Pasoski v R

Grounds of appeal 6The applicant relies upon the following grounds: "CONVICTION: Ground 1: When directing the jury that it could return majority verdicts in relation to counts 7 and 8, her Honour failed to comply with the requirements of s. 55F(2)(b) Jury Act 1977. Ground 2: A miscarriage of justice was occasioned by the admission of the so-called context evidence. Ground 3: Her Honour erred in failing to instruct the jury as to the manner in which the so-called context evidence could properly be used. SENTENCE: Ground 1: Her Honour erred in concluding that the offences were aggravated by the fact that they occurred within the conjugal home. Ground 2: A lesser sentence is warranted in law." 7Conviction grounds 2 and 3 concern the conduct of the trial. The applicant accepts that rule 4 of the Criminal Appeal Rules applies to them because objection was not taken to the admission of the evidence referred to or to the trial judge's directions with respect to the use which could be made of that evidence. Before addressing these grounds, which require a detailed consideration of the way in which the trial was conducted, as well as the circumstances in which the relevant "context" evidence was admitted, it is convenient to deal shortly with conviction ground 1 which is conceded by the Crown.

Conviction Appeal - Ground 1: When directing the jury that it could return majority verdicts in relation to counts 7 and 8, the primary judge failed to comply with the requirements of s 55F(2)(b) of the Jury Act 1977 8Section 55F of the Jury Act 1977 (NSW) relevantly provides: "55F (1) This section applies in respect of a verdict in criminal proceedings where the jury consists of not less than 11 persons. (2) A majority verdict may be returned by a jury in criminal proceedings if: (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation." 9On the third day of their deliberations, the jury sent a note to the trial judge advising that they had reached a unanimous decision on five of the seven charges and that, because they were split on the remaining two charges, it was unlikely that a unanimous decision would be reached on the remaining charges in a timely manner, if at all. By that time the jury had been deliberating for at least ten hours. After discussion, the parties agreed in the trial judge's view that a Black direction urging the jury to continue to attempt to reach a unanimous verdict on those charges was not required (Black v The Queen [1993] HCA 71; 179 CLR 44), and that instead a majority verdict direction should be given. The trial judge then took the jury's unanimous guilty verdicts on five of the seven charges (counts 1, 2, 4, 5 and 6) and proceeded immediately to give a majority verdict direction. Her Honour did not, before doing so, examine any juror on oath and accordingly was not and could not have been satisfied in accordance with s 55F(2)(b). 10The result was that one of the pre-conditions to the exercise of the power to permit the return of majority verdicts on those charges was not satisfied. It follows that the applicant did not receive a trial according to law in relation to counts 7 and 8 and that accordingly there was a miscarriage of justice requiring that the convictions in relation to them be quashed. See RJS v R [2007] NSWCCA 241; 173 A Crim R 100 at [16] (Spigelman CJ, Simpson and Harrison JJ agreeing). 11It also follows that the aggregate sentence passed under s 53A(1) of the Crimes (Sentencing Procedure) Act must be reassessed, unless all of the applicant's remaining convictions are quashed.

Conviction Appeal - Ground 2: A miscarriage of justice was occasioned by the admission of the so-called context evidence

Conviction Appeal - Ground 3: Her Honour erred in failing to instruct the jury as to the manner in which the so-called context evidence could properly be used

The "so-called context evidence" 12This evidence concerned aspects of the relationship between the complainant and the applicant. It was not evidence of any earlier uncharged sexual or other assaults. The subject matter of the evidence, as identified in the trial judge's summing-up, was:

• The applicant requiring that Joanne, a friend of the complainant to whom she had lent monies to be repaid over time, repay those monies immediately.
• The applicant pressuring the complainant to change her employment because he did not like her working where she would spend a significant amount of time on the road or working with a lot of men.
• The applicant badmouthing to the complainant, two of her girlfriends by calling them "sluts".
• The applicant trying to limit the complainant's circle of friends and cutting her off from friends, in circumstances where her own family lived in New Zealand.
• The applicant pressuring the complainant not to attend a play group with her young children.
• The applicant trying to dictate to the complainant the supermarket where she could shop.
• The applicant checking up on the complainant at work by telephoning her multiple times each day.
• The applicant checking up on the complainant when she was out of the house by insisting that she keep her phone on her at all times so that he could contact her.
• The applicant telling the complainant what to wear and how to do her hair and make-up when going out of the house.

The Crown and defence cases 13The Crown case was summarised in its written submissions on appeal: "The complainant and the applicant were in a domestic relationship and they had two children together. They had a difficult relationship and the applicant was very controlling towards the complainant. On 31 October 2010 they had an argument and he kicked her in the back of her legs. [Count 1] The following morning he slapped her face and she fell to the ground. [Count 2] In the early hours of the morning of 10 November the applicant got into bed with the complainant. He had sexual intercourse with her without her consent. He then left the room and went down stairs. He returned another four times and had sexual intercourse with her without her consent on each occasion." [Counts 4, 5, 6, 7 and 8] 14The complainant's evidence as to the second assault alleged to have occurred on 1 November 2010 was to the following effect: "The applicant did not sleep in the house [on the night of 31 October]. He returned the next morning while the complainant was bathing the children. He was drunk. The complainant swore at him and told him to go away. He slapped her face. She told him not to hit her as he was scaring the girls. The girls were crying. He pushed her to the ground. The complainant got up and pushed the applicant on the stairs. He stumbled. She took the girls into the bedroom. She locked the bedroom door and pushed the bed against the door. The complainant had an injury on the right side of her lip and it was swollen inside her lip." 15Her evidence as to the five remaining offences was as follows: "The complainant tried to speak to the applicant about what happened on 31 October 2010. She asked him not to hit her again. He said that they never get time together. She said that he always goes out and he should spend more time with them, for example going to the park. The applicant said that they never got time to themselves and so they planned to go out on 6 November 2010, as a celebration for the complainant's upcoming birthday. The applicant's mother looked after their children. They went to a hotel called The Intersection. They were meant to go out for dinner first but in the end they just went for drinks. On 8 November, the complainant's birthday, she took the children to Brighton Beach. They got home from the beach in the afternoon. On 8 and 9 November the complainant worked from 5:00-10:00pm. When she returned from work on 9 November at 10:20pm the applicant was sitting in the lounge drinking alcohol. She said 'I'm tired. I'm going to make a cup of tea and go to bed'. He said 'I've organised for the girls to be with Mum so I can spend time with you. Come outside and have a cigarette with me'. The complainant said that she did not want to as she wanted to go to bed. She did not make any tea. She went upstairs and got ready for bed. She put on 3/4 pyjama pants and went to sleep. In the early hours of the morning, around 2:00am the applicant opened the door of the bedroom and got into bed behind the complainant. He was holding her. She said 'I don't want to have sex'. He tried to pull off her pants. He said 'You never want to have sex'. She said 'Why don't you go back and have sex with the person that you've been out with all night, that you go out with all night.' He said 'I don't have sex with other people'. He pulled down her pants and put his penis in her vagina. She told him that her back was sore from sunburn. He said 'I'm about to cum, so just let me cum.' He then ejaculated [Count 4]. He left the room and the complainant stayed in bed. She did not put her clothes back on. She went back to sleep. Later that morning the applicant returned to the bedroom. The complainant was lying in the same position. She said that she did not want to have sex and he had penile vaginal intercourse with her again [Count 5]. He ejaculated inside her and then he left the room. The applicant returned a third time. The complainant could not recall if she said anything to him this time. He had intercourse with her and ejaculated [Count 6]. He left the room again. He returned a fourth time. The complainant said 'I don't want to have sex, this is uncomfortable'. The applicant had sexual intercourse with her [Count 7]. He then returned a fifth time. The complainant said 'I don't want to have sex with you... it really hurts me and you don't care that I'm telling you not to have sex with me, this is like rape.' The applicant said 'You never want to have sex with me'. He proceeded to have intercourse with her again [Count 8]. The complainant went into the lounge room early that morning and saw pornographic DVDs scattered around the room." 16The applicant's case, again as summarised by the Crown in its written submissions on appeal, was: "The applicant did not physically injure the complainant at any point in time. He did not have sexual intercourse with her without her consent. She was physically violent towards him during their relationship." 17Specifically, in relation to the second of the charged assaults the applicant said that the complainant received the bump on her lip as she was hitting him. He tried to block her. He denied that he struck her, pushed her to the ground or kicked her as part of the incident on the stairs. He did not have intercourse with her in the early hours of 10 November. He had watched television and then gone to bed in the spare room some time before midnight. The next morning around 7 to 8 am they did have consensual intercourse.

The admission of the evidence 18The tender of the context evidence was not objected to. The trial in April and May 2012 was a re-trial after an earlier trial in September 2011 had miscarried. The Crown proposed, as is permitted by s 306I of the Criminal Procedure Act 1986 (NSW), the tender of the record of the evidence given by the complainant at the earlier trial. The applicant's counsel objected to various parts of that record. Those objections were dealt with in a voir dire held on 18 and 19 April 2012. The outcome was that all of the evidence which was objected to was rejected. 19Early in the voir dire the following exchange occurred between the trial judge and the applicant's counsel: "BUCKMAN: Firstly if I can indicate this to your Honour. In general terms the objections fall into two categories. Firstly there are a number of - in one category there are number of things said by the complainant which in my submission are prejudicial comments which should come out. If I could just keep it as general as that at this stage. The second category relates to evidence of other acts, so to speak. Evidence being given about other acts which the accused was not charged with. HER HONOUR: So this is tendered as context evidence? BUCKMAN: Context evidence yes and it is that evidence that's effectively objected to." 20The Crown agreed to the editing out of the complainant's evidence in the first category. That evidence was identified in what became exhibit VD3 on the voir dire. The tender of evidence in the second category was pressed by the Crown. Grounds 2 and 3 are not directed to that evidence but to evidence that was not identified at this time as the "context" evidence to which objection was taken. 21In relation to that second category, the following further exchange occurred: "HER HONOUR: ... But if we're talking about as a general proposition the admission of context evidence, as a general approach I would have thought that normally context evidence is important but it should be led relatively briefly in a relatively un-colourful way, that would be a general comment. I mean, clearly it would look rather weird if all of a sudden after being together for six years or whatever, on 31 October over the ensuing two weeks there were a couple of incidents of a very unpleasant nature, that would look a bit strange. So therefore it could be important to show a history but without going into too much unduly prejudicial detail in that regard. That would be a general approach that I possibly would take. Are you seeking to exclude all the context evidence Mr Buckman? BUCKMAN: Yes your Honour. It might assist your Honour if I told you in terms of the exhibit that I tendered on the voir dire, the transcript references, the references that relate to the context evidence." 22Counsel then took the Court to exhibit VD4 on the voir dire. By doing so he made clear that his earlier reference to "all the context evidence" was only to the evidence specified in this exhibit. The trial judge then asked the Crown to "identify with some particularity" the purpose for which that evidence was tendered: "CROWN PROSECUTOR: For [the] very reason your Honour that I articulated a moment ago that the allegations take place in the context of a long term relationship. And they would sound implausible if they didn't have the context of the fact that this was a relationship that wasn't a rosy relationship, that there was inherent problems which dated back some years. HER HONOUR: You mean inherent problems with physical and sexual violence? CROWN PROSECUTOR: Yes your Honour, yes. So the Crown says that the context evidence removes the implausibility that might otherwise be attributed to the complainant's account of the assaults if they were thought to be isolated incidents." 23In support of its submission that the evidence was relevant to the extent of removing implausibility that might otherwise be attributed to the complainant's account, the Crown referred to the decision of this Court in Leonard v R [2006] NSWCCA 267; 67 NSWLR 545. In that appeal, there was an issue as to the admissibility, in relation to charges of sexual assault on a child under 16 years, of evidence of a sexual relationship between the complainant and accused that went beyond the acts charged. At [49], Hodgson JA observed that in such a case evidence of that kind might be relevant in three different ways, only one of which would involve its use as tendency or propensity evidence. 24The first involved its use as "relationship" evidence to remove implausibility that might attach to a complainant's account of what otherwise would be seen as isolated incidents. The previous occurrence of incidents similar to those charged could explain a complainant's apparent lack of complaint about or surprise as to the accused's conduct in relation to the offences charged. In HML v The Queen [2008] HCA 16; 235 CLR 334 at [6] Gleeson CJ cited R v Wickham [2004] NSWCCA 193 as a case in which evidence was admitted for that purpose. The evidence addresses questions that might be taken naturally to arise in the minds of the jury as to matters which, if left unanswered, may be expected to reflect adversely and unfairly upon a complainant. As Gleeson CJ also observed in HML v The Queen at [6], by doing so, it bears upon the assessment of the probability of the existence of facts directly in issue (Evidence Act 1995 (NSW), s 55) by assisting the evaluation of the complainant's account of the facts constituting the elements of the offences charged. Similar observations were made in Roach v The Queen [2011] HCA 12; 242 CLR 610 at [42] (French CJ, Hayne, Crennan and Kiefel JJ) and BBH v The Queen [2012] HCA 9; 245 CLR 499 at [146] - [150] (Crennan and Kiefel JJ). 25The Crown initially relied upon the evidence identified in exhibit VD4 as relationship evidence in the sense described above. It did not tender it as supporting an inference that the applicant had physically or sexually assaulted the complainant in the past and therefore was, by reason of that conduct, more likely to have done so on the occasions charged. That was the third of the ways identified by Hodgson JA in which such evidence might be relevant and plainly would involve its use as tendency or propensity evidence. 26The evidence in exhibit VD4 was directed to two earlier events. The first was an incident said to have occurred at an earlier undefined time when the applicant had assaulted the complainant and locked her on the balcony of their home unit. The trial judge expressed reservations as to its admissibility given its lack of proximity in time to the charged offences and to the lack of sufficient similarity between that event and the charged incidents. Ultimately the Crown did not press the tender of evidence concerning this incident. 27The second event was said to have happened in June 2007, shortly after the caesarean birth of the complainant's first daughter. Her evidence was that the applicant had sexual intercourse with her against her wishes, she having told him that she did not want to do so due to the caesarean wound and medical advice that she should desist from intercourse for a period of six to 12 weeks. The admissibility of that evidence was contested and the evidence rejected for short reasons given by the trial judge on 18 April 2012. 28The purpose of the tender of this evidence was not initially identified by the Crown as one which attracted the operation of the tendency rule (Evidence Act, ss 97, 101) and the trial judge did not approach the question as to its exclusion by reference to ss 135 or 137 (the latter of which requires the Court in a criminal proceeding to refuse to admit evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the accused). Instead, the applicant's objection to the evidence was described by the trial judge as involving an application under s 306I(5) of the Criminal Procedure Act to exclude parts of the complainant's original evidence which was sought to be tendered on the re-trial. That description was not accurate. Sub-section 306I(5) did not provide the basis for determining the admissibility of that evidence. 29The question whether the record or any of the statements in it was inadmissible, or should be excluded, other than for reason that the evidence was not to be given orally at the new trial (see s 306I(3), (4) and (6)) remained to be determined in accordance with the provisions of the Evidence Act. That is made explicit by s 306I(6) which permits the Court to give directions "requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the new trial proceedings". Subsection s 306I(5) is directed to the position after specific questions of admissibility have been addressed and permits the Court to decline to admit a record of the original evidence if the accused would be unfairly disadvantaged by the admission of that record having regard to, among other things, the effect of having edited any inadmissible evidence from that record. 30There is no issue on appeal as to the correctness of the trial judge's ruling rejecting that evidence. However, her Honour's reasons remain relevant in the present context because they show that the parties and the Court were conscious that evidence tendered to explain the context in which the alleged offences occurred might, depending on its content, be relied on or used for a tendency purpose. 31After noting in her reasons that the evidence was "prejudicial, not only because it concerns uncharged acts, but also because of the very unpleasant circumstance that the alleged sexual intercourse without consent occurred contrary to medical advice" the trial judge continued: "4. The question that comes to the fore is whether the admission of the evidence will strongly operate to reduce what would otherwise be implausibility concerning the allegations the subject of the charges. The first point to make is that the allegations the subject of the charges are not, to my mind, inherently implausible. It is not inherently implausible that, following an argument or difficulties in a relationship, a male partner may force himself upon the female partner. ... 5. The Crown very fairly and correctly pointed out that the real point of the evidence of events in mid-2007 was not so much a contextual purpose, but rather a tendency purpose. The material really shows an inclination or tendency of the accused to go ahead and force himself sexually upon his partner regardless of her viewpoint. No tendency notice was served in the proceedings. Nor, as I understand it, in the original proceedings. ... the fact that the evidence is more in the nature of tendency evidence than contextual evidence serves to highlight the prejudice that would attach to the material if it was tendered as contextual evidence."

The course of the trial 32In its opening address, the Crown described the relationship between the applicant and complainant as one in which there had been "good times but there also were some times that were not so good" and that the respondent's position was that she "thought that he was rather controlling and dominating", directing attention to the complainant's state of mind. When describing the first of the alleged sexual assaults, the Crown told the jury: "She indicated to him that she didn't want to have intercourse for a number of reasons. The state of play within their relationship, in the incidents that had been leading up to this particular night and also the fact that her back was quite sunburnt and she did not want to have that causing her pain. So she told the accused that she didn't want to have intercourse." 33The substance of the "so-called context evidence" was not summarised or elaborated upon in the Crown's opening. Nevertheless, it was apparent that the Crown was relying upon it only as showing that the relationship was an unhappy one from the complainant's perspective so as to make more plausible her evidence that she did not consent to having sexual intercourse with the applicant on the five occasions in question. 34The complainant was cross examined at some length about that evidence and the applicant's alleged controlling behaviour. It was put that much of the evidence was not true and that in fact the applicant did not seek to control her conduct or prevent her access to friends in the ways suggested. Further facts about the relationship were led in cross examination that were said to contradict the complexion that the complainant sought to place on the relevant events. In that way counsel for the applicant used the relationship evidence as a basis for attacking the complainant's reliability and credibility. In his evidence in chief, the applicant said that he had not engaged in much of the behaviour alleged. He also described occasions when the complainant was physically violent towards him, including that of the second alleged assault on 1 November 2010. In cross examination he denied that he had engaged in controlling behaviour towards the complainant. 35In its closing address the Crown commented on the "wealth of evidence in terms of the background of the relationship between" the complainant and applicant: "You might think, goodness there was a lot of evidence about doctors and playgroups and hair and makeup, what's the point of that? I suppose in explaining to you the point of it is if the Crown had just got [the complainant] in the witness box and said, tell us about the events that happened in the early hours of the morning of 10 November 2010 and she said, look you know Jimmy came and I had a sore back and he had intercourse with me without consent five times you might think that it was quite a strange thing to then go to the police and complain of them. In that way, the law allows the circumstances which support the counts to go before the jury. If I could just briefly remind you what the Crown says are some of the important circumstances which underpin or go to explain this what by all accounts was a very troubled relationship." 36Reference was then made to the detail of some of that evidence. The Crown continued: "[The complainant] said that the marriage or the relationship did have some good times, she conceded that but if you look at the facts here is a young girl who doesn't have her parents, cut off from her friends, she's dependent for her accommodation, she's living in a house owned by the accused's parents. She's got these two little girls and you might think that the control idea of the accused dominating her is really a very real one for her. That's in a way, the Crown says, if you look at those reasons that's the background it's not a happy relationship it's one dominated by the accused. Not only is she dominated by the psychological reasons the Crown says there's a very physical element of the domination as well." 37At this point, the Crown was using the evidence to justify a conclusion that, from the complainant's perspective, the relationship was not a happy one so as to make more plausible her version of the events and in particular her evidence that she had not consented to sexual intercourse. No reference was made to any other ways in which that evidence might be used by the jury. Specifically, the Crown did not suggest that it indicated a propensity of the applicant to commit physical or sexual assaults on the complainant. 38In his closing argument, counsel for the applicant also spent some time addressing the context evidence. In doing so, he accepted that the relevance of the evidence was, as identified by the Crown, that it explained "the actions of the complainant". He said: "A lot about the history of the relationship between these two parties and the reason why you've heard that as the Crown has fairly pointed out to you is because the Crown says that you're entitled to if you accept that evidence use it to put into context the allegations of assault and sexual assault. For example why the complainant didn't physically resist when she was being sexually assaulted. So that evidence has been led, the Crown would say put the offences that the Crown says have been committed here into some sort of contextual background to explain the actions of the complainant of these alleged offences." 39Counsel's primary submission was that the jury should not accept the complainant's evidence as to these various matters. It was said that if the jury did not accept that evidence, it should question the reliability of the complainant's evidence as to the alleged offences. It was also suggested that the complainant's evidence as to those matters was fabricated or exaggerated so as to justify her false version of events in the early hours of 10 November. Counsel submitted: "But again there's a context evidence that explains a lack of resistance on her part physically or is it the case of vice versa. In other words she needs to explain why she didn't struggle or resist or lock the door or whatever, so she's come up with this context evidence to try and explain how controlling he was because she knows that's going to explain why she didn't lock the door and she needs to come up with something to effectively back up her false story." 40It is convenient to pause at this point to note what the position was in relation to the evidence that is the subject of grounds 2 and 3. First, that evidence was not of sexual or other assaults against the complainant on earlier occasions. It was not similar fact evidence or evidence of conduct of the applicant which disclosed some reason or motive or explanation suggesting a propensity to assault the complainant physically or sexually so as to give rise to a likelihood of his having committed the acts in question. It was not suggested to the jury that the evidence had that character or quality and in my view it was not likely to be seen in that way by jurors bringing their common sense and life experience to bear when evaluating it. Secondly, it was evidence given by the complainant in a trial where the principal question for the jury was whether it should accept her evidence as to what had occurred. In no sense was there any risk that the evidence would provide, indirectly, any independent corroboration of her evidence as to the commission of the alleged acts. 41Thirdly, the applicant's counsel did not object to the tender of the evidence. The submission on appeal, although made faintly, that his counsel intended to do so by agreeing to the trial judge's proposition that he was "seeking to exclude all the context evidence" must be rejected for the reason referred to earlier. Fourthly, the applicant's case made by cross examination of the complainant and by his own evidence was that the evidence of controlling behaviour was exaggerated or fabricated to back up her story, also false, as to the physical and sexual assaults having occurred. The evidence and that cross examination was relied upon as part of the challenge to the complainant's credibility and reliability. Fifthly, neither party in its closing address invited the jury expressly or implicitly to use the evidence as showing conduct indicating a propensity or disposition of the applicant to commit offences of the kind charged. Finally, the evidence was relevant to a fact in issue because it bore on the jury's assessment of the complainant's evidence as to consent. Although its relevance could have been made clearer to the jury, this was reasonably apparent from the various references to it in the course of the trial. By the cross examination of the complainant, the evidence was also made relevant to her credibility, and therefore to the assessment of her version of the critical events. 42Against this background, the trial judge gave the following directions in relation to the relevant evidence: "The Crown relies upon this evidence only for one purpose. And that is to put the complainant's allegations concerning the offences in November 2010 into a realistic context. The Crown says that, if that evidence was not there, you would be asking yourselves, well, why would the accused throw his weight around in this horrible manner with the complainant completely out of the blue, when they had been in an apparently normal relationship for the previous six years, or whatever it was? But the Crown says that - so this evidence shows that in fact there had been a relationship of unequal power of control over a period of six years, and it was in that context that these incidents occurred. Members of the jury, you will have to consider the evidence that the Crown called in support of this proposition that there were a number of incidents that the Crown said evidenced controlling behaviour or domineering behaviour or the exertion of power, and you will have to decide whether you accept that evidence, and the interpretation that you place upon that material, if you do accept it." And later: "Members of the jury, even if there was a background of controlling behaviour, that background only provides a context and it is not evidence that any of the alleged offences actually occurred. It could only be used to put the complainant's allegations into a realistic context."

Should leave to appeal be granted? 43The applicant requires leave to appeal because of the absence of any objection to the admission of the evidence and the absence of any request for a further direction in relation to its use. That makes it necessary to consider whether by either or both of grounds 2 and 3 the applicant is able to show that he lost a real chance of acquittal so that a miscarriage of justice has occurred: see Carney v R [2011] NSWCCA 223; 217 A Crim R 201 at [67], [69] (Whealy JA, James and Hoeben JJ) and ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, James and Johnson JJ agreeing). 44The applicant submits that there was error in the admission of the evidence, because it was not relevant and was prejudicial. He also submits that when directing the jury the trial judge erred in failing to identify precise issues to which the evidence was directed (see Norman v R [2012] NSWCCA 230 at [29] (Macfarlan JA, Price and McCallum JJ agreeing) and cases cited there) and, more significantly, in failing to make clear that it could not be used as establishing any tendency on the part of the applicant to commit offences of the type charged. 45The trial judge did not err in admitting the evidence. It was not objected to and was relevant as making more plausible the complainant's evidence as to the absence of her consent to the acts of sexual intercourse. As tendered, it did not announce itself as evidence which the jury might use to engage in any tendency or propensity reasoning. Nor did the Crown identify that as a purpose for which it was tendered. In those circumstances, there was no occasion for the trial judge to consider, at the point of admission of the evidence, the operation of the tendency rule (Evidence Act, ss 95, 97, 101) or whether although relevant it should or must be excluded because it was unfairly prejudicial (Evidence Act, ss 135, 137). 46At the same time the applicant's counsel had the opportunity to consider its admissibility in circumstances where he is to be taken to have appreciated that there was an entitlement to object to it. That entitlement was exercised in relation to the evidence identified in exhibit VD4. The fact that no objection was taken, in circumstances where objection had been taken to other evidence as being prejudicial because it might invite propensity reasoning, is a strong indication that at that early point in the trial counsel saw no injustice or error in its admission to support the plausibility of the complainant's version of events: see R v Germakian [2007] NSWCCA 373; 70 NSWLR 467 at [11], [12] (Giles JA, Hulme and Hislop JJ); ARS v R at [148] (Bathurst CJ, James and Johnson JJ agreeing); and FP v R [2012] NSWCCA 182; 224 A Crim R 82 at [72] (RA Hulme J, McClellan CJ at CL and Schmidt J agreeing). For these reasons it is not shown that any miscarriage of justice occurred by reason alone of the admission of the evidence. 47The more troubling question is whether the trial judge erred in not sufficiently directing the jury as to the limited use which they could make of the evidence. On behalf of the applicant it is said that it was not sufficient or helpful to say (twice) that the evidence was relied on to put the complainant's allegations "into a realistic context". The jury should have been told of the particular issue or issues to which the evidence was directed; for example, the issue of consent and the plausibility of the complainant having said 'no' to the applicant's sexual advances on the five occasions charged. It is also said that the direction (and particularly the formulation of the question that the jury might ask itself as being "why would the accused throw his weight around in this horrible manner") verged on an invitation to the jury to employ propensity reasoning. That reference, which might have been taken as being to the whole of the course of conduct rather than to the second assault, directed attention to the applicant's conduct and a possible explanation for it rather than to the complainant's conduct. 48However, the possible effect of that reference has to be assessed in the context of the trial and the way in which it had been conducted, taking account of the other directions given to the jury and the nature of the evidence. The directions given made clear that the evidence was only relied upon and could only be relied upon as showing that the context in which the charged events occurred did not involve an "apparently normal relationship". It was also made clear that it was not evidence that any of the alleged offences had actually occurred. Up to this point there had been no suggestion in the final addresses, or by the trial judge in the summing up, that this evidence could be relied upon as making it more likely that the applicant would have acted as alleged. The evidence was not of conduct involving physical or sexual assaults on the complainant. The subject matter of the evidence is summarised at [12] above. None of the respects in which the applicant was said to have been controlling suggested a propensity of the applicant physically or sexually to impose his will on the complainant. 49Taking account of these matters, I am not satisfied that in the face of this direction there arose a real risk that the jury might employ propensity reasoning and misuse this relationship evidence. That was not a use suggested or referred to by the Crown or accused. Although the jury might have proceeded on the basis that they were not restricted in their use of evidence by the arguments formulated by the parties, the nature of this evidence was such that it did not reveal any relevant tendency or propensity of the applicant. For that reason it would not have been evaluated as bearing on the likelihood that the applicant committed the acts in question. That question was to be answered primarily by an assessment of the complainant's credibility and reliability. 50Accordingly I do not consider that it was necessary for the trial judge to give any further or other directions about the use of the evidence. I am fortified in this conclusion by the absence of any complaint about the directions on this evidence. That fact is usually to be taken as a reliable indicator that in the atmosphere of the trial counsel saw no injustice or error in what was said. There is nothing in what happened in this trial to suggest that that inference should not be drawn, particularly when the question of the use of other evidence for a propensity purpose had been addressed at some length at the commencement of the trial. 51For these reasons I am not satisfied that grounds 2 and 3 reveal any error on the part of the trial judge which resulted in the applicant having lost a real chance of acquittal. That being so, it is not shown that a miscarriage of justice occurred and leave to appeal on those grounds should be refused.

Sentence appeal - Ground 1: Her Honour erred in concluding that the offences were aggravated by the fact that they occurred within the conjugal home

Sentence appeal - Ground 2: A lesser sentence is warranted in law 52Because the convictions on counts 7 and 8 should be quashed and those convictions were taken into account by the sentencing judge when imposing the aggregate sentence, it is necessary for this Court to address the question of sentence again. 53By sentencing ground 1 the applicant also contends, correctly in my view, that the sentencing judge erred in taking into account as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act, that the offences were committed in the complainant's home. That her Honour did so is not in question. In the remarks on sentence at [12] it was stated: "The Court needs to consider the relevant aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act. There are no factors that are of enormous significance to which I have not referred. I refer to the presence of the children at the time of the assaults. I have also referred to the fact that all offences occurred within the home of the victim. That is a less compelling aggravating factor where the home is also the home of the offender. Although, one cannot detract from the proposition that any victim is entitled to feel safe in her own home and particularly in her own bed." 54The fact that the offences took place in the complainant's home was not an aggravating factor in circumstances where the applicant and the complainant resided together at the relevant time: EK v R [2010] NSWCCA 199; 79 NSWLR 740 at [79] (RA Hulme J, McClellan CJ at CL and Simpson J agreeing). 55In the face of these errors it is necessary to address the question of the appropriate sentence for the five remaining offences. The provisions of s 6(3) of the Criminal Appeal Act require this Court to exercise that discretion again taking into account the relevant statutory requirements and sentencing principles with a view to forming its own judgment as to the aggregate sentence that should have been passed: per Spigelman CJ in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at [19] which was expressly approved in Kentwell v The Queen at [40], [42] (French CJ, Hayne, Bell and Keane JJ). 56I agree, for the reasons given by the sentencing judge, that the first assault (count 1) was not objectively serious and that the second was more serious because of the nature of the applicant's conduct and the presence of the young children. The maximum available penalty for those offences was five years imprisonment with no standard non-parole period. 57The three sexual assault offences occurred over a short period and were part of a single course of conduct that commenced in the early hours of 10 November 2010. Those offences were not associated with any physical threats or injury or gratuitous humiliation and involved sexual intercourse without consent between parties to an on-going albeit at times unhappy relationship. 58The sentencing judge found that the complainant suffered a great deal as a consequence of the offences. Nevertheless, viewed objectively they are, as the applicant submits, well below a mid-range of objective seriousness. The maximum penalty for each is 14 years imprisonment with a seven year standard non-parole period. 59There are other factors to be taken into account. They include that the applicant was unlikely to re-offend and has good prospects of rehabilitation, that his prior criminal history was of a minor nature and that there is no particular need shown for specific deterrence. However, general deterrence remains a significant factor. It is also relevant, as the sentencing judge found, that the sentence would result in the applicant's first time in custody and, because of his somewhat immature personality, result in a need for long term assistance both with rehabilitation and in dealing with release. 60In the circumstances it is my view that a lesser sentence than was passed by the sentencing judge is warranted in law. That sentence is an aggregate sentence of imprisonment for the five offences commencing on 4 May 2012 and ending on 4 April 2017 with a non-parole period expiring on 18 October 2014. This involves an aggregate sentence of four years, eleven months, with a non-parole period of two years and five and one-half months. In setting the non-parole period I have taken into account the applicant's need for the long term rehabilitation assistance referred to above. 61The sentence that I would have imposed for each offence had separate sentences been imposed instead of an aggregate sentence is one month for the first assault (count 1), five months for the second assault (count 2) - the sentences being served concurrently - and four years with a non-parole period for each of the remaining offences (counts 4, 5, and 6) of two years, again taking account of the special circumstances referred to above.

Proposed orders 62I have considered whether the miscarriage of justice in relation to counts 7 and 8 can be remedied more adequately by an order for a new trial than by any other order which the Court is empowered to make: Criminal Appeal Act, s 8. Under s 6(2), if it allows an appeal against conviction, the Court may quash the conviction and direct a judgment and verdict of acquittal subject to "the special provisions" of that Act, which include s 8: see the discussion in ST v R [2010] NSWCCA 5 at [2] - [4] per Basten JA. This is not a case in which the evidence presented to the jury in relation to those counts was insufficient to support a conviction. See, for example, Andrews v The Queen [1968] HCA 84; 126 CLR 198 at 211. Therefore, the discretionary power to order a new trial is engaged. There are however several factors militating against the holding of a new trial. First, the non-parole period for the aggregate sentence imposed on the applicant in relation to all of the charged offences has almost expired. Any sentence imposed if the applicant were convicted of the additional two counts is most unlikely to involve any further term of imprisonment taking into account the sentence already served. Secondly, the two offences were part of a single course of conduct. The applicant has already been convicted and sentenced in relation to most of that conduct. However, in any new trial the evidence would have to address the whole of that conduct, and probably the earlier physical assaults, in order to explain the circumstances in which counts 7 and 8 are alleged to have occurred. The applicant would have to deal with those circumstances and, if he maintains his denial of those counts, to give evidence as to circumstances of which he has already been convicted. Thirdly, the complainant's interests are not likely to be advanced by her having to be cross examined for a third time on the same events. Finally, as the applicant has been substantially dealt with in relation to the events of November 2010 there is no significant public interest in ensuring that the remaining counts be dealt with at a properly conducted trial 63Ordinarily the decision whether or not to continue a prosecution is for the executive and not the courts: Spies v The Queen [2000] HCA 43; 201 CLR 603 at [103], [104] (Gaudron, McHugh, Gummow and Hayne JJ); and Dyers v The Queen [2002] HCA 45; 210 CLR 285 at [23] (Gaudron and Hayne JJ) and [135] (Callinan J). However, in this case I am satisfied for reason of the matters referred to above that the miscarriage of justice resulting in the quashing of counts 7 and 8 is not more adequately remedied by an order for a new trial than by an order directing a judgment and verdict of acquittal on those counts. Accordingly I propose that order be made. I also note that the effect of the aggregate sentence that I propose in relation to counts 1, 2, 4, 5 and 6 is that the applicant became eligible for parole on 18 October 2014. 64The orders I propose are:

1. Extend to 16 August 2014 the time for the giving of notice of appeal and notice of application for leave to appeal in respect of the convictions and sentence.
2. Grant leave to appeal in relation to conviction ground 1.
3. Quash the convictions on counts 7 and 8.
4. Direct a judgment and verdict of acquittal be entered on counts 7 and 8.
5. Leave to appeal refused in relation to conviction grounds 2 and 3.
6. Grant leave to appeal in relation to sentencing grounds 1 and 2.
7. Quash the aggregate sentence of imprisonment for five years and six months with a non-parole period of two years and nine months.
8. Sentence the applicant/appellant to an aggregate term of imprisonment for four years and eleven months with a non-parole period of two years and five and a half months ending on 18 October 2014 and to date from 4 May 2012. 65HIDDEN J: I agree with Meagher JA. 66RS HULME AJ: I have had the benefit of reading the reasons of Meagher JA in this matter. 67I agree with the orders proposed by his Honour and generally with his Honour's reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2014