that?---Yes.

Was that true?---Yeah.

You were then asked the question:

So did you have him come and stay at your place again after you gave your statement to the police?

You said, 'Never. No. I have never seen him since.' Is that true?---Yeah. I was hiding from him, yeah (appeal ts 24 - 25).

33 RJ was then cross-examined as to whether she contacted the appellant after the trial and as to when she knew that the appellant had been charged with and convicted of the five sexual penetration counts:

But after the trial you did have contact with [the appellant]?---Yes.

Can you tell us what sort of contact you had with him?---I had visit contact Casuarina Prison.

Sorry?---Visit contact Casuarina Prison.

Did he speak with you about what you should say in relation to the sexual offence charges?---Well, I couldn't - we couldn't believe he was charged with rape.

You say you couldn't believe he was charged with rape?---So yes, we did talk about it.

Sorry, who couldn't believe it?---Me.

When did you find that out?---When he was found accused of it.

When he was found guilty of it, do you mean?---Yeah.

Can I just deal with that again because you sort of left it off earlier. When Ms Powell - Detective Powell - took a statement from you, do you say that she wanted to know about any sexual incidents that happened between you and [the appellant] during the period from 14 to 17 [November] 2006?--- Did she want to know?

Did she say to you that she wanted to know about any sexual incidents that happened between you during that period?---Yes. Yep.

Did she tell you why she wanted to know about any such incidents?---No, only to be able to make charges on him for assault.

Do you say that she told you that in order to be able to charge him with assault she needed to know about sexual acts, did she?---She needed to go back five days about - like I said, yes.

...

[RJ], you gave a statement in which you said that sexual acts had occurred and that they had occurred without your consent. Do you agree?---No. It was the medication that was making me drowsy and I had lack of sex drive and it was affecting our - - -

WHEELER JA: No, you're not being asked about what happened?---Oh.

You were asked, 'Did you give a statement in which you' - - - ?---I signed a statement.

- - - said that those things happened?---Mm'hm.

FIANNACA, MR: Do you agree with that?---Mm.

And you understood, [RJ], at the end of that process, that Detective Powell intended to charge [the appellant] with sexual offences, didn't you?---No.

Did it seem to you odd that she wanted to know about the sexual acts if she wasn't going to charge him with them?---I don't know. I can't remember.

Before you went to trial you met with the prosecutor. Is that correct?---Yes.

The prosecutor asked you questions about the events that happened in November of 2006. Is that correct?---Yes.

And you described to her the events that had happened during those few days when you were assaulted by [the appellant]?---We went through the statement together, yes.

She asked you questions and you told her what you could remember at that stage. Is that true?---I was still heavily on medication, yes; what I could remember, yes.

So the answer is yes, you did tell her what you could remember at that stage. Correct?---Yes.

When you came to give your evidence at the trial it was the same as what you had told the prosecutor before the trial. Is that correct?---Yes.

...

When you were asked questions at the trial about the events, you were doing the best that you could to describe what you could remember at that time. Correct?---Yes (appeal ts 25 - 28).

34 Counsel for the State then cross-examined RJ in relation to material events on 14 November 2006, being the date on which counts 1 - 5 occurred:

If I could just ask you to look at page 55. Perhaps I'll ask you to go back to page 54 so that we can just put the time frame in context. Can you see on page 54 that Ms O'Connor started to ask you questions about things that happened on 14 November? Do you see that? It's about seven questions down?---Yes.

And that that was a Tuesday?---Yes.

...

And what you described to the court on that occasion about the mowing of the lawn was true?---Yes.

About [the appellant] smoking marijuana; that was true?---Yes.

About when he was smoking marijuana he would start accusing you of sleeping with people; that was true?---Yes.

And that he did that on that particular day?---Yes.

And that his mood, when he was saying that, was nasty and violent. That was true?---Yes.

That you were saying to him, 'I haven't, I've been faithful'?---Yes.

So all of that is true, isn't it?---Yes.

And that when you said that he kept telling you that you were lying. Is that true?---Yes.

And he kicked you in the leg?---Yep.

Were you sitting in a chair at the time?---Yes.

And it happened in the lounge. Is that right?---Yes.

So all of that is true?---Yep.

And then you go on and you talk about [the appellant] reaching over for a dart. Do you see that, about the middle of the page at page 55? At the middle of the page you said, 'Then he reached over for a dart or reached over for his backpack and pulled out a dart'?---Yes.

I'm not going to put everything to you, [RJ], but I'm just asking you whether you can recall some of these things. Was that true?---Yes.

Did he then say, 'This is what they can look at when they see you naked'?---Yes.

You can recall that?---Yes.

And you believe that he was talking about his friends and family at that time. Is that right?---Yep.

And you then went on at page 56, [RJ], to talk about what he did with the dart, didn't you?---Yep.

That he stabbed you in the leg?---Yep.

That he said to you, about five questions down, 'I'm going to make you ugly.' He said that to you, didn't he?---Yes.

And he said - sorry, and you then said, 'That's when he started to engrave into my breasts first,' and that was true, wasn't it?---Yes.

Did he start with the initial, 'RN is a dog,' on your left breast?---Yes.

And then did he put 'MN sux' on your left arm?---Yes.

And he did all of that with the dart, didn't he?---Yes.

And you thought that he was going to stab and kill you at that time, didn't you?---Yeah, I think - yeah.

All of that, that you said to the court, was true, wasn't it?---Yeah. I knew he wasn't - - -

And you agree with me - - -?---I didn't think he would kill me. I thought he was going to stab me. I didn't think he was going to kill me.

...

Is it the case that you now don't remember what you were thinking at the time?---I was scared. I was scared of him.

And you were screaming for him to stop, weren't you?---Yeah.

...

But is it true that after sitting down and smoking more drugs he kept accusing you of doing things that you hadn't done. Is that right?---Yes.

You pleaded with him that you were faithful and honest, but then he got up and punched you in the face, right on the nose. Correct?---Yes.

So all of that was true?---Yep.

And is it the case, [RJ], that eventually you wanted to go to sleep at night?---At night-time, yes.

...

I'm asking you whether it was true that before you went to sleep that night he wanted sex?---Yep.

So you told the court the truth about that, didn't you?---Yeah.

Next question, 'He did want sex?' You said, 'He always wanted sex, yes'?---Yep.

Then over the page, 'How did you know he wanted sex?' 'Because he said he wanted sex.' Was that true?---Yeah, by kissing me and hugging me he did, yes.

'Because he said he wanted sex,' [RJ]. That was true, wasn't it?---No.

...

But you said at that time, 'Because he said he wanted sex,' and there was no reason, was there, for you to lie about that?---No.

You were asked the question, 'What did you do or say?' Your answer was, 'I had to agree I wanted sex.' Correct?---Well, yes.

And you were telling the truth to the court when you said that in April of 2008?---Yes, I wanted sex.

No, that's not what you said. You said, 'I had to agree I wanted sex,' [RJ], and you were telling the court the truth about that, weren't you?---Yes.

Because you were then asked the question, 'How were you feeling at that point?' and you said, 'Sore and scared to say no to sex.' Correct?---That's because I was kissing him and that, yes.

[RJ], the answer you gave was that you were feeling sore and scared to say no to sex. Look at it?---Yep.

That's the answer you gave. Do you agree?---Yep.

And it was the truth when you gave that answer, wasn't it?---Yeah.

You were then asked the question, [RJ], 'Did you want to have sex?' and your answer was, 'No.' Do you see that?---Yes.

And you were telling the truth at that time, weren't you, [RJ]?---No.

You say no?---Yes.

Why were you not telling the truth at that time, [RJ]?---I can't remember. I don't know.

You knew you had to tell the truth. Correct?---Yes.

...

Is it the case that you believed that what was in your statement at that time was the truth, the whole truth and nothing but the truth?---Yep.

...

You didn't have your statement in front of you, did you?---No.

So you were trying to actually recall the events that happened back in November of 2006 when you were being asked questions, weren't you?---Yeah.

You were trying to bring back a mental image of what happened and describe it to the jury. Correct?---I was just trying to remember my statement, yes.

[RJ], what you were trying to do was remember the actual events that happened in November of 2006. Do you agree with that?---Yeah.

...

You see, when you described all of those earlier things to the jury during the trial, about [the appellant] using the dart to engrave on your breast and on your arm, punching you in the nose and face, those were all things that you could actually remember happening?---Yes.

You had a vivid image of all of that in your mind, didn't you?---Yep.

And you could also remember at that time that you were sore and scared to say no to [the appellant] when he asked for sex. Do you agree with that?---Yes.

You see you were then asked, 'So what happened?' and you said, 'He would have just had sex with me while I was laying there.' You were told, 'Don't talk about what he would have done,' and you said, 'He did.' And you were asked the question, 'Can you actually remember what he did?' and you said, 'Yes, he did.' Going on to what he did do, 'What can you remember him doing?' You said, 'He just pulled down my pants, pulled down his shorts and then he just laid on top of me until he ejaculated, put his penis inside me.' All of that was true. Correct?---Yep.

You said that it was inside your vagina. You were then asked the question, 'Did you want him to do that?' Your answer was, 'No, I was too scared to say no.' That was your answer?---That was my answer, yep.

And that was the truth, wasn't it?---No.

Why did you not tell the truth about that, [RJ]?---I don't remember. I don't know why.

...

FIANNACA, MR: Do you see over the page, at the top of page 60, [RJ], you're asked, 'How was your nose feeling at that time?' and you said, 'It was sore'?---Mm'hm.

You were then asked how long it went for; you said about 10 - then you said three minutes. You're then asked, 'What were you doing during that time?' Your answer was, 'Concentrating on pretending that I liked it.' Do you see that?---Yep.

Was that true, [RJ]?---I don't know. I can't answer that.

Is it the case that you now can't remember?---No. I can't answer that.

...

You said to the jury on this occasion that during the time of the sex - the act - that you were concentrating on pretending that you liked it. Now, that was the truth, wasn't it?---Yeah, I was trying to - - -

Your recollection at that time was that that's what you were doing?---Was trying to enjoy it, yes.

Well, that you were pretending that you liked it. Correct?---I was trying to enjoy it.

You were asked the question why were you pretending and you said, 'Because he would get violent if I didn't look like I liked it'?---Yes.

Now, that was the truth, wasn't it?---Yes.

That you pretended to like it because otherwise you thought he would get violent towards you. That's the truth - - - ?---Yeah.

- - - [RJ], isn't it?---Yep.

And when you were asked, 'How did you know he would get violent?' you said, 'Because he had been violent before,' and that was true too, wasn't it?---Yes (appeal ts 28 - 30, 32 - 37).

35 Counsel for the State then cross-examined RJ in relation to material events on 15 November 2006, being the date on which counts 6 and 7 occurred:

You see that you were then asked, on page 60 towards the middle, about what happened the next day, which was the Wednesday. Do you see that?---Yep.

...

Over the page, 62 ... 'What happened then?' '[The appellant] said to me that he didn't feel that I was attracted to him any more. I pleaded with him that I was attracted to him, I just wanted him to stop being violent.' Is that true?---Yes.

...

You were asked what was his response to that and your answer was, 'He just didn't say anything. I remember telling him I wanted to go to sleep because I was tired and he told [me] he was sick of me being tired. That's when he forced me. He told me I had to give him a head job.' That was the truth, wasn't it?---Yeah.

'What do you mean by that?' and you said, 'I had to suck his dick.' Question, 'His penis?' and you said, 'Yes'. Correct?---Yes.

So you were doing your best here to tell the truth about what happened, weren't you, [RJ]?---Yes.

...

Your face and your nose, in particular, were sore, weren't they, at that time?---Still, yeah.

From him having punched you the day before. Correct?---Yeah.

Question, 'What did he do after he said he wanted you to suck his penis?' Your answer was, 'He pulled down his pants and I started to. He said to me if I didn't suck it he would cave my face in and I had to suck it like I enjoyed it.' You told the truth about that, didn't you?---Yeah.

Because he did say to you that he would cave your face in. Correct?---Yep.

Question, 'Is that what he was saying?' 'Yes.' 'Did you want to do that?' 'No.' Do you see that answer, [RJ]?---Yep.

'I was sore and I wanted to go to sleep.' Do you see that?---Yeah.

Now, when you were asked the question, 'Did you want to do that?' and you said, 'No,' you were telling the truth?---No.

Why then did you say, 'No,' [RJ]?---I don't know.

But he had - he had threatened to cave your face in if you didn't do what he wanted, hadn't he?---Yeah.

And that was the reason that you then proceeded to do what he wanted. Correct?---Yeah.

It's not something you wanted to do at that time, was it, [RJ]?---Yes, I did.

So he threatened to cave your face in. That was the reason you did what he asked you, and you say that you did want to do it?---I was accusing him of wanting to be with someone else too.

...

So you wanted to be with him but you didn't want to give him oral sex at that time, did you?---I didn't want him to speak to me like that.

But you did not want to give him oral sex, in those circumstances, did you?---In those circumstances, no.

...

The next thing that then happened was that you - sorry, I'll start again. You said to him, 'No, I want to go to sleep.' Do you see that?---Yeah.

Do you remember now saying that to him?---Yep.

Then you said that 'He got angry, so I did so he wouldn't keep hitting me.' Do you see that?---Yep.

And that was true?---He hadn't hit me that day.

You were worried that he might?---I was scared in case he did hit me again, yes.

Then you were asked this question: 'How long did that happen for - that go on for?' You said:

It only happened for one - not even a minute, and then I preferred to hop on top of him, because he was hurting my face because he had pulled me by the hair.

He was hurting my face, so I said to him 'I'll hop on top of you instead.'

Is that true?---Yep.

Can I just say, [RJ], I'm not being rude but you do need to keep your voice up, please, because you're speaking very softly, and I need to be able to hear you and the court needs to be able to hear you. The next question: 'Did you actually want to do that or not?' and your answer was, 'He would get violent if I didn't give him some sort of sex.' Was that what you believed at that time?---That's what I was thinking at the time, yes.

What happened at that stage?---I was on top until he ejaculated.

So his penis was in you?

And you said, 'Yes.' Is that correct?---Yes.

'How were you feeling throughout this incident?' you were then asked and your answer was:

I just felt scared, a piece of meat. I felt worthless. I felt like no matter what I did it wasn't good enough. I only tried to do the right thing by [the appellant].

Were you telling the truth about your feelings at that time, [RJ]?---Yes.

Was he doing anything when you were on top of him? What was he doing?

You said, 'He kissed me.' Is that true?---Yes.

Question: 'Did you want him to kiss you?' Your answer was, 'When he wasn't violent, yes.' That's true?---Yes.

Question: 'But at this time?' Your answer was, 'I don't know. Don't know.' Is that the truth?---Yes.

You were asked how you were feeling physically and you said:

Physically, my face and my head was sore. I was stinging. My arms were stinging. I was also emotionally tired of it all.

Was that true?---Yes, and the medication was making me tired.

It is also because of the beating, having been punched in the face the day before and the fact that you were still sore. Was that also wearing you out a bit?---Yes (appeal ts 38 - 42).

36 Counsel for the State then cross-examined RJ in relation to material events on 16 November 2006, being the date on which counts 8 and 9 occurred:

If you can turn to page 65, please. You see that at about the middle of the page you were then asked to turn your mind to things that happened on the Thursday, so the following day; the third day in this series of events. Do you agree?---Yep.

...

All right. You were then asked, 'What happened when you got home?' Do you see that?---Mm'hm.

You said:

[The appellant] would start again. He would start accusing me of having sex with people I didn't know. He would say he would see other people's initials all over my face, people I didn't know.

You were asked, 'You say he would have. Do you actually remember him doing that on this particular day, Thursday the 16th?' Your answer was 'Yes'. Was that true?---No. I can't remember.

So what you're saying is you don't now recall whether he did that when you got home that day?---Now I don't. Yes.

You were asked the question:

What was your response to that when he said that about seeing initials on you?---I said, 'No, it's not true.' I pleaded with him that I was faithful and honest.

Do you now remember that happening?---Yes.

Does that help you remember that he was accusing you again on that day?---Yeah.

The next question, [RJ], 'What was his reaction to you pleading with him?' Your answer was, 'He told me not to lie, and that's when he tried to strangle me.' It's true, isn't it, that he grabbed you by the throat?---Yeah.

He told you not to lie?---Yeah. He said not to lie to him about being unfaithful.

When you describe the strangling, on the top of page 66, you said, 'Grabbed around the throat, and first he punched me in the nose and then he grabbed me around the throat.' And that was true, do you agree?---Yeah. I can't remember him punching me in the nose. I can't remember. I remember him grabbing me around the throat because I did have the marks around my throat. He just grabbed me.

...

Is it true that you thought that he was going to kill you?---I thought if he punched me in the nose again that he could have broke my nose or killed me, because after a couple of days of healing.

You were asked the question, 'Your nose had been punched previously. How was it feeling at the time when you got that punch on the 16th?' You said, 'I thought he was going to kill me.' And that's correct, do you agree, that you thought - - -?---If he punched me on the nose, yes, at the time.

But you also thought he was going to kill you because he had his hands around your throat, didn't you?---No.

...

When you were asked the question, 'How did you feel when he had his hands around you?' and you said, 'I thought he was going to kill me,' you were describing what was going through your head at the time that he was strangling you, weren't you?---Yeah.

...

It's correct to say, isn't it, that he had his hands tight around your throat?---Yeah.

And it scared you, didn't it?---Yeah.

All right. There was a duress alarm there, wasn't there, in the house?---Yes.

...

[The appellant] said to you on that day that if you pressed it he would have enough time to slit your throat?---He did say that, yeah, but not nastily. He wasn't saying that nastily.

...

And then later on.

FIANNACA, MR: Because you were asked the question, 'Do you recall anything else happening that evening?' and you said, '[The appellant] wanted to have sex.' That's true?---Yep.

'How did you know he wanted to have sex?' and your answer was, 'Because he would just take his pants down and have sex with me. I said I was sore and he said, "Just enjoy it."' Was that true?---Yep.

Next question, [RJ], over the top on page 68, 'Did you want to have sex with him?' Your answer was, 'There was nothing I could do. No, not straightaway; as soon as he was violent.' Do you see that?---Yeah.

Was that true?---That doesn't make sense. I don't understand that.

All right. Well, were you saying at that time that you didn't want to have sex straight after he had been violent to you. Is that what you were saying?---Yeah, if he was violent, I didn't want sex straightaway.

...

Right. You were then asked this question, 'When you say he had sex with you, what do you mean by that on this occasion?' So you understood you were being asked about the Thursday evening?---Mm'hm.

And your answer was:

I was just laying on the lounge. I was laying on the floor with mattresses, because my head was sore and my nose was sore, and [the appellant] would just pull down his pants and have sex with me and lay on top of me, and put his penis inside me until he ejaculated. I had to give some sort of impression that I enjoyed it, otherwise he would punch me.

Now, was that true?---That's what I told Lena Powell, because I was embarrassed to go into my sex life with her.

...

Well, isn't the truth of the matter what you told the court at that time, that you were just trying to give him the impression that you were enjoying it, because you were scared that he would punch you otherwise?---Yeah, I suppose.

Because you then went on to say, 'I was fearing for my life at this time. [The appellant] would just keep hitting me if I looked like I didn't enjoy it?'---Well, that's what I was thinking. Yes, just thinking.

Yes, and that's why you tried to give him the impression that you were enjoying it. Correct?---Well - - -

Because that's what you were thinking?---I was thinking, yeah (appeal ts 42 - 47).

37 Counsel for the State then cross-examined RJ in relation to material events on 17 November 2006, being the date on which count 10 occurred:

[RJ], if I can ask you to turn to page 71 where you were then asked about what happened on Friday the 17th. Do you see that at the very top?---Yep.

You said, 'We woke up and I asked to go to the doctor's.' Do you remember that now?---Yes.

And you said, '[The appellant] wanted to have sex again'?---Yes.

Was that true?---Yes.

Question, 'Why did you ask to go to the doctor's?' Your answer was, 'Because I wanted to get away from him.' That was true too. You agree?---Yes.

Question, 'How were you feeling physically?' You said, 'I was sore and I was frightened. I was just emotionally tired of it all. I was coming up with some excuse to get away from him for good so I could press charges or inform police.' Was that true? Was that what was going through your mind?---No, because I never called the police.

But was that what was going through your mind at that time, [RJ], on the Friday, the 17th?---I was just trying to get away from him because he always wanted to be with me all the time and I wanted to go and get work.

But you did want him charged in relation to what he'd done to your breast and your arm, didn't you?---Yes, in case it scarred. I wanted him charged. You can't do that in case it - because I go all puffy when I scar, and I didn't want him to put that on me.

You were asked a question, 'You said he wanted to have sex.' 'Yes.' 'What was your response to that?' And your answer was, 'I didn't really talk. It was what he wanted in the end.' Was that true?---Yes.

You just didn't say anything when he asked - when he said to you that he wanted to have sex?---[The appellant] always gets like that.

But it was true that you didn't want to talk? You didn't say anything at that time? Is that true?---Yes.

So what you told the court then was true?---Mm.

Next question, 'Did you want to have sex with him?' and your answer was, 'No.' And that was true? Do you agree, [RJ]?---No - oh, you said he wanted to have sex. Oh, did you want to have sex? [The appellant] always wanted to have sex.

Yes, but listen to the question. What was put to you then - - - ?---Did I say no?

- - - was, 'On this occasion you said he wanted to have sex?' 'Yes.' 'What was your response?' 'I didn't really talk. It was what he wanted in the end.' 'Did you want to have sex with him?' 'No.' You were telling the truth about your feelings at that time, weren't you, [RJ]?---Yes.

Question, 'So what happened?' 'Once again I laid there and he pulled his pants down and laid on top of me and put his penis inside my vagina and ejaculated and then hopped off.' Is that an accurate description of what he did?---Yes, because when - where I've got here, 'Did you want to have sex with him?' it means I didn't want to do the work ...

FIANNACA, MR: [RJ], you don't seriously suggest that that was what you meant by the single word, 'No,' at that time: that you didn't want to do the work during the sex?---Yes.

Why didn't [you] say that if that was the truth, [RJ]?---Why didn't I? I don't know.

It was a simple question, wasn't it? 'Did you want to have sex with him'?---I was only allowed to answer yes or no.

No, you weren't just allowed to answer yes or no, [RJ]?---To some of the questions.

You've been taken to numerous questions where you explained what happened and you described what [happened], didn't you?---[The appellant] always wanted me to do the work when it come to having sex and I didn't want to.

Just listen to my question. Do you agree with me that you were asked - you understood that you could answer a question with whatever explanation you wanted about what happened?---Mm'hm.

Do you agree?---Yes.

And it was a simple question, wasn't it, 'Did you want to have sex with him?' Correct?---Yes.

When you said, 'No,' what you were intending to convey was that you did not want to have sex with him. Correct?---Well, I didn't want to do the work. I wanted to have sex but I didn't want to do it all.

Is that your explanation for that answer?---Yes.

...

The reason you didn't say no to him was because you thought that he would be violent with you and have sex with you anyway. Correct?---Yes.

And that's what you said in April of 2008. Correct?---Yes (appeal ts 47 - 50).

38 During RJ's evidence before this court I asked her some questions. My exchange with RJ elicited a powerful motive for her recantation:

BUSS JA: ... Since the trial finished in April of 2008, have you been seeing [the appellant] about once every week?---Yeah, regularly, yep.

Have you, in addition to visiting him on a weekly basis, been speaking to him on the telephone ... ?---Yeah. He rings me every day, yep.

Do you love [the appellant]?---Yes, I do. I just want him drug-tested all the time because he gets - just all his ... friends and family, they just all drag him down that road and he just - and that's all he knows. That's all he's done before.

Do you want [the appellant] back with you?---Yes, I do, but I want him on regular drug tests until he finds his feet and gets a job and feels good about working, then we will have no problem with anyone coming around wanting to be on drugs.

And is it because you love him and you want him back that you wrote that letter of?---Because I care.

- - - 30 July?---Yeah.

Is that the reason you wrote that letter?---Yeah, because I care for him and love him and we were trying to do good. We were just having so many problems with DCD which was affecting both of us at the time.

Is it the position that now you forgive him and you want him back and you want to try and make a life with him again?---Yes.

And you know that the trial judge sentenced him to 12 years' imprisonment---?---Yes.

- - - [with] parole, and you know that means that if this appeal is not allowed that he's not likely to be released for about another 10 years. Is that what you understand? Sorry, you have to answer?---Yes. You can't do anything, anyhow (appeal ts 58 - 59).

Appeal against conviction: appellant's submissions

39 Counsel for the appellant submitted that if this court finds that RJ's recantation is true or that her evidence at the trial should now be regarded as so untrustworthy that it could not support a verdict of guilty, then the appeal should be allowed and the conviction quashed. Counsel then made these submissions. The only evidence to the effect that the sexual activity between the appellant and RJ, the subject of the counts in the indictment, was non-consensual, came from RJ. If the recantation is true, then the sexual activity was consensual. If her evidence at the trial should now be regarded as untrustworthy, then there is no other evidence upon which a jury could find that the sexual activity was without consent.

40 It was submitted that the main feature of RJ's recantation concerns 'what was going on in the mind of [RJ]' during the sexual activity over the four-day period in question. The trial judge left to the jury the defence of honest and reasonable but mistaken belief as to consent. According to counsel for the appellant, as a result of RJ's mental condition and the stress she was experiencing at the time of the trial, the recantation is both cogent and plausible and 'fits in with the evidence she gave at the trial'. Counsel referred, in this respect, to RJ's evidence at the trial that, apart from the sexual activity on 15 November 2006, she had sex with the appellant only because of a fear (and not because of a threat) that the appellant would be violent if she did not comply. Counsel relied on this evidence of RJ at the trial:

(a) RJ did not say 'no' to sex because she was too scared [114], [127].

(b) On 14 [60] and 16 [68] November 2006, RJ pretended she liked it.

(c) If they were having sex then on most occasions there was kissing going on [128].

(d) The appellant would always say sorry 5 minutes after hitting RJ [130].

(e) The violence that preceded the sex occurred as follows:

16 November - 15 minutes to 2 hours before the sex;

and the violence was not linked to a request for sex.

41 It was submitted that between 14 - 17 November 2006 and for some time after that period, RJ's anger towards the appellant resulted in her making the false allegation that the sexual activity in question was non-consensual. Counsel also contended that RJ's recantation is truthful, she having realised the consequences for the appellant of being convicted of the five counts of sexual penetration without consent.

42 Finally, counsel for the appellant complained that counsel for the State had not cross-examined RJ before this court on the interview with the police on 2 April 2009.

Appeal against conviction: the applicable legal principles: fresh evidence generally

43 Section 39(1) of the Criminal Appeals Act 2004 (WA) provides, relevantly, that this court must decide an appeal on the evidence and material that were before the primary court. By s 39(3), however, s 39(1) does not affect the power of, relevantly, this court to admit evidence pursuant to s 40 of the Act. In Mahmood v The State of Western Australia [No 2] [2008] WASCA 259 [253] - [256], I examined the power of this court to admit additional evidence, including fresh evidence, on an appeal. It is unnecessary to reproduce that examination in these reasons. It is sufficient to note that on 22 May 2009 Miller JA granted the appellant leave to adduce RJ's letter dated 30 July 2008, and her interview with the police on 2 April 2009, at the hearing of the appeal and made provision for RJ to be called to give oral evidence at the hearing.

44 The principles to be applied by an appellate court in determining whether fresh evidence indicates that a miscarriage of justice has occurred at a criminal trial have been enunciated and explained by appellate courts on numerous occasions.

45 In Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, Mason CJ expressed the test to be applied by an appellate court, in deciding whether to set aside a conviction on the ground of fresh evidence, as follows:

It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen ((1986) [1986] HCA 26; 160 CLR 392). Deane J and I (at 402) considered that the test was best expressed in those terms. Gibbs CJ (at 399) expressed his substantial agreement with the statement, although his Honour emphasized that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said (at 421) that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say (at 421) that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements (273).

46 The approach of an appellate court to the consideration of fresh evidence will be different if the appellant submits that a conviction should be set aside outright (and there should not merely be a retrial) in that innocence is shown, or the existence of an appropriate doubt established. See Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 518 - 519 (Barwick CJ) and the examination of the relevant issues by Steytler J in Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [207] - [211].

47 In Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 [66] - [77], I reviewed the legal principles which apply to the consideration of fresh evidence on an appeal against conviction, where the fresh evidence involves a recantation and also where the fresh evidence involves a recantation and a withdrawal of the recantation. It may assist an understanding of my analysis of the merits of this appeal if I reproduce the substance of that review in these reasons.

Appeal against conviction: the applicable legal principles: where the fresh evidence involves a recantation

48 The test referred to by Mason CJ in Mickelberg (1989) must be applied with considerable caution where the fresh evidence involves a recantation.

49 In Davies v The King [1937] HCA 27; (1937) 57 CLR 170, Latham CJ, Rich, Dixon, Evatt and McTiernan JJ explained the rationale for approaching recantation evidence with considerable caution:

A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting side a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases. As the Full Court indicates in its judgment, the subsequent statement that the original evidence is false may be explainable by pressure brought to bear upon a witness or by the operation of any one of an indefinite number of motives. Each case should be treated in relation to its own facts (183 - 184).

50 Although every case depends on its own facts, an appellate court's assessment of the evidence of the recanting witness and its decision as to the orders which should be made on the appeal will be influenced significantly by two matters. First, the reason or reasons given by the witness for having recanted his or her evidence. Secondly, the significance of the evidence of the witness at trial and whether (and, if so, to what extent) the appellant's conviction was supported by other, apparently reliable, evidence. See R v AHK [2001] VSCA 220 [9] (Winneke P, Brooking JA agreeing). Winneke P reviewed the manner in which appellate courts have applied the principles relating to fresh evidence which involves a recantation:

Different appellate courts have applied these principles in different ways. Thus in R v Flower ([1966] 1 QB 146), the Court declined to act on the witness's recantation regarding it as unreliable, particularly in the light of the absence of any acceptable explanation for the change in story. Accordingly, it proceeded to deal with the appeal as if the evidence of the recanting witness had not been tendered to the Court on the appeal. A similar view was taken of the 'fresh evidence' tendered to the Court of Appeal in Queensland in the case of Bryer ((1994) 75 A Crim R 456). A like view of the 'fresh evidence' was taken by Walters J and King J in the case of R v Poulter (supra). However Bray CJ came to a different conclusion taking the view that, although the evidence was not plausible, that did not mean that it had no effect on the appellate court's assessment of the evidence given at trial. He concluded that there ought to be a re-trial. In R v Geesing (supra) all members of the Court came to the conclusion that, although the recanting witness was 'unreliable and untrustworthy' they were left with 'serious misgivings about the truthfulness of the evidence' which he gave at trial and that there was a 'serious risk that [the witness's] evidence at the trial was false and that the jury had arrived at their verdict in reliance upon that false story' (at 231 per King CJ, at 244-5 per White J, and at 248-9 per Mohr J). In Davies & Cody v R, the High Court allowed the appeal on the ground that the jury had been inadequately instructed upon the evidence of identity. However, in respect of the ground of appeal with regard to the evidence of the recanting witness, the High Court noted that the judge's charge 'does not advise the jury to reject his testimony'. The Court went on to point out that 'it was now known that [the evidence] is completely untrustworthy and ought not to be allowed to enter into the reasons for any verdict of guilty. Whether the jury believed his evidence or gave any weight to it in fact cannot be known [9].

See also R v DD [2005] VSCA 308 [39] - [42] (Charles JA, Buchanan & Eames JJA agreeing).

51 In Bryer v The Queen (1994) 75 A Crim R 456, an accomplice witness gave evidence on appeal recanting the evidence he had given at trial which inculpated the appellant. Fitzgerald P considered the manner in which an appellate court should assess the impact of a recantation upon the fairness of a trial. His Honour said:

A recantation, after trial, by a witness who gave evidence against a person convicted, is a species of fresh evidence. Logically, if the recantation is true, the jury at trial ought not have had the recanting witness's evidence implicating the accused; there should have been either no evidence from the recanting witness, or evidence from the recanting witness exculpatory of the accused, either directly or because inconsistent with the accused's guilt. Consideration of what the jury's verdict might have been on that basis would often lead to a conclusion that a conviction was unsafe, eg, because the available evidence would not sustain a conviction. However, the ordinary application of the 'fresh evidence' test would require the appellate court to consider what the jury might have done if it had had contradictory evidence from the recanting witness, demonstrating that the recanting witness was, at best, unreliable and probably a perjurer.

Whatever the difficulties which a recantation presents, the courts have been unwilling to conclude that a recantation must always raise a possibility of miscarriage. However, the basis for setting aside a conviction on the ground of a recantation is wider than in relation to other fresh evidence. A conviction is set aside on the basis of a recantation if (i) the witness's new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty': Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial (458).

52 Those observations in Bryer (in particular, the two conditions or alternatives specified by Fitzgerald P) were referred to by Callaway JA in Re GAM [2005] VSCA 234; (2005) 12 VR 177. His Honour said:

Fitzgerald P's two conditions might be thought to imply that the effect of fresh evidence on a witness's credibility is to be assessed only under (ii). I assume in the petitioner's favour, without deciding, that that is not so. In other words, there may be cases where a new trial should be directed even if the witness's new version of events is not accepted, because the circumstances in which it came to be put forward significantly undermine the evidence the witness gave at the trial, without its having to be shown that his or her evidence is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty' (Compare R v Poulter (1978) 19 SASR 370 at 377 and R v Geesing (1985) 38 SASR 226 at 231, 244 and 247-248). It follows that I shall bear Mr Richter's submissions about credit and perjury in mind in considering the applicability of each of Fitzgerald P's conditions [30].

53 The conditions referred to by Fitzgerald P in Bryer were considered by Wheeler JA in White v The Queen [2006] WASCA 62. Her Honour said:

Considering the first of those alternatives, if the appellate court considers that the recantation is true, then it will be necessary to assess what the jury's verdict might (not would) have been had the jury either not had any evidence from the recanting witness (in the case of a simple retraction of evidence), or had the jury had before it the evidence which the recanting witness later gave (in the case of a substituted version of the evidence). Considering the matter in that way will often lead to a conclusion that a conviction was unsafe, depending upon an assessment of the relevance and significance of the evidence which is recanted. Consistently with Davies (at 184), a similar conclusion may be reached if the Court is not prepared to accept the recantation as true, but reaches instead the conclusion that the recanting witness is so untrustworthy that his or her evidence 'ought not to be allowed to enter into the reasons for any verdict of guilty'. Where the Court is not itself able to reach a conclusion, but considers that the recantation has some cogency and plausibility, then it is necessary to consider what a jury might (not would) have done if it had had before it both the evidence at trial and evidence of the recantation.

Which of these approaches - that of notionally 'subtracting' the recanted evidence from the trial, or of notionally putting both versions before the jury - is appropriate will depend upon the circumstances of the case, and an assessment is not always easy; compare the different approaches of Murray J at [112] and Steytler J at [433] of Mickelberg. Sometimes, it will be appropriate to consider both, as in R v Poulter (supra) at 380 where Bray CJ said, of the recanting evidence in that case:

'I think that any reasonable jury properly directed and not having Mrs Baker's evidence before it, or having both versions of her evidence before it, might well have acquitted the appellant, though, of course, it might equally well have convicted him' [150] - [151].

54 In Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13, Steytler J said:

Lewandowski was, as I have said, a recanting witness. That fact requires the court to look very closely at his evidence, evaluating not only its relevance, but also its credibility and cogency, taking into account all relevant factors, including the evidence given by Lewandowski at the trial, other evidence given at the trial and since, the reasons offered by Lewandowski for giving false evidence at the trial and the reason offered by him for his change of testimony. In reaching the conclusion, expressed above, that the essential gravamen of Lewandowski's evidence was capable of acceptance by a jury (and it is important to remember that it is not necessary that the court should think it likely that a reasonable jury would believe it, only that a reasonable jury could accept it as true (Mickelberg (at 302), per Toohey and Gaudron JJ) or as sufficiently cogent and plausible to lead a jury to have a reasonable doubt (Gallagher (at 397), per Gibbs CJ, citing Mason J in Lawless (at 676)), I have looked closely at Lewandowski's evidence, taking into account the matters to which I have referred and bearing in mind the strictures expressed in the applicable cases [432].

Malcolm CJ agreed with Steytler J's exposition of the principles to be applied to the evidence of Lewandowski as a recanting witness [32].

55 In White, McLure JA endorsed, at [209], the approach to fresh evidence involving a recantation taken by Steytler J in Mickelberg (2004) [432]. The other member of the Court in White, Pullin JA, agreed, at [211], with Wheeler JA's reasons and also approved the principles enunciated by Steytler J in Mickelberg (2004). His Honour added:

The Court of Appeal still has a role to perform when further evidence is given before it. In the first place the evidence will have to pass the usual test of relevance. The evidence must also be credible, cogent and plausible. It will be credible if a reasonable jury 'could accept it as true': Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259 at 302 per Toohey and Gaudron JJ (Mason CJ agreeing). See also Mickelberg v R (2004) 29 WAR 13 at [432] per Steytler J. Evidence will be plausible if it has the appearance of truth.

The mere fact that the Court of Appeal is doubtful about the truth of the evidence because of concerns about the credibility of a witness, will not be enough to deny the evidence the attribution of fresh evidence leading to a conclusion that there has been a miscarriage of justice. The decision in Mickelberg v R (2004) 29 WAR 13 is an example. Members of the Court expressed concern about the quality of Lewandowski's recanting evidence, but that did not lead the Court to conclude that the evidence was not at least plausible and capable of acceptance by a jury [222] - [223].

56 Where fresh evidence involves a recantation, it will be necessary for the appellate court to form a view as to the credibility of the recanting witness and the cogency and plausibility of his or her recantation. It is not, however, essential, for the appeal to be allowed, that the court consider it likely a reasonable jury would believe the recantation. It may be sufficient that a reasonable jury could accept it as true. If the appellant's conviction is to be quashed, the court's findings in relation to the recanting witness and his or her recantation may be significant in determining whether a verdict of acquittal should be entered or a retrial ordered. As observed in Davies, each case should be treated in relation to its own facts.

Appeal against conviction: the applicable legal principles: where the fresh evidence involves a recantation and a withdrawal of the recantation

57 I have mentioned that the test referred to by Mason CJ in Mickelberg (1989) must be applied with considerable caution where the fresh evidence involves a recantation. That approach is especially required if the recantation is subsequently withdrawn. See R v AHK [9] (Winneke P).

58 In my opinion, although every case depends on its own facts, where fresh evidence comprises a recantation by a witness which is subsequently withdrawn, the general principles to be applied in determining whether to set aside a conviction, are these. First, the appellate court must examine carefully the relevance, credibility and cogency of the witness's evidence at trial and the relevance, cogency and plausibility of the recantation and its withdrawal. Secondly, in evaluating matters of credibility, cogency and plausibility, the appellate court must take into account all relevant factors including the reason or reasons given by the witness for the recantation and its withdrawal. Thirdly, the appellate court must decide whether, based on the court's evaluation of:

(a) the relevance, credibility and cogency of the witness's evidence at trial;

(b) the relevance, cogency and plausibility of the recantation and its withdrawal and of any other fresh evidence before the court; and

(c) any other, apparently reliable, evidence at trial,

there is a significant possibility that a reasonable jury would have acquitted the appellant had the fresh evidence (that is, the recantation and its withdrawal and any other fresh evidence before the court) been available at the trial.

59 If the appellate court concludes that there is a significant possibility that a reasonable jury would have acquitted the appellant, the conviction should be quashed, and consideration given to whether, in the circumstances, a verdict of acquittal should be entered or a retrial ordered.

60 RJ's letter dated 30 July 2008 and her interview with the police on 2 April 2009 are, undoubtedly, fresh evidence which is relevant and significant to the appellant's conviction on the five counts of sexual penetration without consent. Her evidence at the trial was essential to the appellant's conviction. The critical issues, for the purposes of this appeal, are whether RJ's explanation for her recantation of material aspects of her evidence at the trial is cogent and plausible, whether the recantation is truthful and reliable, and whether there is a significant possibility that a reasonable jury would have acquitted the appellant had the fresh evidence before this court been available at the trial.

61 In my opinion, RJ's explanation for her recantation of material aspects of her evidence at the trial is neither cogent nor plausible. Further, I am satisfied that the recantation is not truthful or reliable. Also, RJ's evidence at the trial was credible and cogent, and there is no significant possibility that a reasonable jury would have acquitted the appellant had the fresh evidence before this court (that is, the letter dated 30 July 2008, the interview with the police on 2 April 2009 and RJ's evidence before this court) been available at the trial. That is, RJ's evidence should not now be regarded as so untrustworthy that it could not support a verdict of guilty. My reasons are as follows.

62 First, RJ's recantation must be examined in the relevant factual and legal context. The relevant factual context is RJ's evidence at the trial and before this court. Her evidence as to the nature of her relationship with the appellant, both generally and between 14 - 17 November 2006, including the appellant's physically violent and emotionally abusive conduct, is of particular contextual importance. The relevant legal context includes the nature of the consent which is relevant for the purposes of the offence of sexual penetration without consent. Consent must be freely and voluntarily given. See the definition of 'consent' in s 319(2) of the Criminal Code (WA).

63 Secondly, RJ's recantation did not materially concern or affect her evidence as to the appellant's physically violent and emotionally abusive conduct towards her. The appellant pleaded guilty to the five counts of unlawful assault causing bodily harm. Also, RJ's evidence as to the assaults and injuries she suffered between 14 - 17 November 2006 was corroborated by photographs of various of those injuries and by evidence from Dr Catherine Nixon, a medical practitioner with the Sexual Assault Resource Centre or SARC, who examined RJ on 17 November 2006.

64 Thirdly, RJ's explanation in the interview on 2 April 2009 and in her evidence before this court, for having given evidence at the trial that the sexual activity in question was non-consensual, was not credible. I am satisfied, upon reviewing RJ's evidence at the trial and her interview with the police and upon seeing and hearing her give evidence before this court, that:

(a) at all material times, RJ has loved the appellant;

(b) at all material times before 14 - 17 November 2006, RJ had hoped that her relationship with the appellant would be enduring and fulfilling for each of them; and

(c) at all material times before 14 - 17 November 2006, RJ had been willing, for the sake of the relationship, to tolerate the appellant's physically violent and emotionally abusive conduct.

65 On 14 November 2006, the appellant was becoming violent and he threatened to kill RJ by slitting her throat - he always carried a stanley knife (ts 53 - 54). Also on 14 November 2006, the appellant's mood was 'nasty and violent', he accused RJ of sleeping with other people and lying to him, he kicked her in the leg, he disfigured her arm and breast with a metal dart, he continued with the engraving notwithstanding her screams for him to stop, and he threatened to kill her (ts 54 - 57). In addition, on 14 November 2006, the appellant punched RJ on the nose and she began bleeding (ts 57). On 15 November 2006, RJ was feeling confused and scared, she was scared to 'dob on' the appellant, he was threatening her, and she endeavoured to reassure him that she was still attracted to him (ts 60 - 62). Also on 15 November 2006, RJ's face and head were sore, her arms were stinging, she was emotionally 'tired of it all', she was frightened to engrave his penis with the stanley knife (as he wanted) because she thought he would become violent if she hurt him but she was also frightened that he would become violent if she refused to do the engraving, he punched her again on the nose, and she thought he was going to kill her (ts 64 - 65). On 16 November 2006, RJ pleaded with the appellant that she was faithful and honest, he told her not to lie, he punched her again on the nose, he tried to strangle her, he told her that if she activated the duress alarm in her house he would have enough time to slit her throat before the police arrived, and she believed he would make good this threat (ts 65 - 66).

66 I reject the contention of counsel for the appellant that between 14 - 17 November 2006 and for some time after that period, RJ's anger towards the appellant resulted in her falsely alleging that the sexual activity in question was non-consensual. I also reject counsel's contention that RJ's recantation is truthful, she having realised the consequences for the appellant of being convicted of the five counts of sexual penetration without consent.

67 I am satisfied that between 14 - 17 November 2006, the appellant's physically violent and emotionally abusive conduct became intolerable for RJ, and his conduct culminated in her deciding to make a truthful and reliable statement to the police in relation to the 10 counts in the indictment and to separate from the appellant for the sake of her physical and emotional well-being.

68 Fourthly, RJ's recantation was not, in all material respects, an unequivocal recantation of her evidence at the trial to the effect that she did not freely and voluntarily consent to the sexual penetrations. For example, RJ told the police during the interview on 2 April 2009:

Q. All right. So when you were asked by the prosecutor, you know, did you want to have sex with [the appellant] on these occasions and you said that you said, no, I didn't, - - -

A. Mm, I did (indistinct).

Q. - - - can you expand on that answer now, like, can you explain what you meant by, no, I didn't?

A. Um, it was mainly just the medication. I did want to have sex with him. No, I didn't want to have sex. I wanted to be able to feel, like, have my sex drive back - - -

Q. Yep.

A. - - - to have sex - to have sex properly.

Q. Yep. So - but at the time, I suppose (indistinct).

A. At the time it didn't really matter.

Q. Yep. Did you - all right, but at the time did you want to have sex with [the appellant]?

A. Well, see, I - I was a mess, I can't answer that question (interview ts, 2 April 2009, 21).

69 These statements indicate that RJ was not unequivocally recanting her evidence at the trial to the effect that she did not freely and voluntarily consent to having sex with the appellant. Her statement that 'at the time it didn't really matter' suggests that at the time it did not really matter what she thought about having sex with him.

70 Fifthly, RJ had an unusual understanding of what constitutes 'rape'. For example, during the interview with the police the following exchange occurred:

A. But I know he didn't rape me because I was kissing him.

Q. Yep and how would you define rape?

A. I would define rape that you just get raped and left and just - and when - and you ring up and say, I've been raped and I've never done that.

Q. All right.

A. Or go to SARC and say I've been raped and I never said it at SARC either (interview ts, 2 April 2009, 21 - 22).

71 It may be that RJ did not appreciate that a woman in a relationship with a man is entitled to refuse his requests for sex. But, however that may be, her evidence at the trial in relation to counts 5, 9 and 10 was to the effect that she had sex with the appellant on those occasions because of a well-founded fear, based on past experience, that he would become violent if she refused or did not appear to be enjoying the experience, and her evidence in relation to counts 6 and 7 was to the effect that she had sex with him on those occasions because he threatened to 'cave [her] face in' (ts 109 - 110). Further, as to counts 6 and 7, the impetus for RJ suggesting that she ceased performing oral sex (count 6) and they engage in vaginal intercourse (count 7) was the pain oral sex was causing her as a result of the appellant pulling her hair and having previously punched her on the nose.

72 Sixthly, I reject RJ's general statement in the interview with the police and in evidence before this court to the effect that she did want to have sex with the appellant on the occasions in question. I accept that RJ may on some or all of those occasions ultimately have consented to sex, but I have no doubt that any consent was not free or voluntary. The sex occurred in the context of RJ suffering from significant physical and emotional pain, as a result of the appellant's conduct between 14 - 17 November 2006, even though there was some interval between his episodes of violence and abuse on the one hand and the sexual activity on the other.

73 Seventhly, RJ's statements in the interview with the police and in evidence before this court that her complaint was confined to the assaults causing bodily harm, and did not extend to the sexual penetrations without consent, are risible. Similarly, her claim that she was instructed to answer merely 'yes' or 'no' in her evidence at the trial is implausible and inconsistent with the evidence she actually gave. RJ frequently offered explanations or elaborated on her evidence, without prompting. Also, RJ's assertions in the interview and before this court to the effect that she was obliged to regurgitate her witness statement in evidence at the trial are nonsense. It is apparent, from a perusal of the transcript and upon hearing the audio record of that evidence, that she was not endeavouring merely to regurgitate her witness statement, but was attempting to recall and give an account of the events which, in her memory, actually occurred. Further, RJ's contention that she was unaware until after the trial that the appellant had been charged with the sexual penetration counts, is inherently incredible. I do not believe her. Finally, in this context, I am unable to accept that RJ was precluded from mentioning at the trial anything about her medication.

74 Eighthly, RJ made numerous concessions in the course of cross-examination before this court. These concessions involved, in substance, an acceptance that her evidence at the trial to the effect that she did not freely and voluntarily consent to the sexual activity was truthful. To the extent that RJ sought, in evidence-in-chief or cross-examination, to maintain the assertion that her evidence at the trial was, in material respects, false, I reject her assertion.

75 Ninthly, RJ had a powerful motive for making an untruthful recantation. She said, in evidence before this court, that since the trial finished on 23 April 2008, she has seen the appellant regularly, about once every week, and has spoken to him on the telephone every day; she loves the appellant; she wrote the letter dated 30 July 2008 because she cares for him and loves him; she has forgiven him and wants him back; and she wants to try and make a life with him again (appeal ts 58 - 59). When RJ gave this evidence her face lit up. She appears to have a strong emotional desire to be reunited with the appellant as soon as possible. She fervently desires his release from prison at the earliest opportunity. I have no doubt that this powerful motive has, either consciously or unconsciously, influenced RJ, and has caused her to make an untruthful and unreliable recantation.

76 It was unnecessary for counsel for the State specifically to cross-examine RJ on the interview with the police. Counsel conducted a careful and rigorous cross-examination on the material issues by reference, mainly, to the transcript of RJ's evidence at the trial. In the circumstances, this was more than adequate, and undermined fairly and successfully the substance of RJ's assertions in the interview.

Appeal against sentence: the sentencing decision

79 As I have mentioned, the trial judge imposed a net effective head sentence of 12 years' immediate imprisonment with eligibility for parole. The individual sentences and orders as to concurrency and accumulation are set out at [5] - [6] above.

80 On 22 May 2009, Miller JA ordered that the application for leave to appeal against sentence be referred to the hearing of the appeal.

1. In sentencing on counts 5, 9 and 10, the learned trial judge erred in law and fact by failing to make a finding of fact as to whether it had been proved beyond reasonable doubt that the appellant had no belief as to consent.

1. It was the State's case the appellant either had no belief that [RJ] was consenting or that if he had a belief it was not a reasonable one.
2. In sentencing the trial Judge failed to make a finding of fact on counts 5, 9 and 10, as to the basis upon which the verdict of guilty was made.

1. It was a material consideration for sentencing to know upon what basis the appellant was convicted.

1. The sentence imposed was manifestly excessive particularly having regard to:
   1. The standards of sentencing imposed.
   2. The principle of totality.

Appeal against sentence: appellant's submissions

82 As to ground 1 of the appeal, counsel for the appellant submitted that it was a material consideration, for sentencing purposes, whether the appellant had an honest belief that RJ was consenting to the sexual activity. A finding by the trial judge that the appellant had no honest belief as to consent would make the criminal conduct more culpable than a finding that the appellant had an honest, but unreasonable, belief as to consent. It was submitted that, on the evidence, there was a reasonable doubt as to whether the appellant had an honest, but unreasonable, belief as to consent in relation to counts 5, 9 and 10. Apart from counts 6 and 7, RJ gave evidence that she had sex with the appellant only because of a fear (and not a threat) that the appellant would be violent if she did not comply. Counsel referred, in particular, to the evidence I have summarised at [40] above.

83 According to counsel for the appellant, the trial judge fell into error by failing to make a finding as to whether the appellant had an honest belief as to consent. It was submitted that this court should either re-sentence the appellant on the basis that he had an honest, but unreasonable, belief as to consent in relation to counts 5, 9 and 10 or, alternatively, remit the matter to the trial judge for the purpose of making the relevant finding and re-sentencing the appellant accordingly.

84 As to ground 2, counsel for the appellant accepted that the offences were serious and warranted an immediate term of imprisonment. Counsel also accepted that the appellant's personal antecedents (including his prior criminal record) contain no mitigatory features. The appellant did not challenge the individual sentences imposed, but it was submitted that the net effective head sentence of 12 years' imprisonment, in addition to the sentence of 3 years 4 months' imprisonment imposed by Blaxell J on 1 February 2008 for the armed robbery offence, was 'manifestly excessive and offended the principle of totality'. Although the trial judge referred to the principle of totality in his sentencing remarks and made some offences concurrent with each other and with others, the net effective head sentence was, it was submitted, 'manifestly excessive and offended the principle of totality' when proper regard was had to the overall criminality of the appellant's offending.

Appeal against sentence: ground 1: its merits

85 The jury, by their verdicts of guilty on the sexual penetration counts, were satisfied beyond reasonable doubt, relevantly, that RJ did not freely or voluntarily consent to the sexual activity and that the appellant did not have an honest and reasonable belief that she was consenting. The verdict did not, of course, distinguish between an honest belief and a reasonable belief. It was sufficient for the jury to return a verdict of guilty that they were satisfied beyond reasonable doubt that the appellant did not have a reasonable belief. It was not necessary for the State to negative, beyond reasonable doubt, both honest belief and reasonable belief.

86 I will consider, first, whether the trial judge made any finding, in the course of the sentencing process, as to whether the appellant had an honest belief in relation to counts 5, 9 and 10. I will then consider whether, in the circumstances, it was necessary for his Honour to make such a finding.

87 As to count 5 on the indictment, which occurred on 14 November 2006, the trial judge did not make an express or implied finding as to whether the appellant had an honest belief that the sexual activity (penile penetration of the vagina) was consensual. RJ said that she was 'sore and scared to say no to sex'. She pretended to like it because, in the history of their relationship, the appellant would become violent if RJ did not look like she was enjoying sex with him. Earlier on 14 November 2006, the appellant had been physically violent and emotionally abusive. He had committed the unlawful assaults causing bodily harm which were the subject of counts 1 - 4.

88 As to count 9, which occurred on 16 November 2006, the trial judge did not make an express finding as to whether the appellant had an honest belief that the sexual activity (penile penetration of the vagina) was consensual. However, his Honour made an implied finding that the appellant did not have an honest belief. His Honour remarked:

Later on that particular day, [RJ] was lying on the mattress, holding her head and crying. There was another act of non-consensual penile penetration of the vagina, which was count 9 in the indictment (sentencing ts 4).

It is to be inferred, from his Honour's statement that RJ was 'holding her head and crying', that his Honour was satisfied the appellant did not honestly believe the sexual activity was consensual.

89 As to count 10, which occurred on 17 November 2006, the trial judge did not make an express finding as to whether the appellant had an honest belief that the sexual activity (penile penetration of the vagina) was consensual. However, his Honour made an implied finding that the appellant did not have an honest belief. During his sentencing remarks, his Honour said:

On the following morning, Friday, 17 November 2006, you woke and again forced yourself upon her, penetrating her vagina with your penis once more (sentencing ts 4).

It is to be inferred, from his Honour's statement that the appellant 'forced' himself upon RJ, that his Honour was satisfied the appellant did not honestly believe the sexual activity was consensual.

90 A number of propositions are well established as to the basis on which a trial judge must impose sentence where the offender has been convicted after a trial.

91 First, the facts implicit in the verdict of guilty cannot be controverted during the sentencing process. The trial judge must sentence according to those facts, whatever his or her personal views may be about the verdict. Usually, the facts implied by the verdict will be clear. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA).

92 Secondly, the distinction between aggravating and mitigating circumstances, for sentencing purposes, may sometimes be unclear or even, on occasions, ambiguous. In Storey, Winneke P, Brooking and Hayne JJA and Southwell AJA said:

It may very well be that the descriptions of aggravating and mitigating circumstances will be useful shorthand expressions to refer to the distinction we draw. They are, however, no more than shorthand expressions. It would not be right to argue from the tag that is applied to the category of circumstances to some conclusion about whether a particular circumstance is or is not in one group rather than the other. Factors cannot be characterised as always aggravating or always mitigating. For example, the taking of drugs or alcohol will sometimes be put forward as a mitigating factor but it may, in a given case, be held to aggravate the crime. Good standing in the community will usually tend to mitigate but may tend to aggravate if it has been misused. One must always ask what the tendency of the circumstance is in the particular case under consideration. No doubt there will be cases in which the same facts can be seized on by both the Crown and the accused and described by one as an aggravating circumstance and the other as a mitigating circumstance. 'Aggravating' and 'mitigating' must be understood in a wide sense, and without, for example, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (for example, the use of a weapon) and on the other hand of a prior or subsequent conviction.

The test is not what tag can or should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender (371).

I respectfully agree with these observations. In the balance of my reasons, I will use the terms 'aggravating circumstances or factors' and 'mitigating circumstances or factors' in the sense explained by the majority in Storey. The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case. See Langridge v The Queen (1996) 17 WAR 346, 367 (Kennedy J, Wallwork J agreeing).

93 Thirdly, if the prosecution seeks to have the trial judge take a matter into account as an aggravating circumstance, it will be for the prosecution to bring that matter to the judge's attention and, if necessary, call evidence about it. See R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25].

94 Fourthly, if the offender seeks to have the trial judge take a matter into account as a mitigating circumstance, it will be for the offender to bring that matter to the judge's attention and, if necessary, call evidence about it. See Olbrich [25].

95 Fifthly, it will only be necessary for the prosecution or the offender to call evidence about an aggravating or mitigating circumstance, as the case may be, if the asserted matter is controverted by the other party or if the trial judge is not prepared to act on the assertion, even though it is not controverted by the other party. See Olbrich [25].

96 Sixthly, the trial judge is obliged to give notice to the offender if the judge is not prepared to act on an alleged mitigating circumstance which is asserted by the offender and not controverted by the prosecution. See Hutchins v The State of Western Australia [2006] WASCA 258 [25] (McLure JA, Steytler P & Wheeler JA agreeing); Nguyen v The State of Western Australia [2009] WASCA 8 [20] (Steytler P); CJ v The State of Western Australia [2009] WASCA 42 [4] (McLure JA, Buss JA agreeing); The State of Western Australia v Wickham [2009] WASCA 137 [29] (Miller JA, Martin CJ & Buss JA agreeing). The giving of notice enables the offender to adduce evidence, for the purpose of establishing the mitigating circumstance, before sentence is imposed. See CJ [4].

97 Seventhly, the prosecution must establish an aggravating circumstance beyond reasonable doubt, but the offender is only required to prove a mitigating circumstance on the balance of probabilities. See Olbrich [27]; Storey, 369.

98 Eighthly, if the trial judge is not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. Where the trial judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing. See R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32] (Martin J, Mullighan & Bleby JJ agreeing).

99 Generally, as a matter of principle, an offender who has been convicted of sexual penetration without consent, and who honestly but unreasonably believed the victim was consenting, will be less culpable than an offender who did not have an honest belief that the victim was consenting (either because the offender positively believed the victim was not consenting or because the offender did not have any belief as to consent). It must be emphasised, however, that whether and, if so, to what extent, an honest belief will, in a particular case, be a mitigating factor, is dependent on all the facts and circumstances.

100 In R v Stephens (1994) 76 A Crim R 5, the Court of Appeal of Queensland (Pincus & Davies JJA, Lee J) held that where there is an honest but unreasonable mistake about consent to sexual activity in an existing relationship, it may be relevant to take this into account in sentencing the offender (7). See also R v Gill; Ex parte Attorney-General (Qld) [2004] QCA 139; (2004) 146 A Crim R 12 [5] (de Jersey CJ).

101 In Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260, the appellant appealed against sentence in respect of his conviction for unlawfully doing grievous bodily harm to the complainant. The appellant, to his knowledge, carried the HIV virus. He engaged in unprotected sex with the complainant without informing her that he had HIV. The complainant contracted the virus. The appellant's defence (which the jury, by its verdict, necessarily rejected) was that he had, at all times, an honest and reasonable, but mistaken, belief that the virus could not be transmitted if no bodily fluid was exchanged and that, by withdrawing before ejaculation, he could avoid an exchange of that kind. Steytler P (Roberts-Smith JA relevantly agreeing & Murray AJA agreeing) referred, without comment, to the following procedure adopted by the sentencing judge:

When the appellant was sentenced by the sentencing Judge, he mentioned that the jury had rejected the appellant's defence of honest and reasonable, but mistaken, belief but made no finding on the question whether or not the verdict of the jury was to be approached upon the basis that the appellant had held an honest, but unreasonable, mistaken belief or upon the basis that he did not hold the belief which he claimed to have had at all. The matter was returned to him to make a finding in that respect. He did so on 2 December 2005. He found that the appellant had never held the belief that he claimed to have held. He accepted evidence to the effect that the practice of withdrawal would not have been recommended to the appellant as a safe sex practice and found that the appellant, who had said that such a recommendation had been made to him, was not a credible witness [5].

102 In the present case, if the appellant had an honest (but, obviously, unreasonable) belief that RJ was consenting to any of the sexual activity the subject of counts 5, 9 and 10, that state of mind may, at least in theory, have been a mitigating factor. It was necessary, however, for counsel for the appellant to raise the issue with the trial judge in the course of the sentencing process and request a finding on the point. The appellant's experienced and competent criminal defence lawyer did not raise the issue with his Honour and did not submit that the appellant had an honest belief. In the circumstances, his Honour was not obliged to make a finding as to whether the appellant had an honest belief, and he did not make the error alleged in ground 1.

103 A factor may reduce moral culpability, yet not result in any reduction in sentence, for a number of reasons. For example, a factor which reduces culpability may tend to increase the need to protect the community from the offender. These conflicting considerations are not unusual in relation to offenders whose offending is causally related to a mental illness. See Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 [30] - [41], [81]. Similarly, in relation to an unreasonable mistake concerning consent, much will depend upon the nature of the mistake, the circumstances in which it arose, and what, if anything, can be discerned about the likelihood of such a mistake recurring.

104 Even if (which, on the material before this court, appears extraordinarily unlikely) the appellant did have an honest belief that RJ was consenting to any of the sexual activity the subject of counts 5, 9 and 10, his belief was grossly unreasonable. There was no evidence that, at the material time, the appellant was suffering from a psychiatric or medical disorder which may account for the existence of such a belief. Further, a mistake by the appellant would necessarily have encompassed a mistaken belief that a woman who had been subjected to violence by him, and whose response included 'holding her head and crying', was, at the same time, likely freely and voluntarily to consent to have sex with him. Absent any evidence suggesting that such a mistake was unlikely to recur, the holder of such a belief would appear to pose a danger to women generally. That factor would necessarily militate against any reduction in an otherwise proportionate sentence. In the circumstances, the existence of an honest but grossly unreasonable belief would not have made a material difference to the sentencing disposition.

Appeal against sentence: ground 2: its merits

106 The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. Generally see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [21] - [22] (Gummow, Callinan & Heydon JJ); Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999), 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).

107 Also, the totality principle may have application, in some limited circumstances, by way of analogy, where an offender has already served a term of imprisonment imposed for a prior offence. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66 (Wilson, Deane, Dawson, Toohey & Gaudron JJ); Vlek, 10 (Anderson J); Barnes v The State of Western Australia [2004] WASCA 258 [15] (McKechnie J); Carr [7] (McLure JA).

108 It is plain, from the decision of the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, that where an offender is being sentenced for more than one offence, the sentencing judge must determine an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality [45]. There is, however, some flexibility in the application of the principle enunciated in Pearce. See Johnson [26] (Gummow, Callinan & Heydon JJ); Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27] (Gleeson CJ, Gummow, Hayne & Callinan JJ); R v Abboud [2005] NSWCCA 251 [36] (Rothman J, Grove & Howie JJ agreeing).

109 At the material time, the maximum penalty prescribed by law for each of the five counts of sexual penetration without consent, was imprisonment for 14 years: s 325 of the Criminal Code.

110 The primary sentencing considerations for offences of the kind in question are punishment of the offender, and specific and general deterrence. See Thorn v The State of Western Australia [2008] WASCA 36 [49] (Buss JA, Wheeler & Miller JJA agreeing).

111 In The State of Western Australia v Akizuki [2008] WASCA 267, Steytler P reviewed numerous authorities which reveal the range of sentences customarily imposed for offences involving sexual penetration without consent [4] - [67]. It is unnecessary to reproduce his Honour's review. I have examined and considered the cases in question. It is sufficient to note his Honour's conclusions (McLure JA agreeing):

As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA) [68].

See also Warburton v The State of Western Australia [2009] WASCA 113 [9] - [21] (Wheeler JA, Pullin & Miller JJA agreeing).

112 Although there is no tariff for sexual offences, and the sentence to be imposed in a particular case depends on its individual facts and circumstances (after having regard to the maximum available penalty), it is nevertheless important, in deciding whether a particular sentence infringes the totality principle (or, indeed, is manifestly excessive), to appreciate what sentences are customarily imposed in cases involving similar offending. Otherwise, as Steytler P pointed out in Akizuki, there is a risk that sentencing will become idiosyncratic and arbitrary [3]. In the present case, it is necessary to refer only to one authority.

113 In WCW v The State of Western Australia [2008] WASCA 232, the appellant was convicted after a trial of a number of offences including three counts of aggravated sexual penetration against the complainant, with whom he had previously been in a relationship and by whom he had fathered children. The offences occurred over a three-day period. Murray AJA outlined the counts in the indictment and noted those in respect of which verdicts of conviction had been returned and those in respect of which the appellant had been acquitted:

Counts 1, 2 and 3 alleged offences committed on 18 August 2006. Count 1 was an offence of burglary, aggravated by the fact that the place entered was the complainant's house, knowing that she was there. The appellant was convicted. Count 2 was an offence of aggravated vaginal penetration. The appellant was acquitted. Count 3 was also an offence of aggravated vaginal penetration. The appellant was convicted. He was sentenced to 2 years imprisonment for count 1, and 4 years and 10 months imprisonment, cumulative, for count 3.

Counts 4 - 9 inclusive were all alleged to have been committed on the following day, 19 August 2006. Count 4 was an offence of unlawful detention of the complainant. The appellant was convicted. Count 5 was an offence of threatening to kill the complainant. The jury disagreed in relation to that count. Count 6 was an offence of aggravated vaginal penetration by the appellant's penis. He was acquitted. He was convicted of count 7, another offence of unlawful detention of the complainant. Count 8 alleged an offence of aggravated assault occasioning bodily harm. The appellant was convicted. Count 9 was an offence of robbing the complainant of her bankcard. Again, the appellant was convicted.

In relation to the offences committed on 19 August 2006, none of which are the subject of this appeal, the appellant was sentenced to 2 years imprisonment for each of the two offences of unlawful detention, 2 years and 8 months imprisonment for the assault occasioning bodily harm, and 1 year and 8 months imprisonment for the robbery of the complainant's bankcard. Those sentences were ordered to be served concurrently with each other, but cumulatively upon the sentences imposed in respect of the offences committed on 18 August 2006, thereby increasing the aggregate term of imprisonment to that point by 2 years and 8 months imprisonment.

Finally, counts 10 to 13 on the indictment alleged offences all committed on the following day, 20 August 2006. Count 10 was an offence of vaginal penetration of the complainant by the appellant's penis. He was acquitted of this offence. Counts 11 and 13 as I have said, each involved offences of aggravated vaginal penetration of the complainant by the appellant's penis. He was convicted of both offences. They were separated by count 12, an alleged offence of attempted sexual penetration of the complainant by the attempted penile penetration of her anus. The appellant was acquitted of that offence.

The appellant was therefore convicted of two offences of aggravated vaginal penetration of the complainant by his penis on 20 August 2006. For each of those offences, as in the case of count 3, the appellant was sentenced to 4 years and 10 months imprisonment, but neither sentence counted towards the aggregate term of imprisonment imposed because both were ordered to be served concurrently with count 3. The total aggregate term was therefore one of 9 years and 6 months imprisonment. Eligibility for parole was ordered, and the sentences were backdated to commence on 13 September 2006, since which date the appellant had been remanded in custody [130] - [134].

114 By a majority (Buss & Miller JJA, Murray AJA dissenting), the court in WCW allowed the appellant's appeal against conviction in part. His convictions on counts 3 and 11 (being, in each case, the offence of aggravated sexual penetration without consent) were quashed and a re-trial on those counts was ordered. The appellant was re-sentenced by this court in respect of the convictions which remained undisturbed. A net effective head sentence of 8 years and 4 months' imprisonment, with eligibility for parole, was imposed. See WCW v The State of Western Australia [No 2] [2009] WASCA 5.

115 In my opinion, a net effective head sentence of 12 years' imprisonment, in the present case, bears a proper relationship to the overall criminality of the appellant's conduct in committing counts 1 - 10 on the indictment. Although the net effective head sentence is, without doubt, severe, it achieves a just outcome in the sentencing process.

116 The offences against RJ were extremely serious. The offending continued over a four-day period. RJ suffered significant physical pain and emotional trauma. As RJ said in evidence, at the trial, when the appellant was committing counts 6 and 7 she felt like 'a piece of meat' (ts 63 - 65). At times, threats to kill were made and RJ feared for her life. She was disfigured with the metal dart. The overall offending was more serious than the offending in WCW.

117 The appellant is no longer a young man. He was aged 31 years at the time of the offences and 33 years at the time of sentencing. The appellant has a serious history of violence. The pre-sentence and psychological reports before the trial judge indicated a continuing lack of remorse. The appellant's risk of re-offending was assessed as high. As I have mentioned, before this court, counsel for the appellant conceded (properly, in my opinion) that the appellant's personal antecedents (including his prior criminal record) contained no mitigatory features.

118 The trial judge ordered that the net effective head sentence of 12 years' imprisonment for counts 1 - 10 should commence on the date of sentencing, that is, 21 November 2008. See s 6(1) of the Sentence Administration Act 2003 (WA). His Honour was aware that, at the time of sentencing, the appellant was serving a term of 3 years 4 months' immediate imprisonment, with eligibility for parole, for an unrelated count of armed robbery. The appellant had been sentenced by Blaxell J on 1 February 2008 for the armed robbery and the sentence had been back-dated to commence on 13 December 2006. By s 88(1) of the Sentencing Act 1995 (WA), an offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under s 88(3) that the fixed term be served cumulatively on, or partly concurrently with, the other fixed term.

119 In my opinion, the trial judge did not make any error in principle in sentencing the appellant and his exercise of the sentencing discretion did not miscarry. The net effective head sentence of 12 years' imprisonment did not exceed the upper limit of the sentencing range available to his Honour. It was not disproportionate to his overall offending. I am satisfied it cannot reasonably be said that the sentences he must serve are 'crushing' or that he has been left without any reasonable prospect of useful life after his release.

121 I would grant leave to appeal against sentence but, for the reasons I have given, I would dismiss the appeal.

(a) the appeal against conviction should be dismissed; and

(b) leave to appeal against sentence should be granted, but the appeal should be dismissed.