Regina v Gulliford

LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/0157 FILE NUMBER(S) : LOWER COURT Ducker DCJ JUDICIAL OFFICER :

CCAP 2004/1735 (formerly 60163/04) SPIGELMAN CJ WOOD CJ at CL HOWIE J Regina v Leslie John Gulliford

The Appellant stood trial on 3 Counts before a jury at Lismore District Court. He was found not guilty in relation to counts 1 (indecent assault) and 2 (break and enter and sexual intercourse without consent knowing there was no consent). A verdict of guilty was returned in relation to an alternative to Count 2 of break and enter dwelling house and commit a serious indictable offence, namely attempt to have sexual intercourse without consent and knowing of the lack of consent.

The Appellant was sentenced to imprisonment for 3 years and 6 months, with a non-parole period of 2 years and 8 months.

The Appellant and the Complainant had been in a relationship that had finished in February 2002. On 26 April 2002, the Appellant phoned the Complainant twice, saying he wanted to see her, and asking her to visit his house. She refused, took her phone off the hook and went to bed. The Appellant then went to her house. The complainant let him in, and after the act that led to the first count took place, she went next door to her sister and brother-in-law's house. The brother-in-law returned with her to her house and found her son found confronting the Appellant, who was told to go home. On the way home he had an accident in his car which left him with a head injury.

Later that night the Appellant returned, entering the premises through the back door, which was said to have a faulty lock. He pushed the Complainant onto the bed and got on top of her, holding her wrist. She told him repeatedly that she did not want intercourse with him. Her son and brother-in-law, on hearing the dogs barking, ran to her house. The Complainant was somewhat inconsistent in her evidence as to whether the Appellant penetrated her or did not get beyond an attempt to do so, by the time that they arrived.

The Appellant was found naked standing behind the bedroom door. He left the house when instructed to do so. The Complainant phoned police and reported being sexually assaulted. The entry in the COPS system recorded that the attacker had "tried to rape" her. The Complainant was examined by a doctor who found a bruise on her wrist.

The Complainant had blood on her bedding and on her leg above the knee. Blood matching the DNA of the Appellant was found on a dress and a pair of underpants in the bedroom. Blood was also found on the exterior front door handle, an interior wall and on a window ledge near the front door the mesh of which had been broken.

The Appellant's defence was that he had gone to the Complainant's house, because they had continued to meet secretly and had a system involving a short ringing of the telephone to signal a desired meeting. He claimed that he had heard his phone ring that night and assumed that the Claimant had wished to see him. The call charge records did not bear out this claim. He denied any of the indecent behaviour leading to the first count. He said that he had left after a confrontation with the Complainant's son and brother-in-law but after being involved in two accidents driving home, he had decided to ride his bike back to her place. He agreed he had slipped his hand through the mesh and attempted to gain access to the veranda bedroom but on finding the door to the lounge room locked, gained access to the darkened house via the back door which had opened when pushed. He said that he had been too drunk to want sex and had not attempted to have sex with the Complainant and had been unable, in any event, by reason of intoxication, to have an erection. All he said he wanted was "some comfort."

By majority (Wood CJ at CL and Howie J, Spigelman CJ dissenting). Appeal dismissed.

Held: Agreeing with Wood CJ at CL and Howie J on all grounds other than ground 4, but holding in relation to it that the summing up was erroneous in relation to the element of knowledge of lack of consent and that the case was not an appropriate one for an application of the proviso to s 6 of the Criminal Appeal Act 1912. The jury was never instructed as to whether it was satisfied beyond reasonable doubt that the Appellant knew that the Complainant had not consented; and the failure to ask the jury to determine this critical element of the offence amounts to a substantial miscarriage of justice.

Ground One: The alternative Count of which the Appellant was convicted is an offence unknown to law and should not have been left to the jury. Held: This ground is not made good.

The serious indictable offence which was left to the jury as an element in this count was one of attempting to have sexual intercourse without consent, knowing of the lack of consent. While an offence of break and enter and attempt to commit the serious indictable offence of sexual intercourse without consent was not an offence known to law, this was not in fact the count that was left. It was an offence by reason of the combined effect of s 61I and s 61P of the Crimes Act, and pursuant to s 4 was a serious indictable offence.

The Crown did not need to resort to s 344A of the Crimes Act 1900. (Beckwith v The Queen (1976) 135 CLR 569 distinguished).

Generally, a trial judge should not raise an alternative count not raised by counsel: R v Pureau (1990) 19 NSWLR 372 and R v Cameron [1983] 2 NSWLR 66, but this is not prohibited. It will depend upon the timing of it being raised; whether counsel could properly deal with it; and whether the defence would be prejudiced in the way its case was conducted: R v Quinn (1991) 55 A Crim R 435. There is no such disadvantage found in the present case since the Appellant had to meet the case of attempting to have sexual intercourse with the Complainant from the beginning of the case. The remaining elements of the alternative count were found in the substantive count.

Ground 2: The directions as to the alternative verdict were erroneous in that: (a) the offence was unknown to law; (b)the facts relied upon to establish a conviction were not left to the jury; (c)there was no written direction as to the requisite element of intention and the oral directions of this element were insufficient. Held: Leave to argue this ground is refused. No complaint was made at trial. The first ground is the same as that raised in ground 2. The remaining matters were dealt with sufficiently in the directions.

Ground 3: There were no written directions as to the element of aggravation on the alternative count and this was not sufficiently corrected in oral directions to the jury. Held: Leave is refused. No complaint was made at trial. There was no need for the Trial Judge to give any further directions as to the element of aggravation which was dealt with in relation to the substantive count. Section 105A (2A) had the effect of creating a presumption of the Appellant's knowledge of the complainant's presence in the house that he could not have rebutted.

Ground 4: The directions as to the elements of consent on the alternative count reversed the onus of proof and were erroneous Held: Leave to appeal is granted: the concept of knowledge was not adequately addressed, having been conveyed in a way that was confusing and incomplete at best, and that could have lead to an impression that the onus of proof was being reversed. The directions did not sufficiently deal with the requirement that the Crown prove beyond reasonable doubt that the Appellant knew that the Complainant was not consenting.

The case is one to which the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied: the Appellant did not lose a real chance of an acquittal having regard to the defence case that he did not have sexual intercourse with the Complainant or attempt to do so. The undisputed evidence was such that the only rational inference open was that the Appellant knew that the Complainant's submission was forced and non-consensual. If the jury had been properly directed they could not rationally have come to any other conclusion. Regina v Murray (1987) 11 NSWLR 12 and Krakouer v The Queen (1988) 194 CLR 202 apply.

Ground 5: There is evidence to suggest that the guilty verdict was affected by the bias of a juror Held: This ground was not pursued.

Ground 6: The directions on intoxication were insufficient and erroneous. Held: Leave to argue this ground is refused. No complaint was made. Adequate general directions relating to the attempt element were given. Additionally, pursuant to s 428 of the Crimes Act, evidence of intoxication, if self-inflicted, was not relevant

Ground 7: The directions in relation to the element of "breaking" were insufficient Held: Leave is granted. However, the inadequate directions did not, in the context of the way in which his Honour dealt with the factual issues, and the evidence in the trial, for example that relating to the clear and firm instruction that the Appellant was not welcome in the Complainant's premises, give rise to a loss of a real chance of acquittal.

Ground 8: The learned trial judge erred in failing to give directions to the jury outlining reasonable hypotheses based on evidence which were inconsistent with the guilt of the Appellant on the alternative count. Held: Leave to appeal under Rule 4 is refused. This ground restates the other Grounds appealed. No complaint was made at trial and the issues concerning the relevant elements were sufficiently put before the jury. The case was not one dependant on circumstantial proof, nor was it one where any relevant defence was overlooked.

Ground 9: Directions and lack of directions in relation to aspects of the Crown case had the effect of impermissibly bolstering the evidence of the Complainant: (a) Directions as to evidence of complaint Held: Leave to appeal under Rule 4 is refused. No complaint was made at trial. There was no unfairness or prejudice in the absence of any express flaws or inconsistencies in the Complainant's case. A judge does not have to search for all possible factual arguments that could have been advanced, nor does all argument addressed need to be repeated in the summing up.

(b) Directions as to evaluation of evidence of sexual assault. Held: No complaint was made at trial. Under Rule 4, leave is refused. The submission lacks any substance.

(c) Lack of any direction as to evidence of distress. Held: Leave refused under Rule 4. The evidence of distress was not emphasised at trial, no objection was taken to it, the Complainant and her son were not cross-examined in relation to it, no direction was sought pertaining to it, and his Honour did not identify distress as an issue supporting the Crown case.

(d) Lack of direction as to the proper use of the medical evidence. Held: Leave refused in relation to Rule 4. The submission that the medical evidence of the bruise on the Complainant's wrist should not have been admitted because it bolstered the Complainant's credibility cannot be sustained. It was admissible and there was no reason why it should have been excluded under s 135 or 137 of the Evidence Act.

Ground 10: The failure to give a "Markuleski" direction resulted in the denial of a real chance of acquittal reasonably open on the evidence. Held: In the absence of a request for the direction at trial, leave is refused under Rule 4. In the context of the circumstances of the case the jury was entitled to have a reasonable doubt as to whether there had been penetration rather than an attempt, without this impinging on the Complainant's credibility and reliability.

Ground 11: The verdict was unreasonable (s6(1) Criminal Appeal Act 1912) Held: This ground is not made good. There was sufficient evidence for the jury to convict on the alternative count.

Conclusion: The grounds of appeal involved issues not raised at trial. The observations of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 and of Ipp JA in Regina v ITA [2003] NSWCCA 174 in relation to the duty of trial counsel apply.

The directions of McHugh J in Festa v The Queen applying the reasoning of Barwick CJ in Storey v The Queen (1978) 140 CLR 364 at 376 and Driscoll v The Queen (1977) 137 CLR 517 at 524-525 state the correct principles in relation to the application of the proviso. In accordance with this approach, there was no substantial miscarriage of justice. A jury would inevitably have found the Appellant guilty.

• 8 - IN THE COURT OF CRIMINAL APPEAL CCAP 2004/1735 (formerly 60163/04)

SPIGELMAN CJ WOOD CJ at CL HOWIE J

Thursday 30 September 2004 Regina v Leslie John Gulliford Judgment 1 SPIGELMAN CJ: I have read the judgment of Wood CJ at CL in draft. I agree with his Honour's reasons save with respect to ground 4. In my opinion the error identified under this ground is not an appropriate case for the application of the proviso. 2 As Wood CJ at CL indicates, in order for the Appellant to be convicted of the offence with which he was charged - namely breaking and entering a dwelling house and committing the serious indictable offence of an attempt to commit an offence under s61I of the Crimes Act - the Crown had to prove beyond reasonable doubt that the Appellant knew that the complainant did not consent to the sexual intercourse. As Wood CJ at CL also notes, by reason of s61R of the Crimes Act 1900, recklessness with respect to consent is taken to be knowledge of lack of consent. 3 At no time in the course of the summing up by the trial judge was the jury directed with respect to this element of the offence. The jury was never told that the Appellant had to know that the complainant did not consent. Indeed, the jury was repeatedly instructed, in express terms, that it was an element of the offence that the Crown had to prove beyond reasonable doubt that the Appellant had no belief that the complainant was consenting. References to "a belief in consent", or equivalent words, appear in the summing up at least fourteen times. 4 This direction is made explicitly in the document entitled "Alternative Verdicts" handed to the jury by his Honour, which they were to take into the jury room as a legal instruction identifying each of the elements of the offence about which the jury had to be satisfied beyond reasonable doubt. The relevant element in the document which led to the very verdict which the jury found on the one count on which the Appellant was convicted was in the form, relevantly, "if the jury is satisfied beyond reasonable doubt …that he had no belief that she was consenting". 5 This is a clear legal error. With respect to the proviso I am not able to conclude that "no substantial miscarriage of justice has actually occurred". 6 It is not desirable to replace the statutory formulation of the proviso with some other judicially determined formulation. Nevertheless, guidance is available as to the application of the statutory formulation in the case law. One frequently employed formulation is whether or not by reason of the error in the trial the Appellant has lost "a chance which was fairly open to him of being acquitted". (Mraz v The Queen (1955) 93 CLR 493 at 514), or a "real chance of acquittal" (R v Storey (1978) 140 CLR 364 at 376). Another formulation is whether or not a jury properly instructed "would inevitably have convicted" (Wilde v The Queen (1988) 164 CLR 365 at 372). (See also Festa v The Queen (2001) 208 CLR 593 at [28], [121]-[123], [199], [226]; TKWJ v The Queen (2002) 212 CLR 124 at [62]-[73].) 7 In the present case the jury was never instructed as to the actual element in the offence concerning knowledge. On the contrary it was instructed in quite different terms with respect to that element. The jury was instructed to ask itself the incorrect question. It cannot be said that the two formulations were in any respect equivalent, either at all or in the particular circumstances of the case. 8 It is perfectly open to a finder of fact to determine that a person does not have a belief in consent but to also determine that the person does not know that there was no consent. There is, at the very least, a middle ground in which an accused thought the other person might be consenting or was unsure whether the other person was consenting. In such a case, an accused would not have a positive belief in consent, but also would not know that the complainant was not consenting. 9 It is the case, as Wood CJ at CL points out, that the accused gave evidence that no sexual intercourse occurred and, in that sense, consent was not in issue at the trial. However the Appellant bore no onus. The fact that he was disbelieved in this respect did not attenuate in any manner the obligation upon the Crown to prove beyond reasonable doubt each essential element of the offence. 10 Wood CJ at CL refers to the considerable body of evidence, primarily from the complainant, indicating an absence of consent. There was, however, evidence which could have led the jury to have a reasonable doubt as to whether or not the Appellant knew that the complainant did not consent, even though the jury was able to conclude beyond reasonable doubt that the Appellant did not have a positive belief in consent. 11 The complainant herself gave evidence that: · The Appellant said to her "I know you want it" (T41). · "I had given up in the end because I knew he just wanted to have sex" (T42). · "Q Did you do anything to enable him to take your nightdress off - A I sat up, took that off me …" (T42). 12 Her corroborating witness George Little gave evidence that, immediately after the incident, the Appellant had said: · "You wanted it, you rang, you came and got me, you let me in" (T147). · "Don't ring me when you want a root, don't bother calling me again" (T148). 13 Evidence of this character was a basis on which the inference could have been drawn to the effect that the Appellant had, in the terms of his Honour's direction, an actual belief in consent. The jury clearly rejected that inference. That rejection does not, however, mean that the jury would, on the same evidence, inevitably have rejected the inference that he thought the complainant might be consenting or was unsure about that, but not to the degree of recklessness. This intermediate position constituted a real chance of acquittal. I am not able to conclude that a jury would inevitably have convicted. 14 The jury was never asked to decide whether it was satisfied beyond reasonable doubt that the Appellant knew that the complainant did not consent to sexual intercourse. In my opinion the failure to ask the jury to determine this critical element in the offence with which the Appellant was charged was a substantial miscarriage of justice and the proviso cannot apply. 15 This Court should order a new trial. 16 WOOD CJ at CL: The Appellant stood trial before his Honour Acting Judge Ducker, and a jury at Lismore District Court on the following counts:

Count 1 : That on 26 April 2002 at Wiangaree … he did assault [CAL], and at the time of such assault did commit an act of indecency upon her ( Crimes Act s 61L);

Count 2: That on 26 April 2002 at Wiangaree…he did break and enter the dwelling house of [CAL] … knowing that she was in that place and therein did commit a serious indictable offence, namely did have sexual intercourse with [CAL] without her consent and knowing she was not consenting thereto ( Crimes Act s 112(2), 105A(1)(f) and s 61I);

Count 2A: [in the alternative to Count 2] That on 26 April 2002 at Wiangeree…he did have sexual intercourse with [CAL] without her consent and knowing that she was not consenting thereto ( Crimes Act s 61). 17 Verdicts of not guilty were returned in relation to Counts 1 and 2. No verdict was taken in relation to Count 2A, but a verdict of guilty was returned in relation to another alternative to Count 2 that was left to the jury. Although there was some imprecision in its formulation, it is evident that the offence of which the Appellant was convicted was as follows: That on 26 April 2002 at Wiangaree... he did break and enter the dwelling house of CAL … knowing that she was in that place, and therein did commit a serious indictable offence, namely did attempt to have sexual intercourse with CAL without her consent and knowing she was not consenting thereto ( Crimes Act s 112(2), 105A(1)(f), 61P and 61I). 18 The Appellant was sentenced to imprisonment for 3 years and 6 months. A non-parole period of 2 years and 8 months was fixed. He now brings an appeal against his conviction on this alternative count. He does not seek leave to appeal against the sentence.

The Crown Case 19 In summary it was the Crown case that the Appellant and the Complainant had been in a relationship, which had ended in February 2002. There was however intermittent contact between them after that time, as evidenced by telephone call charge records. 20 On the evening of 26 April 2002, the Appellant phoned the Complainant twice, and indicated that he wanted to see her and suggested that she go over to his house. She made it clear that she did not want to do so. He made various abusive observations about her in the course of these conversations. At that stage she took her telephone off the hook. 21 The Complainant went to bed, but some time late the Appellant arrived, and demanded to be let in, after pushing on the back door. The Complainant let him in, but while she was in the toilet there was an incident, which gave rise to the first count of which the Appellant was acquitted. 22 The Complainant was able to take advantage of an opportunity, while the Appellant was making coffee, to go next door to the home of her sister and brother in law, George Little. Mr Little accompanied her back to her house, where it was found that her son, Daniel, had arrived and had confronted the Appellant. George Little instructed the Appellant to leave. He went to his car, which he managed to back into a Jacaranda tree before driving off, only to run off the road, into an embankment, some little time later. As a result of this accident he suffered a head injury which bled. 23 Daniel and George Little left, and the Complainant went back to bed after locking the doors, including the lounge room door. Shortly afterwards she heard the Appellant, who had cycled and walked back from his abandoned vehicle, pushing on the back door, which she had earlier locked. The turn button lock to that door, she said, did not always work properly, with the result that it could sometimes be pushed open. 24 The next thing which the Complainant observed was the Appellant standing at her bedroom door. On her account, he said, while pulling down his zipper, "Come on [CAL], let's get it over and done with, I know you want it". She replied that she did not want to have sex with him. He repeated "Don't be silly, let's get it over and done with". 25 She tried to get out of the bedroom but was pushed back onto the bed. There was something of a struggle, she said, but the Appellant was too big and strong for her. He tried to get on top of her, while holding her right wrist, and at the same time masturbating himself in an attempt to get an erection. He took off her pants and she sat up to remove her dress, in order to prevent it being damaged. She told him repeatedly "I don't want this" but eventually, she said in her evidence, "I had given up in the end, because I knew he just wanted to have sex". He was, by that time, kissing her breasts and "trying to get an erection to put it inside me." 26 She heard a dog bark and soon after heard Daniel and George Little running around the side of the house. At that point she said "he had his penis inside of me", and was in the process of moving up and down on top of her. 27 The Complainant's evidence was not precise or entirely consistent in relation to whether or not penetration occurred. Apart from the passages already mentioned she acknowledged that she could not say for what time she had been penetrated "because Daniel was coming though the bathroom window". Later when challenged as to the Appellant's ability to achieve an erection she said "I don't know if he got an erection or not. I know at one stage it wasn't erected but I know he was inside of me or it was pushing up against me. I know that all he wanted was sex". 28 When Daniel arrived back at her house, he called out, according to her, "Mum, he's in there, isn't he?" She replied, "Yes, he's on top of me, I can't get up". 29 Daniel climbed into the house through a window, and the Complainant unlocked the back door to let George Little in. Mr Little found the Appellant naked, apart from his socks, standing behind the bedroom door. When confronted he said "she wanted it", at which point the Complainant looked at her son and Mr Little and shook her head. 30 The Appellant then left the house. The Complainant noticed that there was blood on her bedding and on her leg above the knee. She washed the blood off herself and placed the sheets in the washing machine before phoning the police to complain of being sexually assaulted. 31 She was taken to Lismore Base Hospital where she was examined by Dr Stanwell. A history was given which I consider to have been consistent with the Complainant's evidence at trial. Dr Stanwell noticed smears of dried blood on the legs of the Complainant, as well as bruises on her left lower leg and just below the buttock. The latter was yellow, indicative of it having been there for more than 18 hours. A bruise 7 cm x 4 cm was noticed on the right lower arm of the Complainant which Dr Stanwell said was consistent with pressure having been applied to it earlier that night. She conceded, however, that the bruises to the buttock and wrist were also consistent with trauma that could have occurred up to 48 hours earlier. The Complainant gave evidence to the effect that she did not have any bruising to her wrist before the second visit of the Appellant to her home. 32 Sergeant Bingham gave evidence of taking a call from the Complainant at about 10:45 PM. Although he could not recall her exact words, he recalled that she had sounded "flustered" and had indicated that she had been attacked in her bedroom by a male and "raped". He made an entry in the COPS system, however, which recorded the Complainant as having said that the attacker had "tried" to rape her. Those were his words, he said, noting that he had not gone on to question her "as to how far the act had actually gone". 33 George Little and Daniel Little also gave evidence which broadly supported that of the Complainant. George Little indicated that on the first occasion that he had seen the Complainant this night she had "seemed a little upset", and had asked for his help to persuade the Appellant to leave. When he spoke to the Appellant he noticed that he was boisterous, was unsteady on his feet and seemed to be intoxicated. The Complainant joined in the conversation, and on his account, indicated that she was not interested in the Appellant any more and wanted him to leave. 34 After he heard the dogs barking some 30 minutes or so later, he went back to the Complainant's house with Daniel. He called out to the Complainant asking whether she was alright, and suggesting that she open the door. She replied "No, I can't he's holding me down". Daniel began to climb through a window, and then the Complainant opened the back door. He asked her whether she was alright, to which she replied "the bastard". When he went to check the bedroom he saw the Appellant naked behind the door. He also noticed that he had blood on his person, and that there was blood on the bedding. While the Appellant dressed, he heard him abusing the Complainant and asserting "you wanted it, you rang, you come and got me, you let me in". The Complainant replied, that it "was all bullshit…just get out and go otherwise we'll call the police". After a somewhat heated exchange, the Appellant left via the back door. His parting words were "don't ring me when you want a root, don't bother calling me again, see youse." 35 Daniel Little also said that at the time of his first visit to his mother's home the Appellant had "looked pretty intoxicated". He recalled him "staggering through the hallway carrying a four litre cask of wine" and said that he had to use his hands to stop falling against a wall. 36 When he returned to the premises after hearing the dogs barking, he went to the back door but found it locked. After yelling out to his mother he heard her cry "I can't get up". He entered the bedroom through the bathroom window. He saw the Appellant standing behind the bed naked, with blood coming from his head and with blood on his leg. 37 A crime scene examiner found red stains on a doona, on the exterior front door handle, on an interior wall and on the window ledge near the front door, the mesh to which had been broken. Those red stains proved positive to presumptive tests for blood, as did stains on a dress and a pair of underpants on the floor of the bedroom, and on a pillow which was recovered from the washing machine. Red stains were noticed on the front offside door pillar and window of the Appellant's vehicle when it was examined on the following morning. 38 The DNA found on the underpants and dress had the same profile as that of the Appellant.

The Defence Case 39 The Appellant gave evidence to the effect that while his relationship with the Complainant had ended in February, on his account because of a conflict with her family, they had continued to meet. He said that she had suggested a code whereby he was to ring three times for one of them to go over to the house of the other. He also claimed to have stayed over at her house on a "fair few different nights" since 26 April 2002 and evidence was tendered of telephone calls which had been made between their respective phone services between 4 February 2002 and 9 April 2002. 40 He said that on the night of 26 April he had heard his phone ring. He did not answer it at that stage but a little while later he made a call to the Complainant, in the course of which he asked if she wanted to come over to his place. According to him she said that she had to stay at home because she had her 9-year-old son Aaron staying with her. He said he phoned her again and asked if he could come and see her. She did not say "no" but repeated that she had her son there, and said that she was "a bit busy". There was no record of any call from her service to his on 26 April 2002. However, he claimed that he had heard three rings and that was why he had gone over. 41 The call charge records indicated that the Appellant made a number of further attempts to call the Complainant that night, none of which were successful, no doubt due to the fact that her phone was off the hook. The Appellant acknowledged making these calls and receiving a busy tone, before he went over to her house. 42 He said that he drove over to her home and knocked on the window around the back "like I always did". After finding the door locked, he tapped on the window and asked to be allowed in, after which the Complainant opened the door. He acknowledged having undone his fly and rubbed his penis in her presence while she was using the toilet, but said that he had been unable to achieve an erection. He denied asking her for "a head job" or taking her by the head, those being the further acts, which had been relied upon in support of the first count. 43 He said that while setting about making some coffee, he found a cask of wine which he took to the back table. It was at this stage that he was confronted by Daniel and then by George Little. He said that there was some conversation, during which "even [CAL] said she didn't want me there, but I was sure that was just because… we'd been sprung". 44 He acknowledged having hit a tree while leaving the property, and then having a further accident on the roadway, which he attributed to swerving to miss a wallaby. He said that he went home and tried to ring the Complainant again, without success. He then decided to ride his bike back to the Complainant's home "for some comfort". He found that the front door was locked. He agreed in cross-examination that he had slipped his hand in through the shade cloth or mesh at the front door, operated the bolt, walked to the veranda bedroom and tried to move from there into the lounge room. He found the door to that room to be locked so he went around to the back door which, on his account, opened when he turned the handle. He obtained entry in this way and then went to the bedroom. He agreed that the house was darkened. 45 He said "It's all right, it's only me", and she replied "you know, you'd better be quiet because I don't want Daniel and George coming back." He disrobed and got into bed. She took her dress off and they had a kiss and a cuddle. He gave his penis a "bit of a rub", but said that he had been in an accident and had been too drunk to want to have sex, or to get an erection. He said that he just wanted some comfort. He had not put his penis in her vagina, nor had he made any attempt to do so. Additionally he said he had not held her wrists or placed himself on top of her. It was his assertion that in fact "the last thing in the world I wanted to do was really have sex". He also said, in cross-examination, that: "…I'd written it off…I was just wanting to be comforted because you know, there was certainly no response there so I was just thinking about - you know, getting a good night's sleep…" 46 He said that when Daniel and George Little arrived, he heard the former ask whether his mother was in there, to which she replied "I can't get up". On his account the Complainant "just freaked out" when she heard them. He hid behind the bedroom door "because I just didn't want to let them know I was there". There was then a confrontation in which he was told by George Little to get dressed and to leave, after which he rode his bicycle home. 47 About three days before 26 April 2002 he said the Complainant had gone over to his house at about 3 AM, after which they had sex in his bed. 48 Jo-Anne Goodwin was called in the defence case to say that the Complainant had informed her in April that she had been seeing the Appellant again, but had asked her not to tell anyone. 49 Phillip Barker was also called in the defence case to say that he had asked the Appellant, on one occasion, why the telephone would ring and "cut short". The reply which he received was that the Complainant and the Appellant were "having a bit of a break". 50 In her cross-examination the Complainant conceded that she had been under pressure from her family to break up with the Appellant in February, and that they had established a code by which she would ring him and allow the phone to ring three times to indicate that it was alright for him to come over to her house. However she said that this arrangement had been made earlier in their relationship, and not between February and April 2002. 51 She denied having had sexual relations with the Appellant about 3 days before 26 April. She conceded that she had told Miss Goodwin that she was "back with Les", and had gone over there, and that she had ended up having sex with him. However, she said that this conversation had occurred in December 2001.

Ground One: The alternative Count of break and enter in circumstances of aggravation and attempt to commit a serious indictable offence, to wit sexual intercourse without consent (of which the Appellant was convicted) is an offence unknown to law and should not have been left to the jury.

52 This count was raised by his Honour following the close of the Crown case and during the Appellant's evidence, as an alternative falling between Counts 2 and 2A. Its elements were embodied in the document "Available Verdicts" that was provided to the jury. That document provided relevantly: "2. If the jury is satisfied beyond reasonable doubt: - a) That the accused did break and enter the Complainant's house; b) That the Complainant did not consent to have sexual intercourse with him; c) That he had no belief that she was consenting; and d) that the accused attempted to have sexual intercourse with the Complainant the appropriate verdict would be NOT GUILTY but GUILTY OF ATTEMPT" 53 The reference to the first part of the verdict being one of not guilty was a reference to the substantive count 2 which would have required proof beyond reasonable doubt that the Appellant did have sexual intercourse with her, without her consent. 54 It may be noted that the element which was expressed in terms requiring proof that the Appellant "had no belief that she was consenting" was repeated in relation to the substantive count, and also in relation to the alternative 2A (which involved a count of having sexual intercourse without consent, knowing that there was no consent). This alternative had been pursued against the contingency of the jury being satisfied of the sexual assault element, but not being satisfied of the break and enter with knowledge of the Complainant's presence element, that would have been required for proof of the offence charged in Count 2. I shall return to this aspect of the document, and to the directions which were given since it is the subject of Ground 4. 55 It may be accepted that there is no offence known to law in the precise terms formulated in this first ground of appeal. The question which arises is whether there is an offence known to law of break and enter in circumstances of aggravation (knowing that the Complainant was in the house) and committing the serious indictable offence of attempting to have sexual intercourse without consent, knowing that the Complainant was not consenting. 56 Although the offence was not articulated in any precise way during the submissions, or in the summing up, I am satisfied that this was the offence which was left to the jury in accordance with the Alternative Verdicts document. The difference lies in the delineation of the offence as one involving a Break and enter and an attempt to commit the serious indictable offence of sexual intercourse without consent, and one involving a break and enter and the commission of a serious indictable offence, namely an attempt to have sexual intercourse without consent. While this may, on first impression, appear to involve a distinction without a difference, there is a real difference between the two formulations, and it is only the second in my view that could qualify as an offence known to law. 57 The relevant provisions of the Crimes Act 1900 (NSW) need to be taken into account in determining whether the offence in question is known to the law. 58 The primary offence of break and enter and commit a serious indictable offence is that provided for in s 112, which is in the following terms, relevantly for this case: 112 (1) Whosoever: breaks and enters any dwelling-house…and commits any serious indictable offence therein… shall be liable to imprisonment for fourteen years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. 59 The circumstances of aggravation are specified in s 105A which provides, relevantly: 105A (1) In sections 106-115A: circumstances of aggravation means circumstances involving any one or more of the following: … (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. … (2A) For the purposes of paragraph (f) of the definition of "circumstances of aggravation", if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place. 60 The indictable offence of sexual intercourse, without consent, is provided for in s 61I as follows: 61I Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 61 Provision is made in relation to an attempt to commit a s 61I offence in s 61P as follows: 61P Any person who attempts to commit an offence under section 61I… is liable to the penalty provided for the commission of the offence. 62 A serious indictable offence is defined in s 4 as "an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more." 63 In relation to the statute law concerning attempts to commit offences, it may be noted that further provision is contained in s 344A of the Crimes Act 1900, and in s 162 of the Criminal Procedure Act 1986, as follows:

S 344A Crimes Act 1900 344A (1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty. (2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence. S 162 Criminal Procedure Act:

162. If, on the trial of a person for any indictable offence, the jury is not satisfied that the person is guilty of the offence, but is satisfied that he or she is guilty of: (a) an attempt to commit the offence, or (b) an assault with intent to commit the offence, it may acquit the person of the offence charged and find the person guilty of the attempt or assault, and the person is liable to punishment accordingly.

64 As I have observed the Crown had not opened its case in a way that would have embraced the alternative count of which the Appellant was convicted. Its primary case was that the Appellant had committed the offence charged in Count 2. However the possibility of the jury not being satisfied beyond reasonable doubt of penetration, while being satisfied of an attempt to have sexual intercourse, was contemplated from the outset, in so far as the jury were informed by the Crown in its opening:

"However, if at the end of the day you come to the conclusion that the accused did try to have sexual intercourse with the Complainant, but did not succeed, that is to say he attempted, it would then be open for you to return a verdict of attempted sexual intercourse without consent knowing she was not consenting."

65 In the summing up his Honour adequately dealt with what was involved, as a matter of law, in the concept of "attempt" in the following passage: "…it is the law that where a person is charged with committing a criminal offence, and there may be a question arises as to whether the offence was completed, then an alternative verdict can be given if the jury is satisfied of all the ingredients of the charge except whether the offence was completed. In that situation the law says that an alternate verdict can be given that the accused attempted to commit that crime. An attempt requires that there be an act by the accused which clearly indicates that in the accused's mind, he is trying to commit the offence. There must be some act which identifies, which shows, not just that the accused intended to commit the offence but that he actually tried, took some action towards committing it. In this case, what is involved is the question as to whether the accused had sexual intercourse or whether he attempted to." 66 After directions were given in relation to the substantive count 2, the alternative count, of which the Appellant was convicted, was dealt with in the following terms: "I see the time, but I will just move on to the verdict 2 on charge 2, that is, if the jury is satisfied beyond reasonable doubt that the accused did break and enter the complainant's house, knowing that she was in that house, that the complainant did not consent to having sexual intercourse with the accused, that he had no belief that she was consenting, and that the accused attempted to have sexual intercourse with the complainant, then the appropriate verdict would be not guilty but guilty of attempt." 67 Later his Honour added in relation to "verdict 2 on charge 2": "if you found the accused guilty as charged then you would not have to consider the question of attempt. You only consider the question of attempt if you are not satisfied beyond reasonable doubt that actual sexual intercourse did take place." 68 The critical question for the first ground of appeal is whether there is a serious indictable offence of attempting to have sexual intercourse without consent, knowing of the lack of consent. 69 It was submitted by the Appellant that there was no such offence known to the law. Reference was made in this respect to s 162 of the Criminal Procedure Act and to s 344A of the Crimes Act, it being contended that they did not of themselves create a serious indictable offence, but rather left the offender in a position where he was deemed to have been convicted of such an offence, and liable to the penalty prescribed. 70 Support for this proposition was sought to be derived from Beckwith v The Queen (1976) 135 CLR 569. It was there held that s 233B of the Customs Act disclosed an intention that an attempt to commit an offence against subsection (1)(ca) should not itself be an offence, and that s 237, which made provision in relation to attempts, could not be invoked to create an offence. As a consequence it was held than an indictment charging the Appellant that, contrary to s 237, he had attempted to have in his possession, without reasonable excuse, prohibited imports to which the Act applied, being narcotic goods which were reasonably suspected of having been imported into Australia in contravention of the Act, was bad in law. 71 S 233B, it may be noted, provided that any person who committed any of the acts which fell within the reach of sub-ss 1(a) to (e) was "guilty of an offence". Section 237 provided: "Any attempt to commit an offence against this Act shall be an offence against this Act punishable as if the offence had been committed." 72 The question, which the court identified, was whether the provisions of s 233B were inconsistent with those of s 237 and revealed an intention to exclude the application of the latter section. That question was answered unanimously in the affirmative by the Court, constituted by Gibbs J, Stephen J, Mason J, Jacobs J and Murphy J. 73 Two provisions were regarded in particular by Gibbs J, with whom Stephen J agreed, as disclosing such an intention. In the first place s 233B(1)(b) expressly made it an offence, not only to import or export prohibited imports or exports which were narcotic goods, but also to attempt to do so, with the result that if s 237 applied, then the reference to attempt in s 233B(1)(b) would either be surplusage, or would give rise to an offence of attempting to attempt, which would be an absurdity. Secondly the defences for which subsections (1A) and (1B) of s 233B provided, were only available on a prosecution for an offence against paras (c) or (ca) of subsection (1) of s 233B. They were not available on a prosecution for an offence against s 237. That section, it was observed by Gibbs J: "itself creates an offence - it does not merely have the effect that an attempt to commit an offence against another section of the Act becomes an offence against that other section of the Act." (At 574) 74 Those defences were regarded by his Honour as important safeguards against the injustice that might otherwise have been occasioned by the width of the relevant provisions, such that it would have been expected that they would also be available in the case of attempt charges. 75 So far as there was any ambiguity or doubt in the language of the statute it was to be resolved, per Gibbs J (at 576), in favour of the liberty of the subject by refusing to extend the category of criminal offences. 76 Mason J found that the inclusion of a limited provision as to attempts which found expression in s 233B(1)(b), and of a more general provision as to aiding and abetting found in s 233B(1)(d), was explicable only on the footing that s 233B was intended to have an operation independent of s 237 and of s 236 (the general aiding and abetting provision). His Honour concluded that a duality of provisions as to attempts and aiding and abetting was inconceivable (at 580-581), noting additionally that s 233(1) was still able to operate in conjunction with ss 236 and 237 to fill at least some of the gap; and that if the Crown contention was correct, then it would be the case that the subsection (1A) and (1B) defences would be available in relation to the substantive offence but not in relation to offences of attempt. 77 Similar reasoning was adopted by Murphy J for his conclusion that the provisions of s 233B were intended to be exclusive of ss 236 and 237. 78 Jacobs J decided the point by reference to the difficulty of applying the precise language of s 233B(1)(ca) to an attempt without reasonable excuse "to have in possession" a prohibited import, a point which had been taken up earlier in Regina v Grant [1975] 2 NZLR 165 in relation to a similar provision, where it was held that the expression "has in his possession" is not synonymous with "gets possession of" - a view which was shared by Murphy J but which did not, however, find favour with Gibbs J. 79 The submission in the present case was somewhat different. It drew upon a distinction between s 237 of the Customs Act which, in its terms, created an offence, whereas, so the argument went, s 344A of the Crimes Act did not do so. 80 In furtherance of this submission, an argument was advanced that Division 1 of Part 3 of the Crimes Act, dealing with sexual offences showed an intention to codify the field in so far as s 61P expressly provided that any person who attempts to commit an offence under s 61I, 61J, 61JA, 61K, 61L, 61M, 61N, or 61O "is liable to the penalty provided for the commission of the offence". Attention was drawn to the decision of this Court (Slattery, Maxwell and Hunt JJ) in Regina v Cameron [1983] 2 NSWLR 66 concerning the tests for determining whether alternative verdicts are available, where they are not specifically provided for by Statute, and which are dependent upon the lesser offence being an essential ingredient of the major offence (at 68-69): "To these tests, however, there may be exceptions where, for example, the legislature has propounded a statutory code in relation to any particular character of offence. Such a code may exist in relation to the new offences of sexual assault, in that the Crimes Act by s 61G has erected a careful statutory framework whereby certain alternative verdicts are specifically permitted even though the common law would have permitted such verdicts to be taken in the absence of such a provision: see R v GWJ Smith [1982] 2 NSWLR 490, at 494." 81 It may be interpolated that, in R v Beserick (1993) 30 NSWLR 510, Hunt CJ at CL indicated at 534-5 that his decision in GWJ Smith had been wrong, in so far as it had been held that, upon an indictment charging the accused under s 112 of the Crimes Act with the offence of break and enter a dwelling house and committing a felony (namely the offence of sexual intercourse without consent: s 61D), an alternative verdict pursuant to s 61D would not have been available in the absence of a specific statutory provision. 82 It was submitted that Sub Division 4 of Part 4 (which included s 112) similarly created a series of offences, with alternative verdicts being provided for in s 115A, which permitted the reduction of offences which had been charged as specially aggravated offences, or as aggravated offences, to the aggravated or basic form of the offence. This was similarly relied upon to show an intention to cover the field, in a way excluding the availability of the offence which was here left to the jury as an alternative to the substantive offence. 83 Properly understood the relevant element of the alternative count which was left in the present case was not an attempt to commit a serious indictable offence. Rather it was the commission of a serious indictable offence, namely an attempt to have sexual intercourse without consent, knowing of the absence of consent. 84 That this is an offence known to law emerges, in my view, from s 61P, which provides that a person who attempts to commit an offence under s 61I "is liable to the penalty provided for the commission of the offence." S 61I provides that a person who commits a sexual assault within its terms "is liable to imprisonment for 14 years." 85 The Crimes Act consistently follows the approach of dealing with various acts of criminality in this form, that is by stating the relevant conduct and then providing that a person who does the relevant act "is liable to" the relevant term of imprisonment. 86 It is in this way that offences are defined. The position is then fortified by s 4, which defines a serious indictable offence as an indictable offence that is "punishable by imprisonment for life or for a term of 5 years or more." 87 In my view, it was not necessary, in circumstances where s 61P provided for conduct involving an attempt to have sexual intercourse without consent, for the Crown to resort to s 344A of the Crimes Act to establish that such an attempt constituted a serious indictable offence. 88 That section gives statutory recognition to the fact that at Common Law all attempts to commit a crime were regarded as indictable misdemeanours, unless there was a statutory provision that a particular attempt was a crime: R v Grassby (1991) 55 A Crim R 419 at 433. 89 S 344A(1) gives statutory recognition to the common law offence of attempt, and equates the penalty for it to that provided for the substantive offence; while s 344A(2) alters the common law rule under which attempts are misdemeanours, by providing that if the substantive offence is a serious indictable offence, then a person convicted of an attempt to commit that offence is "deemed" to have been convicted of a serious indictable offence. 90 However, in circumstances where s 61P expressly provides that a person who attempts to commit one of the substantive offences mentioned in that provision, is liable to the same penalty as that provided for the substantial offence, then the position was, in my view, governed by that section and by s 4, so that there was no need to resort to the deeming provision of s 344A. 91 While it is generally inadvisable for a trial judge to raise an alternative count, which has not been suggested by trial counsel, R v Pureau (1990) 19 NSWLR 372 and R v Cameron [1983] 2 NSWLR 66 at 71, it is not forbidden. Much will depend upon the timing, whether counsel have had a proper opportunity to deal with it, and whether the defence has been prejudiced, for example in the way that the case was conducted: R v Quinn (1991) 55 A Crim R 435. 92 In the present case no such disadvantage was demonstrated. The need for the Appellant to meet a case of attempting to have sexual intercourse with the Complainant, without consent, was present from the outset. The remaining elements of the alternative were embodied in the substantive count. 93 This ground is not made good.

Ground 2: The directions as to the alternative verdict, "Verdict 2 on charge 2" were erroneous in that: (a) the offence was unknown to law; (b) the facts relied upon to establish a conviction were not left to the jury; (c) there was no written direction as to the requisite element of intention and the oral directions of this element were insufficient. 94 The first aspect of this ground has been addressed. No complaint was made in relation to the matters referred to in sub-paragraphs (b) and (c) and the Appellant needs leave under Rule 4 of the Criminal Appeal Rules. 95 I am not persuaded that leave should be granted. While it was necessary for his Honour to explain the way in which the Crown put its alternative case: R v Pureau and R v Crisologo (1997) 99 A Crim R 178, there was a substantial overlap in relation to the elements of break and enter, and attempt to have sexual intercourse without consent, which were dealt with generally. The issue as to whether penetration was achieved, or whether the appellant's conduct progressed past an attempt to have sexual intercourse was also clearly and comprehensively addressed. 96 The submission that there was no sufficient reference to the act or acts constituting an attempt is entirely lacking in substance, and in any event needs to be understood in the context of the simple issue that was left, namely did the Appellant penetrate the Complainant, or did he try, but fail, to achieve that objective? The jury were reminded of the evidence led by the Crown which dealt with the appellant's requests of the Complainant, his removal of her underpants, the struggle between them, and the fact that he placed himself on top of her and pushed himself up and down. They were similarly reminded of the Appellant's evidence that being affected by alcohol and by the accident, he had not wanted to have intercourse, and had climbed into the bed wanting only to be comforted. 97 No jury, possessed of common experience of life, could have been in any doubt as to what was relied upon as an attempt to achieve the relevant act. 98 It would require a somewhat technical, if not disingenuous, view of the summing up, to suggest that the jury were not fully apprised of what was involved with this count, particularly as they had the relevant elements spelled out in the Alternative Verdicts document. 99 Leave to argue this ground should be refused.

Ground 3: There were no written directions as to the element of aggravation on "verdict 2 on charge 2", and this was not sufficiently corrected in oral directions to the jury. 100 Again there was no complaint at trial in relation to this matter. Nor was there any issue as to the Complainant's presence in the home, or as to the Appellant's knowledge of that fact. A summing up needs to be directed to the true issues in the case, and there was no need for his Honour to have given any further directions, since the element of aggravation was sufficiently dealt with in relation to count 2 and also because there was an oral direction in relation to verdict 2 on charge 2 that the jury had to be satisfied beyond reasonable doubt of "knowing that she [the Complainant] was in the house" 101 In any event s 105A(2A) had the effect of creating a presumption as to the Appellant's knowledge of the complainant's presence in the house, which was only rebuttable upon him satisfying the Court that he had "reasonable grounds for believing that there was no one in the place." Clearly he could not have done so. 102 I would refuse leave to rely on this ground.

Ground 4: The directions as to the elements of consent on "verdict 2 on charge 2" reversed the onus of proof and were erroneous. 103 Perfectly adequate directions were given by his Honour as to what was required, as a matter of law to establish an act of sexual intercourse, and in particular the necessary degree of penetration. Equally clear was the definition for the jury of the issue which arose upon the evidence as to whether sexual intercourse took place or was attempted, it being stated more than once that it was the defence case that the Appellant did not have sexual intercourse with the complainant or make any attempt to have it. 104 The directions in relation to the element of consent, at least so far as they related to the need for the Crown to show that the appellant knew that the Complainant was not consenting to sexual intercourse, were however less than satisfactory, although no complaint was made at the trial in relation to them. 105 The formula which was used consistently was that noted in the Alternative Verdicts document, namely that the Complainant did not consent to having sexual intercourse with the Appellant, and that "he had no belief that she was consenting". 106 His Honour dealt with consent in the following passages, which were specifically directed to count 2, although they were equally relevant for the alternatives which similarly depended upon lack of consent and knowledge thereof. "It must be proved beyond reasonable doubt that the accused did this without her consent, that is without the consent of the Complainant. Consent means real consent. If a person is forced to have sexual intercourse by threats or is overpowered, then that is certainly not consensual intercourse. The case for the Prosecution is that the she repeatedly made it clear by words and by resistance in the early stages, that she did not wish to have sexual intercourse with the accused, that she did not consent to it. She told him that but he persisted saying repeatedly, 'Well just get it over and done with.' Whether you think that was a romantic overture or whether it was said in much the same way as might be said to a small child when confronted with some caster oil is a matter for you to decide. In other words, was he saying 'Oh come on you know that you'll consent in the long run so come on let's start now' or was he saying 'Look, you're going to get it whether you want it or not so you may as well reconcile yourself to that and stop resisting.' Well which of those things you believe it to have been is a matter for you to decide. Of course consent is something within the mind of the female, but consent can be indicated by words or by actions, and so too can refusal be demonstrated, conveyed by actions or words. … If you are satisfied that the Complainant did not consent, that is not the end of the matter, because in the particular circumstances of this case, I believe that it is proper that there would have to be proved beyond reasonable doubt by the Prosecution, that the accused had no belief that the Complainant was consenting to sexual intercourse. … You must be clear about this, that the onus rests upon the Prosecution to prove that the accused had no belief that the Complainant was consenting to sexual intercourse. He does not have to prove anything. He does not have to prove that he had that belief. The Prosecution must prove that he did not." 107 Later in the summing up his Honour returned to the question of consent in a passage which did not accord with the Alternative Verdicts document or with the earlier directions. This passage was to the following effect: "It is this, that the accused must have an actual belief that the complainant was consenting. It is not sufficient that he simply never turned his mind at all to that question because if he did not think about it, then he did not have that belief. If he thought about it and thought 'Well maybe she's consenting, maybe she's not', that too would not amount to a belief in consent. In order for him to have had a belief in consent, he must have actually believed that she was consenting." 108 When dealing with intoxication, his Honour said: "The only relevance of evidence as to the intoxication of the accused is in relation to what was in his mind as regards a belief in consent. A belief in consent, of course, only has to be considered if the jury are satisfied beyond reasonable doubt that there was no actual consent. If the jury are satisfied beyond reasonable doubt that actual consent has been judged, has been proved rather, then that is not the end of the matter because it is also necessary for the jury to be satisfied beyond reasonable doubt that the accused did not have any belief as to the Complainant consenting. Now that belief in consent does not have to be a reasonable belief, the question is, what was in the mind of the accused at the time. If he genuinely believed that the Complainant was consenting, then it would not matter whether that was a reasonable or an unreasonable belief. What matters is whether he had the belief, and I remind you that as I stated before, the accused does not say that he had sexual intercourse believing in consent, he says that he did not have sexual intercourse at all. It is only because there has been other evidence suggestive of a belief in consent as a result of the past relationship between the parties et cetera, that that element of the offence remains to be disproved by the Prosecution, that is the Prosecution must show beyond reasonable doubt that the accused did not have a belief in consent. But the accused's case is very simple, he says that he went there and he was upset. He had two accidents with his car, one with a tree and one in which a wallaby had made him hit another tree, and that after those arboreal accidents, he was in need of comfort and that is why he went there. He said that sex was the last thing on his mind when he went there on that occasion, that yes, there was quite a possibility that when he felt better, perhaps in the morning, that sexual intercourse would occur between them, but sexual intercourse had not taken place and had not been attempted by him at all, that in any event, no matter what his intentions may have been, the arrival of Daniel had changed the whole situation and he in effect did not have time to have sexual intercourse even if he had wanted to." 109 Although it was submitted that this was not an entirely accurate account of his case, no complaint was made by trial counsel. 110 As a matter of law the Crown needed to prove that the Appellant had an actual knowledge that the complainant was not consenting, or was reckless as to whether she was consenting (s 61R Crimes Act). 111 The statement of the consent element in the Alternative Verdicts document, which was repeated, at various times, in the summing up, was erroneous, in that proof that the Applicant did not have a belief as to consent, was not necessarily proof that he knew or believed that she was not consenting. Moreover there was a clear error in so far as his Honour said that "if the jury are satisfied beyond reasonable doubt that the actual consent has been…proved, then that is not the end of the matter". It would in law have been the end of the matter, since such a finding would have required a verdict of acquittal. Additionally, the concept of recklessness, so far as that could have been relevant to knowledge, was not adequately addressed, by way of any written or oral direction. 112 The way in which this element was addressed in the passages cited was capable of conveying, at times, an impression that reversed the onus of proof. At best it was confusing and incomplete. 113 The inadequacy of this aspect of the summing up was left uncorrected by counsel. Since the giving of correct directions on elements of an offence are important to a fair trial (Andrews v the Queen (1968) 126 CLR 198 at 209), I consider that leave should be given to the Appellant to argue this ground of appeal. 114 The question which arises is whether, subject to any other error, the case is one to which the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied. 115 The case is one in which I would apply the proviso. His Honour dealt extensively with the question of consent both generally and in the factual context of the trial, in a way which would have left the jury with little doubt as to what the Crown needed to prove. In this regard he added to the previous directions the following: "Just going back to the question of consent for a moment, I have overlooked something I wanted to say to you and that is that sometimes people consent to sexual intercourse after a time when there was an initial refusal, and it is quite legitimate for the other party to attempt to persuade the other person to change their mind and to have intercourse, but that means to voluntarily change their mind of course, it does not mean to change her mind because she thinks that she will be beaten up or injured or overpowered if she does not. That is not consensual intercourse, but sometimes after a period of refusal or reluctance, in some circumstances there may ultimately be consent. Indeed, that from my recollection without going into too much detail, was part of the courting process, that favours that were requested but initially refused were sometimes later freely granted. A person may consent to sexual intercourse without any expectation of enjoying it, where two parties are on very good terms, one party has the sexual urge and the other does not, then the one who was without the urge may consent to some form of sexual activity including intercourse simply for the sake of the other. There are some people who never achieve any satisfaction from sexual intercourse, but consent to it nonetheless. No doubt the beautiful young girls who hang around wealthy businessmen and so forth do not look forward to any enjoyment from coupling with such a person, but do so anyway because there are other benefits that may be achieved. But it is up to you to look at what happened in this case. The Prosecution suggests that first of all she resisted but ultimately tired and realised that she had no real option, and even sat up to the extent that she allowed him to pull off her nightdress rather than have it torn off. Well that is a matter for you to consider but those are the matters that would have to be proved before reasonable doubt before the accused could be found guilty of that charge, guilty as charged. But the basic position of the accused, I emphasise, is that the intercourse simply did not take place and the defence also rely upon the fact that there is no evidence to suggest that she did have intercourse, that is no medical evidence. On the other hand, the Prosecution say that the medical evidence does not show that she did not have sexual intercourse anyway." 116 Effectively, the only issue of relevance, in relation to the serious indictable offence element was whether the appellant had sexual intercourse with the Complainant, or had attempted to do so. It was never the case of the Appellant that he had intercourse with her, or had attempted to do so, with her consent. It was his case that he did not have intercourse with her, and did not attempt to do so. 117 I am not persuaded that the absence of a correct direction on consent, in this case, cost the Appellant a real chance of an acquittal. 118 In the light of the undisputed evidence that he had been instructed in no uncertain terms to leave the house earlier in the night, that the Complainant had expressed a lack of interest in him before he left, that she had taken her phone off the hook and had not placed any call to his home after his first visit, that he had attempted unsuccessfully to phone her, and that she was seen to be rubbing her wrists and to have had bruises that were consistent with her account, the only rational inference that was, in my view, open, was that he knew that her submission on his return was non consensual but was forced. 119 The case is one where the jury properly directed could rationally have only come to the conclusion that he was determined, regardless of whether the Complainant consented or not, to have or to attempt to have sexual intercourse with her, subject to overcoming any condition of alcohol induced dysfunction that may have affected him, and that this observations about her "wanting it" and having called him, as well as his somewhat offensive parting observations, were not genuine representations of his state of mind. Rather, they were directed to his attempts to force her to give in to him and subsequently to justify his conduct. 120 The case is accordingly one to which the observations made in Regina v Murray (1987) 11 NSWLR 12 and in Krakouer v The Queen (1998) 194 CLR 202 apply. 121 In Krakouer, Gaudron, Gummow, Kirby and Hayne JJ said, at 212: "23 We do not accept that the proceedings against the appellant were fundamentally flawed or "have so far miscarried as hardly to be a trial at all". Each of the matters which we have mentioned (the fact that the misdirection concerned an element of the offence, occurred at the end of the trial and reversed the onus of proof) may invite the most careful attention to whether the proviso can be applied; each of these matters may be said to suggest that the jury may have been led into a false or unsafe chain of reasoning. But we are not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed. After all, most cases of misdirection will concern directions about matters relevant to the jury's deliberations and yet the proviso requires that not every "wrong decision of any question of law" lead to the quashing of the conviction or a new trial. As was said in Wilde v The Queen "[t]here is no rigid formula to determine what constitutes such a radical or fundamental error" as to preclude the application of the proviso. Simply demonstrating that there was a misdirection on a matter relevant to the jury's consideration is not sufficient.

24 It may be that a misdirection which has the effect of denying procedural fairness and depriving an accused person of the right to have some substantial part of his or her case decided by the jury would result in a trial that is fundamentally flawed. It may also be that a misdirection about burden of proof invites closer scrutiny of the question whether the trial was fundamentally flawed but in this case it is important to put the particular misdirection into the whole context of the trial. It is convenient to do that at the same time as considering the second branch of the appellant's argument about the proviso, that the appellant lost a real chance of acquittal." (References omitted). 122 In Murray Lee J similarly observed at 15-16: " In the present case the evidence of the girl made clear that she did not consent, and if the things happened as she alleged they did happen, then her evidence was eloquent of the fact that the appellant was well aware that she was resisting, protesting and not consenting. In short, there was a firm foundation in the evidence from which the jury was able to conclude beyond reasonable doubt that not only was she not consenting but that the Appellant knew that she was not consenting. In regard to the first count the Appellant struck her across the face and, in regard to the other counts of sexual intercourse without consent, I have detailed briefly the circumstances in which the appellant dragged the victim from her flat, took her out in his car and there and in her room indulged in the various forms of sexual activity with her which has been recounted. The Appellant in his case merely denied any sexual activity. It was not a case in which the Appellant was asserting that he thought she was consenting or anything of that nature. There was simply no context in which the matter of a reckless state of mind became relevant and there was no need for his Honour to direct specially in regard to it. Mr Hidden of counsel did seek to contend that certain features in the evidence of the complainant, certain remarks made by her, together with the general background of the case, particularly on the second night - the fact that the appellant had alcohol - could have raised a question as to the state of mind of the appellant in regard to having intercourse, but in my view there is no evidence at all which in any way suggested that the case ever went beyond the circumstances of the girl protesting and the Appellant demonstrating by his conduct that he intended to have intercourse with her in the full knowledge that she was not consenting. The Appellant lost nothing, in my view, by the absence of a full direction as to the meaning of "recklessness", and to have intruded a full definition or explanation into the case in my view, in the light of the evidence, could well have confused the jury. His Honour's short reference to the matter "…a man can't just recklessly go ahead and say 'Oh I didn't know she wasn't consenting':" was, if any reference at all was required, sufficient to give completeness to the definition of knowledge which his Honour was putting to the jury.

Ground 5: There is evidence to suggest that the guilty verdict was affected by the bias of a juror. 123 This ground was not pursued, there having been no admissible evidence placed before the Court in relation to the possibility of bias. In any event the matter asserted would have involved an impermissible intrusion into the jury deliberations, such that, consistently with the principles analysed in Regina v Skaf [2004] NSWCCA 37 and Regina v K [2003] NSWCCA 406 the ground could not have been entertained.

Ground 6: The directions on intoxication were insufficient and erroneous. 124 Yet again, no complaint was made at trial. Nor was any request made for his Honour to add to the directions which were in fact given concerning the relevance of intoxication so far as it went to the element of consent. 125 The submission which is now made is that directions should have been given concerning his intention to enter the home, and to engage in sexual activity. There could not have been any possible issue as to the Appellant's intention to enter the home. 126 Appropriate general directions were given in relation to the attempt element in so far as the jury were instructed that "there [must] be an act by the accused which clearly indicates that in [his] mind he is trying to commit the offence. There must be some act which identifies… not just that the accused intended to commit the offence but that he actually tried…" 127 In any event, s 428D of the Crimes Act provides that in determining whether a person had the mens rea for an offence other than one of specific intent, evidence that the person was intoxicated cannot be taken into account, if it was self-induced. Clearly the intoxication of the Appellant in the present case was self-induced. The offence charged in s 112(2) of the Crimes Act is not included in the list of offences contained within s 428B as an offence of specific intent (that being defined as "an offence of which an intention to cause a specific result is an element"); nor is s 61I or s 61P included in that list. The decision in R v Holland (1993) 117 ALR 193 would also support that outcome. Leave to argue this ground should be refused.

Ground 7: The directions in relation to the element of "breaking" were insufficient 128 In the course of the summing up in relation to this element it was ascertained from an examination of the tapes that what his Honour in fact said to the jury was: "well breaking in this context means various things, but if [what] the accused did was open a closed door without consent or belief or without having consent to do so then that would be an implied, that would include applied (sic) consent". 129 Leaving aside the obvious slip of the tongue in the use of the word "applied", and the possibility that the word "include" was intended to have been "exclude [implied] consent", this was a somewhat meaningless, if not confusing, direction, and would not have conveyed to the jury, what was involved in a breaking. However it was followed by an analysis of the respective cases of the Prosecution and Defence as to this element, which left the issue in simple terms of whether the jury could be satisfied that the Appellant came through the back door at a time when it, and the front door, had been locked after his first visit. 130 In this regard his Honour said, immediately after the passage last cited: "If he [the accused] opened a door or came through any other section of the house that required him to push up the window that was fully closed et cetera, that would amount to a breaking, but it must be shown that in this case the only suggestion is he came through the back door. There is no evidence from the Prosecution as to how he got into the premises on this second occasion, there is only the evidence given by the Complainant that she saw him in her bedroom. The evidence from the accused is that he turned the handle of the door, the back door, and opened the door and went in. The evidence of the Complainant is that she locked both the front and the back door but she said that there had been some difficulties at times with the back door, and that is the state of the evidence there. Entering simply means intruding any part of the body of the accused into the dwelling house." 131 No objection was taken to the direction at trial, nor was any clarification sought. I would grant leave to the Appellant to argue this ground, but I am not persuaded, in the light of the way that the factual issue was addressed by his Honour, and in the light of the evidence that the Appellant was instructed, earlier in the evening, in no uncertain terms, that he was not to remain at the premises, that the inadequate direction cost him a real chance of acquittal. In that regard it is also to be recalled that nothing was suggested to have occurred thereafter that could have given him any reason to believe that his return to the premises would be welcome. Moreover there was evidence to show that blood had been left on the external handle to the front door and the adjacent window/edge which would have been consistent with unsuccessful attempts having been made to gain entry at these locations. In that regard there was also evidence that his various attempts to contact the Complainant after the first visit had been unsuccessful and that on his return he had effected an entry which took him to the locked lounge room door before going to the rear door.

Ground 8: The learned trial judge erred in failing to give directions to the jury outlining reasonable hypotheses based on evidence which were inconsistent with the guilt of the Appellant on "verdict 2 on charge 2". 132 It was submitted, in substance, that the trial judge did not sufficiently advert to the fact that there would need to be a verdict of acquittal in the event of the jury not being satisfied beyond reasonable doubt of the elements which variously related to the breaking, the Appellant's knowledge of the Complainant's lack of consent, and the intention and conduct which were required for an attempt, and did not adequately deal with the evidence, or with the arguments, which might have left the jury without that necessary degree of satisfaction. 133 To some extent this ground involves a restatement of the grounds which have already been addressed. Reliance was however placed on the observations of Barwick CJ in Pemble v The Queen (1971) 124 CLR 107 at 117-8: "Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

… Here, counsel for the defence did not merely not rely on matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused." 134 In BRS v The Queen (1997) 191 CLR 275 at 330, Kirby J referred to the need for judicial directions to be fashioned according to the issues litigated and to the content of the submissions of counsel. His Honour added: "But in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice."

This passage was cited with approval in the judgment of Callinan J in Gipp v The Queen (1998) 194 CLR 106 at 166. 135 Reliance was also placed on similar observations in Palmer v The Queen [1971] AC 814 at 823, R v Dinnick [1909] 3 Cr APP R 77 at 79 and R v Tillman (1962) Crim LR 261 at 262 concerning the need for trial judges to leave to the jury, fairly, any defence which is raised, however weak it might be, or any issue, whether pressed by the defence or not, which, on the evidence, is fit to be left. 136 In R v Sung Eun Park [2003] NSWCCA 203 Shaw J, with whom Ipp JA and Buddin J agreed, said in relation to the passages cited from Pemble and BRS: "55. However, there may be some qualification required of these general statements lest it be thought that the authority of Pemble can be adequately stated at this high level of abstraction. 56. First it is important to recognise that the hypothesis must be both reasonable and available on the evidence .

… 61 It is conceded by the appellant that it would be wrong for a trial judge to put a hypothesis which was fanciful or unrealistic: R v Clarke (1995) 78 A Crim R 226 at 230-231 per Hunt CJ at CL. Where the hypothesis has some rational basis then it should be raised by the court, despite the fact that it has not been propounded by the defence: Barca v The Queen (1975) 133 CLR 82 at 104. As Lord Morris of Borth-y-Gest said in Palmer v The Queen [1971] AC 814 at 823:

It is always the duty of the judge to leave to the jury any issue (whether pressed by the defence or not) which on the evidence in the case is an issue fit to be left to them.

See also R v Dinnick (1909) 3 Cr App R 77 at 79; R v Tillman [1962] Crim LR 261 at 262 and Van Den Hoek v The Queen (1986) 161 CLR 158. 62 However, the authority of Pemble does not necessarily support the appellant's contentions. In RPS v The Queen (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ said (at 637): It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warning about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues…But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. 63 I am not persuaded that the authority of Pemble requires a trial judge to put all conceivable constructions of the facts to the jury. … 65 This is not to say that a trial judge may avoid putting to the jury all reasonable hypotheses available on the evidence and inconsistent with the guilt of the accused. It seems that this is a matter for the trial judge in the context of the trial. In Regina v Dudko [2002] NSWCCA 336 Spigelman CJ said (at [30]): The Appellant referred to cases such as Pemble for the proposition that there are circumstances in which a trial judge must direct a jury with respect to matters, even though Counsel for the accused does not raise the issue and even if counsel refused to do so for good reason. Nevertheless, the directions a trial judge should give must depend on the issues at trial. 66 Similarly, in Domican v The Queen (1992) 173 CLR 555 it was said by Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ (at 561): Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. " 137 The present case was not one depending upon circumstantial proof, nor was it one where any potential defence existed, that was not disclosed. 138 The complaint which is made in this ground involves little more than a restatement of Grounds 2, 4, 6 and 7, which have already been considered. I am not persuaded that the relevant elements, or the issues concerning them, were insufficiently placed before the jury. No complaint was made at trial as to the inadequacy of the directions. I would refuse leave under Rule 4 to argue this ground.

Ground 9: Directions and lack of directions in relation to aspects of the Crown case had the effect of impermissibly bolstering the evidence of the Complainant:

(a) Directions as to evidence of complaint 139 His Honour informed the jury that the Complainant had given evidence that she had complained, shortly after the incident, to her son, to her mother, to a police officer and also to a doctor "of having been sexually assaulted, to use a neutral term". The Crown Prosecutor corrected his Honour at that point, by indicating that there was no evidence from her to the effect that she had "actually complained" to her son, or to her mother. That this was so was acknowledged in the exchange which followed, in the presence of the jury, in the course of which it was also pointed out that the son had given evidence to the effect that she had complained to him. His Honour then gave an extensive direction in relation to complaint as follows: "The law of complaint, or in relation to complaint, is very old. It was once the law in times when women were regarded virtually as chattels, in fact as chattels, that an accused person could not be convicted of rape, as it used to be called, unless she made a compliant at the first reasonable opportunity. That is no longer the law, and has not been the law for some time now. It continued to be - or some aspects of it continued for a long time, far longer than with the benefit of hindsight, it ought to have, but the law now is that complaint is a matter which the jury are entitled to consider in two ways, first of all, as to the credibility of the complainant. If no complaint is made then that provides evidence for the jury to consider, whether there might not have been any sexual assault at all. It certainly does not prove that there was no assault at all, it merely provides evidence for the jury to consider on that issue. In the case such as the present, where almost immediate complaint was made, certainly within a minute of an hour or so if not earlier, then that is evidence which the jury are entitled to take into account in two ways, firstly as to the credibility of the Complainant, in other words, that her complaint was consistent with what you might think a person would do if they had been sexually assaulted. It does not prove that the complainant was sexually assaulted, it merely shows that she acted in a way that was consistent with that having happened. There may be many reasons why a woman would not complain, even if sexually assaulted. I will not go into those at length because in this case, the complainant did complain very shortly afterwards so far as the alleged sexual assault is concerned. She did not complain until later on, and you may well have the feeling that she would not have complained, it is a matter for you, concerning the first incident. You might have the impression that she might well have taken the view that she did not have the penis put in her mouth at the time, that the accused had, to use the vernacular, kicked out, sent on his way, that she may have, bearing in mind their past relationship and so forth, been prepared to let it go. It is a matter for you whether you believe that her failure to make any complaint to her son or to her brother-in-law, George Little, about the first incident (sic). Well that is a matter for you to consider really. It was complained about at a later stage but in short, the evidence of complainant is evidence which the jury are entitled to consider so far as the reliability of the complainant's claim is concerned, in that she did complain at a very early time. The other way in which it can be used is as evidence of the happening of the event itself with which the charge is concerned. It comes from the same source, that is, the complainant. So it is not independent evidence in the sense that evidence from some other person would be, because it is the complainant who both makes the complaint and who says that the offence was committed, so you might think that although technically that is evidence which the jury are entitled to take into account, it really does not take the matter much further, because it all depends upon the credibility of the same witness, that is [the Complainant]."

140 It is now asserted that, in the absence of any sufficient reference in the summing up to certain aspects of the Complainant's evidence that might potentially have weakened the complainant's credibility, this aspect should not have been left to the jury in a way that might have bolstered her credibility. The suggested flaws related to the fact that the Complainant had not said in her evidence that she had told her son what had happened, to the fact that he had given evidence that he had not informed the police that she had complained to him, to the fact that the police officer had recorded her complaint in terms of the Appellant having "tried to rape" her, and to the fact that the doctor had given an account of the history which had been supplied to her, which, it was contended, was not identical with the Complainant's evidence, concerning the way in which the incident had come to an end. 141 The last of these suggested flaws can be immediately dismissed as lacking substance. The doctor provided an account of the history which she took, in the following terms: "[CAL] was at home at her house near Kyogle. At about 8.30 pm the alleged assailant knocked on her bedroom window. She originally refused him entry then let him in when he said he just wanted to talk. He followed her to the toilet and attempted to masturbate, she told him to stop. She went into the kitchen, then went next door to get her brother-in-law. When they got back to her house [CAL's] son was also there. The two men told Les, the alleged assailant, to leave. He eventually did. He returned soon after. At that time [CAL] was in bed and her brother-in-law and son had gone next door. She heard knocking at the front door but wasn't worried as the doors were locked. However, Les forced his way in and entered her bedroom. He took his clothes off and pushed her onto the bed as she struggled to get up. He held her down. He didn't have an erection at first so he stimulated himself manually then put his penis into [CAL's] vagina. Her brother-in-law and son arrived at that stage and told him to stop . Les did not ejaculate. When Les arrived the second time he had blood on his face and after the assault [CAL] had blood smeared on parts of her legs and arms. This was Les' blood and a dried and wet swab has been taken of the blood on her leg and submitted with the kit."

142 I am quite unpersuaded that the italicised portion of this history was anything more than a bare summary of what the doctor had been told, or that it was inconsistent with the evidence which was given by the Complainant, by her son and by Mr Little. It was obviously a short hand account in relation to the fact that the incident terminated when they arrived back at the house. 143 I am similarly unpersuaded that there was any unfairness or prejudice occasioned in the absence of any express reference to the suggested inconsistencies or flaws in the Complainant's evidence. There was evidence that she had spoken to her mother "about what had happened", although without going into detail; his Honour made it clear that she had not given evidence of complaining to her son; and he drew attention to the inconsistency between the COPS record and the police officer's evidence. 144 It is not the case that a judge has to search for every possible factual argument which an accused might have advanced. Nor is it the case that every argument, which was addressed, needs to be repeated in the summing up. 145 No complaint was made at trial and Rule 4 applies. I would refuse leave in relation to this aspect.

(b) Directions as to evaluation of evidence of victims of sexual assault. 146 In the context of outlining, in a general way, the various matters which the jury could properly take into account when making an assessment of the credibility of a witness, his Honour gave an example in relation to the recording of an account from a witness in a police statement, as follows: "What a witness has to do though is to acquire in some manner information concerning a particular happening, then to, in these sorts of cases, make a statement, often shortly after the event. The witness might be quite composed or the witness may possibly be quite upset at the time that the statement is given. They will be asked various questions by the police officers, and in that way, the statement will be made. To some extent you might think it is obvious that what appears in the statement may depend upon what it is they are asked by the police officer. It is entirely a matter for you but would you expect an ordinary person to be able to remember every single thing that happened in incidents such as the present, at which they had been present themselves. A person who is the victim of a sexual assault, you may think, would be more likely to have as a primary concern, how she was going to get out of that dilemma. That is not to say that she should not retain and should not know at least some of the things, the important things, which occurred, but do you yourselves believe that you, if you were unfortunate enough to be in that situation , could remember to tell every detail of it without being reminded. It is a matter for you. Some people have got remarkable memories, and some people have relatively poor memories, but remember they are only ordinary human beings."

147 It was submitted that the highlighted passage was apt to introduce erroneously, and with judicial imprimatur, an element of sympathy in the evaluation of the Complainant's evidence, and that impermissibly it had the effect of bolstering her credibility. 148 Read in its context, this submission is entirely lacking in substance. Again Rule 4 applies since no objection was taken at trial. Leave should be refused.

(c) Lack of any direction as to evidence of distress 149 There was some evidence led at the trial as to the distressed state of the Complainant, following the second incident. For example, Daniel Little said she was "very shooken (sic) up…very upset…very shaky, nervous…"; Senior Constable Starr said that "she was extremely nervous and visibly upset. She found it difficult to relate her statement to me without continually stopping and regaining her composure"; while Sergeant Bingham said "she was flustered and she wasn't speaking normally, clearly flustered and I - I would say probably stressed, she was talking rapidly and was - I had to try and keep her clam - calm her down…" 150 No direction was sought by trial counsel in relation to this evidence, and it was not summed up as having provided any corroboration of the Prosecution case. It is now submitted that the jury should have been warned that, except in special circumstances, distress will rarely amount to corroboration of sexual assault, and that little weight should be given to that evidence. Cited in support of that proposition were Regina v Knight (1966) 50 Cr APP R 122 at 125, Regina v Talbot NSWCCA 23 September 1979, Regina v Ryan NSWCCA 15 April 1994 and Regina v McNamara (2002) 131 A Crim R 140. 151 The submission which is advanced somewhat overstates the position, since the distressed condition of a Complainant can, dependent upon the circumstances, amount to corroboration. What the authorities cited, along with Regina v Wilson (1973) 58 Cr APP R 304 and Regina v Schlaefer (1984) 12 A Crim R 345 show is that before it can have that effect, it must implicate the accused and must be reasonably explicable only on the basis of the sexual assault having occurred, not being something that was due to imagination or some other unrelated event. Matters which can properly be taken into account include the time interval between the alleged assault and the observations of the distressed state, any conduct that may have occurred in the intervening period, and the circumstances in which the observation is made: Regina v Flannery [1969] VR 586. 152 This was a case where the evidence of distress had very little prominence in the trial. It is also a case where no objection was taken to the admissibility of the evidence, where neither the Complainant nor her son was cross-examined in relation to it, where his Honour did not identify it as a matter operating in support of the Crown case, and where no direction was sought in relation to it. 153 In these circumstances I would refuse leave under Rule 4 to argue this ground.

(d) Lack of direction as to the proper use of the medical evidence. 154 Next it was submitted that the evidence from Dr Stanwell as to the bruise to the Complainant's wrist having been "consistent with" some sort of pressure having been applied to that area, and as to the absence of any sign of abnormality on or around the Complainant's genitalia having been "consistent with" penetration, should not have been admitted, and that it served, inappropriately, to bolster the Complainant's credibility. 155 The evidence that was given in the last mentioned respect was to the following effect: "Q. ..you mentioned that you saw no abnormality on or around the genitalia of your patient? A. Mm. Q. Was that also consistent with the history the Complainant gave you of having been penetrated by the penis of an adult male some several hours or as it was it was 9am when you saw her-- A. Mm. Q. -perhaps as much as 12 hours earlier? A. Yes, that's completely consistent with that, there - it's most common that there's no visible sign of injury following penetration, including forced penetration in an adult female." 156 There was no objection to any of this evidence, and there was no attempt to obtain a concession that an absence of any injury to the genitalia was equally consistent with there having been no earlier act of intercourse, whether forced or otherwise. 157 Presumably counsel regarded that as self evident, and confined the cross-examination to the bruising, in respect of which he obtained the concession as to the possible age of the bruises to the wrist and buttocks earlier mentioned, which was capable of neutralising or at least qualifying the answers given in chief. 158 I am not persuaded that the evidence in relation to the bruising was inadmissible. It was capable of providing some support of the complainant's evidence, and there was independent evidence from Mr Little that she had been observed rubbing her wrists afterwards. While it may not have had a great deal of weight in the light of the cross-examination, it was clearly admissible, and there was no occasion, in my view, for its exclusion under either s 135 or 137 of the Evidence Act. 159 The evidence in relation to the sexual assault examination was of minimal value. In R v Dann [2000] NSWCCA 185, Heydon JA (as he then was) pointed to the problem which arises where evidence of this kind is led: " [15] If it is the case, and the Court has no reason to doubt it, that medical evidence of a physical examination is often neutral, it seems regrettable that the time of busy professional people with heavy responsibilities such as Dr Packer should be used up giving evidence of such limited materiality. It is also regrettable that court time should be taken up with it. These difficulties could be overcome if some other solution to the problems which would arise from its absence can be devised. [16] A solution in particular cases might be for Crown and defence to agree that the evidence not be called and to agree to join in a request that the trial judge direct the jury that the jury should attribute no significance to the absence of the evidence because it is immaterial. [17] Another technique which might be employed where the Crown proposes to call inconclusive medical evidence is for the trial judge to secure from the defence an undertaking not to comment on the absence of the evidence if the Crown decides not to call the evidence or it is rejected. That admittedly would still leave open whatever risk of jury speculation there is." 160 Reference was also made to the limited materiality of this kind of evidence in Regina v Skaf [2004] NSWCCA 74 at paras 297-298, and in Regina v RTB [2002] NSWCCA 104 at para 24, where the Court said: "The doctor said that there was no physical indicator of such an occurrence. The import of her evidence was that there would not necessarily be any such indicator. No doubt evidence of this character will often be appropriate in order to ensure that a jury does not speculate about the absence of medical evidence. Where (as here) the evidence has limited materiality, consideration should be given to alternative ways in which the issue might be handled. In R v Dann (Court of Criminal Appeal, 19.5.2000)… … Where the doctor is called, it is undesirable, however, for such evidence to be given in a form which appears to bolster the credit of the complainant, rather than in a form that the absence of a physical indicator is neutral. (In the present case, the doctor said her observations were "consistent" with the complainant's evidence and this became, in the trial judge's directions, an observation that the complainant's evidence "could be accurate")" 161 By its verdict the jury acquitted the Appellant of the count 2 offence, no doubt because it was not satisfied of penetration. In those circumstances, this aspect of the doctor's evidence was not material to the guilty verdict that was returned to the alternative count. 162 In the absence of any objection having been taken to the tender of the evidence or of any direction being sought, I would refuse leave under Rule 4 to argue this ground.

Ground 10: The failure to give a " Markuleski " direction resulted in the denial of a real chance of acquittal reasonably open on the evidence. 163 Although no direction was sought at trial, it is now submitted that the jury should have been given a direction in accordance with R v Markuleski (2001) 52 NSWLR 82 to the effect that: "where they [the jury] entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts , that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally " (Per Spigelman CJ at para 188). 164 The need for such a direction was advanced upon the basis that the jury having not been satisfied beyond reasonable doubt in relation to the indecent assault count, or as to the penetration aspect of the substantive count 2, must have had a reasonable doubt or a concern as to the Complainant's truthfulness and reliability. 165 The desirability of the Markuleski direction was considered in the context of a "word against word" case (para 186 per Spigelman CJ). His Honour added: "187 Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and Davies "as a general rule". Its absence is not necessarily fatal (as it was not in Davies itself). Furthermore, as the joint judgment in Crofts affirmed, the "general rule" does not apply "where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness" (at 451). 188 It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally. 189 On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count. 190 Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

191 The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts." 166 This form of direction was also the subject of consideration by Grove J and by myself. In my judgment I said: "I see no reason to confine the direction to reliability. It is equally, if not more, applicable in relation to credibility or truthfulness. Moreover, I see no reason to do more than bring to the attention of the jurors the circumstance that, depending upon the nature of, and the degree of, any question which arises in relation to the evidence going to the count in respect of which they have a reasonable doubt, it is both permissible and proper for them to take that into account when considering the evidence of the complainant or central witness upon the remaining counts." (at para 261) 167 In some cases, as I indicated, a more neutral reminder may suffice and in others no reminder may be necessary at all (at para 263). 168 Grove J said, at para 280: "It is self evident that a trial judge must make a decision whether to give such an indication before it is known whether the jury will discriminate in its verdicts upon separate counts. Whilst I consider that it would be prudent to give such a direction in some cases I am apprehensive that language incorporating the concept of cruciality will be interpreted as mandatory. For my part I would refrain from expression in any terms which might be so interpreted. There may be cases in which it could be necessary to assist a jury by way of an instruction such as is under discussion but in some way it may not. In my view it would suffice to commend the matter for consideration of trial judges." 169 No suggestion was made by trial counsel that any direction was required. 170 This was not strictly a word against word case in that there was some independent support for the Complainant's version. More significant however is the fact that a very different issue was involved in the incident which gave rise to the first count. It involved the Applicant pushing back the Complainant's head, and demanding fellatio, whilst masturbating. The act of masturbation was essential to the charge and it was relied upon as the act of indecency. His Honour said: "Now in this case, there has been in the past an intimate and apparently highly sexual relationship between the accused and the complainant, and that is one of the circumstances which you must fully bear in mind when you come to consider the question of whether there was an act of indecency. Whether something is or is not indecent may well depend on the nature of the relationship between the people concerned, if any people (sic), and it may depend upon whether or not the act was without the consent of the complainant." 171 Having appropriately dealt with the test for "indecency" in terms directed to whether or not what occurred was "so offensive to contemporary standards of modesty and/or privacy as to be indecent", his Honour said: "At the forefront of your consideration obviously will be, well if those things were done in the past, and there is no dispute that theirs (sic) was a fairly lively and frequent occurrence, there is no suggestion that there was anybody else watching what was happening…it is a question of what happened between two people who had already had a long or intimate relationship together for two years, whilst they were alone in the bathroom of the house…" 172 It may well be that this direction was unduly favourable to the Appellant, in that the test as to whether the act alleged was indecent was an objective one. However, leaving aside any question in that regard, it is not surprising in a case where there was evidence of prior sexual activities between the parties in the bathroom, and where this count was left in the way noted, that the jury had a reasonable doubt as to whether the Appellant's act was indecent. 173 It does not follow that the acquittal on this count meant that the jury must have had a doubt as to the Complainant's credibility or reliability. The same must be said in relation to the acquittal on substantive count 2. As I have earlier noted there was an entirely understandable degree of uncertainty in the Complainant's mind as to whether or not she was penetrated, and there was before the jury the contemporaneous record made by Sergeant Bingham which noted that she had reported the Appellant as having "tried" to rape her. 174 In those circumstances the jury were well entitled to have had a reasonable doubt as to whether the Crown had proved a penetration as distinct from an attempt, without having any overall concern as to the Complainant's credibility and reliability. 175 Once again, in the absence of any request for a Markuleski direction, I would refuse leave under Rule 4 to argue this ground.

Ground 11: The verdict was unreasonable (s 6(1) Criminal Appeal Act 1912) 176 So far as the submissions directed to this ground relied upon an argument that the jury had rejected, or had a reasonable doubt in relation to, the Complainant's evidence concerning count 1 and concerning substantive count 2, this has been largely dealt with under Ground 10. 177 It was contended that a doubt should reasonably be entertained by this Court in so far as the Complainant and Sergeant Bingham each disavowed the CIDS "tried to rape" entry, in so far as there was a suggested inconsistency (which I am in fact unable to detect, at least as a matter of substance) between the Complainant's evidence and the history taken by Dr Stanwell, and in so far as the Complainant had not suggested, in her evidence, that she had told her son that the Appellant had raped her. 178 These were properly matters for the jury to take into account, but none of them appears to me to be of the kind that would attract an application of the test which was stated in Jones v The Queen (1997) 191 CLR 439 and in M v The Queen (1994) 69 ALJR 83, concerning this ground. 179 The present was a case where the jury had a distinct advantage over this Court in seeing and hearing the witnesses, including the Complainant and the Appellant, while they gave evidence. Clearly there was sufficient evidence available for the Appellant to have been convicted of the alternative count, and the verdict which was returned, in my view, appropriately reflected the evidence as to the attempt element, in the light of the standard of proof that the Crown had to meet on the penetration issue. 180 This ground has not been made good.

CONCLUSION 181 It is to be observed that none of the grounds of appeal that have been raised in this case involved points that were taken at the trial, necessitating, as a consequence, a consideration of Rule 4 of the Court of Criminal Appeal Rules. The case was not one where any affidavit was provided from trial counsel, or any submission advanced which alleged incompetence on his part, that may have fallen within the principles discussed in Regina v Birks (1990) 19 NSWLR 677. 182 Trial counsel, both those representing the prosecution and the defence, have a positive obligation to assist trial judges in the task of summing up a case to a jury. Unless they attend carefully to the summing up, and correct any factual or legal errors which emerge, they have failed in their task. This Court is entitled to expect that they will attend to their duty, and it will not necessarily look with favour upon any exercise that involves trawling through the trial transcript and summing up, in order to detect errors that could, and should, have been detected at first instance. 183 It is in this context, and in the light of the observations of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 that Rule 4 is to be considered. His Honour there observed at 310: "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant." 184 Sight should also not be lost of the decision of this Court in Regina v ITA [2003] NSWCCA 174. After noting the decisions in R v DH [2000] NSWCCA 360, R v Fuge (2001) 123 A Crim R 310, R v Abusafiah (1991) 24 NSWLR 531, R v Roberts (2001) 53 NSWLR 138, R v Hokafonu [2002] NSWCCA 92, R v Pearson [2002] NSWCCA 429, R v Giri (2001) 121 A Crim R 568 and Papakosmas v The Queen, Ipp JA observed in ITA: "97 It is disturbing that so often no account is taken of the clear warnings that have been given by this Court. It is not unusual for appellants, without making any application for leave under r 4, to proceed blithely to argue grounds that should have been raised by counsel at trial but were not. There is usually, as in this case, no explanation whatever for the omission to raise the perceived difficulties with the trial judge. 98 The existence of r 4 and s 99 imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will not lightly be assumed that this duty has been breached. Rather, unless there is good reason to hold the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons. No more need be said than to repeat and emphasise the remarks of Gleeson CJ in R v Sanderson (unreported, NSWCCA 18 July 1994) that: 'It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred'." 185 These observations, and the approach outlined in the decisions cited apply with considerable force to the present case, which turned principally upon the simple issue whether the Appellant attempted to have sexual intercourse with the Complainant, or whether he joined her in bed only for comfort, in circumstances where the effects of the accident and alcohol left him in a position where he was unable, and did not want, to engage in sexual intercourse. 186 As already noted, quite independently of Rule 4, I would regard the errors in relation to Grounds 4 and 7 as suitable for an application of the proviso to s 6(1) of the Criminal Appeal Act. 187 I have already referred to the decisions in Krakouer and Murray. To those decisions should be added the observations of McHugh J (at paras 110 to 123) and of Hayne J (at paras 222 to 229) in Festa v The Queen (2001) 208 CLR 593. 188 MchHugh J concluded (at 120) that the correct principles to apply were those stated by Barwick CJ in Storey v The Queen (1978) 140 CLR 364 at 376 and in Driscoll v The Queen (1977) 137 CLR 517 at 524-525 adding:

"The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case. The prevalence of dissenting views in cases dealing with the application of the proviso illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury, "acting reasonably" and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde :

'In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.' But one important development has occurred since this Court decided Mraz , Storey , Driscoll and Wilde . Courts of criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously. This Court has interpreted the 'miscarriage of justice' ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt. Even 30 years ago, such an approach would not have been contemplated. In M v The Queen Mason CJ, Deane, Dawson and Toohey JJ said: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.' Although the term "miscarriage of justice" appears both as ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court's view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction."

189 Hayne J, after noting the questions which were invited by the way in which the proviso was worded, indicated that there were some features of its operation "to which reference might usefully be made": "First, the common form provision, taken as a whole, is to be understood as rejecting demonstration of mere formal error, as distinct from substantial error, as the criterion for setting aside the judgment of the court of trial. The rejection of that approach is reflected in the provision's specification of grounds on which an appeal is to be allowed: 'that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice'. But it also finds important reflection in the proviso, where the addition of the epithet "substantial" to qualify "miscarriage of justice" and the use of the word "actually" in the expression "actually has occurred" may be thought to emphasise to the court of appeal that the inquiry must be directed to the substantial merits of the case, not merely matters of form. Secondly, the proviso to the common form provision can be seen as accepting that a basic premise of the common law is that an accused person is entitled to a trial according to law. For that reason, alone, any departure at trial from what the law requires is a miscarriage of justice. But the proviso recognises that not every departure, at trial, from the proper application of the law warrants setting aside a conviction. Thirdly, both the framing and the subsequent application of the common form criminal appeal provisions, including the proviso, have had to take account of two other considerations: that the jury is the tribunal of fact in a criminal trial and that the prosecution must prove its case beyond reasonable doubt. In recent years, some prominence has been given to cases where a court of criminal appeal, having examined for itself the evidence given at trial, has formed its own opinion as to whether there was a reasonable doubt about the accused's guilt. But those have been no more than particular applications of the common form provision requiring the court to allow the appeal "if it is of opinion that the verdict of the jury ... cannot be supported having regard to the evidence". What is important for present purposes is that criminal appeals must be decided giving due recognition to the facts that it is for the jury to decide what evidence is persuasive and what is not, and that the degree of persuasion that must be attained to warrant conviction is very high. It follows that for a court of criminal appeal to apply the proviso the court must conclude that the evidence properly before the jury would, if the jury had been properly instructed, have inevitably required the jury, acting reasonably, to return a guilty verdict. A court of criminal appeal must approach the consideration of the proviso in any particular case paying close attention to the nature and consequences of the error that has been identified in the trial. To take but one example, in some cases it may be possible to conclude that the jury could not have reached the verdict it did, unless it accepted some evidence and rejected other evidence. In such a case, could the error that has been identified have affected those conclusions? Often enough, that question will require an affirmative answer. If, however, the answer is no, what does that say about whether there has been a substantial miscarriage of justice? By contrast, if evidence has been wrongly admitted at trial it may be more difficult to detect from the jury's verdict how it dealt with particular factual issues at trial. In such a case, of which the present is an example, it is necessary to direct attention to the uncontroverted facts and consider whether, on those facts, conviction was inevitable. The formula usually cited in connection with the application of the proviso is taken from the reasons of Fullagar J in Mraz v The Queen : '[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.' It is to be noted that his Honour was not, in terms, describing the application of the proviso, so much as the operation of the common form provision taken as a whole. His Honour referred to the proviso two sentences later when he said, '[i]t is for the Crown to make it clear that there is no real possibility that justice has miscarried.' Be that as it may, use of the formula of "lost chance, fairly open, of acquittal" must not be permitted to obscure the nature of the inquiry that must be made. That is an inquiry which seeks to identify whether, on the evidence that was properly admitted at trial, a jury acting reasonably and properly directed would have inevitably convicted." 190 Despite the inadequate directions which were identified in relation to the breaking and knowledge of consent elements, I am satisfied that, in accordance with the approach in Festa this was a case where a jury, properly directed in relation to these elements, would have inevitably found the Appellant guilty. No substantial miscarriage of justice occurred. 191 I would dismiss the appeal. 192 HOWIE J: I agree with Wood CJ at CL. **********

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