About late September 1994, the appellant moved to within walking distance from the complainant's residence and telephoned her to invite her to inspect his premises. For some time, according to the complainant, the appellant had said to her that he loved her, wanted to get her pregnant and wanted her to have his baby. On the occasion when she first visited him in his new unit, he repeated these statements. She said that she told him that she was sick of this sort of talk and wanted just to be friends, that she did not care for him. The complainant alleged that the appellant then pushed her onto the bed and pulled her shorts down, tearing them. She told him that she did not want to fall pregnant, that she was near the middle of her cycle, and that she did not want to have sex with him. She tried ineffectively to push him off her but he succeeded in effecting sexual intercourse. The complainant said the appellant was laughing and it was all a big joke to him. She said that she was very angry and upset. The appellant told her that this was the first time he had had sex in four years and either on this occasion or shortly after said that he was sorry when she asked him if he realised that he had raped her. The appellant said to her that she could go the police if she wanted to but he would go to gaol and asked if that is what she wanted. She said that at that stage she did not want him to go to gaol "but you know, and I just felt sorry for him and I just shut up about it and thought we'd just stay friends". The complainant said that she felt that probably nobody would believe her anyway, because "back then I had a lot of problems".
6 When the complainant went home after the assault, she told her flatmate, Janys Young, what happened. Ms Young was called to give evidence in the trial. She said that the complainant had gone to the appellant's house, in effect, one evening but had not come back until the following morning at about 6.30 or 7 o'clock when Ms Young was getting ready for work. Ms Young said that the complainant "sort of stumbled to the door looking extremely distressed and very disoriented...she looked like she could hardly walk...she was very pale, a little bit incoherent, I really couldn't get much out of her at all". She said that the complainant could not say much more, but told her "last night Russell assaulted me, I can't believe he would do it". Ms Young said that the complainant was still wearing shorts from the night before and pointed to a rip which she saw was along the front zipper. Over the next few days, Ms Young tried to encourage the complainant to tell her what had happened.
7 The account which emerged was that the complainant was exhausted and did not think she could manage to walk home. She had been trying to rest and had fallen asleep, or was close to falling asleep and that, whilst she was lying (semble, on the bed) she "sort of came to and Russell was on top of me trying to sort of force me into having sex with him". She said that she told him not to, to just go away and kept struggling but that the appellant "kept getting rough with me, in fact he was even trying to get my shorts off and he got so frustrated he started ripping them". This account, of course, differs significantly from that which the complainant had given in her evidence. The complainant said that the appellant had thrown her onto the bed following statements about loving her, wanting to get her pregnant and wanting her to have his child, and that the complainant had said that she did not wish to have a child, that she had problems of her own and would have a child only with someone whom she cared for and she did not care for him. She said that he had pushed her onto the bed, whereas she told Ms Young that she had been lying down and woke up to find him top of her. Ms Young said that she asked the complainant, "Did he rape you?" and that the complainant replied, "He assaulted me", and that the complainant did not like to use the word "rape" at first until Ms Field questioned her further, asking, "Did he sexually assault you, do you think it was rape?" to which the complainant replied, "How could a friend rape someone they love?" Ms Young then asked, "Did he force himself on you, would you consider that to be rape?" and said that "In the end she said, 'Yes, it is rape but I don't know what to say' and then just burst into tears". She said, "I am just so stunned, I can't believe he would do this to me". She went on to say to Ms Young, "What will I do if I am pregnant? I don't want a child and I definitely don't want a child to Russell".
8 The appellant's account was, essentially, that the complainant came to the flat that evening, they were talking and at about 10 o'clock, he asked her if she wanted to stay the night and she said that she did and then consensual sexual intercourse took place on the bed in the bedroom. About twenty minutes later she said to him, "We shouldn't have done that" and then got out of bed, got dressed and left. He denied saying that he wanted to get the complainant pregnant, that he wanted her to have his baby and that he loved her.
9 It was the sexual intercourse which occurred on this occasion which gave rise to the first count in the indictment.
10 His Honour undertook in his directions to the jury a somewhat curious course relating to the evidence of Janys Young. After briefly setting out the counts in the indictment and the occasions to which they referred, giving directions as to the onus and standard of proof and the elements of the offences, pointing out that the accused did not need to give evidence and that by doing so the onus of proof was not thereby changed, his Honour gave what he described as "the first set of directions [that] relate to the reliability of evidence" and then referred to a number of inconsistent statements made by several of the witnesses. He then said -
"The following evidence of Janys Young that Fiona Field told her that the accused had 'sexually assaulted me, I'm really scared, I could be pregnant', may be unreliable, and I warn you of the need for caution in determining whether to accept the evidence and the weight to be given to it, because the complainant's evidence followed Ms Young asking her, 'did he rape you?' which, of course, was as you have heard elsewhere in this trial, a leading question."
11 This direction, with respect, was somewhat confused. It suggested that the evidence of Ms Young might be unreliable, whereas the real point was that the allegation of rape made by the complainant might be unreliable because it had been elicited after leading questions. Indeed, as I have pointed out, the evidence of Ms Young was substantially not that it took only one leading question to elicit the allegation of rape but that the complainant was reluctant to make the allegation at all. The significance of this evidence was that the jury needed to evaluate whether the complainant's allegations that she was raped were true in light of her reluctance to make the allegation to her flatmate. The point about evidence of this kind, of course, is that if the complaint is consistent with the evidence of the complainant, then the Crown is permitted to point to that fact as supportive of her credit. On the other hand, if there is a significant inconsistency, the jury must consider whether it regards the sworn testimony as reliable. In this respect, the learned trial Judge pointed out the first of these uses of the evidence when reading out the evidence of Ms Young which I have set out in summary above. His Honour did not at any stage explain to the jury the second use to which the evidence of Ms Young could be put.
12 The evidence of the complainant was that in the weeks following this act of intercourse, she discovered that she was pregnant and was unhappy as a result. Some months later, on Christmas Day, she told her father that she was pregnant by the appellant but that he "forced me and I fell pregnant".
13 The complainant told the jury that, as she was having the appellant's child, she thought that they "might as well try and work things out", adding, "he sort of gave me the impression that no one else would want me anyway so...I pretty much just stayed with him". The prosecutor asked the complainant what she meant by this evidence. The complainant, in effect, said that she stayed with him, despite his violence towards her including attempts to suffocate her by putting a pillow on her head, because she thought he would "change and maybe he'd be decent".
14 This evidence was objected to as not relevant to the counts in the indictment but no ruling is apparent on the transcript. Nevertheless, the learned trial judge permitted the evidence to be given since the Crown prosecutor went on to seek details of the appellant's behaviour. In brief, she said that at times the appellant would be nice but that at times he would be violent, bashing her head against the cupboard in his room, putting pillows on her head, strangling her, punching her in the stomach, even when she was pregnant, causing her to fall on the floor. This evidence, of course, was highly prejudicial. After it had been given, and carefully noted down by the trial judge, his Honour asked the prosecutor whether any of the matters related to any of the counts. The Crown prosecutor informed his Honour that they did not. The prosecutor submitted that the evidence was led to put the whole of the relationship of the complainant and the appellant before the jury to provide a context for the individual counts in the indictment.
15 In effect, the learned trial judge intimated that he would permit the evidence although there would be some limit because its prejudice could exceed its probative value. Defence counsel said that he "might leave it in the hands of the Crown at this stage" in the hope that, as the Crown had indicated, "it's about to come to an end". Regrettably, this was not only not the end, it was the beginning. His Honour invited defence counsel to raise a further objection at a later stage if he thought it necessary. I will deal at a later stage with defence counsel's explanation in this court for the passive role he appears to have adopted.
16 It is not easy to discern what was meant by "context" in this submission. The counts in the indictment each occurred in its own factual setting which (as is shown below) provided an adequate context in which to evaluate and understand the allegation charged. The learned trial judge referred to, and apparently relied on, the judgment of Hunt CJ at CL in R v Beserick (1993) 30 NSWLR 510 at 515, where his Honour, referring to evidence of sexual activity other than that charged, considered that it may be relevant as evidencing a "guilty passion" or "sexual relationship", or as necessary "in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason". However, in the next paragraph of the Chief Judge at Common Law's judgment, his Honour said (references omitted) -
"Evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge is nevertheless frequently of a highly prejudicial nature, in that it tends to show a propensity on the part of the accused to commit crimes of the nature charged or crimes of a similar nature. Its admissibility has therefore always been subject to the well known discretion in criminal trials to exclude evidence where its probative value is outweighed by its prejudicial effect ...If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged."