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[2003] NSWCCA 174
Court of Criminal Appeal (NSW)
2003-07-10
Ipp JA, Buddin J, Shaw J
Original judgment source is linked above.
CITATION : Regina v ITA [2003] NSWCCA 174 revised - 11/07/2003 HEARING DATE(S) : 27/06/03 JUDGMENT DATE : 10 July 2003
JUDGMENT OF : Ipp JA at 1; Buddin J at 187; Shaw J at 188 DECISION : (1) Dismiss grounds 1(A) and 5. (2) Refuse leave to appeal under r 4 of the Criminal Appeal Rules in respect of grounds 1(B), 2, 3 and 4. (3) Uphold ground 6 in part. (4) Set aside the verdict of guilty in respect of the charge of sexual assault with aggravating circumstances and substitute a verdict of guilty of sexual assault. (5) Reduce the head sentence imposed by Moore ADCJ in respect of count 1 by six months and reduce the non-parole period by six months. The sentence in respect of count 1 will therefore be six years six months imprisonment commencing on 8 October 2001 and expiring on 7 April 2008 with a non-parole period of four years six months commencing on 8 October 2001 and expiring on 7 April 2006. (6) In respect of count 3, uphold the appeal against sentence to the extent that the head sentence is reduced by six months. No change to be made to the non-parole period. The head sentence will therefore be three years six months imprisonment commencing on 8 April 2005 and expiring on 7 October 2008, with a non-parole period of one year commencing on 8 April 2005 and expiring on 7 April 2006 (7) The sentence in respect of count 3 should be cumulative to the extent of the six months.
CATCHWORDS : CRIMINAL LAW - Whether the indictment was defective and bad in law because it contained charges against two persons - Nature of the trial judge's task when summing up - Failure by counsel to raise objections to the trial judge's directions or omissions to direct - Criminal Procedure Act 1986, s 99 - Whether to grant leave under r 4 of the Criminal Appeal Rules to raise certain directions, or omissions to direct, as grounds of appeal - Whether a miscarriage of justice arose with respect to the trial judge's directions or omissions to direct - Whether it was open to the jury to conclude beyond reasonable doubt that the offence was committed in company - Factors for consideration when re-sentencing. Crimes Act 1900, s 61I, 61Q, 405AA Crimes (Sentencing Procedure) Act 1999, s 21A LEGISLATION CITED : Criminal Appeal Rules, r 4 Criminal Procedure Act 1986, ss 61(1), 99 Evidence Act, s 66(2) Annakin v R (1988) 17 NSWLR 202 Condon v R (1995) 83 A Crim R 335 Crane v The Director of Public Prosecutions [1921] 2 AC 299 Domican v The Queen (1992) 173 CLR 555 Edwards v R (1993) 178 CLR 193 Papakosmas v R (1999) 196 CLR 297 R v Assim [1966] 2 QB 249 R v Button (2002) 54 NSWLR 455 R v Davis [1999] NSWCCA 15 CASES CITED : R v DH [2000] NSWCCA 360 R v Fuge (2001) 123 A Crim R 310 R v Giri (2001) 121 A Crim R 568 R v Hokafonu [2002] NSWCCA 92 R v Pearson [2002] NSWCCA 429 R v Roberts (2001) 53 NSWLR 138 R v Sanderson (unreported, NSWCCA, 18 July 1994) R v Williams (1999) 104 A Crim R 260 Rex v Muir [1938] WN 163 RPS v R (2000) 199 CLR 620 Zoneff v R (2000) 200 CLR 234 Regina PARTIES : v ITA FILE NUMBER(S) : CCA 60087/03 COUNSEL : Appellant: J C Papayanni Crown: M C Grogan SOLICITORS : Appellant: Jeffreys & Associates Crown: S E O'Connor
LOWER COURT District Court JURISDICTION : LOWER COURT 021/21/3254 FILE NUMBER(S) : LOWER COURT Moore ADCJ JUDICIAL OFFICER :
IPP JA BUDDIN J SHAW J
FACTS Certain charges were brought against the appellant and AK in the one indictment. The appellant was found guilty in relation to count 1, that being that he had sexual intercourse with the complainant without her consent and knowing she did not consent and in circumstances of aggravation, namely, being "in company". The appellant was found guilty in relation to an alternative charge to count 3 of indecent assault without the element of being "in company". Moore ADCJ imposed a total sentence of seven and a half years imprisonment with a non-parole period of five years. This consisted of seven years imprisonment with a non-parole period of five years in relation to count 3, and four years imprisonment with a non-parole period of one year in relation to count 3. The latter sentence was to be cumulative on the sentence in respect of count 1 to the extent of six months.
The appellant appealed against the two convictions and sought leave to appeal against the sentences.
The Indictment i. The indictment was not defective and bad in law. The failure to take objection as required by s 61(1) of the Criminal Procedure Act 1986 meant that, unless the form of the indictment gave rise to a miscarriage of justice, it was too late to object. No miscarriage of justice arose. The offences alleged to have been committed by the appellant and AK were significantly related to each other and it was appropriate for the indictment to contain all four counts in question. The Trial Judge's Summing Up i. When summing up, a trial judge is not bound to comment on the facts except to the extent that the judge's other functions require: Criminal Procedure Act, s 99 applied. (a) The precise nature of the trial judge's task depends on the context of the trial, its complexity, the way that it has been run, the issues that arise, and whether counsel seek more from the judge than what has been provided. The judge must ensure that the case of the accused is put fairly before the jury and that the accused has a fair trial. A failure by counsel to raise objections at the close of the judge's summing up is usually a reasonably reliable indicator of its fairness and adequacy. (b) The existence of r 4 of the Criminal Appeal Rules and s 99 of the Criminal Procedure Act 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. Unless there is a good reason to hold the contrary, it will be inferred that decisions by counsel not to raise such matters with the trial judge are taken for sound forensic reasons.
ii. No miscarriage of justice arose with respect to his Honour's directions as to the elements of the offences. With regard to count 1, it was unnecessary for his Honour to refer the jury to the evidence as to the elements of the offence. The issues were obvious, the facts were not complex and the jury had been addressed fully on the issues by counsel. In relation to count 3, the trial judge correctly directed the jury to find there were no circumstances of aggravation and also related the elements of the offence to the evidence. Leave under r 4 to raise these directions as a ground of appeal is refused.
iii. His Honour did not err in his directions as to the cases and arguments of counsel. He informed the jury that counsel had not misstated the facts in their argument and neither counsel disputed this. The Crown case, the defence case, and the arguments of counsel were obvious and must have been easily comprehended by the jury. Leave under r 4 to raise his Honour's direction as a ground of appeal is refused.
iv. No miscarriage of justice was caused by his Honour's omission expressly to warn the jury that evidence in respect of counts 2 and 4 relating to AK was not to be taken into account in deciding counts 1 and 3 relating to the appellant. Leave under r 4 to raise such an omission as a ground of appeal is refused.
v. No miscarriage of justice was caused by his Honour's directions in regard to the element of "in company". The directions accorded with R v Button (2002) 54 NSWLR 455.
vi. With regard to his Honour's direction as to lies, although it would have been preferable of his Honour to give merely a direction of the kind referred to in Zoneff v R (2000) 200 CLR 234, no complaint about the direction was made at the trial and in all the circumstances, no injustice arose from the direction. Leave under r 4 to raise the direction as a ground of appeal is refused.
vii. Leave under r 4 to raise his Honour's omission to instruct the jury on mistaken belief as a ground of appeal is refused. There was no need to so instruct, as: (a) the appellant's defence was conducted purely on the basis that the complainant positively consented throughout the sexual activities; and (b) although the Prosecutor, in the course of her address, mentioned recklessness (although the Crown's submission was that there was no evidence of recklessness or mistaken belief), this was an unimportant remark when seen in the context of the address as a whole. Counsel accepted that his Honour would say nothing about this to the jury.
viii. The trial judge did not err in his direction as to complaint. The direction was entirely fair and in accordance with law, and counsel made no objection.
The Verdict i. The jury should not have found the aggravating element of being in company in regard to count 1 as having been proved. It was not open to the jury to conclude beyond reasonable doubt that the offence, the subject of count 1, was committed in company. ORDERS i. Dismiss grounds 1(A) and 5.
ii. Refuse leave to appeal under r 4 of the Criminal Appeal Rules in respect of grounds 1(B), 2, 3 and 4.
iv. Set aside the verdict of guilty in respect of the charge of sexual assault with aggravating circumstances and substitute a verdict of guilty of sexual assault.
v. Reduce the head sentence imposed by Moore ADCJ in respect of count 1 by six months and reduce the non-parole period by six months. The sentence in respect of count 1 will therefore be six years six months imprisonment commencing on 8 October 2001 and expiring on 7 April 2008 with a non-parole period of four years six months commencing on 8 October 2001 and expiring on 7 April 2006.
vi. In respect of count 3, uphold the appeal against sentence to the extent that the head sentence is reduced by six months. No change to be made to the non-parole period. The head sentence will therefore be three years six months imprisonment commencing on 8 April 2005 and expiring on 7 October 2008, with a non-parole period of one year commencing on 8 April 2005 and expiring on 7 April 2006.
vii. The sentence in respect of count 3 should be cumulative to the extent of the six months.
IN THE COURT OF CRIMINAL APPEAL 60087/03
IPP JA BUDDIN J SHAW J
The convictions and sentences 2 In 2002, a trial took place in the District Court pursuant to the following charges which were contained in a single indictment:
"(1) [The appellant] on 7 October 2001 at Busby in the State of New South Wales, did have sexual intercourse with [the complainant], without her consent and knowing that she did not consent, and in circumstances of aggravation, namely, he was in company with [AK].
(2) [AK] on 7 October 2001 at Busby in the State of New South Wales, did have sexual intercourse with [the complainant], without her consent and knowing that she did not consent, and in circumstances of aggravation, namely, he was in company with [the appellant].
(3) [The appellant] on 7 October 2001 at Busby in the State of New South Wales did … assault [the complainant], and at the time of the assault he did commit an act of indecency upon her, in circumstances of aggravation, namely, he was in company with [AK].
(4) [AK] on 8 October 2001 at Rossmore in the State of New South Wales, did an act, namely, spoke with [SB], a witness in criminal proceedings against himself, and asked the said [SB] to give false evidence, intending thereby to pervert the course of justice". 3 After the trial, the jury returned a verdict of guilty to the first charge against the appellant, a verdict of guilty to the second charge against AK, a verdict of not guilty to the third charge against the appellant, but with a verdict of guilty to an alternative charge, put to them by the trial judge (Moore ADCJ) of indecent assault without the element of being in company, and a verdict of guilty to the fourth charge against AK. 4 Moore ADCJ imposed a total sentence on the appellant of seven and a half years imprisonment and a non-parole period of five years. In regard to count 1, he imposed a sentence of seven years imprisonment commencing on 8 October 2001 and expiring on 7 October 2008. He imposed a non-parole period of five years expiring on 7 October 2006. In regard to count 3, his Honour imposed a sentence of four years imprisonment with a non-parole period of one year. He ordered that this sentence be cumulative on the sentence in respect of count 1 to the extent of six months. It is apparent that the learned Judge made some errors when announcing the commencement and expiry date of this sentence, but I infer that he intended that it commence on 8 April 2005 and expire on 7 April 2009. He ordered that the non-parole period expire on the same date as the non-parole period in respect of count 1. 5 The appellant appeals against the two convictions and seeks leave to appeal against the sentences.
The issues at trial summarised 6 In regard to the first count, there were two principal issues at the trial. In respect of the first count, the appellant was charged with conduct involving penile penetration of the complainant's vagina. He denied this, but admitted that fellatio had occurred. Secondly, the appellant denied that the sexual acts, that did take place, occurred without consent. As regards count 3, the issues were whether sexual activity, the subject of the charge, had occurred and, if so, whether it had occurred without the complainant's consent. 7 In a nutshell, the Crown case was that the complainant was a perfectly respectable young woman whom the appellant sexually assaulted against her will. The appellant's case was that the complainant was a prostitute and she agreed to have sex with him for $70 which he paid to her. 8 While the basic dispute between the appellant and the complainant can be shortly stated, the factual background needs to be filled in. So that the issues on appeal might properly be understood, I shall set out the case for the Crown and the case for the appellant as the evidence was presented at trial.
The Crown case 9 In October 2001, when the offences occurred, the complainant (who was then aged 21 years) was living at Gosford. She had met one SB, a 29 year old man, in the course of some social events in Gosford. SB lived in Sydney and, while in Gosford, invited her to see him in Sydney when she was next there. 10 On Friday 5 October 2001 she travelled by train from Gosford to Sydney so that she could take an examination the next morning. On arrival she was picked up by her friend HB. HB had known the complainant for about six years and they had been "in a relationship" for a period of three years. 11 The complainant stayed overnight at the home of HB's aunt. That evening the complainant and HB discussed what the complainant had planned for the weekend. The complainant told him that she intended to stay at the house of her friend B. Next morning HB dropped the complainant off at the place where she sat her examination. 12 The complainant finished her examination at mid-day and called SB. SB took her to his farm in Rossmore where they had a barbeque. There the complainant met one LD, a friend of SB. Eventually SB, LD and the complainant left to go to a house in Busby. The appellant was living in this house and LD was staying there as well. That evening, at the house, SB introduced the complainant to the appellant. 13 SB, his girlfriend and LD then went to a nightclub. They returned to the appellant's house where, at SB's suggestion, the complainant was to sleep over. SB showed her the spare room which, he said, she should use. SB and LD were to sleep on two lounges in the lounge room. 14 The complainant changed into her pyjamas and went to sleep. SB had told her that he would be leaving early in the morning to go to work. Early the next morning she heard SB leave. SB had told the complainant that LD would take her home. 15 Some time later the complainant heard what she believed to be LD's car driving away, as well as some voices in the lounge room. She did not recognise the voices and did not understand what was being said because the persons concerned were speaking in a foreign language. Unbeknown to her, the voices were those of the appellant and AK (who had arrived at the house in order to ask the appellant to repair a gearbox). 16 She then heard a knock on her door, the door opened and the appellant entered. He took a towel from the wardrobe and left. He was clad in a pair of boxer shorts. 17 A short time later, the appellant returned and asked the complainant if he could lie down next to her. He proceeded to do so without waiting for a reply. The complainant did not wish him to do this and asked him where LD was. The appellant replied that LD had left. The complainant asked him again and he again told her that LD had left. He said, "no one's here, the house is locked up". On hearing this, the complainant became concerned. 18 The complainant moved away and attempted to get up from the bed. The appellant prevented her from doing so by putting his arm over her shoulders and pushing her down, saying "No". The complainant became upset and said, "I don't want this, can I get up"? The appellant replied, "Don't worry, I just want to talk to you". He got under the covers and touched the complainant on her stomach and across her chest over her pyjamas. The complainant once again asked where LD was and the appellant once again said, "He's gone, no one's here". 19 At that stage there were several knocks at the front door. The complainant asked the appellant if he was going to answer the door. He said "No, they'll go away", or something to that effect. She said that if the appellant would not answer the door, she would do so. The appellant then went to the door and the complainant followed him, still wearing her pyjamas. The appellant was still wearing only his boxer shorts. 20 As they walked to the front door, the complainant noticed another person in the lounge room. He was AK, a man aged 43 years. AK was sitting on the couch. The complainant had never seen him before. 21 The appellant said, "there's no one there" and he turned around and pushed the complainant back into the bedroom where she had been sleeping. She tried to get by him but was unable to do so. She became even more distressed. 22 As the appellant closed the door of the bedroom, the complainant heard someone come in through the back door. Unbeknown to the complainant, that was LD, who had been shopping, had returned and knocked on the front door, and not having gained admission, had gone to the back door. 23 The complainant began to shake and cry and had trouble talking. The appellant closed the door behind him and hugged her. He said, "hug me". She did not want to and did not co-operate. He said, "I don't want to be rough" and "everything's alright, no one's going to hurt you". She attempted to move away from him. He put his arms around her, and put her arms around his own waist. She moved them away again. He moved them back. She tried to get away from him and he attempted to kiss her. He said "just one kiss that's all" and he grabbed her face and kissed her. The complainant pulled away from him and he complained that the kiss was inadequate and he told her to do it again with feeling. 24 He then kissed her again and said: "I'll get whatever I want, whichever way, I don't mind whichever way".
He then used a phrase that she could not precisely recall. This was, "I get what I want, whichever which way. I'll skin you right now", or he may have said, "I'll kill you, I don't care". Whatever the expression was, the complainant became very scared. 25 The appellant removed his boxer shorts and, while naked, rubbed himself against the complainant's back. He tried to remove her t-shirt and turn her around. She was crying and saying, "I don't want this, I don't want you to do this". 26 The complainant said that she needed to go to the toilet, but the appellant said "No". The appellant said "I'll take you [in] five minutes". But he did not permit her to go to the toilet. 27 He then took off her pyjama pants as she was standing and pushed her down to the bed. She was then wearing only her white t-shirt. 28 As she was lying down the appellant tried to force her to commit fellatio on him. She said that she had not done it before. He said, "You can start now". She said "No I don't want to do it". 29 When the complainant refused, the appellant rolled over on top of her and used his knees to part her legs. He tried to take off her t-shirt but did not succeed. He then told the complainant to take it off. She said that she did so because of the tone of his voice and because she did not want to argue with him. She was anxious to get it over with. She said that by that stage "I knew pretty much what was going to happen and just wanted it over, over and done with". 30 The appellant then inserted his penis into the complainant's vagina. She kept saying "No" and looking out the window and crying. He did not stay in that position for long. He removed his penis and ejaculated on her stomach. He then got up and said "clean yourself up". He handed her a towel and walked away. This incident was the subject of count 1. 31 The complainant wrapped the towel around herself and went to the toilet. She looked in the mirror and saw that her face was red and her eyes were red and watery. 32 The complainant heard the appellant speaking to another person in Arabic. She heard him say to the person in English: "Do you want her"? 33 When she returned to the room, AK was standing near the door. He closed the door behind him and asked the complainant whether she wanted a massage. She replied in the negative, again became distressed, began to cry and her hands were shaking. It is sufficient to say that AK then penetrated the complainant's vagina. He then left the room. This conduct on the part of AK was the subject of the second count. 34 The complainant began to get her things together when the appellant walked in again. The complainant went to the bathroom and had a shower. There she sent a text message on her mobile phone to HB. Shortly thereafter she sent another message to HB which stated: "I need you. Where are you"? 35 When she came out of the shower, the appellant pushed her into the main bedroom and closed the door. He told her to sit on the bed and then removed her towel. He put his arm around her neck and pushed her neck onto his shoulder. He put her arm across his waist. 36 The complainant then heard LD call out and ask where she was. The appellant gestured to her not to say anything. He shouted to LD that the complainant had left. The complainant then called out to LD. LD opened the bedroom door. The appellant was angry with LD and got up to close the door. LD left the room. 37 The appellant then knelt over the top of the complainant with his knees on either side of her hips and began touching her body and kissing her on the neck and breasts. This was the subject of count 3. 38 The complainant heard her telephone ringing or vibrating and told the appellant that she had to answer the telephone, or her friend would be worried and wonder where she was. She got up to leave the room and the appellant did not stop her. She got dressed, called HB, told him that she could not talk at that moment, but she needed him to pick her up. They arranged that HB would pick her up from the Liverpool train station. 39 Soon thereafter, the complainant got into LD's car and they drove away. The complainant began to cry. LD asked her what was wrong and she told him that the appellant had forced himself on her. The complainant then received a telephone call from her mother. She told her mother that she would be home in the afternoon. 40 LD drove towards SB's farm. They encountered SB and spoke to him. The complainant then received a text message from HB and told him to meet him at Lidcombe station. LD drove her to Lidcombe station. 41 HB took the complainant to the house of a friend in Lidcombe. He asked whether she had stayed at B's and she replied in the negative. HB looked angry as she had earlier not told him the truth. At the friend's house, HB asked the complainant what had happened. She told him that she was at SB's house and that his flatmate was there. HB asked what had happened. The complainant replied: "Well what do you think happened".
She replied: "Well if that's what you call it". 42 Later that day the complainant made a statement to the police and was medically examined. 43 LD also testified. He confirmed the events described by the complainant that led to her sleeping in the spare room. LD woke up on the morning of Sunday 7 October to the sound of two persons talking. They were the appellant and AK. SB had by then left for the farm. LD was told that the complainant was asleep in the spare room. He then left to buy some tobacco. He returned about 20 to 30 minutes later and knocked on the front door but there was no response. He knocked on the back door a number of times and called out to the appellant to open the door. Eventually the appellant did so. The appellant was naked. LD asked him why he was naked and the appellant told him that he was about to go into the shower. 44 Later, the appellant asked LD why he and SB had not slept with the complainant and called them "poofters". LD replied that the complainant was "not that type" and that "she's a respectful (sic) girl". 45 Later, LD noticed that the door to the spare room was open. He called out to the complainant. She replied, "I am here, I am here". According to LD she sounded as if she had trouble talking. LD opened the door and saw the appellant with the complainant. The appellant became angry with him and told him to go away and close the door. LD saw that the complainant had been crying, she had tears in her eyes and her eyes were red. The appellant got up to close the door and to push LD out. LD pushed back and saw the complainant also try to push the appellant out of the way. LD eventually left because he "didn't want to get into trouble with [the appellant]". 46 LD went into the lounge room and telephoned SB. While he was talking to SB, the appellant came in and slapped him on his face. A short scuffle followed during which the appellant threatened to get a knife and kill LD. LD ran out of the front door and the appellant followed. LD told the appellant that he just wanted to get his things and leave. The appellant let him inside the house and LD collected his clothes. He saw the complainant in the room and told her to get her things so they could leave together. The complainant was crying and very distressed. LD drove the complainant away in his car. 47 While they were in the car, LD asked the complainant whether anyone had done anything to her. The complainant nodded. He asked her whether the appellant had done anything to her and the complainant nodded again. He asked her whether AK had done anything to her. She was unable to answer because she was crying. LD drove the complainant to SB's farm and then to the Lidcombe train station where he saw a male person waiting for her. 48 SB testified and also confirmed the complainant's version as to what occurred leading up to her sleeping over the night of 6 October at the house in Busby. He described his encounter with LD and the complainant as they were driving to the farm in LD's car. He said that the complainant was sobbing and shaking and appeared very upset. 49 Thereafter, SB made a statement to the police. He said that on 8 October 2002 he received a telephone call to the effect that AK was coming to the farm. SB telephoned the police and asked them to come to the farm. AK arrived and told SB that the police were searching the appellant's house. He asked whether SB knew anything about this. SB replied that he did not. AK asked whether LD had something to do with it, and SB replied that he did not know. AK asked if it had something to do with "the girl". SB asked what had happened to the girl and AK replied "you know what happened to the girl". 50 According to SB, AK then said: "How can we cover this up"?
AK then said: "If this matter goes to court then we'll just say that the girl was a prostitute and she came down from Gosford to see you and you didn't have no money and you sent her to us and we offered her $100 in exchange for sex".
This conduct was the subject of count 4 in respect of AK. 51 HB testified and gave evidence to the same effect as the complainant in regard to his communications with her prior to her arriving at the Lidcombe train station. In Lidcombe, the complainant told him that she had not been at B's house but had been at SB's house. HB said to the complainant: "Did something happen, did he touch you or something"?
The complainant replied that it was his flatmate. HB then asked: "Did he penetrate you"?
She replied in the affirmative. 52 According to HB, by this stage the complainant was very emotional, she was crying and shaking uncontrollably. HB asked the complainant whether the flatmate had ejaculated inside her. She replied in the negative and gestured around her chest area. 53 A medical practitioner testified that on 7 October 2001 she examined the complainant. She noted no abnormality other than a superficial abrasion on the inner aspect of her left thigh. The medical practitioner conducted a genital examination and noted no abnormalities. She did not conduct an internal examination. She took a number of swabs and a blood sample. There was other evidence that an examination of DNA submitted by AK and the complainant revealed that AK's semen was detected in the higher vaginal swab of the complainant. No DNA of the appellant was found in the vagina swab or in the towel that the complainant used to wipe her stomach.
The appellant's case 54 The appellant stated that on 6 October 2001 he was telephoned by SB and told that SB was with a girl who he had met "through the magazines". He said that on an earlier occasion SB had told him "he laid girls through the magazine". The appellant met the complainant at his house shortly after 8.30 pm on Saturday 6 October 2001. 55 The next morning, just before SB went to work, he told the appellant that the complainant was in the house and she was still sleeping. The appellant asked SB what he wanted the appellant to do with her. SB replied: "She's all yours, do you want (sic) with her and [LD] will drop her back at the station".
Thereafter, LD left the house to buy tobacco. 56 At about 9 am the appellant entered the spare room where the complainant was sleeping and spoke to her. While they were talking, the appellant heard a knock on the front door. He did not answer the door as he thought that AK would do so. He heard another knock and the complainant said to him that there was someone at the door. He went to the door but there was no one there. AK told him that it was LD who had gone around to the back door. The appellant opened the back door and let LD in. They then had an argument. 57 LD entered, sat on the lounge and made himself a cigarette. The appellant returned to the spare room and continued talking to the complainant. The appellant said to her that SB had told him what she did for a living. The complainant smiled and the appellant took that to mean that she would have sex with him for money. The appellant left the room and grabbed some toilet paper and $70 from his wallet and returned to the spare room. 58 The appellant gave the money to the complainant as well as the toilet paper. She asked where LD was. The appellant told her that he was out shopping. The complainant replied that they should hurry up before LD returned. The appellant told her to take her clothes off and he did the same. He sat next to the complainant and she began to play with his penis while he played with her breasts. When he was ready to have sex with her, he sucked her breasts and then positioned himself in front of her and "wiped" his penis on her vagina. He said that that was "when she turned me off". According to the appellant, the complainant "smelled". He got up and said to her: "Look don't worry about sex, will you give me a blow job?"
The complainant changed her position, sat on her knees, and fellatio took place. The appellant ejaculated in the complainant's mouth and she spat into the toilet paper. The appellant then wiped himself with some toilet paper, grabbed a towel and gave it to the complainant. 59 The appellant, still naked, left the room and asked AK whether he wanted to "go with" the complainant. AK stood up. At this stage the complainant was standing behind the appellant. AK asked her "can I go too"? The complainant agreed but said that she wanted first to have a shower, which she proceeded to do. After the complainant left the bathroom, the appellant had a shower and returned to the lounge room. LD, who at this stage was sitting on the lounge, asked the appellant if he could borrow some money so that he could go with the complainant as well. The appellant refused. 60 Some time elapsed while AK was in the spare room with the complainant. AK then had a shower, followed by the complainant. While the complainant was in the shower, the appellant knocked on the door and the complainant opened it. He asked her if she wanted anything to eat or drink and she told him that she would like a drink. He brought her a glass of orange juice. He then went into his bedroom to drink some beer. 61 A short time later the complainant walked into his bedroom and closed the door. She was wearing only a towel. She took the towel off and lay on the bed beside him. The appellant said to her: "Why do you do this"?
He asked her why she did not marry and settle down and have kids. She replied that she was too young. 62 While they were talking, LD came in. The appellant told him to leave. Thereafter, the appellant went into the lounge room where he saw LD. They had an argument and the appellant told LD to leave the house. He denied that he slapped LD. 63 The appellant then told the complainant to pack her things and leave with LD. When they left, the appellant kissed the complainant goodbye on the cheek. He stated that he did not see the complainant use her mobile phone that morning. 64 AK testified in his own defence. He said that at about 8 am on Sunday 7 October 2001 he called at the appellant's house. He sat on the lounge in the lounge room and spoke to the appellant. SB had been there but left. AK met LD there. LD left to buy tobacco. The appellant then stood up and went to another part of the house. AK heard knocking at the front door. He went to open the door. He saw LD passing by the front window on his way to the back door. AK went back and sat on the lounge. He heard knocking at the back door and heard the appellant open the door and speak to LD. LD came into the lounge room. AK saw the appellant go through the door to the hallway. 65 About 20 minutes later, the appellant came from the hallway and stood at the door. AK was shocked to see that the appellant was naked. The appellant asked AK if he wanted to "go with" the complainant and held up his right hand indicating that it would cost him $50. AK walked towards the appellant and saw the complainant standing behind him, naked, with only a towel wrapped around her. AK said to the complainant: "Me too".
The complainant replied: "Okay, okay". 66 According to AK consensual sexual intercourse then took place between himself and the complainant. 67 AK denied speaking to SB on 8 October 2001 about covering up what had occurred.
The strength of the Crown case 68 Although, in the end, the jury's decision depended upon the view they took of the credibility of the complainant and the appellant, the Crown's case was strong. 69 An important plank of the appellant's version was that the complainant was a prostitute or, at least, that she was willing to have sex with relative strangers for money. Moore ADCJ in the course of his sentencing remarks said in this regard: "The defence of the accused was that she was a prostitute. There is absolutely no evidence of that. On the contrary, my express finding is that she is a young woman of excellent character and reputation". 70 The appellant said that SB told him that he, SB, met the complainant through a magazine. In fact, as I have mentioned, SB met the complainant on a social occasion when she was living at Gosford. SB returned to Gosford on the complainant's 21st birthday and there socialised with her again. That is when he invited her to see him when she was next in Sydney. 71 The complainant's version was strongly corroborated by the degree to which she was distressed by what had occurred. Apart from the complainant's own testimony, there was evidence from others in this regard. LD said that before he took the complainant from the house she was crying, she was very distressed and her eyes were red. SB said when he encountered LD and the complainant on their way to his farm, the complainant was crying, shaking and sobbing and she appeared very upset. HB's evidence was to the same effect. 72 HB's evidence as to the text messages he received from the complainant also corroborated her version. 73 Moore ADCJ, in the course of his sentencing remarks, said, " [the appellant] went into the bedroom of a young woman who was by herself, whom he had only met at most the night before, briefly, and from whom he had been given any indication whatsoever even of friendship. As soon as he made advances to her, she made it absolutely clear that they were unwelcome and he persisted to have sexual intercourse with her without consent." The evidence amply supported these findings.
Ground of appeal 1(A) 74 The first ground of appeal (ground 1(A)) was that "the indictment was defective and bad in law and the trial was a nullity". The argument advanced on the appellant's behalf in this regard was that: "The indictment in this case charged two separate accounts against each of the two accused, none of which was a joint charge. Each count was based on separate facts in respect of each accused. The indictment could only have been good if one or both accused was alleged to be a party to any one offence. The fact that were allegations in Counts 1 and 2 of aggravation and in company was misconceived as there could be no basis in law for such an allegation unless both accused were jointly charged. Separate counts in respect of two or more persons cannot be joined together in the one indictment Crane v Director of Public Prosecutions [[1921] 2 AC 299] or tried together even with the consent of counsel for the prosecutor and the accused. Where two or more persons are alleged to participate in a joint criminal enterprise prima facie they should be joined in the one indictment and tried together. This was a case where there was no joint charge and no common purpose or joint enterprise in respect of any one count. The indictment was accordingly bad at law and the trial was a nullity". 75 Section 61(1) of the Criminal Procedure Act 1986 stands as a formidable obstacle to this ground. It provides: "An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn".
No such objection was taken and no application was made for a separate trial. 76 The failure to take objection as required by s 61(1) means that, unless the form of the indictment gave rise to a miscarriage of justice, it is too late to object now. In my view, no miscarriage of justice occurred through the form of the indictment. 77 In any event, the reliance on Crane v The Director of Public Prosecutions [1921] 2 AC 299 is misconceived. That case involved an appellant being indicted in one indictment and another man being charged in a second, separate indictment for another offence. The two men were tried together and convicted. The present case, on the other hand, involves only one indictment not two separate indictments. 78 In R v Assim [1966] 2 QB 249, Sachs J gave the judgment of the English Court of Criminal Appeal. He said at 257: "[T]here can be no joint trial of separate indictments ( Crane v Director of Public Prosecutions [1921] 2 AC 299) and that wholly disconnected and similar offences ought not to be joined in the same indictment even against the same accused ( Rex v Muir [1938] WN 163)".
His Lordship went on to say at 261: "As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that had nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by there being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases". 79 R v Assim was cited by approval by this Court in Annakin v R (1988) 17 NSWLR 202 at 206. 80 The offences alleged to have been committed by the appellant and AK were significantly related to each other. Count 1 alleged that the circumstance of aggravation was that the appellant was in company with AK. Count 2 alleged that the circumstance of aggravation was that AK was in company with the appellant. Count 3 was in like form in regard to the "in company" allegation in count 1. Counts 1, 2 and 3 involved offences committed against the same victim at the same place, and within minutes of one another. Count 4 was related to the earlier three counts as it involved the conduct. the subject of those counts. 81 Accordingly, it was entirely appropriate for the indictment to contain the four counts in question. In the circumstances, ground 1(A) fails.
Section 99 of the Criminal Procedure Act 82 Grounds 1(B), 2, 3, 4 and 5 are based on what are said to be errors made by Moore ADCJ in his directions to the jury. Many of the arguments raised involve an omission on the part of his Honour to discuss evidentiary matters. These arguments have to be seen against the background of s 99 of Criminal Procedure Act. 83 Section 99 provides: "(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary. (2) This section applies despite any rule or law or practice to the contrary. (3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial". 84 In Condon v R (1995) 83 A Crim R 335, Allen J (with whom Newman and Simpson JJ agreed) said at 347: "[I]t is the task of the trial judge not merely to give formal directions of law as to the legal elements of the offence charged but to explain to the jury the application of those elements to the respective cases of the Crown and of the accused. In short, it is his duty to give them assistance so that they understand what the critical issues of fact are upon application of the law to the particular case. The trial judge is not relieved from that duty by the arguments of counsel. Indeed, as Murphy J pointed out in Salvo (1980) VR 401, it would not be enough even for the trial judge accurately to state what the case for the accused is as it has been presented. He must instruct the jury what the law is in respect of that case and do so in terms which throw up, clearly, what the critical issues of fact are which it raises".
His Honour said that s 405AA of the Crimes Act 1900 (the forerunner of s 99 of the Criminal Procedure Act ) does not relieve a trial judge of these duties. 85 In R v Williams (1999) 104 A Crim R 260, Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) said that, in the circumstances of that case, it was appropriate for the trial judge not to sum up the evidence. His Honour observed that the duty of trial judges was to ensure that the jury had sufficient guidance as to the issues. The extent of the guidance depends upon the nature of the trial, its length and its complexity. His Honour referred to Domican v The Queen (1992) 173 CLR 555 where the High Court said 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". 86 In R v Davis [1999] NSWCCA 15, Wood CJ at CL (with whom Spigelman CJ and McInerney J again agreed) said at [24]: "The need for, and the extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run … Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary the evidence and of the submissions, than the judge proposes". 87 In RPS v R (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ said at 637: "The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case … No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues … It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. But none of this must be permitted to obscure the division of functions between judge and jury. 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 warnings 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". 88 In R v DH [2000] NSWCCA 360, Stein JA (with whom Smart AJ and Ireland AJ agreed) referred to the relevant authorities and said at [82]: "Taking account of the circumstances of a trial, a judge may be entitled to form the opinion that a summary of the evidence is unnecessary. As observed by the High Court in Domican , whether the judge is bound to refer to the evidence depends on whether the jury would have sufficient knowledge and understanding of the evidence without assistance".
His Honour referred to Williams and Davis and endorsed the remarks of Wood CJ at CL in Williams "about respecting the commonsense and intelligence of the jury, as well as respecting the decision of counsel in acquiescing in the judge's decision and not seeking any further direction". He concluded that the trial judge was entitled to find that it was unnecessary to restate the factual matters "already the subject of addresses by the Crown and defence". 89 In R v Giri (2001) 121 A Crim R 568, when discussing s 99 of the Criminal Procedure Act, Heydon JA (with whom Barr J agreed) said at 588: "The fundamental issue for this Court is whether the summing up was an adequate explanation to the jury of the need for them to be satisfied beyond reasonable doubt of the guilt of the appellant on the offences charged on the basis of the evidence of the Crown as tested in cross-examination and in the light of the whole of the evidence in the case. The purpose of the summing up was to present the nature of the parties' cases and to explain the substantive law. The only necessity to repeat any of the evidence arose from the need to highlight the nature of the parties' cases. The evidence was completed in less than four sitting days. The conflicts within the evidence must have been plainly apparent to the jury, who were no doubt appropriately reminded of them by counsel". 90 Thus, a trial judge is not bound to comment on the facts except to the extent that the judge's other functions require that to be done. One of those functions is to ensure that the jury have sufficient knowledge and understanding of the evidence without assistance. Another is to identify the issues in the case and to relate the law to those issues. At times the judge may be required to relate some or all of the evidence to the issues and the law and to explain what evidence can be used to decide particular issues. The precise nature of the task of the judge depends on many things, including the context of the trial, its length, its complexity, the way that it has been run, the issues that arise and, importantly, whether counsel seek more from the judge than that which has been provided. The judge must ensure that the case of the accused is put fairly before the jury and, of course, must ensure that the accused has a fair trial. In fulfilling this duty, the judge will derive important assistance from counsel. The atmosphere at a criminal trial is not easy to assess on appeal. Counsel at trial are well placed to determine whether, in the light of the way in which the case has been run, particular directions to the jury are defective. A failure to raise objections at the close of the judge's summing up is usually a reasonably reliable indicator of its fairness and adequacy. 91 It is in the light of these principles that the appellant's arguments as to grounds 1(B), 2, 3, 4 and 5 must be seen. But it is not only s 99 that is pertinent to these grounds. Rule 4 of the Criminal Appeal Rules is equally relevant.
Rule 4 of the Criminal Appeal Rules 92 Rule 4 provides: "No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal". 93 In R v DH, Stein JA observed [at 115]: 'Again, rule 4 applies because no point was taken at trial. In Jeffrey (Unreported, Court of Criminal Appeal, NSW, 16 December 1993), Mahoney JA made some pertinent observations about the role of rule 4 where an appellant relies on misdirections or non-directions to which no objection was taken at trial. They bear repeating. His Honour said: '[It] is proper to emphasise the importance of the principle embodied in r 4. In my opinion this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. … Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. But infrequently, this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the Court of Appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4 …'". 94 In R v Fuge (2001) 123 A Crim R 310, Wood CJ at CL (with whom Heydon JA and Sully J agreed) said at 319: "It is timely for this Court to repeat the observations of Hunt CJ at CL in Abusafiah (1991) 24 NSWLR 531 and of Gleeson CJ in Sanderson (unreported, Court of Criminal Appeal, NSW, 18 July 1994), in relation to the positive obligation which rests upon trial counsel to assist the court in the conduct of a trial, and in relation to the need to give meaning to r 4, whose validity was confirmed in Esposito (unreported, Court of Criminal Appeal, NSW, 23 July 1990). In Abusafiah , Hunt CJ at CL said (at 536; 429-430): 'The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error … , any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic cord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with a duty leave will be granted to avoid a miscarriage of justice.' The caution given by Gleeson CJ in Sanderson was to the following effect: 'This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of r 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. 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.'"
Wood CJ at CL went on to refer to a number of other authorities where similar sentiments had been expressed. 95 The approach which his Honour indicated should be taken to r 4 accords with that adopted by McHugh J in Papakosmas v R (1999) 196 CLR 297 where his Honour said at 319: "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 or 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". 96 See also R v Roberts (2001) 53 NSWLR 138 where Carruthers AJ said at 150-151: "It is now more than ever imperative that trial counsel recognise and discharge the responsibility which they owe to the trial judge to provide whatever assistance he or she may require in order, so far as possible, to ensure that the directions to the jury are such that it can be said the accused has had a trial according to law. For years this Court has emphasised in the strongest possible terms the need for trial counsel to take objections to the summing up or the admissibility of the evidence at the trial itself so that, if they are of substance, the judge may correct them and thus avoid appeals to this Court and possible second and sometimes third trials".
These views were reiterated in R v Hokafonu [2002] NSWCCA 92, in R v Pearson [2002] NSWCCA 429 and in Giri at 588 to 589. 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". 99 In the present case, the appellant was represented by experienced counsel and it is apparent from the transcript of the trial that he conducted the appellant's defence in a thorough and competent way. The appellant gave no explanation for the omission to raise the points now taken in regard to grounds 1(B), 2, 3, 4 and 5. The appellant's arguments as to these grounds have to be considered against the background of s 99, r 4 and the omission to provide any such explanation.
The approach of the trial judge and counsel to the need for reference to evidence in the summing up 100 In addition to the matters referred to in the preceding paragraph, regard must also be had to the specific approach of the trial judge and counsel to the need for reference to evidence in the summing up. 101 The trial lasted several days, and between 28 August 2002 and 9 September 2002 there was a break in the proceedings (caused by the illness of the trial judge). Moore ADCJ expressly raised the question of this delay with counsel and they both indicated that, despite the relatively long interruption, they had no objection to the trial continuing before his Honour. The effect of the delay was that closing addresses and summing up took place several days after the complainant had testified. Counsel for the appellant might well have thought that this would be to the appellant's advantage. 102 The trial was lengthy, not because the facts and issues were complex, but because the cross-examination took so long. For example, the complainant was in the witness box for four days. His Honour rightly observed that she "was cross-examined at great length". 103 It would not have been difficult for the jury to understand the issues and what evidence was relevant to each of them. The addresses of counsel took place after the trial had recommenced and were completed immediately prior to his Honour's summing up. They were lengthy and comprehensive. This explains the approach of his Honour and counsel to the need for detailed directions as to the evidence. 104 Moore ADCJ, in the absence of the jury and immediately before commencing his summing up, informed counsel that, in his summing up, he would not "go over the evidence in detail". He said: "Each of you has dealt with the evidence carefully, as far as it affects your particular cases and I didn't hear anything in any of the addresses that misstated any of the evidence, but I am inviting any of you to address me about that if you wish". 105 Counsel for the appellant drew a few matters to the attention of the trial judge and asked him to mention those in his directions. His Honour agreed. After this exchange (which took place on 12 September 2002, after final addresses had been completed) the Court adjourned. 106 On the morning of 13 September 2002, before the jury were called into court, his Honour repeated that "in relation to most of the matters" he would "simply say to the jury that [counsel have] gone over the evidence that covers that". No counsel made any objection to this course. 107 At the commencement of his Honour's summing up, he said: "I will be referring to parts of the evidence but not much because counsel have gone over that very carefully yesterday. Everything that each of the three counsel put to you was correctly based on the evidence, so as I see it then, it is not necessary for me to once again to go over the evidence with you, even though this case has taken some considerable time. The Crown very fairly and carefully and concisely put to you just what it is that the Crown case is on which the Crown relies and made reference to the competing versions that have come from the accused and each of the two counsel for the respective accused each put to you a fair summary of the evidence as it affects the case that they are here to put to you.
By saying that I do not mean to say that I am adopting any of the arguments that were put to you by counsel but simply indicating that the basis of their arguments was correctly put and that they covered all the evidence as I see that it was necessary to be retailed to you once again". 108 At the end of his Honour's summing up, he asked all counsel whether there was anything that any of them wished him to put to the jury. Counsel for the appellant, in front of the jury, mentioned two matters, the subject of ground of appeal 1(B)(e). His Honour then gave further directions to the jury on those questions. Counsel for the appellant made no further objection to his Honour's directions. 109 Counsel for the appellant was given ample opportunity to object to the course that his Honour followed and to draw attention to any specific matters that he considered required attention. He consented to the general approach that the trial judge indicated that he would follow and in fact raised matters for the trial judge to remedy and his requests were met. For the appellant now to be able to complain of the trial judge's directions to the jury, a very good explanation for the course followed by his counsel at trial would be required. But, as I have said, no explanation at all has been forthcoming. Mr Papayanni, who represented the appellant on appeal, submitted merely that each of the errors he contended Moore ADCJ made was "fundamental" and resulted in a miscarriage of justice.
Ground 1(B) 110 Ground 1(B) reads as follows: "His Honour erred in law in failing to direct the jury adequately or properly as to the evidence in respect of counts 1 and 3 as to: - (a) the elements of the offence (b) the Crown case (c) the defence case (d) arguments of counsel (e) the precise evidence admissible against this appellant".
111 It is difficult to deal with these grounds collectively, so I proceed to discuss each under a separate heading.
Ground of appeal 1(B)(a) 112 Ground of appeal 1(B)(a) is that his Honour erred in law in failing to direct the jury adequately as to the evidence in respect of the elements of the offence. 113 Initially, Moore ADCJ told the jury that the appellant had not disputed that he had sexual intercourse with the complainant by putting his penis into her mouth. On this basis, his Honour said that there was no dispute that the appellant had sexual intercourse with the complainant. Thereafter, in the jury's presence, the Crown Prosecutor informed his Honour that he had erred, as there was indeed a dispute as to sexual intercourse. She pointed out that the Crown's case was that there had been vaginal intercourse, while the appellant maintained that oral intercourse had occurred. Moore ADCJ immediately said to the jury: "Yes, I think that's the case. I can remember what I was saying about that now. Maybe I did not make myself clear. I hope I did not confuse you. The case by the Crown is that it was penile/vaginal intercourse without consent. The case of [the appellant] is that it was fellatio, that is oral intercourse but that it was with consent. Either of those two activities is sexual intercourse for the purpose of the definition, but of course it is only if you find that there was the penile/vaginal intercourse that is alleged by the Crown that you would return a verdict of guilty. If you find it was the other form of intercourse, that means you in effect have a doubt about it and in that event you would return a verdict of not guilty". 114 By these additional directions, his Honour made the position abundantly clear. 115 It was quite unnecessary for his Honour to refer the jury to evidence as to whether there was vaginal or oral intercourse. The issue was an obvious one and the facts were easy to understand. The jury had been addressed fully on these issues by counsel. It was unnecessary for his Honour to refer to the evidence again. 116 As to consent, his Honour said: "The next element is that the Crown must prove that the sexual intercourse took place without the consent of [the complainant]. She has given you direct evidence that she was not consenting. That element does not call for any further explanation to you. The words mean just what they say, that the Crown must show that the intercourse took place without her consent. She says that it was without her consent and [the appellant] says that it will be apparent from the evidence that she was consenting". 117 For similar reasons expressed in regard the issue of vaginal intercourse, I think it was unnecessary for his Honour to refer the jury to the evidence as to consent. 118 His Honour went on to state and explain the next element, namely, that the appellant knew that the complainant was not consenting. He explained that the jury were not to consider what a reasonable person in the appellant's position would think. He said: "What you have to determine is what was in his mind at that time".
Again, the evidence on this issue was not complex. For similar reasons as previously expressed, I consider his Honour was entitled to direct the jury as he did in regard to this matter. 119 Finally, his Honour stated that the next element was that the appellant was in company with AK. His Honour went on to explain what that meant. He said: "The expression that he was in company with the other person does not mean that the companion needs to physically co-operate in the actions of the sexual assault such as by holding the victim down for example. The two men must have the common intention that the perpetrator will illegally sexually assault the victim in some way by way of sexual intercourse. It is not necessary to show that the intention was for the very type of sexual intercourse that occurs but in general for some form of sexual intercourse. The companion must be somewhere in the physical vicinity of the perpetrator, to the knowledge of the perpetrator. This does not mean that the companion needs to be in this case in the same room in the house. Presence in the same house may be enough if that presence is enough to satisfy the following elements. There must be such proximity as would give the inference that the companion's presence either (a) encouraged the perpetrator in committing the crime or (b) intimidated the victim into submission". 120 The trial judge proceeded to say: "Now the Crown has put to you yesterday the way in which the Crown says that the presence of AK, at the time that the Crown says the first crime was committed, both encouraged [the appellant] in the commission of the crime and also intimidated [the complainant] into submission to the crime". 121 Thus, his Honour directed the jury that, for the offence to have been committed "in company", the appellant must have had the common intention with AK that the appellant would illegally sexually assault the complainant by sexual intercourse. He went on to give directions as to the need for physical proximity such as to encourage the perpetrator or intimidate the victim. Accordingly, his Honour's instructions were in accordance with the propositions stated by Kirby J in R v Button (2002) 54 NSWLR 455 to which I refer below. 122 I do not think it was necessary for his Honour to refer to the evidence on this issue. Again, it had been fully addressed by counsel during the course of their submissions and his Honour had carefully explained what "in company" meant. It would have been obvious to the jury what evidence was relevant to the issue in question. In my view, nothing further was required and this was plainly the view of counsel at the time. 123 As regards count 3, Moore ADCJ carefully explained the different elements involving assault and an act of indecency. Moore ADCJ said that an assault could involve touching with the hand or the mouth. He thereby related the element to the evidence on which the Crown was relying. In regard to an act of indecency his Honour did the same, saying: "It is not disputed in isolation [that] to put a person's mouth on another person's breast is an act of indecency".
With regard to the element of aggravation alleged, namely, that the appellant was in company with AK, he pointed out to the jury that AK had left the house at the time it was alleged that this offence occurred and therefore the jury should find that there were no circumstances of aggravation. 124 In my view, there is no substance in this ground. No miscarriage of justice arises and I would not give leave under r 4 for this ground to be allowed as a ground for appeal.
Grounds of appeal 1(B)(b), (c) and (d) 125 His Honour informed the jury that he considered that neither counsel had misstated the facts in their arguments. Neither counsel disputed this. The Crown case, the defence case, and the arguments of counsel were obvious and must have been easily comprehended by the jury. 126 I would not give leave under r 4 for these grounds to be allowed as grounds for appeal
Ground of appeal 1(B)(e) 127 Ground of appeal 1(B)(e) asserts that his Honour erred in law in failing to direct the jury adequately as to the precise evidence admissible against the appellant. In this regard, it was submitted that a strong warning was required that the evidence in respect of the fourth count was not to be taken into account in deciding counts 1 and 3. It was also submitted that "the evidence as to the second count [against AK] was left as admissible in respect of the appellant". 128 Moore ADCJ told the jury: "There are four trials here and the guiding principle is that you must consider each case in accordance with its own elements and its own evidence. They are being heard together for the sake of convenience because the witnesses have been common to many of the different trials. Counsel have also indicated to you in the course of their addresses yesterday just what part of evidence applies to each individual case and I will be referring to that as I go through the matter but not in the same detail as counsel did. You must be very careful in applying that principle that each case is being tried separately. It is as if you were four separate juries trying four separate trials …". 129 His Honour warned against compromising between verdicts if the jury were to find that the Crown case was not sufficiently strong on all four counts. He said: "Where there are trials involving two accused, you must not extend that compromise to saying well one of them ought to be guilty and therefore we will decide that one of them is guilty and not the other".
He said he was "illustrating the principle that you must consider each case completely within its own compartment, with some exceptions that I will indicate to you as to how some evidence can apply to more than one of the trials". 130 He explained: "In the first three trials [the Crown case] depends upon the evidence of [the appellant] and in the fourth trial it depends upon the evidence of [SB]. There is other evidence which goes in support of the Crown case on some points and I will be dealing with that, but as the Crown has put to you, essentially the Crown case depends upon one witness in each case. If you do not accept the evidence of that witness then the Crown case cannot stand". 131 In dealing with the "other evidence," he said: "[W]here the Crown witness is principally [the complainant] in each of the first three trials, if you were to form an adverse view about her credit in any one of the trials, then you are entitled to take it into account in considering her credit in the other trials".
His Honour thereby explained how evidence could be used in regard to more than one count. But his overriding instruction to the jury was that the counts were to be regarded entirely separately and the evidence in regard to one count could only be used in respect of that count. 132 After Moore ADCJ had completed his directions, he invited counsel, in front of the jury, to say whether any of them wished him to put anything else to the jury. Counsel for the appellant stated: "Yes, there is no issue on this your Honour but the evidence in relation to the fourth count concerning the evidence of [SB] is not evidence, is not admissible evidence in relation to counts 1 and 3 in respect of my client. And secondly that the various interviews by my client and [AK] is only to be used in considering the cases in respect to each …".
His Honour responded: "Thank you for reminding me about that, I should have mentioned that to the jury. I will repeat what you have just heard, so that to make sure in case you do not hear it fully, that as concerns the fourth count it is only alleged that it was [AK] who was involved in that activity. There is no allegation by the Crown that [the appellant] was involved in it. As regards the recorded interview of each of the two men they are only to be taken into account as evidence in the case concerning that man. Nothing that one man says in [sic] concerning his own case, can be used against you in any way in the case concerning the other man". 133 Counsel for the appellant made no further comment on this issue although he later requested clarification in relation to the judge's direction concerning vaginal and oral intercourse. It follows that counsel was satisfied with the additional direction given by Moore ADCJ concerning the use the jury could make of the evidence in relation to count 4. 134 The appellant's counsel did not request the judge to instruct the jury not to use the evidence in relation to count 2 against the appellant. In my view, in the context of the case and the directions his Honour had given, this was understandable. It would have been obvious to the jury that the evidence of sexual intercourse by AK without consent had no bearing on whether the appellant had sexual intercourse as alleged with the complainant without her consent. This explains the omission on the part of counsel at the trial to ask for a direction in regard to count 2. It was simply thought to be unnecessary. 135 In my view, no miscarriage of justice was caused by his Honour's omission to warn the jury expressly that the evidence in respect of counts 2 and 4 was not to be taken into account in deciding counts 1 and 3. I would not give leave under r 4 for this ground to be allowed as a ground for appeal.
Ground 2 136 Ground 2 is that: "His Honour erred in law in misdirecting and/or failing to direct the jury adequately or properly in respect of the aggravation of being in company in the first count". 137 In R v Button, Kirby J (with who Heydon JA and Greg James J agreed) considered several authorities and said at 465: "What emerges from these cases? A number of propositions can be stated: · First, the statutory definition (s 61J(2)(c)) requires that the offender be 'in the company of another person or persons'. · Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault). · Thirdly, the cases appear to assume that each participant is physically present. · Fourthly, participation in the common purpose without being physically present (for example, as a lookout or as an accessory before the fact) is not enough. · Fifthly, the perspective of the victim (being confronted by the combined force or strength or [sic - of] two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company', even if the victim was unaware of the other person. The physical presence of another is, therefore, required for the crime to be committed in company. 138 Kirby J then posed the question: what is meant by physical presence? He went on to say that physical presence was an elastic concept, best explained by example. An example given by him (at 466) was as follows: "Assume a sexual assault in a large house, involving a number of individuals. If, for reasons of privacy, the victim were taken to an adjacent bedroom, and the door closed, the offence would plainly still be one committed in company. And the result, I suggest, would be no different if the bedroom were upstairs, so that some distance separated the offender at the time of penetration, and other members of the group".
His Honour went on to say: "The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission".
See also the comments of Greg James J at 458 to 459. 139 I have above commented that his Honour's directions to the jury in regard to the element of "in company" were in accordance with R v Button. 140 In my view, no miscarriage of justice was caused by his Honour's directions in this regard and I would not give leave under r 4 for this ground to be allowed as a ground for appeal.
Ground 3 141 Ground 3 is that: "His Honour erred in law in misdirecting and/or failing to direct the jury as to:- (a) lies (b) the precise nature of the lies". 142 Prior to commencing his summing up, in the absence of the jury, Moore ADCJ said: "Madam Crown, in your address yesterday you were putting to the jury an issue which has been a live issue during the trial, namely that [the appellant] said things to the police officers, for example about not knowing that there was a woman in the house when his evidence later was that he did. As I see it, that raised the question of whether he was telling lies in the interview. I think I should tell the jury briefly the way in which they can use lies, the standard direction". 143 The Crown Prosecutor then submitted that lies had been raised merely as a credibility issue and if a direction as to lies was to be given it should be a modified Edwards ((1993) 178 CLR 193) direction "as opposed to the full blown Edwards direction". His Honour responded: "I think I should tell the jury that they can only take lies into account if the Crown has shown that they spring from a consciousness of guilt and that there may be other reasons for persons telling lies other than guilt. It's a matter for them". 144 The Crown Prosecutor agreed that the direction could be put on this basis. His Honour then expressly asked counsel for the appellant whether he wished to be heard on that, and he replied in the negative. 145 His Honour dealt with the issue in his summing up as follows: "Counsel did not address you about this in precisely the way I am about to put it to you and once again because I am now putting it to you please do not think I am putting any particular emphasis on it. It is just that I feel that I should state to you what the law is concerning this following matter. And that is that in the interview or in each of the interviews, particularly the interview of [the appellant] it is said that some statements were made by the person being interviewed which are not the same as the evidence that person gave in the Court. You will notice that the Crown has not placed any reliance, as it were, by way of saying, 'Well these were lies that he told and therefore he was guilty'. The Crown has not suggested that to you but the way in which you are entitled to take it into account - you are entitled to take into account, if you think that they were lies in the following way and only in the following way. If a person when speaking about an allegation of a crime tells lies about it, firstly it must be shown that it was a lie, and secondly it must be shown that the person told the lie because of a consciousness of guilt. Now that is a fairly difficult concept to apply, I appreciate. The Crown must show beyond reasonable doubt that the reason that the person told the lie was because the person was conscious that he or she was guilty and was therefore telling the lie to conceal the guilt. And lies may be told and real lies may be told for reasons other than concealing guilt. A person may tell a lie because a person is worried about the - even though the person is innocent - worried about the evidence that is against him or her and so is anxious to bolster up his or her own case. A person may tell a lie simply because a person does so spontaneously and as it were bites the lip when one is in a police station in a very unusual circumstance confronted by police officers and being interviewed, and one may say something which a person later comes to admit was not the precise truth, for example in a trial in front of a jury. And in this case those matters were it is said that the record of interview differed from what was said in the courtroom, in particular Mr Scragg has taken [the appellant] through his interview, its record and he has explained to you why it was that he - [the appellant] explained to you why it was that there are those differences. The lie, I should have said to you when I was talking about the legal principle, must be something too, before you can employ it, which concerns a material matter and not just simply a lie that has got nothing to do with a case. Now you may think that that is, when you look at the big picture of the evidence that is before you, what I have said about that question is not a large one but it is a matter which you may - I thought it appropriate for me to say that to you because it is something that may well occur to you and you may come to think about it". 146 The directions that his Honour gave were in the form he presaged before commencing the summing up and in respect of which counsel for the appellant at the trial said he had no objection. His Honour did not tell the jury that lies could be used to determine guilt. He reminded and repeated to the jury that the Crown had not placed any reliance on lies so as to establish guilt. His direction, in essence, was a direction as to how the jury could use lies in connection with the credibility of the appellant. 147 In my view, the direction that the trial judge gave as to lies was unnecessary. It would have been preferable to give merely a direction of the kind referred to in Zoneff v R (2000) 200 CLR 234. Moreover, I think that the jury would have found the direction difficult to understand. Nevertheless, no complaint about the direction was made at the trial. In all the circumstances, I think that no injustice arose from the direction and I would not give leave under r 4 for this ground to be allowed as a ground for appeal.
Ground 4 148 Ground 4 is that: "His Honour erred in law in failing to direct properly or adequately as to: - (a) consent (b) knowledge (c) mistaken belief as to consent". 149 The first argument advanced on the appellant's behalf under this ground is that his Honour did not summarise the evidence relevant to the issues identified. For reasons expressed in regard to like grounds dealt with above, I consider this argument to be insupportable. 150 It was submitted that, because the appellant believed that the complainant was prepared "to have sex for money", the defence of mistaken belief arose. 151 In my view, there is no basis whatsoever for this argument. The appellant's defence was conducted purely on the basis that the complainant positively consented throughout the sexual activities. At no stage was the possibility raised that the complainant had not consented, but that the appellant thought she had. The appellant asserted that the complainant had consented to have sex with him for money and he had handed over an agreed sum of money to her. There was accordingly no need to instruct the jury on mistaken belief. 152 In the course of the address of the Crown Prosecutor, she said: "Now that charge requires the Crown to prove three elements and must prove those elements beyond reasonable doubt. They are that the nominated accused man had sexual intercourse with the complainant … ; that [the complainant] did not in fact consent and that the nominated accused knew or was reckless to the fact that [the complainant] did not consent". 153 After the addresses of counsel had been completed, Moore ADCJ pointed out to the Crown Prosecutor that she had mentioned "recklessness" to the jury. The Crown Prosecutor then said, in effect, that she had referred to recklessness by mistake and recklessness was not an issue in the trial. Moore ADCJ asked whether he should put recklessness to the jury. The Crown Prosecutor replied in the negative. She said: "The Crown submission is that there is no evidence of recklessness or indeed as it transpires now, of honest and reasonable mistake and belief. It is simply word on word".
His Honour then asked counsel for the appellant at the trial whether he wanted to be heard on that. Counsel replied in the negative. For that reason, his Honour did not address the jury on the issue. 154 The mention of recklessness by the Crown Prosecutor was an unimportant remark when seen in the context of the lengthy address as a whole. In discussion with counsel it was accepted that his Honour should say nothing about this to the jury. To now contend that the verdict should be set aside because his Honour did not refer to recklessness is a bold argument. I would not give leave under r 4 for this ground to be allowed as a ground for appeal.
Ground 5 155 Ground 5 is that: "His Honour erred in law - (a) in admitting the evidence of complaint to HB (b) in directing and/or failing to direct the jury as to complaint". 156 I have described the evidence given by the complainant as to what she said to HB when she met him at Lidcombe station. In summary, the complainant told HB that she had been at SB's house and on being questioned said: "He forced himself on me".
She also said words to HB to the effect that SB's flatmate had penetrated her. 157 At the trial, counsel for the appellant asked Moore ADCJ not to admit the evidence of the complaint to HB. His Honour said that there was authority to the effect that "complaints which are not elicited by questioning may not be admissible", but noted that that point was not relied on. I did not understand Mr Papayanni to press the point before this Court. 158 Counsel at trial submitted that, as evidence of the complaint to LD had already been admitted, the subsequent complaint to HB was "of little probative value" and was repetitive. Counsel submitted that, under ss 135 and 137 of the Evidence Act 1995, Moore ADCJ should exercise his discretion in favour of the appellant as the probative value of that repetitive evidence was outweighed by the danger "of its unfair prejudice" to the appellant. Mr Papayanni repeated this submission to this Court. Moore ADCJ said in this regard: "I feel that fairness would indicate (that is a fair trial and not simply fairness to either the Crown or the accused) that the complainant be permitted to say what it was that she said to [HB]. [LD] was an acquaintance only, and [HB] was her friend to whom she was going after she had left the house where she alleges that the crimes were committed. To allow a complaint in the simple form in which it is alleged does not seem to me to create unfair prejudice to the accused such as would outweigh its probative value."
In my view, his Honour's reasoning was sound. 159 During the course of argument on appeal, it was submitted that there were inconsistencies between the evidence of the complainant and HB in regard to what she said to him and it was also said that her evidence was not corroborated by LD. The lack of consistency, if that be the case, and the lack of corroboration were matters for the jury to determine and did not affect the admissibility of the evidence. 160 Mr Papayanni also submitted that the complaint made to HB was "too late" and for that reason should not have been admitted. Under s 66(2) of the Evidence Act, the relevant requirement is that the evidence must be "fresh in the memory" of the complainant. There could be no doubt that the complaint made to HB met this requirement. 161 As regards his Honour's direction as to complaint, I will not increase the length of this already long judgment by quoting everything his Honour said. It is sufficient to say that he gave a very detailed direction that was in my view entirely fair and in accordance with law. In my view, the criticisms of his Honour's direction in this regard are without justification. In any event, counsel who appeared for the appellant at the trial was quite content with what his Honour said in this regard. 162 I would dismiss ground of appeal 5.
Ground of appeal 6 163 Ground 6 is that: "The verdict was unreasonable and against the weight of evidence making it unsafe and unsatisfactory giving rise to a miscarriage of justice". 164 In argument on appeal, attention was drawn to the fact that the medical evidence did not support the fact that there had been penetration by force, and no DNA of the appellant had been found, either in the complainant's vagina or the towel on which she said she cleaned herself. It was also pointed out that the complainant had lied to HB about where she intended to stay overnight. It was said that the failure by his Honour to make clear that the evidence in respect of count 2 was not admissible against the appellant, and the fact that there not a strong warning given as to the use of the evidence on count 4 acted adversely upon the appellant. 165 In my view, none of these matters is of significant moment. The fact that medical evidence did not establish that there had been penetration by force is immaterial. There was ample evidence from the complainant herself that there had been such penetration. The fact that no DNA of the appellant was found in the complainant's vagina is explicable, as, according to her, he ejaculated on her stomach. The fact that no DNA of the appellant was found on the towel is not conclusive. The lie the complainant told to HB was insignificant. I have already dealt with the directions in question of his Honour. 166 In addition it was submitted that there was inadequate evidence for the jury to find that count 1 had been committed "in company". 167 The argument advanced on behalf of the appellant was that there was no "pre-concert agreement and presence in this case, nor was there accessorial liability". 168 On the morning the offences occurred, the complainant heard voices inside the house. The voices were those of the appellant and AK. This worried the complainant as she correctly believed that SB had left the house. Shortly thereafter the appellant entered her bedroom and told her that the house was "locked up". The inference is that he said this to make sure that she knew she could not leave. The complainant knew that by then LD had left the house. To the knowledge of the complainant, the appellant and the other person to whom he was talking (AK), the three were alone in the house. When LD knocked on the front door, the complainant followed the appellant from the bedroom and saw another man in the lounge room (AK) whom she had not met before. He was sitting on the lounge in clear view of the complainant. His presence intimidated her. When the appellant returned from the front door he pushed the complainant back into her bedroom. This occurred in front of AK and his presence placed no restraint on the appellant. AK, too, made no attempt to intervene. The appellant then closed the door, threatened the complainant and had intercourse with her. Within a very short time thereafter she heard the appellant ask AK whether he "wanted" her. Intercourse then occurred with AK. 169 The Crown submitted that it was open to the jury to conclude on this evidence that the sexual assaults were not coincidental but were the consequence of an agreed course of conduct to assault the complainant sexually. The jury was entitled to infer that the presence of each was intended to and did intimidate the complainant. 170 In my view, on the facts there were two possible inferences open to the jury. One was that shortly before the appellant pushed the complainant back into the spare bedroom, he had agreed with AK, by conduct or otherwise, that each would sexually assault the complainant. Another was that there was no such agreement and AK decided to sexually assault the complainant only when the appellant emerged from the bedroom. In my view, both inferences were equally probable. That is, it was not open to the jury to conclude beyond reasonable doubt that the offence, the subject of the first count, was committed in company. 171 Accordingly, I would uphold ground 6 to that extent (that is, that the jury should not have found the aggravating element of being in company in regard to count 1 as having been proved). The parties accepted that should the appeal succeed on that basis only, a conviction of guilty to sexual assault should be entered (see s 61I and s 61Q of the Crimes Act 1900).
Conclusion as to the grounds of appeal against conviction 172 I would dismiss grounds 1(A) and 5, refuse leave to appeal under r 4 in respect of grounds 1(B), 2, 3 and 4, and would uphold ground 6 in part. I would set aside the verdict of guilty in respect of the charge of sexual assault with aggravating circumstances and substitute a verdict of guilty of sexual assault.
The re-sentencing of the appellant and the application for leave to appeal against sentence
173 The parties were in agreement that this Court should proceed to sentence the appellant in respect of the offence of sexual assault. Under s 61I of the Crimes Act the maximum penalty for that offence is imprisonment for 14 years. It is also necessary to deal with the application for leave to appeal against sentence that remains alive in respect of count 3. 174 In re-sentencing the appellant, it is necessary to take into account the factors set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. 175 Mr Papayanni submitted that the medical evidence did not support "forcible sex" and argued that the reliance on threats without excessive actual violence put the offence at the bottom of the range. Finally, he submitted that the appellant had a very good work record and apart from domestic dissention had adjusted very well as an immigrant in this country. He was a good father to his child. 176 A number of references were produced to his Honour that spoke very highly of the appellant's general character. These included a reference from his employer who said that he was a good and hard worker, honest and reliable and responsible so that he achieved the position of supervisor. These had to be added to the fact the appellant had adjusted very well as an immigrant. 177 These matters are mitigatory, but there are serious aggravating features. 178 His Honour described the threats made to the complainant as being of a serious nature "which caused an intense fear in the victim". The threats, as I have said, were that "I'll get what I want, whichever which way I'll skin you right now" or "I'll kill you, I don't care". Whatever they were, they were very frightening and the complainant was very scared. She was crying and she was shaking uncontrollably. 179 The threats were made in a situation where the complainant was entirely alone and vulnerable. She was a young person and defenceless. The appellant had locked her in the house (his own house, I would add), and she was at his mercy. She had to face the fact that AK, a man unknown to her, but apparently a friend of the appellant, was sitting outside the bedroom, knowing that she had been pushed inside unwillingly and without making any attempt to help her. He was another hostile presence. 180 The complainant had trusted the appellant to allow her to stay safely in his house overnight. He abused that trust. He inflicted a terrifying, humiliating and degrading experience on her that is likely to remain indelibly imprinted on her mind for the rest of her life. 181 The appellant's conduct was deliberate, cruel and callous, and without any regard for the harm, both physical and mental, that he was inflicting on his victim. He expressed no remorse or contrition. 182 In my view the sentence imposed by Moore ADCJ in respect of count 1 was lenient. But for that sentence, I would have proposed that the appellant should be sentenced to the same term of imprisonment for the offence of sexual assault that his Honour imposed for the offence of sexual assault in company. I consider, however, that I must have due regard for his Honour's sentence in sentencing the appellant afresh in respect of count 1. Accordingly, I would reduce the head sentence imposed by Moore ADCJ in respect of count 1 by six months. I would also reduce the non-parole period by six months. His Honour found special circumstances to exist in regard to the setting of the non-parole period and there was no suggestion that he had erred in this regard. I have proceeded on the same basis. 183 As regards count 3, I regard the fact that it was committed after the appellant must have been aware that AK had sexually assaulted the complainant as an aggravating feature. Nevertheless, I consider that the head sentence should also be reduced by six months, although I would make no change in respect of the non-parole period. I would uphold the appeal against sentence to this extent. 184 I would make no change to the approach of Moore ADCJ in regard to the extent to which the sentence in respect of count 3 should be cumulative on the sentence in respect of count 1, namely, that the sentence in respect of count 3 should be cumulative to the extent of six months. 185 Accordingly, I would impose an aggregate sentence on the appellant of seven years imprisonment and a non-parole period of four years six months. The seven years to commence on 8 October 2001 and expire on 7 October 2008; the four years six months to commence on 8 October 2001 and expire on 7 April 2006. 186 I propose that the aggregate sentence be made up as follows. In regard to count 1, a period of six years six months imprisonment commencing on 8 October 2001 expiring on 7 April 2008 with a non-parole period of four years six months commencing on 8 October 2001 and expiring on 7 April 2006. In regard to count 3, I propose that the sentence be one of three years six months imprisonment with a non-parole period of one year. I propose that the period of three years six months imprisonment commence on 8 April 2005 and expire on 7 October 2008 and the non-parole period of one year commence on 8 April 2005 and expire on 7 April 2006. 187 BUDDIN J: I agree with Ipp JA. 188 SHAW J: I agree with Ipp JA.
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(1988) 17 NSWLR 202
(1992) 173 CLR 555
(1993) 178 CLR 193
(1999) 196 CLR 297
(2002) 54 NSWLR 455
(2001) 53 NSWLR 138
(2000) 199 CLR 620
(2000) 200 CLR 234
(1991) 24 NSWLR 531