Regina v Harbulot

[131]

The judge also reviewed the evidence of KH as to what occurred over the telephone when NH spoke with her, referring to NH saying that something horrible had happened and KH asking, "Were you raped?" and that KH stated that NH was crying and bawling. The judge then set out what KH said that NH had told her in the car (as earlier stated). The judge correctly told the jury that it was a matter for them whether NH made a complaint to Ms Sidorenko and KH. The judge gave the jury these directions at SU10-11: "Assuming that you so find [that NH made a complaint to Tammy and KH] the evidence as to complaint relates to statements made to Tammy Sidorenko and [KH] in the past and outside of this courtroom. Such statements are referred to in the law as hearsay evidence. Each of the witnesses was merely repeating in court what she says the complainant told her about the incident alleged. Neither of those two witnesses were present and able to observe what the complainant described as having occurred between she and the accused. Accordingly, these two witnesses could not give direct evidence of the event. You will therefore necessarily approach the evidence of each of those two witnesses with caution, however bearing in mind this warning, if you accept that the complaint was made to the witnesses, then you may take that complaint into consideration as some evidence of the fact that the sexual assault charged against the accused actually took place. The fact that the complaint was made may also assist you in determining your assessment as to the reliability of the complainant's evidence here in court. The fact that such a complaint was made may assist you in that task because the Crown says that it shows a consistency of conduct on her part. She complained to two persons very soon after the incident, persons to whom she would reasonably expect to complain to, if she had been sexually assaulted. The Crown says that her conduct was that that would be expected of a truthful person who had been sexually assaulted. That is how a truthful person would behave. She would go and make a complaint soon after the event to persons to whom a complaint would normally be directed, and that is what the Crown says occurred here. In other words, the evidence as to complaint is a matter which you would consider in assessing the credit of the complainant as a witness in that it may increase the weight which yo give to her evidence s to the sexual assault with which the accused has been charged. On the other hand, it is the accused's case that the complaint was unable to remember just what it was that she said to the two witnesses and, accordingly, you do not have her account of just what it was that she said to Tammy Sidorenko or to [KH]. The accused says, through Mr Egan, that you would therefore have some doubts about those complaints and about their reliability and as to what weight should be given to them."

[145]

· the complainant took flight as she left behind her keys and underwear and left open the door to the flat. However, before leaving the flat she discarded the appellant's jumper, found her two sets of pants, her cardigan/jacket and shoes and put them on. (ii) These points cannot fairly be described as inconsistencies in the Crown case. These were, at best, arguments why the complainant should not be accepted as a witness of truth, albeit not persuasive ones. (c)(i) When dealing with the accused's record of interview the judge was unfair in that he drew attention to the few unfavourable parts alone (ii) The judge pointed out that there had been no admission or confession by the appellant. The judge referred the jury to the appellant saying that he woke up with her hand on his penis, he had a bit of a dabble, received no complaints and had intercourse with her. That was the essence of the appellant's evidence. His principal explanation for his admitted intercourse was that she had her hand on his penis. This was a signal to him and was said to eliminate the need for any talk or romantic talk. (iii) The judge pointed out the various versions he gave as to whether she put, or had her two sets of pants on, after the bath. He also repeated the appellant's explanation of being sleepy and tired when he underwent the interview because of a big night out and that he was confused and did not know what the police were getting at or where they were leading him. (iv) The judge commented that the appellant made it clear in his interview that it was the complainant who initiated by her physical actions, the sexual activities, that her "oohs" and "aahs" gave him every reason to believe that the foreplay was acceptable and that she was an active participant in the sexual intercourse. That corresponded with the essence of the appellant's defence. (v) There was much other material in the recorded interview, the transcript of which occupied some 53 pages. Much of the material was repetitive and much dealt with the events at the hotel, prior to going to bed and the early period in bed before anything happened between the appellant and the complainant. It was not necessary to canvass the details of what he said had happened after he woke and found she had her hand on his penis. (vii) I am not persuaded that the judge's review of the recorded interview was unfair. 132. The judge strongly put the Crown case to the jury. The Crown's arguments were formidable and they were cogently marshalled and summarised by the judge. The judge put the appellant's case to the jury quoting the critical portion of his evidence verbatim. I have summarised this account [71]. The judge told the jury that if they accepted that account, it would appear that the appellant was aroused by NH and that he would have had every reason to believe that she was consenting to an act of sexual intercourse. The judge later made it clear that, although the appellant had given evidence, he had to prove nothing.

Regina v Harbulot - [2003] NSWCCA 141 - NSWCCA 2003 case summary — Zoe

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Judgment (152 paragraphs)

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