4 The applicant seeks leave to appeal against conviction and sentence following a trial and sentencing in the County Court. The applicant had stood trial on a presentment containing one count of false imprisonment (which carried a maximum sentence of 10 years' imprisonment), two counts of indecent assault (maximum sentence 10 years' imprisonment), and nine counts of rape (maximum sentence 25 years' imprisonment). All of those offences were alleged to have occurred at the flat occupied by the applicant on 30 July 2001. In the course of the trial the jury were directed to return a verdict of not guilty on one count of rape (count 7). The jury returned verdicts of guilty on all remaining counts on 19 February 2004.
5 After the jury had returned its verdicts the applicant pleaded guilty to an additional count of common assault which had been severed from the presentment on which the applicant stood trial. The offence constituted by that count took place on 25 June 2002, once again at the premises of the applicant.
6 With respect to the offences committed on both occasions the victims were prostitutes working through escort agencies to whom they paid a commission.
7 On 27 August 2004 a judge of the County Court sentenced the applicant to eight years' imprisonment on each of the eight counts of rape (counts 2, 4, 5, 8, 9, 10, 11 and 12), to two years' imprisonment on one count of indecent assault (count 3) and three years' imprisonment on another count of indecent assault (count 6), and to four years' imprisonment on the count of false imprisonment (count 1). On the severed count of common assault the applicant was sentenced to two years' imprisonment. His Honour directed that one year of that sentence be served cumulatively upon the sentence of eight years on count 9, one of the rape counts. The total effective sentence was nine years' imprisonment and his Honour ordered that the applicant serve six years' imprisonment before being eligible for parole. His Honour declared that 191 days pre-sentence detention had been served.
8 Pursuant to Part 2A of the Sentencing Act 1991 the applicant was sentenced as a serious sexual offender on all, save the first two instances, of the counts of rape on which he was convicted.
9 The first offences occurred on 30 July 2001. The applicant telephoned the Cloud Nine escort agency in Doncaster and spoke to a receptionist known as Ms Buddy Gos. Ms Gos knew the applicant to be a regular client of the agency. He asked for a woman to be sent to his premises who would provide services of "B & D", that is, bondage and discipline.
10 There was substantial conflict between Ms Gos's account and the account given in the record of interview of the applicant as to what was discussed between them. According to Ms Gos she told him that the bondage would have to be very light and he would not be allowed to tie up the escort under any circumstances. She said that the escort would have to be comfortable and able to stand up and walk away. She told the applicant that he could not tie the escort's hands but he could put something around them for visual effect. The applicant agreed to those conditions and a fee of $200 per hour for a two-hour booking was agreed. Ms Gos then called the complainant who agreed to accept the job.
11 In her evidence the complainant said Ms Gos told her that the job involved a regular company client who wanted bondage for two hours, but that it was to involve the client being tied up, and not her. She said she sought assurance that she was not going to be hurt and would not be tied up, because she had never done bondage before. Ms Gos assured her as to those matters. In cross-examination she later conceded that she had been told by Ms Gos that the applicant had tied the hands of another sex worker as part of a sexual service.
12 Having arrived at the applicant's premises and had an initial discussion with him the complainant rang Ms Gos from the applicant's premises at about 3am, to advise that everything was satisfactory. Ms Gos next heard from the complainant at about 5.30 a.m. when she arrived at the escort agency crying and hysterical.
13 The accounts of the complainant and the applicant as to the conduct which took place between them at the applicant's home were in substantial agreement as to the sexual and bondage activities which transpired. Where they differed was as to whether those activities were the subject of agreement between them and consent by the complainant. In denying that she had consented to those activities the complainant was lying, so the applicant contended. Although the primary defence was that the complainant was lying, the alternative defence was left open that if she was not consenting then the applicant did not know that to have been the case and his belief that she was consenting was reasonably held. Given that there was agreement as to many of the activities it was on the critical questions of consent and belief as to consent that the attention of the jury had to focus. Notwithstanding the common ground as to many of the activities that took place it was necessary that the jury appreciate where the versions of events diverged, and the significance of the divergences. Likewise, it is necessary to set out those matters so that the complaints raised by the grounds of appeal may be appreciated.
The complainant's account
14 The complainant said that when she arrived at the applicant's flat she remembered that she had performed services as a prostitute for him on a previous occasion. On that occasion she had provided a massage, oral sex and vaginal sex, but not bondage.
15 The complainant told the Court that when she arrived at the applicant's premises they discussed the fee and the services she was to perform and it was agreed that at a cost of $200 per hour she would provide a massage and both oral and vaginal sex and for an extra $50 per hour she would perform bondage. According to the complainant she told the applicant that she had never done bondage before and that she would refund his money if he was not satisfied or if it was uncomfortable for him. When discussing the services to be performed she told the applicant that she was not to be tied up. The applicant agreed to that and after placing pillows and blankets on the floor proceeded to massage the shoulders of the complainant but then placed two ties loosely around her elbows behind her. She asked him to take them off but he then placed a "dog-collar strap" around her elbows and pulled it tight. She told him to remove it but instead he tightened the straps. He then tied her arms with other neckties, between her elbows and down to her hands. Despite her persistent request for him to remove the ties he refused and then tied her head with silver electrical tape and forced a pair of socks into her mouth. She asked him to stop and offered to give him his money back but she was told to "do what you're told". He then pulled her legs back so that her knees were bent and the heels were against her buttocks. He placed ties around her legs from her ankles to her thighs and then taped over the ties. He then tied her legs to her hands behind her back and carried her into the lounge room.
16 The complainant said that the applicant then threw her onto a couch and raped her with two fingers entering her vagina. He then asked her if she did anal sex, to which she shook her head. He was then pinching, twisting and biting her nipples and penetrating her vagina and anus with his fingers. He removed the tape which was over her mouth and the socks which he had placed in her mouth and asked if she did anal. She said no. He then returned the sock into her mouth and taped her mouth then put his finger and thumb into her anus and then into her vagina. He poured oil over her then once more removed the sock and asked her if she did anal to which she said "I don't do it". He said, "Shut your mouth, you'll like it". He then replaced the sock and entered her vagina and anus with his penis and then placed his penis into her mouth and she bit it. He then attempted to tongue kiss her but the complainant refused to allow him. The complainant said that during this attack the accused stabbed her to the vagina, anus and breasts with pins, and had mutilated her vagina and also her anal area and her arms had been cut and bleeding.
17 She asked the applicant if she could go to the toilet and he untied her legs and walked her to the toilet, her arms still being tied and the sock was in her mouth. The applicant stood in front of her whilst she was on the toilet and stabbed her in the breast with a pin. As she urinated, he placed his hands in the toilet and splashed her urine over her. He then wiped her vagina and anus and returned her to the lounge room where he again tied her legs. Once more he penetrated her vagina and anus with his penis and said to her that she was to be "subordinate" and should "shut up if I wanted to live". He placed his hands around her throat and said "Your life is in my fucking hands". He squeezed her nose shut so that she could not breathe.
18 The applicant then took his hands off the complainant and she asked him how long he would be, as the booking was only for two hours. She told the applicant if they went over time the receptionist would ring for the police to come around. The applicant responded that he had better remove the ties and tape from her and said that they had gone a bit over time. The complainant said he had to cut some of the electrical tape from her hair as it would not come off.
19 The applicant then asked the complainant if she would like to stay longer. She said to the jury that she was fearing for her life but she told him that she had to ring her babysitter and the receptionist at work in order to extend. The applicant offered her the use of his phone but she said that she needed to get the phone number from her mobile phone which was in the car downstairs. She collected all her belongings and went to her car. The battery in her mobile phone was flat but she then drove away from the residence. She observed that her arms were bleeding and swollen.
20 The complainant said she drove to a service station where two witnesses saw her in a distressed state and she asked them to call her workplace and the police. She spoke to Ms Gos and told her not to send anyone around there again. She told Ms Gos to ring the police. She returned to the escort agency, where she was vomiting. The police attended and whilst there tape recorded one of a series of telephone calls made by the applicant to the escort agency concerning the complaints made by the complainant, which had been reported to him in an earlier phone call by Ms Gos.
21 In cross-examination defence counsel attacked the credit of the complainant. On the defence case the complainant told demonstrable lies on a series of issues.
22 The complainant said that on the earlier occasion when she had visited the applicant as a prostitute he had asked whether she would provide sexual services to him on a private basis, that is, not through the agency. She said she refused the suggestion. She agreed that the applicant had given her his business card, and she had told him that she was prepared to do fantasies which involved dress-ups and lesbian acts. She also agreed that Ms Gos had told her prior to her accepting the job that the applicant had previously tied up another escort's hands as part of a sexual service. She said that Ms Gos had told her, however, that the complainant was to tie him up, not he tie the complainant.
23 The complainant denied the suggestion of defence counsel that on the first occasion it was she who had proposed that she work outside the agency and provide private services to the applicant. She denied that she had provided the applicant with her private mobile phone number, and that she had given the applicant her correct given name rather than her assumed name and that she had told him the suburb in which she lived. When police later searched the home of the applicant they found a black note book in which he had recorded each of those matters, together with a note "5 female old daughter, 2 days notice"[1].
24 Defence counsel also attacked the account of the complainant about the injuries she had received and her account that she had been stabbed with pins. The complainant agreed to defence counsel's proposition that she had been stabbed more than fifty times to each nipple and possibly more than 200 times to each nipple. She said her nipples and breasts had been mutilated and one nipple was "hanging off" slightly because it had been stabbed so many times. She had permanent scars to her arms, and her arms had been bleeding.
25 It was put to the complainant that she had not told the police that she had been stabbed in the vagina with pins nor had she told the examining forensic medical practitioner that she had been stabbed to the vagina. Furthermore, she had not told anyone prior to the trial that she had been stabbed in the anus with pins. She rejected the suggestion that she had never been stabbed with pins.
26 In his evidence forensic surgeon Dr Wells said that he examined the complainant within four hours of her returning to the escort agency and had detected no bleeding on her arms. The only puncture marks he saw were three or four very tiny puncture marks to one nipple. There was no obvious sign of trauma or bleeding to the genital area. There was an abrasion near the edge of the anus but he found no injury to the vagina consistent with her being stabbed fifty times or more with a pin, nor did her breasts reveal signs of pin-pricks, nor did her genitals show signs of such injury; it might not be possible to observe such signs but if there were multiple punctures it would be more likely that there would be signs of injury. Dr Wells said the complainant had not complained to him about being stabbed in the vagina nor to the anus. There were no signs of pin-pricks to the anus and there was no bleeding from the nipple. Neither nipple was nearly torn off or hanging off. There was no sign of mutilation of the vagina and no complaint had been made that her anal area had been mutilated nor was there any sign of such injury. There was no scarring to the arms. Dr Wells said he saw no sign of injuries requiring medical intervention.
27 The complainant denied the allegations that not only had she not told the applicant on the occasion of the charges that it was the first time she had performed bondage. She denied, too, that she had agreed in advance and had consented to all of the acts that had taken place.
28 The complainant's account was supported by the evidence of Ms Gos as to the arrangements made by her with the applicant, by the evidence as to the distressed state and complaints made by the complainant, and the evidence as to the offers of additional payment by the applicant in response to Ms Gos' telephone call. In addition, evidence was called from witnesses who observed her distressed state and complaints after she left the flat. Important as all of that evidence was it is unnecessary to deal with it in detail in order to properly address the grounds of appeal which in my opinion are determinative of the outcome of the application to quash the convictions.
29 Although a large number of grounds of appeal were advanced, the application for leave to appeal against conviction may be dealt with under two broad areas of complaint, which emerge from the grounds. There is a good deal of overlap between these areas of complaint.
30 In the first place, it is contended that the learned trial judge failed to relate the evidence to the issues in the case. Under this heading, complaint was made that the judge failed to adequately place before the jury the evidence in support of the case for the defence. In particular, the judge failed to provide a fair summary of the contentions of counsel for the applicant in his final address, and of the evidence contained in the record of interview given by the applicant to police.
31 Secondly, it was contended that the charge was unbalanced and failed to adequately put the defence case to the jury. Discrete complaint was made in one ground about the failure to give warnings about the evidence of the complainant but it is unnecessary to separately deal with that ground, since aspects of the complaint in that regard may be addressed under the second of the two headings identified above.
32 Before dealing with the grounds of appeal the applicant's version of events needs to be considered.
The account given in the record of interview
33 On 19 September 2001 the applicant was interviewed by way of videotaped record of interview conducted by officers of the Doncaster Crime Investigation Unit. The record of interview continued over 868 questions and answers from which was produced a transcript of 116 pages. At trial counsel for the applicant told the jury that the applicant's defence was contained in the record of interview.
34 The applicant told the police that he had used the escort agency often and had expressly asked them to provide him with an escort who performed bondage, which was to comprise tying her up and blindfolding her. He said he told the person at the agency that he wanted a woman who would do fantasies and they agreed on a price of $500. The person at the agency insisted that there was to be no hitting or spanking, to which he agreed but he said he told them that he would tie the arms of the woman behind her back and also her legs. The agency person asked what he would use to tie the escort and he said he would use ties and also a belt, but not rope. She also said not to use handcuffs and he agreed. The woman told him that for a fantasy like that the cost was $500.
35 The applicant said that when the prostitute came to his home he recognised her because she had provided services to him before and on that occasion she told him that she was prepared to see him outside of the agency and also said that she did fantasies and it would cost less if it was done otherwise than through the agency. The applicant said that he had set out on the couch in his lounge room the objects he was going to use to tie her and they discussed precisely what he would do to the complainant. He told her that he would tie her and blindfold her and she saw everything on the couch that he was going to use for those purposes. He said he discussed with her the fantasy that he wanted to perform and was very clear about it, and she in turn was very clear with him that there should be no spanking or hitting, and he agreed. He said he was going to tie her arms behind her back and blindfold her and have sex with her as he did on the previous occasion, and he told her that if it was good he would have her stay longer, if she wished to do so.
36 He said the woman took the $500 and then he tied her up and had the sexual activity with her to which she has agreed. He said he thought it was "fantastic" and asked her to stay longer and she said that she would but because she had a child at home and a babysitter she would have to contact the babysitter. He said the complainant said to him "But, you know, this was great too. We'll have to do it again" to which he replied, "Well, I'm - this is fantastic".
37 He said that she left the house and he went to sleep and then some time later he had a phone call from the agency saying that the complainant was very upset and the caller asked what had occurred. He said, "What do you mean, what occurred?" and said they did exactly what he had said they were going to do. He said, "You know, I asked for a service that you offered. I did the service and when it was over, it was over and I'm just - I'm just - you see, I'm in shock". He said that he called the agency back and said to the woman in charge at the agency that if he did the wrong thing to tell him, but said he did not think he had done anything wrong. The agency woman said that the complainant was going to the police. The applicant said he did not understand that and if he had done the wrong thing, which he did not think was the case, to tell him. He said he called the agency three or four more times because he was very upset. He said, "If she feels she wasn't compensated for the services that were discussed at the original price then you let me know 'cos I'm not here to do the wrong thing by anybody". He made that offer because he was afraid. He offered thousands of dollars, and the woman asked if he would be willing to pay a couple of thousand dollars extra. He hung up and thought about it. He said to the police that he had used the same woman before and they could discover that by checking the records of the agency. He said that she had given him her real name and her mobile phone number.
38 Throughout the interview the applicant maintained his denial that anything which he did was contrary to what had been agreed. He denied that the complainant had said to him that she had never done bondage before. He said she had told him on the previous occasion that she did fantasy work and by that he understood she meant bondage, including anal sex, spanking and something outside the norm.
39 The applicant then described in detail over many pages of interview all of the sexual acts that he performed on or with the complainant and said that he did these things very slowly so as to enhance the pleasure. He said that if she had complained that the belt around her elbows was too tight he would have stopped right then. In the course of describing what he did he said he was embarrassed to be saying it to the police but he agreed that he had placed his fingers in her vagina and anus and had kissed her vagina and anus and also licked them. He said that the complainant was moaning a bit as though having an orgasm. He said despite the mouth gag she could be understood when she said that she wanted to go to the bathroom and when she later said time was up.
40 He said that on the previous occasion the complainant had stayed for some three hours and offered to work outside the agency for less money and had given him her mobile phone number for that purpose. He agreed that there had been no bondage between them on that first occasion. On that first occasion they did everything that he did on this occasion save for the bondage. He denied the suggestion that she had been repeatedly saying no to him and trying to get him to stop.
41 Almost all of the conduct described by the complainant (save for stabbing her with pins) was agreed to have occurred, but the applicant gave detailed explanations consistent with innocence as to each activity. He said that he used salad oil as a lubricant to make it easier for them having sex as it would not hurt her anus when he inserted his fingers or thumb. He said she was moaning as though she was "turned on". He said that he was fondling the nipples and said "I would have been kissing her nipples, you know, I can't define whether I would have used my teeth in a manner to bite down and inflict pain, but rather to feel her nipple in my mouth." He said he would be surprised if he had bitten her on the vagina. He said he was definitely licking her on the vagina and rather than biting was using a suction motion with his mouth and when he was doing that she would have been moaning as he recalled. He said that on this day he had told her before they started that he was going to use his fingers and have sex with her and was going to have oral sex and that he also liked to have anal sex, as they had done on the previous occasion. He told her he would not insert any objects into her and he was not going to spank her. It was put to him that the complainant had told him that she did not do anal sex and had shaken her head when he asked her if she did. The applicant said that that was not so: "I did not interpret it that way". He agreed that he had taken her to the toilet and that when she urinated he put his hand into the toilet so that she urinated on it. He denied that he did not have permission for anal penetration and said they had done it before.
42 On the previous occasion, so he said, "I penetrated every part of her. I had her stay for a second hour. It was so great, I had her stay for a third hour and that I recall. And then she said she did fantasy work outside, so you know, you know the story".
43 On this occasion when they had concluded he said it was fantastic and would like her to stay longer. She said she would like to but she had a babysitter looking after her child. She said they could meet again. Questioned again about whether there had been a safety pin, he said that there was an elastic connection, like a pin, on the medical bandage. It was put to him that the complainant's nipples had been injured with pins. He said he had used his hands and had sucked hard on the nipples.
44 Initially he denied having produced a pin but later agreed that he had pulled "the pin" out and had "took it down there to put on her nipple and she went, "'Ugh, don't do that' and I didn't". He said the pin was the connecting metal piece which held a medical bandage together. He said he did not stick a pin into her but he did take a pin out to do so and he said "I think I was embarrassed. I'm ... so embarrassed to sit here and say these ... things". He did not think he would have caused multiple holes to her nipple because "she said very clearly not to do that". It was put to him that there were three to four tiny puncture marks but he said he did not insert the pin.
45 The applicant gave a detailed explanation for offering money if the complaint was not taken to the police. He was very upset at the false allegations but was nonetheless concerned to avoid having to deal with them. He said: