Pavitt v The Queen

Supreme Court of NSW|2017-04-21|Before: Fagan J, Johnson J

Judgment

In September 2001 Peter James Holland was charged with five sexual offences alleged to have been committed by him at Goulburn on the evening of 19 July 2001, all against the same adult female complainant. He was tried on those charges in the District Court over seven days in May 2002. He was found guilty on count 1, aggravated sexual intercourse without consent involving digital vaginal penetration, contrary to s 61J(1) of the Crimes Act 1900 (NSW), and on count 2, attempted sexual intercourse without consent. The jury acquitted him of the other three counts.
Mr Holland was sentenced to imprisonment. He appealed against conviction. Five grounds were argued, all of which were rejected: R v Holland [2002] NSWCCA 469. He has fully served his sentence.

The nature and particulars of the present application

By force of subs (2) of s 79 the Court may direct an inquiry into a conviction only "if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". Subsection (3) of s 79 is as follows, so far as relevant to the circumstances of Mr Holland's application: "79 Consideration of applications … (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) … or (iv) … and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action."
For reasons which will follow I consider that the operation of subs (3) is attracted to the circumstances of this case by facts which satisfy sub pars (i) and (ii) of par (a). I find no special facts or circumstances for the purposes of par (b) of subs (3).
Mr Holland has presented the Court with voluminous written submissions, bearing the following dates: 1. 19 July 2016: 93 pages of submissions and 44 pages of annexed documents. 2. 22 September 2016: "Addendum" to submissions, comprising 132 pages. 3. 19 October 2016: "Further Addendum" of 22 pages. 4. 23 October 2016: 17 pages of submissions regarding a video demonstration of the act of digital penetration the subject of count 1, accompanied by a video. 5. 20 December 2016: response to Crown submissions comprising 103 pages. 6. 5 February 2017: further response to Crown submissions comprising 40 pages.
That is, a total of 407 pages, to which I will refer as "Submission (1)", "Submission (2)" etc. These have been prepared by Mr Holland himself and are repetitive, discursive and unfocused. After a trial in the District Court, an appeal and a previous review of the conviction by a judge of this Court, if there were anything new to be argued in relation to Mr Holland's convictions it could not possibly require 407 pages of submissions to express it. All of the points which can be extracted from the vast bulk of Mr Holland's submissions on this application were previously dealt with in his original trial or in his appeal or in the application dealt with by Johnson J - or on more than one of those occasions. The repetition and wordiness of the present submissions is of such an order that their substantive content could have been set out on no more than five pages. I have read all of what Mr Holland has written in support of his present application and I have identified, below, the points he has made.
Mr Holland's Submission (1) commences with a statement that he wishes to "again rely on the extensive submission of 2008". That is a reference to more than 870 pages of material which he provided to Johnson J. I have not separately reviewed the material submitted to Johnson J and I do not consider it necessary to do so. Self-evidently, if it was before his Honour then it "has previously been dealt with under this Part or under the previous review provisions", within the meaning of s 79(3)(a)(ii).
In these circumstances, by virtue of subs (3)(b) of s 79, there is reposed in the Court a discretion to "refuse to consider or otherwise deal with" Mr Holland's application if I am "not satisfied that there are special facts or special circumstances that justify the taking of further action". I am not so satisfied and I refuse to consider or deal with the application, for the reasons given hereafter.
The Crimes (Appeal and Review) Act 2001 (NSW) contains no explicit guidance as to what might constitute special facts or special circumstances for the purposes of subs (3)(b). As a starting point for applying that test to this application I regard it as necessary to set out a summary of the evidence in the proceedings which led to the convictions in respect of which the application is made. That summary will expose the relative simplicity of the case and identify the issues which arose.

Summary of evidence and issues at trial in the District Court

I draw the following narrative of the case at trial from [3] - [19] of the judgment of Simpson J (as her Honour then was) in the Court of Criminal Appeal's decision, cited at [2]. In July 2001 Mr Holland was a member of the New South Wales Police Service, engaged as a tutor at the Goulburn Police Academy. He was 35 years old. The complainant was then 21 years of age and was a student at the Academy. One of her classes was taught by Mr Holland. Prior to 19 July 2001 she had no social relationship with him.
According to the complainant's evidence on the evening of that day she had dinner with friends at a licensed establishment called Tully Park Tavern in Goulburn and then returned to the Academy. She went to the Academy liquor bar. There she encountered the appellant. They greeted each other in a friendly and physical manner. The appellant showed signs of intoxication. After a few minutes, at the complainant's invitation the appellant joined her group and they conversed. The complainant purchased a drink for herself and one for the appellant.
Mr Holland left the Academy liquor bar and went to Tully Park Tavern. Just before leaving he pulled forward the clothing the complainant was wearing on the upper part of her body, indicated her breasts and made a sexually suggestive remark. After having another drink at the Academy liquor bar the complainant also returned to Tully Park Tavern in the company of others. She encountered Mr Holland and they bought drinks for each other and conversed for about 20 or 25 minutes.
Mr Holland behaved in a manner which was increasingly sexually suggestive and, as time progressed, explicit. He placed his hands on the complainant's back and hips. He told her he wanted to go outside. She asked why and he said he wanted to talk. He took the complainant by the hand and led her out.
Outside the Tavern Mr Holland led the complainant to a gate, pressed her against it and made further sexually suggestive references to her breasts. He pulled down her upper clothing, continuing to make reference to her breasts. He kissed her breasts. The complainant was protesting. The act of kissing her breasts was the act that gave rise to count 4 on the indictment (assault with act of indecency). On this count the appellant was acquitted. From a question asked by the jury during their deliberations it may be inferred they felt a reasonable doubt whether this conduct was non-consensual.
The complainant said she wished to return inside but Mr Holland held her by the wrist and walked down a hill. The complainant protested. He continued to hold the complainant tightly by the wrist preventing her pulling away. Mr Holland again removed, or tried to remove, the top part of the complainant's clothing. The complainant continued to protest. He put his hand down the front of the complainant's pants and inserted his fingers in her vagina. This caused the complainant pain. The penetration of his fingers gave rise to count 1 on the indictment (of which the appellant was convicted). An abrasion to the labia was sustained, as identified by medical examination four days later. This was relied upon by the Crown as malicious infliction of actual bodily harm, constituting the aggravating circumstance of the offence for the purposes of subs (2)(a) of s 61J of the Crimes Act.
At the same time Mr Holland attempted with his other hand to remove the complainant's clothing. He told her she "wanted it because she was wet". He pulled his trousers down and then hers and attempted to penetrate her from behind. Then, after turning her around he attempted to penetrate her from the front. This gave rise to count 2 (attempted sexual intercourse), on which, again, Mr Holland was convicted.
The complainant gave evidence that Mr Holland tried to put his penis in her mouth and placed her hand on his penis. Counts 3 and 5 were based upon these particulars but the jury did not find them proved. The complainant walked away, to the car park at Tully Park Tavern. The appellant accompanied her. At the car park the complainant joined four of her friends who were already in a car, about to drive to a nightclub called Flamingos.
On arrival at Flamingos the complainant found a close friend, Cameron Bellis. Mr Bellis observed that she was crying and "very upset". The principal evidence of complaint was given by Mr Bellis. When he asked the cause of her distress the complainant gave a brief account which was consistent with the evidence she gave before the jury. This included specific reference to the allegation that the appellant had inserted his fingers in her vagina (count 1).
The complainant gave evidence that at Flamingos she was experiencing pain in her vagina and went to the toilet to examine herself. She found that her labia were swollen and discoloured. Ms Jennifer Robertson, a friend of the complainant, saw her in the toilet and observed she was crying. She did not tell Ms Robertson the cause of her distress.
Ms Donna Green observed the complainant at Flamingos and saw that she had been crying. Her hair was dishevelled and she "looked shaken". Ms Green also described the complainant's manner of dancing as "odd" and "sort of sluttish" and said that the complainant was upset because she had lost her jacket. Matthew Ellis was the person who drove the car, with the complainant as a passenger, from Tully Park Tavern to Flamingos. He described the complainant as "very quiet" and said that on arrival at Flamingos she went straight to the bathroom and that when she emerged she "was quite distressed and it looked like she had been crying".
Two days later, on Sunday 22 July 2001, the complainant told another friend (Jason Banks, a senior constable at the Academy) about the incident. He observed that she appeared to be having difficulty walking and was wincing which caused him to assume that she was in pain. Again, she gave a brief account to him which was consistent with the evidence she gave in the trial. Senior Constable Banks passed on the information to Ms Julie-Anne Swords, a clerical officer at the Academy, who in turn spoke to the complainant during that Sunday evening. What the complainant said to Ms Swords was consistent with the account she gave in evidence. Subsequently she spoke to Inspector Lesley Dickens. She then made an official report.
There was medical evidence from Dr Christopher Harmon who examined the complainant on 23 July 2001. He recounted the history he took from the complainant, which included her description of the appellant forcing his hand down the front of her pants and inserting his finger into her vagina. Dr Harmon's examination revealed the complainant's mons pubis and labia to be contused, swollen and tender, too tender to permit the use of a speculum for further examination. He also noted the presence of a small abrasion internally on the right labia. He said that in his opinion the complainant's injuries were consistent with the description of how they were occasioned, given in her history.
In July and August 2001 the officer in charge of the investigation, Detective Sergeant Stuart Gray, obtained successive warrants under the Listening Devices Act 1984 (NSW) with a view to the complainant engaging Mr Holland in conversation during which he might make admissions or incriminating remarks about the events of the evening of 19 July. On 6 September there were three telephone conversations between the complainant and Mr Holland. Tape recordings and agreed transcripts of the first two conversations were before the jury. The third conversation was not recorded but the complainant made an immediate note of its content and this was read to the jury.
The content of the three conversations, as tendered in the trial, was substantially reproduced in the judgment of Simpson J in the Court of Criminal Appeal at [14] - [17]. For present purposes it is sufficient to summarise the general effect and nature of the conversations, respectively, as follows.
The complainant commenced her first call, at 12:35 pm on 6 September 2001, by asking Mr Holland "What was that all about?", not specifying what she was referring to. He responded by saying he had been "pissed" and angry, although not at her, and that it would "never happen again". He did not specify what had occurred. Nor did he initially inquire what the complainant was referring to when she said his conduct had scared her and asked why he had taken out on her his feelings of being "pissed off with the world, pissed off with my life".
The first phone conversation then developed into the complainant inquiring how much Mr Holland remembered, including these passages: "Complainant: … I kept telling you 'No', and, and that I wanted to go back… Mr Holland: Yeah. I know. … Complainant: Do you remember what you did? Mr Holland: Ah, n … well that's the 'hazy part', hhhuh, as I say, but I don't wanna, know. I don't wanna know. Complainant: Do you remember me telling you "No"? Mr Holland: Ah, n … I don't remember much about anything. I remember walking outside and tripping over and I remember being on the grass and trying to get over a fence. … Mr Holland: And, and so, mate, I just apologise if I, um, if I hurt you or upset you or offended you. Complainant: Mm, hm. Mr Holland: 'Cos I certainly didn't mean to. … Mr Holland: I didn't do anything wrong, did I? Complainant: Well, I kept telling you 'no' and you wouldn't stop, and things like that, so … Mr Holland: Oh, shit!! Complainant: And I just telling you I wanted to go back and you just kept me dragging, kept dragging me down … Mr Holland: Oh, you're kiddin' 'Krusty'!! Complainant: That's wh …that's why you really scared me. Mr Holland: Oh, fuck, honey!! Oh, fuck!! … Complainant: Well, you, you don't remember anythink do you? Mr Holland: Well, no. Did I hurt you? Complainant: You kept tryin' to grab me between the le … crutch. Mr Holland: Ooh, shhh … you're kidding!!? Complainant: And I was, yeah, it was, hurts there. Hu … it hurt there. Mr Holland: Oh, fuckin' hell!! Are your (sic) kidding? Complainant: No. I'm not. You really did hurt me. That's why I wanted to know what, what was it all about. Mr Holland: Oh, fuck!! I feel like I'm gonna be sick. Oh, fuck!! 'Krusty', are you, are you, are you serious? Complainant: Yeh, I'm serious. You really hurt me hhhh. … … Mr Holland: Mate, you've got no idea! I mean, I mean, ooohh, fuckin' hell, mate, I yeah … am I in trouble? Complainant: What do you mean? Mr Holland: Am, am I, have I done something like, against the law, trouble? Complainant: Ahhh, you could probably say that, yes. Mr Holland: Oh, 'Krusty'! Am I gon … am I gonna get locked up? Complainant: Who said that? Mr Holland: No, are y… are you gonna get me locked up? Complainant: Why? I haven't said anything to anyone."
The conversation continued with the appellant expressing his apologies and promising to do whatever he could to make amends. The call was of 28 minutes duration and concluded at 1.03 p.m.
Five minutes later, at 1.08 p.m., Mr Holland called the complainant back. He again expressed himself to be "absolutely shocked" and "truly, truly sorry". Well into the conversation the following is recorded: "Mr Holland: Just tell me what happened. Complainant: You don't, honestly don't remember anythink? Mr Holland: Well, if you tell me, I might be able to … … Mr Holland: [At Tully Park Tavern] I was talkin' to 'Chook' and Brian Albrecht. Mr Holland: Yep, and you walked up and you gave me a 'shot'. Complainant: Yep. Mr Holland: And then we've walked through the glass doors near the disco. No, near the bistro, sorry. … Mr Holland: That's the exit. We've walked out of the glass doors near the bistro. We've turned right, gone down the grass and that's when I've tripped over in the grass. … Mr Holland: And then we've moved over to a fence … … Mr Holland: Near a house … Complainant: … I was tryin' to tell you I wanted to go back inside and I didn't want to just be out there and my friends come lookin' for me. Do you remember that? Mr Holland: I remember you sayin' that after, when, um, you were going. Complainant: No. Mr Holland: Yeah. No, no. I remember that, because you went back towards that way, towards TULLY'S, and I went back up towards Tom's place. Complainant: No, 'cause you pulled me outside and I did … didn't want to go out and then, so I s … said 'no', 'cause I will stay inside, and then, well, you, we went out, well you pulled me outside, you …"
Mr Holland disputed with the complainant that he had pulled or dragged her out of Tully Park Tavern or to a gate. He asserted that if this had occurred it would have been observed by others because "the gate is only ten feet away from the bloody main door". The complainant said that it did occur and that her friends came looking for her, which Mr Holland disputed. He said that when the complainant had walked away from him back to the Tavern he had followed her "to see if you got back there alright". He claimed to remember having looked around for friends at the Tavern and said that when he could not find them he walked home.
The second conversation included this further passage: "Mr Holland: … I remember walking down towards this house and we moved over towards the fence behind the tree. Is that right? … Complainant: Yeah … And I kept telling you that I wanted to go back. Mr Holland: Yep, and that's when we walked over to the fence and I tripped over the fence too. Remember that? And I said to you I was so friggin' 'pissed' and been such an idiot. Yep? How'm I doin' so far? Complainant: No. I kept tellin' you that I wanted to go back and you said 'No, no, no. Stay here. Stay here'. Mr Holland: Yeh, but I … yeh, and then when you said 'That's it. We're going,' what happened. Complainant: Yeh, it too … it took a while. Mr Holland: It didn't take a while, 'Krusty', come on!! How long were we gone for, 'Krusty'? Complainant: Ages. Mr Holland: Bulshit!! Ten minutes. Complainant: I don't know how long we were gone for. Mr Holland: Ten bloody minutes, 'Krusty'!! … because Tom WAIBEL said he saw me and he said they s … they saw that I'd gone and that's when they got in the car and started lookin' for me. He said I was gone for ten minutes. Ten bloody minutes, 'Krusty'!! … Mr Holland: … obviously I wasn't that drunk, if I can remember this! I thought you were sayin' that I did somethin' else!! Now, I, no, I remember things that happened, but I tell you what, I'm not rememberin' the things you're sayin' that I did!! As I said to you, I'm, I am, I'm truly sorry, if you're, if, if …"
The final telephone call took place at about 2.00 p.m. the same day. This, again, was initiated by Mr Holland. The complainant's note, made immediately afterwards, recorded that the following conversation took place: "Mr Holland: I remember everything that happened, can you talk? Complainant: No. Mr Holland: Listen and tell me if this is what happened. Complainant: Yep. Mr Holland: You walked out with me, we went for a walk, I fell over, you tried to take my pants down. Complainant: I'm listening, I can't talk. Mr Holland: You said to me that you wouldn't be able to get it up because you're too drunk. We ended up going because I couldn't do it to my girlfriend. We were only gone for about five minutes and then we walked back inside. I remember back we walked back inside because Michelle's car was still there. That's right, isn't it? Complainant: Whatever. Mr Holland: Can we arrange to go out, what's your roster? Complainant: Yep, sometime. Good bye. Mr Holland: Good bye."
On 21 September Mr Holland was arrested and charged. On the same day he participated in an electronically recorded interview. He denied the allegation that while at the Academy Bar, he pulled forward the complainant's upper clothing. He acknowledged there had been some conversation about the complainant's breasts, but said he had taken her to be flirting. He acknowledged sexual activity between himself and the complainant but claimed that it was consensual and that the complainant was a willing and active participant. Specifically, he acknowledged putting his hand down the front of the complainant's pants and inserting one finger into her vagina, but denied thrusting two or three fingers in and out as she alleged. He said the complainant took hold of his hand and sucked his finger. He denied that the complainant protested or said she wanted to return to the Tavern. He claimed that she undid his trousers and performed fellatio upon him. These answers were starkly inconsistent with his professed absence of recollection during the telephone conversations with the complainant and with his expressions of remorse during those conversations.
At trial Mr Holland gave evidence in which he denied having forced the complainant from Tully's Tavern, denied having pulled down her clothing to expose her breasts and denied attempting to kiss her breasts. He said the sexual activity between them had been consensual. He adopted and relied upon the answers he had given when interviewed. He was asked to explain the content of the telephone conversations. Contrary to what he had there repeatedly said, he denied that he had been intoxicated, although he had earlier stated (as he had also said in his interview) that he was "moderately affected" on the night. He explained his responses in the phone conversations by saying that he accepted what had been put to him by the complainant. He said he was ashamed of what had happened. He also claimed to have realised that sexual intercourse was not going to eventuate and that he told the complainant to "just fuck off back to Tully Park". He said he was ashamed of having said this also.
In cross-examination Mr Holland agreed he had put his hand down the complainant's pants and admitted that he had inserted a finger in her vagina. He claimed that it was the complainant who attempted to initiate oral sex and that he had rebuffed her. This evidence was also inconsistent with his responses to the complainant in the telephone calls.
From the above summary it is apparent the issues at trial were (a) the detail of the sexual contact by Mr Holland with the complainant and (b) whether the complainant had consented to that sexual contact. Differences between the complainant and Mr Holland concerning the manner in which he had digitally penetrated her and the degree of force used had a bearing upon whether the jury would be satisfied beyond reasonable doubt she had not consented. The Crown case as to the roughness of the digital penetration and hence as to the absence of consent was supported by the evidence of the complainant and other witnesses as to her physical discomfort when she returned to the company of other friends at Flamingos. It was also supported by Dr Harmon's findings summarised at [25].

Ground 1 of the present application - post trial medical evidence

No doubt because the central issue at trial was consent and because the jury's finding on that issue would likely have been affected by evidence of the complainant's discomfort at Flamingos on the night in question and of Dr Harmon's findings four days later, Mr Holland's submissions in support of the present application are concentrated on an attempt to cast doubt upon the evidence led by the Crown on those matters.
The first ground of the present application is that medical opinion evidence of Drs Newell-Parker, Odell and Reid was not presented at the trial to contradict Dr Harmon and that opinions which those doctors have expressed were not put to him in cross-examination by way of challenge to the evidence the Crown led from him. Neither this nor any other ground is formulated in concise terms or attributed a number. I have done my best to discern the grounds from the submissions and I have attributed my own numbers to them.
Dr Newell-Parker had provided an opinion to Mr Holland before his trial to the effect that: 1. she doubted the complainant could have examined herself in the toilet at Flamingos to identify injury from the digital penetration, on the night it occurred, as she described; 2. there appeared an inconsistency between the sexual assault described in relation to count 1 and the injury sustained and 3. Mr Holland had a visible genital abnormality which it would be difficult for the complainant not to have noticed, yet she had not mentioned it in her evidence. Mr Holland asserts that his counsel's failure to produce this evidence or to cross-examine upon the basis of it gives rise to a doubt or question about his conviction.
Dr Odell's report was obtained by Mr Holland in about 2006. It expresses the opinion that Dr Harmon's description of the examination he carried out and of his findings is insufficiently detailed and precise for the evidence to have served as any confirmation that sexual activity on the night in question was rough or to provide corroboration of the complainant's evidence that she did not consent. He reported that if the abrasion observed by Dr Harmon had been caused four days earlier then in view of the expected rate of healing it must have been severe enough to have bled on the night. He noted an absence of evidence of bleeding. Dr Reid's report is referred to in Mr Holland's Submission (1) as supporting the conclusions of Dr Odell.
The above points arising from medical expert evidence which was not produced or used at trial are expanded at a great length and repetitively in Submissions (1), (2), (5) and (6). All of this medical evidence was before Johnson J and he considered what is now the first ground in Mr Holland's present application at [51] - [69] and [91] - [95]. This entire subject has been "previously dealt with under this Part": see [3], s 79(3)(a)(ii).
In particular, Dr Newell-Parker's evidence concerning Mr Holland's genital abnormality is the subject of detailed submissions on the present application. Dr Newell-Parker has been Mr Holland's general practitioner since about 2000. She describes the abnormality as "multiple large infected sebaceous cysts on his scrotum and the shaft of his penis" which, according to the history she took, have afflicted him "over many years". Her statement dated 26 May 2006 accompanying Submission (1) states that these have caused "visible changes and scarring" and that they are "present, visible and easily identified". In Dr Newell-Parker's opinion "it would be difficult not to notice these anatomical changes if [the complainant] was assaulted in the manner described". The last part of this quotation is, I infer, a reference to the complainant's evidence that Mr Holland lowered his trousers and attempted, amongst other things, frontal sexual intercourse and oral intercourse.
Mr Holland has included at page 66 of Submission (5) a photograph of his scrotum apparently showing that there are attached to it at least twelve large cysts as described by Dr Newell-Parker. He contends that if sexual contact with the complainant had occurred as she described she would have observed this disfigurement yet she gave no evidence of it. Mr Holland argues that, therefore, the sexual contact cannot have occurred as she claims but, rather, must have occurred in accordance with his own description. Namely by the complainant unfastening his trousers and fellating him.
This argument was considered by Johnson J at [70] - [73]. His Honour found that no question or doubt about the conviction or about the complainant's evidence was thereby raised. Johnson J did not accept that the complainant was bound to have observed the abnormality if the sexual violence was perpetrated as she described. Further, the complainant would have had much the same opportunity to observe the genital abnormality whether the sexual contact with her had been in accordance with her description or Mr Holland's. Dr Newell-Parker describes the disfigurement as extending to the shaft of his penis. If evidence had been led concerning the cysts on Mr Holland's genitals, as he now says should have occurred, the complainant's failure to observe them would have been understandable to the jury, consistently with either version of what took place. On any view the opportunity for observation was limited, bearing in mind that this sexual contact took place in darkness, down a grassy slope outside the Tully Park Tavern and in a furtive manner.
Had the jury known of the peculiarity of Mr Holland's genitals they may have concluded that the complainant's failure to make any observation of it was not attributable to the sexual contact having taken the physical form described by Mr Holland rather than as described by the complainant. They may have thought she missed this detail because she was, as she said, not consenting to what was taking place but was resisting Mr Holland's rough and painful sexual attack upon her. The jury may well have inferred she was too distressed by the situation to be looking at his genitals in the dark with sufficient particularity to note their medical or anatomical condition.

Ground 2 - the complainant's physical discomfort on the night

The second ground in the current application is that evidence of the complainant's actions after the assault she described - walking back to Tully Park Tavern and, especially, going to another venue and dancing in a manner which Mr Holland submits did not indicate pain or injury - were inconsistent with her claim that the digital penetration in count 1 had occurred in the rough manner she described. This ground is developed in Submissions (1), (2), (5) and (6). It was agitated on the application considered by Johnson J and his Honour dealt with it at [82], [84] - [86], [88] and [89].
Ground 2 relies in part upon evidence provided in 2007 by Constable Bellis. He was a witness in the Crown case. He gave evidence in the trial that the complainant met with him at Flamingos on the evening in question and complained then that she had been sexually assaulted by Mr Holland and that she was in pain. In a post-trial statement provided to Mr Holland Constable Bellis described the complainant dancing with other police officers at Flamingos for some time after she made this complaint. Mr Holland now characterises the description given by Constable Bellis and other witnesses of the complainant's dancing as "extreme physical activity" which he submits is inconsistent with her having been sexually assaulted by vigorous digital penetration in the manner she alleged. Constable Bellis' statement was before Johnson J and was taken into account in his Honour's decision to refuse the previous application under ss 78 and 79 of the Crimes (Appeal and Review) Act.
Mr Holland's submissions now under consideration include a contention that the complainant's dancing at the Flamingos after his sexual activity with her was in a suggestive and sexually provocative style. This claim is repeated countless times throughout his written submissions, in a manner which I find gratuitous. The characterisation of her dancing as "overtly sexual" has nothing to do with the issues on this application. One of the witnesses at trial described her manner of dancing as "sluttish", whatever that may have been intended to convey. Mr Holland's current submissions quote that evidence again and again. The only point now relevant is whether the complainant's post-assault activity was inconsistent with the bruising and tenderness she claimed to have suffered.
I infer that Mr Holland has dwelt upon this description of her dancing in order to try to put the complainant in a poor moral light. Apparently to the same end he has made frequent reference to the fact that she was not wearing underpants on the evening in question. This fact is referred to in the submissions so frequently but to so little purpose that it has assumed the appearance of a prurient pre-occupation. I draw no conclusions about the complainant's character or veracity from these matters, to which Mr Holland has devoted such considerable attention. I do not find this aspect of his submissions relevant let alone persuasive as to whether there exists any doubt or question about his convictions or about any of the evidence given against him.

Ground 3 - report of Brent Turvey

The third ground of the application now under consideration is that a report from Mr Brent Turvey, prepared in March 2006, raises a doubt or question about the convictions. Mr Turvey is an expert in forensic evidence gathering procedures. His report is critical of the collection of evidence by police in this case, including failures to collect certain evidence which he considers would have been material. Mr Turvey has asserted that there are indicia in the case of a false sexual assault allegation. The significance of this post trial evidence is the subject of Submissions (1) and (5). The report of Mr Turvey and Mr Holland's arguments upon it were before Johnson J and his Honour dealt with this basis of challenge to the convictions at [35] - [40].

Ground 4 - inconsistencies and contradictions in the complainant's evidence

The fourth ground of the present application is that there were inherent inconsistencies in the complainant's account of the assault upon her, as given at trial, as well as contradictions between that account and complaints she made in the days immediately after the night in question, which should have led to the jury feeling a reasonable doubt about counts 1 and 2. These points are developed in Submissions (1), (2) and (5). Submission (1) makes reference to time recordings of Mr Holland walking to and from the place where his admitted sexual activity with the complainant took place, purporting to prove that he and the complainant were absent from Tully Park Tavern together for a shorter period than the 10 minutes which she estimated in her evidence. This is relied upon as tending to indicate that she was with him by consent.
In Submission (2) Mr Holland develops arguments about the improbability of the complainant not having screamed for help at the time she was being subjected to sexual contact by him, if she was not consenting. This is part of the general attack on the complainant's credibility on the subject of consent. That was fully agitated before the jury and they must have accepted the complainant's evidence, adversely to Mr Holland.
Even if this was a new point which had not previously been considered at the trial or by Johnson J it would not raise in my mind any doubt or question about the conviction. It is quite explicable that the complainant, isolated with Mr Holland in darkness outside Tully Park Tavern and trying to resist his sexual contact, should try to get away from him before raising alarm in any manner. The complainant was at a distinct physical disadvantage to Mr Holland. He was larger and more powerfully built and had been her martial arts instructor at the Police College. The fact that the complainant did not cry out to help in these circumstances is not to my mind a significant point affecting her credibility with respect to the question of whether she consented to Mr Holland forcefully digitally penetrating her and attempting intercourse.
Mr Holland has supported his arguments by preparing three videos in which he demonstrates with the aid of a live female model why he claims it would have been impossible for the digital penetration in count 1 and the attempted intercourse in count 2 to have taken place as described by the complainant. Submission (4) contains further detailed argument upon what is to be seen in the videos.
The entire field of contradictions and improbabilities in the complainant's description of the sexual contact was explored at the trial. Cross-examination of the complainant did not follow in every detail the lines which Mr Holland now suggests. But in the 407 pages of his current submissions there are quoted or paraphrased or referred to sufficient passages of the cross-examination to show that the complainant was thoroughly challenged at trial regarding the details of the sexual activity. Although the videos were apparently not then in existence and were therefore not tendered or used in cross-examination, they are no more than a refinement and development of the general subject of whether the complainant's account of the extent and nature of Mr Holland's sexual contact with herself was credible. Within the meaning of s 79(3)(a), the matter of credibility of her account was "fully dealt with in the proceedings giving rise to the conviction".
For the reasons given in the preceding paragraph Mr Holland's submissions based upon the three videos are to be disposed of in the same way as all his other submissions. That is, as they have been previously "dealt with" I may refuse to consider them unless "satisfied that there are special facts or special circumstances that justify the taking of further action". Even if the videos and the arguments on them were not to be disposed of on this basis and if they required consideration as to whether they give rise to a doubt or question about the conviction or about any of the evidence, my view would be that they do not.
Having watched the videos closely and listened to the speaker's commentary on them and having read Submission (4) I do not find in this material any reason why the jury ought to have had a doubt about Mr Holland's guilt. I take into account that he admitted having digitally penetrated the complainant and that he claimed he had had oral intercourse with her. Even if there had been shown to the jury some aspect of how the complainant recalled and described these events which, physically, could not have been correct, that would have been of negligible significance to the principal issue at trial, namely consent. It would have been of negligible relevance to the jury's assessment of the complainant's overall credibility.
Mr Holland's argument ignores an available and likely path of reasoning of the jury. If the complainant appeared otherwise credible in her assertion that she did not consent to his sexual acts, lack of precision about exactly what the acts were would be hardly surprising. On her account it was a stressful and frightening situation, being aggressively sexually assaulted by an older, stronger male whilst isolated outdoors away from anyone who could aid her or bring him to his senses. These were not ideal circumstances in which to have formed accurate and lasting recollections of the physical details of the assault.

Ground 5 - use of the listening device material

The fifth ground of this application, developed in Submissions (3) and (5), is that Mr Holland was at a disadvantage at trial in attempting to explain the manner in which he responded to the complainant's conversations with him in the intercepted phone calls of September 2001. The disadvantage is said to have been that his explanation would lie in the fact that he had previously been the subject of false allegations of sexual misconduct made by another young female police cadet. He was not able to explain his phone responses without disclosing the previous complaint and thereby causing prejudice to himself.
His argument, as best I can understand it, appears to be that for this reason the intercepted telephone conversations should not have been tendered. If that is a correct understanding then I would refuse to consider or deal with the application so far as it is based upon this ground because Mr Holland raised the admissibility of the phone conversations in his previous application and it was dealt with by Johnson J at [41] - [45].
Mr Holland may intend to be arguing a different point. Namely, that overall the trial was unfair and that a miscarriage of justice occurred because he was inhibited from producing evidence of the previous complaint against himself, which might have explained, consistently with innocence, the terms in which he spoke to the complainant on the phone. I would not regard this contention as giving rise to any question or doubt about the convictions or any aspect of the evidence. Mr Holland's responses to the complainant over the telephone were extremely damaging to him. Far from asserting at the outset that she had consented to the insertion of his finger or fingers in her vagina or that she had initiated oral intercourse with him, initially he agreed that she had "kept telling [him] 'no'", he denied any recall of what had occurred, he said he did not want to know what he had done and he apologised with expressions of shock and disbelief as she described the events she recalled.
If Mr Holland had introduced at trial evidence that when these phone calls took place he was "scared of [the complainant] contacting me" (Submission (3), p 14) because previously a false allegation of sexual misconduct had been made by another female police cadet, that would have been ineffectual to "explain" the terms in which he spoke with the complainant. I am unable to identify any path of reasoning by which this prior complaint of sexual misconduct could have been used by the jury, had they been made aware of it, to place upon the recorded phone conversations an interpretation less contradictory of Mr Holland's affirmative case or in any other way less damaging to his defence.
Mr Holland's submissions have not assisted me to understand how it could possibly have diminished the impact of his phone conversations with the complainant for him to have introduced evidence of the prior complaint against himself. Even if his defence could have been enhanced, in some way that I cannot discern, the fact that his counsel would have to have made a forensic tactical decision whether or not to introduce the prejudicial evidence of the earlier complaint would not have been a basis for exclusion of the phone conversations. Nor would it be a basis for finding that the trial involved a miscarriage of justice.
In Submission (3) Mr Holland also asserts that when the complainant took part in the recorded telephone conversations she acted as an "agent of the State". He complains that at the commencement of these conversations he was not given a caution to the effect that he might remain silent. From this it appears that he intends to invoke s 138(1)(a) of the Evidence Act 1995 (NSW), pursuant to which evidence obtained "improperly or in contravention of an Australian law" is not to be admitted "unless the desirability of admitting it outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". Mr Holland apparently means to assert that evidence of the things he said on the telephone was obtained improperly in the sense provided for in s 139(2). That is, that his answers were given "during questioning" which was "conducted by an investigating official", after the official had formed the belief that there was sufficient evidence to establish his guilt and without giving a caution.
If it was necessary for me to consider these submissions in detail I would have to take into account the definition of "investigating official" in the dictionary to the Evidence Act. The defined meaning of that expression includes "a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior)". It is not necessary for me to decide this but I do not consider that the complainant's participation in the conversations was in her capacity as a police officer. Her participation was in her capacity as the victim of an alleged sexual assault which had occurred before she became a police officer.
If, contrary to that view, she took part in the telephone conversations as a police officer then she did so in a covert role. It was covert in the sense that the complainant did not reveal to Mr Holland that the conversations were part of an investigation. If she is to be viewed as having acted as a police officer then in my opinion she must also be viewed as having acted under the orders of a superior, namely the officer who was in charge of the investigation.
Further, in order to address Mr Holland's submissions in this respect substantively I would have to determine whether the recorded telephone conversations constituted "questioning" within the meaning of that word as it is used in s 139(2). If it were necessary to decide that, my answer would be in the negative. What took place over the telephone, in each of the three calls, was a conversation in which questions were asked. I do not consider that that constitutes "questioning" as the term is used in ss 138(2) and 139(2); see R v Naa (2006) 76 NSWLR 271; [2006] NSWSC 851 at [98] - [99].
I interpret Mr Holland's submissions as also intended to invoke s 90 of the Evidence Act. Pursuant to s 90, in a criminal proceeding the court may refuse to admit evidence of an admission if the evidence is adduced by the prosecution and "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence". Where admissions have been obtained from a suspect by covert recording of a telephone conversation with a complainant, the factors which may bear upon the fairness or otherwise of the evidence being used against the suspect have been considered in Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452; R v Ryan [2013] NSWCCA 316; R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121; R v Burton [2013] NSWCCA 335; 237 A Crim R 238. One such factor is whether the person who takes part in the conversation with the suspect may properly be characterised as an "agent of the state".
Here, if it were necessary for me to decide the matter, I would not characterise the complainant as having acted as an agent of the state in her phone conversations with Mr Holland on 6 September 2001. Although she was by that date a serving police officer the capacity in which she took part in the calls was no different from that of a complainant from any other walk of life cooperating in a police investigation of sexual assault allegations. Upon the information available from Mr Holland's submissions and from the judgment of the Court of Criminal Appeal and the other papers before me, I would not consider that any other aspect of the circumstances in which these telephone conversations occurred gave rise to unfairness in the prosecution's use of them at the trial.
The judgment of Johnson J at [42] records that Mr Holland had "raised questions about the … admissibility of the [phone conversations] in the trial" and had referred to The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1. In that case the High Court considered the common law rule under which admissions by an accused person may be excluded on the ground of unfairness in the way they were obtained. Toohey, Gaudron and Gummow JJ held at 194 that ss 90, 138 and 139 of the Evidence Act, in combination, reflect an approach under which, "[p]utting to one side the question of voluntariness", the admissibility of an accused's confessions or admissions turns upon "exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards".
Specifically with respect to covertly recorded conversations, with which each of the appeals in The Queen v Swaffield was concerned, their Honours at [91] recognised an approach to whether admissions may have been obtained unfairly "which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances".
Having regard to the subject matter of The Queen v Swaffield and the holdings of the High Court in that case, Mr Holland's reliance upon it in the application decided by Johnson J means that the arguments regarding admissibility of the telephone conversations which he now seeks to agitate under ss 90, 138 and 139 of the Evidence Act have been previously dealt with. Johnson J considered these admissibility arguments and found that, as a result of them, "no doubt or question arises in my mind concerning the Applicant's guilt or concerning any part of the evidence in the case". His Honour felt fortified in the view that the principles considered in The Queen v Swaffield did not assist Mr Holland "by the fact that the Applicant's previous counsel at trial and on appeal have not seen fit to ventilate this issue". In short, these admissibility arguments have been "previously dealt with under this Part" and, in the absence of "special facts or special circumstances that [would] justify the taking of further action", I consider that I should refuse to consider or otherwise deal with the present application in this respect.

What will constitute "special facts or special circumstances"

Apart from a small number of inconsequential points now raised by Mr Holland and to which I have adverted in these reasons, none of which either alone or in combination indicates to me that there is any doubt or question as to his guilt on the two counts which the jury found proved, everything else raised by Mr Holland was fully dealt with at the trial or has previously been dealt with under ss 78 and 79 by Johnson J. The fact that the present grounds were dealt with by Johnson J is emphasised by the form of expression of Mr Holland's Submissions. The Submissions are almost entirely written in the language of a critique of Johnson J's conclusions and reasoning. Mr Holland has misconceived the present application as a form of appeal from or review of Johnson J's decision whereas in fact he either has to identify some new matter which was not put to Johnson J or identify special facts or circumstances under s 79(3) which would warrant reopening the matters previously considered by his Honour.
It has been said that the emergence of new facts that have not been previously agitated may constitute "special facts or special circumstances" to justify the taking of further action under ss 78 and 79 notwithstanding that there has been a full hearing of the charge at first instance and/or an appeal which has been withdrawn: see Re Cheney (No 1) [2015] NSWSC 291 at [35]. Mr Holland has not identified any such new facts or circumstances, relative to the content of the application considered by Johnson J. If the submissions on the present application contained any new and compelling insight on the issues to which they are directed, despite those issues having been dealt with at trial or appeal or by Johnson J, that might constitute a special fact or circumstance warranting consideration of this application.
However in the 407 pages of Mr Holland's submissions I find no new insight. Rather, the submissions are repetitive of points made in earlier proceedings and internally repetitive, almost to the point of incoherence.
It is possible that special facts or circumstances for the purposes of s 79(3) might be manifested if anything advanced by Mr Holland identified a striking improbability in that which was alleged against him and which was found proved by the jury. I see no such glaring improbability. What the complainant described is a very believable account of a sordid and aggressive sexual encounter which eventuated from Mr Holland having had significantly too much to drink.
The complainant's failure to fight him off as he led her out of the Tully Park Tavern to a secluded location is credibly consistent with her lack of consent. Account must be taken of the differences between them in gender, physical strength, maturity and position in the police service. The complainant may not have resisted to her full physical capacity, thinking until it was too late that she could persuade Mr Holland not to force himself upon her. Her failure to scream is also understandable and not inconsistent with her lack of consent to what was taking place: see [55].
When the complainant danced at Flamingos after the assault it is not surprising that she should have tried to conceal the pain she felt from the injury to her vagina, at least while she was recovering from the shock of the attack and until she had collected her thoughts as to whom she would tell. The choice facing her, between making a complaint against her superior at a time when she was only three weeks from graduating from the Police College or keeping the incident to herself, was a stressful and difficult one, as she said in evidence.
On all these points Mr Holland expresses himself throughout his submissions in extravagant terms, as if the case against him was self-evidently fanciful. In fact his points are not individually compelling and taken together they do not amount to demonstration of an inherently unbelievable case such as to warrant further inquiry into his convictions. Pursuant to s 79(3), I refuse to consider or otherwise deal with the application.

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: 01 May 2017

Listening Devices Act 1984(NSW)

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