Regina v Mosegaard

Court of Criminal Appeal (NSW)|2005-09-06|Before: McClellan CJ, Grove J, Smart AJ, Clellan CJ

Regina v Mosegaard [2005] NSWCCA 361 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 182; Smart AJ at 183

DECISION: By majority 1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence but dismiss the appeal Smart AJ (dissenting) 1. Allow the appeal on counts 2 and 3 and order a new trial

Crimes Act 1900 LEGISLATION CITED: Criminal Procedure Act 1986 Criminal Appeal Act 1912

Osland v The Queen (1998) 197 CLR 316 Queen v Farrell (1998) 194 CLR 286 Queen v Jones (1997) 191 CLR 439 R v Abou-Chabake [2004] NSWCCA 356 R v Barnett [2000] NSWCCA 283 R v Carbone [2000] NSWCCA 387 CASES CITED: R v Dixon [2001] NSWCCA 39 R v Markuleski (2001) 52 NSWLR 82 R v Ranko Ignjatic (1993) 68 A Crim R 333 R v RAT (2000) 111 A Crim R 360 R v S [2001] NSWCCA 204 R v Tubou [2001] NSWCCA 243)

The Crown PARTIES: Jens Grandt Mosegaard (Appl)

J Bennett SC (Crown) COUNSEL: M Ierace SC (Appl)

Solicitor for Public Prosecutions (Crown) SOLICITORS: Legal Aid Commission (Appl)

IN THE COURT OF CRIMINAL APPEAL 2005/865

McCLELLAN CJ at CL GROVE J SMART AJ

THURSDAY 27 OCTOBER 2005 REGINA v Jens Grandt MOSEGAARD Judgment 1 McCLELLAN CJ at CL: The appellant was indicted upon three counts as follows: "First Count: On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with ("AG") without her consent, knowing that she was not consenting to the sexual intercourse, and at the time of the commission of the offence, did maliciously inflict actual bodily harm on ("AG"). (s 61J(1) Crimes Act 1900) Second Count: On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with ("AG") without her consent, knowing that she was not consenting to the sexual intercourse, and immediately after the time of the commission of the offence, did maliciously inflict actual bodily harm on ("AG"). (s 61J(1) Crimes Act 1900) Third Count: On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with ("AG") without her consent, knowing that she was not consenting to the sexual intercourse, and immediately before the time of the commission of the offence, did maliciously inflict actual bodily harm on ("AG")." (s 61J(1) Crimes Act 1900) 2 Toward the end of the trial, and before commencing summing-up to the jury, the trial judge directed that the circumstance of aggravation alleged by the Crown in the third count was not available at law, whereupon that charge was amended to the following. "Amended Third Count: On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with ("AG") without her consent, knowing that she was not consenting to the sexual intercourse." (s 61 I of the Crimes Act 1900) 3 The appellant was acquitted of count one but convicted of counts two and three. In respect of the amended third count in the indictment he was sentenced to a non-parole period of 7 years and a total term of 9 years and 4 months, both taken to have been commenced on 8 March 2003. The non-parole period will expire on 7 March 2010. 4 In respect of the second count in the indictment he was sentenced to a non-parole period of 8 years and a total term of 11 years, both taken to have been commenced on 8 March 2004. The non-parole period will expire on 7 March 2012. 5 The trial judge determined not to impose the statutory non-parole period in respect of the second count, and found special circumstances with the result that the overall sentence accords with the statutory ratio which reflected her Honour's view of an adequate provision for rehabilitation and reintegration into the community. 6 The appellant appeals against his conviction and seeks leave to appeal against the sentence imposed.

The Crown case 7 At the trial the Crown Prosecutor identified the particular acts of the appellant and the injuries alleged upon which it was intended to rely for each of the 3 charges:

Count 1 : The allegation that the appellant without consent forced his penis into the mouth of the complainant, at the time causing her actual bodily harm. The bodily harm was bruising to the complainant's upper arm.

Count 2 : The allegation that the appellant without consent put his penis into the mouth of the complainant, immediately after causing her actual bodily harm. The bodily harm was the injury to the complainant's lip.

Count 3 : The allegation that the appellant without consent had penile vaginal intercourse of the complainant and immediately before that caused her actual bodily harm. The bodily harm was injury to the complainant's thighs. 8 The complainant shared a house with three others, including the appellant, at 32 Holmwood Street, Newtown. Each of the occupants had their own room. The other occupants were the appellant's brother, Niels Mosegaard, and a young woman named Lisa Phelan. 9 The complainant had only recently joined the house, in response to a newspaper advertisement in February 2003. 10 On Friday 7 March 2003 the complainant went to work at the Eros nightclub where she was an exotic dancer. She worked from 8:00pm until 5:00am the next day. She then went to the Crown Hotel and met friends. At that time the appellant was also present at the Crown Hotel, joined the complainant where she was sitting with a friend, and remained with her until they left the hotel to go home together. 11 Before leaving home for work the complainant took Nurofen Plus for a back injury that she had. She acknowledged in her evidence that at work she consumed a vodka and orange drink about every hour, and had ingested a "line of speed" shortly after arriving at the nightclub. At the hotel, according to her evidence, she had another two drinks of vodka and orange, and one beer. This conflicted with the evidence of the barman, Michael Field, who gave evidence that he had served her about 5 or 6 drinks of Kahlua and milk. He also said that she generally drank Kahlua and milk, and he was pretty sure that this is what she was drinking. 12 Andrew Farrington, another employee of the hotel, saw that she had one milky drink, possibly two. 13 Also while at the hotel the complainant swallowed a capsule given to her by Andrew Farrington believing it to be ecstasy. Farrington received two capsules the night before from another patron. He gave one of them to the complainant and he took the other. Both described the adverse effects experienced after taking the capsules. 14 The complainant described feeling quite unwell, nauseous, and left the hotel to go home with the appellant. 15 At the house they each went to their own room. The complainant took Efexor, an anti depressant, and Seroquel, an anti anxiety drug, both of which were prescribed for her. 16 A summary of the complainant's account of the relevant events after they arrived home is as follows: 17 At the time the complainant was feeling quite sick. 18 The appellant knocked at her door and entered and she gave him a beer from the pack of 6 that she had earlier bought at the hotel. In the course of relating his problems to the complainant the appellant said that he really liked her. 19 He was sitting close to her, placed his hand just above her breast, but moved it away when told to do so. He had asked for and was given another beer. The complainant was continuing to feel ill and wanted to rest. She asked the appellant to leave the room and he did so. 20 The appellant returned to the door, knocked, was invited in, and was told by the complainant that she would come and talk to him later. 21 The appellant came to the complainant's room several times in this sequence, each time she closed the door after him, and on one occasion he came into the room as she was in the process of changing. She was naked, holding a piece of clothing, turned away and asked him to leave. 22 The complainant was unable to specify times for many of the events that occurred, other than by way of estimates. There was no clock in the appellant's bedroom. 23 From her room, and during the sequence of the visits by the appellant to her room, the complainant heard the appellant outside speaking with Lisa Phelan apologizing for walking around naked. 24 The appellant returned to the complainant's room and invited her to come to his room to watch a movie. On each occasion that he came to the room he was wearing a pair of black shorts. 25 After a rest the complainant went to the appellant's room and sat on a wooden chair. The appellant was lying on his bed. 26 The appellant rose from the bed. He was naked. The movie he played was pornographic. The complainant asked him to put on some clothes, and told him that she did not want to watch a pornographic movie. The appellant told the complainant that he really liked her and pulled the strap of the complainant's black dress into which she had changed, an action that she took to be an attempt to remove the garment. 27 The complainant moved his hand away, whereupon he grabbed her arms and pulled her onto the bed, ripping the dress and her underwear from her. 28 The appellant got on top of the complainant as she struggled; he sat on her chest and put his knees on her upper arms. 29 The appellant said, "…I just want to have sex with you and then you can go." The complainant said, " …leave me alone I don't want to do this." The appellant attempted to place his penis into the mouth of the complainant, as she struggled, moved her head back and forth and tried to hold her mouth closed. The appellant's knees were pressing down on the complainant's arms, causing her pain, and stopping her from moving. 30 The appellant pulled the complainant's hair, and held his hand over her nose and mouth, causing her to open her mouth whereupon he placed his penis in her mouth against her struggling and protestations. 31 The appellant had a partial erection, which did not persist, and he re-inserted his penis into the complainant's mouth. This occurred approximately 5 times. 32 The complainant said to the appellant, "Why are you doing this to me?" and the appellant said, "I want you to make me hard, I'm going to fuck you." The complainant was struggling, saying no, crying, and shaking. 33 When the appellant got off the complainant to access a bong to smoke cannabis she attempted to run for the door but he intercepted her, grabbed her by the hair, dragged her to the floor and back onto the bed saying words to the effect of, "Don't try anything like that again." The appellant slapped the complainant across the head, causing her pain and ringing in her ears. 34 The appellant got back on top of the complainant, sitting on her chest with his knees on her upper arms and resumed his attempts to insert his penis into her mouth. 35 The appellant urinated in the complainant's mouth and on her face and hair. Being unable to breathe, the complainant was forced to swallow some of the appellant's urine. 36 The appellant told the complainant he was going to tie her up, took a length of black cord, held her arms together and attempted to tie her wrists as she resisted. He did not succeed. 37 The complainant again attempted to escape, but was intercepted by the appellant. He pulled her hair, threw her onto the floor and back onto the bed where he hit her again causing pain and ringing to her ears. 38 The appellant opened the window and the complainant began to yell and scream for help, whereupon the appellant turned up the volume on his stereo nearby, to a level where she could not yell or scream over it. 39 After the appellant opened the window, he unsuccessfully attempted to tie the complainant again using the black cord, held her down, and attempted to force his penis inside of the complainant's vagina as she was struggling and saying, "No". He could not sustain an erection and desisted. 40 The complainant again tried to escape, unsuccessfully, was caught by the hair and dragged to the bed to be slapped a few times across the side of the face, on the ear and across the cheek. 41 The appellant again got on top of the complainant and attempted oral sex. 42 At one point the appellant bit the complainant's nipple causing it to bleed. 43 At another point the appellant inserted a "dildo" into her mouth, which she resisted and in doing so bit off a part of it. 44 The appellant again attempted to insert his penis into the complainant's mouth whilst sitting astride with his knees pressing down on her upper arms, whilst she kept her mouth closed and shook her head. The appellant pulled her hair back, and when he forced her mouth open he urinated on her again. 45 The appellant tried to tie the complainant again, using yellow tape, which he attempted to place around her mouth. She managed to bite through it and rip it from her hand. 46 The appellant said words to the effect of, "Now I'm going to have some fun." He took a texta type pen and wrote words on the complainant's body as she lay on the bed curled up, exhausted, sobbing, and having given up on the thought of attempting to escape. 47 The complainant managed to push the appellant off her at one point by pulling him back by the hair, whereupon she "managed to flip him off me." This was one of the occasions when she attempted to escape, but was intercepted and thrown back onto the bed and struck. In the course of this hitting, the appellant punched her in the face causing injury to her lip. Thereafter, he held her nose and pulled her hair, forcing her mouth open, and put his penis into her mouth. 48 The appellant took a disposable camera and took photographs of the complainant as she lay curled upon the bed, crying. He then rolled her onto the front side and attempted unsuccessfully to tie her arms, and one of her legs to her arms. 49 After the appellant gave up using the black cord, he tried to tie the complainant up with silver tape, also attempting to wrap that around her head. He failed to do so because of her struggling. 50 The appellant then took more photographs. 51 A conversation followed in which the complainant asked what the appellant had planned for her, and that he should surely realize that she would go to the police. The appellant replied, "I could probably slit your throat now but I'm not going to do that, I'm going to let you go when I'm finished with you." 52 After using the camera the appellant said that he was going to rape and sodomise the complainant, to which she screamed and said no. She pleaded with him to let her go, and offered money to go to a prostitute, but he declined, saying that she was as good as any prostitute. He said that he just wanted to come, and then he'd let her go. 53 The appellant inserted his finger into the complainant's anus, and then got on top of her again, placing his knees onto her thighs causing her pain, and forced his penis into her vagina and ejaculated. 54 The complainant was struggling against this, but by this time was feeling exhausted and could not fight back, and was sobbing and shaking. 55 The appellant led the complainant from his room to her room, and climbed into her bed. She begged him to leave her. He said that he was going to stay there whilst she slept so that she didn't try anything. Shortly after he left her. 56 The complainant used an empty jar to capture fluid from her vagina for she knew that evidence would be required. She then slept. 57 When the complainant returned to her room she noticed that the hour hand of the clock said 2, and believed that the time was somewhere between 2:00pm and 3:00pm. She slept until 5:00pm and thereafter reported the events. 58 As noted above, the trial judge took the view that the evidence did not extend to establish the actual bodily harm alleged in the third count, and gave leave for that charge to be amended.

The appellant's Version 59 The appellant gave detailed evidence of his version of these events, the effect of which was for the most part consistent with the description of the events given by the complainant. However, he denied that their sexual activity was without her consent. 60 A summary of the appellant's account of the relevant events follows. 61 When he met with the complainant at the Crown hotel, he indicated a woman with whom he had arrived and said that he might be going home with her. He alleged that the complainant said in response, "Well you can sleep with me." The complainant denied this. 62 He acknowledged that the complainant might have been vomiting when she alighted from the taxi they caught home, but did not see or smell evidence of that having occurred. He denied that she had otherwise been sick. 63 At the house he entered the complainant's room on a number of occasions. During one of the visits he squeezed her breasts together, and on another fondled her breasts. The effect of this evidence was that he did so, without the complainant expressly consenting to the touching, but offering no resistance. 64 The complainant said that they should get into bed together. 65 In response, he said to her, "I'll do whatever I want with you." and, "I'll be rough and ready." The complainant nodded to these proposals and "went uh uhh." 66 The appellant said, "Don't worry" or "there's no need to worry we'll have a safe word in case it gets a bit much for you or you want me to stop… just say no." He reinforced this arrangement, and she responded affirmatively in the same manner. 67 He decided to have a smoke of cannabis, left the complainant's room, did so, and returned. He knocked on the door, and called her name out, and saw the complainant naked causing him to become flustered. He mumbled something and returned to his room after telling her he would be in his room watching a video. 68 The complainant came to his room. She said that she did not want to watch the pornographic video. Having shortly before discussed having sex, he lifted her dress over her head, found that she was naked beneath that garment, and placed her on the bed from which point the sexual activity commenced. 69 The appellant described having his penis between her breasts and continued, "Well now I had an erection I moved forward and I had my knees sort of on the bed above her shoulders, it was a bit of an awkward position but she, I don't know what you call it, took my penis in her mouth." 70 The complainant, without saying anything but by prodding with her foot, indicated to the appellant that she did not want him to use condoms that he produced. He told her he was not comfortable not using a condom. 71 At that point he heard noises downstairs, and thinking that there were intruders, left the room, naked, to challenge them. It was the other housemates, and he said to Lisa Phelan, " … don't mind what you hear in there or don't mind anything you hear in there, referring to my room." 72 He heard the complainant giggle and say the same thing. Lisa Phelan gave evidence of having heard the same utterance from a girl from within the room. This has significance in relation to the first count. 73 The appellant returned to the room, when his brother came to the door asking for his phone charger. The appellant told him to "fuck off", and believing that he was still there, yelled out again, "That's a (sic) serious fuck off Neils. [the applicant] felt that he was sticky beaking." 74 When he returned to the room the complainant was on the floor, sitting on her haunches, giggling. He did not want to have sex on the floor and asked her to return to the bed. 75 The appellant suggested that he tie the complainant up, she lay there calmly, and he obtained the drawstring from a pair of shorts and placed a loop around her right arm. She pulled away when he tried to pull her hands together. He said in evidence, "… I figured well maybe I should tie her hands behind her back and rolled her over, brought her hands together again and she's pulled away. She wasn't saying anything but I reminded her, I said well no, like a question, asking because she's pulling her hand away and she just - she didn't say anything. I said to her - I'd cottoned onto what was going on in Alex's mind, I said well I don't do it like that. …I got the impression she wanted me to do like some sort of role playing. Well I just said I didn't do it like that, thought I'd made it clear when I picked the safe word no that that would, would do you call it, that sort of thing wasn't going to happen where I was pseudo forcing her to do something." 76 The appellant went to the bathroom, waited there for 8 minutes, and returned to the room and gave the complainant the cold shoulder. "Well I deliberately took my time, maybe eight minutes. When I was saying I don't do it like that, I was basically saying, you know, that's it, full - see you later." 77 After he had returned to the room and had a smoke, and since the complainant "… was on the bed I thought well just continue, kissed her a bit." He denied inserting his finger in her anus, but acknowledged introducing the 'dildo' into her mouth. 78 Before that occurred however, he described how the complainant nudged him with her upper body as they were laying on the bed. He interpreted this as some indication of something he would not like. "I stood up, said look I don't do it like that. … I wasn't sure at the time, I thought I wasn't taking any chances I just said I'm not going to do it like that, I thought she was trying the other thing on me again. … I don't know what to call it like just role play." 79 Once again he returned to the bathroom, this time for 6 or 7 minutes. 80 He returned to the room, the complainant was on her haunches, he stood in front of her and fellatio occurred. He denied that this was forced, but having discussed that the sex would be rough and ready, he held her head and moved it back and forth while she was sucking his penis. 81 The appellant said that he wasn't really into this, and that he had made it reasonably obvious. He lost his erection, and whilst his penis was in her mouth he allowed urine to escape. She swallowed in a gulping fashion, which he interpreted to mean that she wanted more, and he urinated more fervently. He continued to urinate, on her face and hair, but when she indicated that she did not like this, he resumed urinating in her mouth and she drank with the same fervour as before. 82 When asked what happened immediately after urinating, he said, "Well I said to her I think my exact words were I'll do it just once. … The sort of role playing she was eluding (sic) to before previously. … Well the time when she was pulling her hand away but not saying no and the --- … Yeah and the time she nudged me was that I just was sensitive to it I guess. … Well it was a reference to that sort of sex I find it a turn off." 83 Thereafter, with the complainant on the bed, the appellant began to strike her, and put a pillow in her mouth. 84 The appellant described how he applied electrical tape to the complainant, something he introduced but then discarded because he was not going to have sex like this. He played a video tape of himself and another woman having sex, and explained that was how he liked to do it. 85 He thereafter spoke with Lisa Phelan after knocking on her door to apologise for having exposed his butt ugly body to her, then went to the bathroom for 12 minutes, as a hint to the complainant that he did not want to sleep with her in certain ways, and hinting that he wanted her out of his room. 86 He admitted that he wrote the words "slut" and "whore" on the complainant using an overhead projector pen, because he thought she might like it. He admitted causing the injury to her lip, but said it was an accident because she moved her head toward him as he was slapping her as part of the role-playing. She became angry, pulled his hair, he pushed her face away, and he left the bed to sit at his desk. She made some threats, which he repeated in what he described as a Quasimodo voice, he asked her to leave, she looked as if she was going to sleep in the bed, and he took photographs of her with a disposable camera, notwithstanding that there was no flash and he did not expect the exposures to record anything. 87 He admitted the penile vaginal sexual intercourse and when it was over, and the complainant left his room to return to her own, he rushed ahead of her and got into bed. 88 The appellant's case was that the sexual encounter was consensual in all respects, including the so-called "rough sex" in all of its forms.

The evidence of Lisa Phelan 89 There was evidence which was capable of corroborating the complainant's account of the relevant events. Of particular significance was the evidence of Lisa Phelan, who occupied the third upstairs bedroom of the premises. Her evidence also provides the explanation for the jury's decision to acquit on the first count. 90 Lisa had spent the night at home with her boyfriend who had left at about 7.40 am. Because she could not sleep she got up and made breakfast in the kitchen downstairs and "pottered around." After about half an hour she was joined by the appellant's brother, Neils Mosegaard, who was also a tenant of the house. Neils indicated that he had overhead conversation of a friendly character between the complainant and the appellant. The complainant had said that the appellant reminded her of her ex-boyfriend. 91 There was then an exchange between the appellant and Neils and Lisa when the appellant asked them what they were doing in the house. Apparently the appellant did not realise it was Saturday. Lisa then went upstairs to her room and read a book. She heard the appellant say something as she went upstairs, so she put her things in her room, came back out, and said "what?" She saw the appellant standing in his doorway naked. He said "don't mind anything you hear in here". She looked away and said "Listen I don't want to see that first thing in the morning". He replied "Don't mind anything you hear in here." 92 Lisa said she heard a female voice "Don't mind what's in here". The female voice was in a tone that was possibly a mimic of what the appellant had said. 93 This exchange appears to have taken place at about 9.00 am. She also gave evidence that at the time the exchange occurred she heard giggling which was clearly a female giggle and although not sure where it came from she heard it at the same time she heard what she believed to be a female voice mimicking what the appellant had said. 94 Lisa then went to her room read her book and fell in and out of sleep. At different times she heard a noise and would wake up and then doze off again. The first time she fell asleep was about an hour after she was back in her room. She woke at one stage with the appellant banging on her door saying "I am sorry you have to see my butt-ugly naked body." At another point she heard banging on a door. She turned down her radio and heard the appellant in the hall shouting for the complainant. She turned up her radio again. She then read for a little longer and heard noises and movement around the house including the bathroom door slamming a number of times. 95 She reports hearing deafening loud music around 12 or 12.30 for about 20 minutes. After the music stopped she heard footsteps coming up the stairs followed by Neils asking the appellant if he could borrow his phone charger out of his room. The appellant replied "Fuck off, fuck right off, I mean it Neils, fuck off." She heard further murmured voices and then got up, made her lunch and left the premises.

Corroborative evidence - other witnesses 96 The complainant's evidence was only challenged by that of the appellant, and apart from Lisa Phelan was supported from various sources. A summary of relevant matters includes:

(1) The evidence given by the complainant's friend Kim Szymanowicz and her boyfriend Stephen Emmerson as to complaints made by the complainant and her appearance at that time.

(2) The evidence of Dr. Natasha Andreadis as to the injuries which she observed to the complainant's breast.

(3) The evidence of the taxi driver, Gavin Scott, who drove the complainant from the house to Ms Szymanowicz as to her appearance and distress.

(4) The evidence of Peter Johnson, who was on the opposite side of the street from the subject premises about midday and heard the muffled screams of a female person coming from the direction of the premises;

(5) The evidence of Sally Ann Auld, who was also on the opposite side of the street about midday and heard high pitched screaming from the vicinity of the upstairs;

(6) The evidence of Gregory Brian Kitchener who was on the opposite side of the street about midday and heard faint cries for help from the vicinity of the house;

(7) The evidence of Mark Abernethy who was in the vicinity of the house about midday and heard moaning and groaning which he assumed was female, coming from upstairs. Although he initially thought it was someone having sex, he came to the view that it was the sound of someone in pain;

(8) The evidence of Christine Franks, who lived next door to the subject premises, and when at the front of the house about 12:30pm heard emanating from the front of the subject premises a girl crying, very distressed, and saying, things like, "Oh no, how could you, how could you do that?"

(9) The evidence of Florence Scott, read from her statement and cross-examination at the committal proceedings, describing screaming she heard from upstairs of the subject premises about 12:00 midday or 12:30pm.

(10) The evidence of Andrew Farrington as to the supply of the capsule to the complainant, and the comparable effects he suffered when he took the one he retained.

(11) The evidence of Jennifer Bettina Burger, confirming the presence of DNA with the same profile as that of the Appellant, recovered from semen on the pill bottle used by the complainant to capture fluids from her vagina after the encounter.

The appeal 97 Although originally raising only two grounds of appeal against conviction the appellant now seeks to rely on an additional ground. I shall consider each ground in turn.

Ground One: the verdicts of guilty in relation to counts 2 and 3 are unreasonable in view of the acquittal on the first count 98 The appellant submits that by acquitting the appellant of the first count it is apparent that the jury did not accept the complainant's evidence in significant respects. Accordingly, it is submitted that the convictions on counts two and three involve a degree of speculation as to what occurred and are unreliable. 99 The difficulties raised when a jury returns possibly inconsistent verdicts were authoritatively considered by this Court in R v Markuleski (2001) 52 NSWLR 82. That decision followed problems which had emerged in this Court since the judgment of the High Court in Queen v Jones (1997) 191 CLR 439 and the Court sat as a bench of five to resolve the differences. 100 The fundamental issue addressed by the Court of Appeal in Markuleski was whether in a "word against word" case a mixture of acquittals and convictions cannot be sustained unless the appeal court can detect a relevant difference in the quality of the complainant's evidence. This had been the approach taken in a number of earlier decisions R v RAT (2000) 111 A Crim R 360; R v Barnett [2000] NSWCCA 283; R v Carbone [2000] NSWCCA 387; R v Dixon [2001] NSWCCA 39 and R v S [2001] NSWCCA 204. 101 Spigelman CJ concluded that the approach taken in these cases was not consistent with the High Court's decision in Jones. His Honour recognised that there may be many reasons which explain why a jury has returned what on their face appear to be inconsistent verdicts not all of which may be apparent to an appeal court. Importantly they include the fact that the jury may have recognised subtle differences in the way the evidence was given which may not be apparent from the transcript. The task for an appeal court is to examine whether the evidence available on the counts in respect of which a jury brings in a conviction, including the credibility of the complainant, has been undermined by an acquittal on any other count. 102 One of the decisions called up for review in Markuleski was that of Wood CJ at CL in R v Carbone. In Markuleski Wood CJ at CL indicated that with the benefit of a comprehensive review of the decisions he had concluded that the line of cases in which it had been held that the rejection by a jury of a complainant's evidence in relation to some counts involved a fatal diminution in that witnesses' overall credit had advanced a principle that was "altogether too rigid" [205]. 103 The importance of the role of a jury in the resolution of the relevant issues has been emphasised on many occasions. In Osland v The Queen (1998) 197 CLR 316 McHugh J said at 358, para 120-122: "When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory. In determining whether the inconsistency points to an unsatisfactory conviction, the appellant court must consider the evidence, the issues and the directions which the jury were given. …. An examination of the directions, issues and evidence may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Just as frequently, however, examination of the issues evidence and directions may show that apparent inconsistent verdicts are not inconsistent and that there has been no failure in the reasoning process of the jury. 104 Spigelman CJ referred to the Queen v Farrell (1998) 194 CLR 286 as an example of how a closer scrutiny of seemingly inconsistent verdicts can transpire to be consistent, although he cautioned that it does not follow that unless "there is some relevant difference in the quality of the complainant's evidence" the convictions must be set aside [65]. The critical issue is whether in the circumstances of the case, the complainant, on matters of substance, was other than a witness of truth [94]. 105 Wood CJ at CL acknowledged that seemingly inconsistent verdicts are often explicable by the germs of doubt as to a complainant's "reliability of their recollection or their full awareness of the facts, without in any way reflecting upon their veracity or honesty" [216]. 106 In the present case the appellant emphasises that in Markuleski both the Chief Justice and Wood CJ at CL acknowledged that in a trial where there are multiple counts a trial judge should, as a general rule, direct the jury that a reasonable doubt on the complainant's evidence on any count ought to be taken into account in assessing the complainant's credibility generally. On this matter the Chief Justice said: "188. It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally. 189. On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count. 190. Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant cold be accepted in relation to other counts. 191. The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts. 107 In the present case the trial judge was invited by counsel to give a direction in accordance with the decision in Markuleski. Her Honour did so in the following terms: "Both the Crown and Mr Fliece have addressed you on the basis that you would find the same verdict be it guilty or not guilty in respect of each of the charges. But you're not bound to find that way because the facts are for you and you alone to determine. However, you would be aware that the Crown case relies solely on the evidence of the complainant, Ms Alexandria Gillespie, to prove each of the charges which are brought before you. You could not convict the accused of a particular count or charge in the indictment unless you were satisfied beyond reasonable doubt that Ms Gillespie's evidence was both honest and accurate in respect of her account of the facts and circumstances on which the particular allegation in that count arises. In the case of any witness, including the complainant Ms Gillespie, you are not bound to accept or reject everything the witness has told you in the witness box. You can reject part of what a witness says but accept some other part of what the witness says in evidence to you if there is a valid reason for you to do so. You are therefore entitled at law to accept the complainant's evidence which supports one or more of the counts in the indictment but reject her evidence in respect of another of the allegations in the indictment. But before you brought in different verdicts in respect of the different counts in the indictment, there must be a logical or rational basis for that decision. There must be something about the evidence of the complainant or the evidence in general which supports a finding that you could be satisfied beyond reasonable doubt that she is honest and reliable in one or more of her allegations, but yet have a doubt about her honesty or reliability in respect of one of the other allegations. You might conclude that in this case your verdicts would be the same because of the single issue that has been raised before you and that is really the honesty of the complainant. However, if for any reason you have a doubt about the reliability of the complainant in respect of one of the allegations she makes, then of course you must take that into account when assessing her reliability or her honesty in any of the other allegations which make up a count in the indictment. It is only, if after taking that matter into account you are satisfied beyond reasonable doubt that the complainant's evidence in respect to the particular charge is both honest and accurate that you could convict the accused on that count. Although these are separate allegations and they have to be considered separately and independently, obviously some of the factual findings that you make on the evidence will be relevant to a consideration of each of the charges. A finding of fact made in respect of one charge may influence your determination in respect of another charge. But remember that the allegations are independent of each other and each requires your separate consideration. It would be quite wrong simply to say that because you found one charge proved, for example that you would find the other two charges proved, it is a matter for you to consider each charge carefully and separately." 108 The appellant submits that in the circumstances of this case the form of the direction given by her Honour was not adequate. The appellant emphasises that the direction did not go as far as the Chief Justice said may be appropriate in para 188 and 189 of his Honour's reasons. 109 I infer that counsel submits that her Honour's directions should have emphasised to the jury that it might conclude that there was nothing to distinguish the evidence of the complainant on one count from her evidence on the other count. 110 No point to this effect was taken by counsel at the trial. 111 The appellant acknowledged that the complainant's account was, at least in part, corroborated by the observations of others inside and outside the house. However, the appellant emphasises that the evidence of witnesses that were outside the house did not go so far as to independently establish the commission of any of the alleged offences. It is submitted that in some respects, in particular the matters to which I have referred with respect to count 1, there was positive evidence which was contradictory of the complainant's account and which would inevitably lead to the conclusion that on matters of substance she was not only not reliable, but was deliberately untruthful. This submission emphasises that the complainant's account was to the effect that within what must of have been, at most a few minutes of entering the appellant's bedroom, she was engaged in a desperate and violent struggle for some hours, during which she was repeatedly subjected to sexual assaults. On numerous occasions she ran for the door, only to be dragged back by her hair and further assaulted. On this version, it is submitted that it is inconceivable that the appellant would have been engaged in conversation with Lisa and Neils, at various stages during that period, without the complainant taking the opportunity to raise the alarm. 112 It is accepted that it is likely that the evidence of the housemates was the reason for the jury to decline to accept the complainant's evidence in relation to the first count. The appellant accordingly asks the question whether it was open to the jury, having entertained a reasonable doubt as to the complainant's veracity on the first count, to nevertheless reliably convict the appellant at all. 113 According to the appellant's account, the only time the complainant acted in a manner which involved loud protest was when the appellant accidentally split her lip which in the prosecution case occurred after, not before, the act of sexual intercourse which constituted the second count. It is submitted that the evidence of what the witnesses outside the house heard did not corroborate the complainant to the extent of confirming the words seeking assistance that she said she screamed out, and on the account of, for example, Christine Franks, "how could you, how could you do that", the words were equally capable of corroborating the appellant's version. 114 It is further submitted that even if the jury were entitled to act on the evidence of these witnesses as corroboration, for what ensued thereafter, there was a grave danger that the second count of sexual intercourse was not corroborated, at best only the injury; on the appellant's version, the last act of sexual intercourse preceding the split lip was a considerable time before-hand, with his conversation with Lisa Phelan about his "butt-ugly body" intervening. 115 The appellant also submitted that Lisa Phelan's evidence was, overall, of more assistance to the defence than it was to the prosecution, in terms of the issue of the complainant's veracity. While she corroborated hearing loud music being played, saying this occurred around 12 or 12.30, her evidence of the appellant's various activities and interactions, including with Niels after she heard the loud music, is contrary to the complainant's account. Lisa Phelan did not say that the music came from the appellant's room; she was not asked where it appeared to come from. 116 The appellant emphasises that the prosecution led evidence of the various drugs, including alcohol and other medications which the complainant had taken that evening. In particular emphasis is placed on the fact that the pill which she took believing it to be Ecstasy appears to have had significant adverse impacts upon her. The complainant felt unwell and was unable to walk straight. 117 The defence sought a direction from her Honour that the jury should exercise care in convicting on the complainant's evidence, given the evidence that she had taken various drugs and alcohol. In response to this request her Honour told the jury that "the use of illegal drugs by the complainant and by the accused is in evidence before you because it is relevant to the issues in the trial". Her Honour continued: "You should look carefully at her evidence and determine for yourselves whether these matters may make her evidence unreliable." 118 However, no direction was sought and none was given as to the evidence that the complainant had been diagnosed as suffering from a bipolar disorder, which was subject to drug therapy. 119 It is submitted that the consequence of the evidence in relation to the complainant's mental state, in the context of her Honour's directions, was that the jury were confronted with a body of evidence which they were directed was relevant to the complainant's reliability but with no assistance in determining what it actually meant. It is submitted that in these circumstances given the difficulties with some of the evidence "the jury was in danger of speculating what the impact of the drugs and alcohol might have been on the complainant, a woman with an underlying mental condition (bipolar disorder) which was clearly outside the everyday knowledge of a jury." 120 In these circumstances it is submitted that the form of Markuleski direction given to the jury, the absence of evidence as to the nature of the relevance and actual impact, if any, of a complainant's mental state and her drug and alcohol usage on her behaviour at the time and her reliability as a witness recalling these events, renders the verdicts on count 2 and 3 unreasonable.

Conclusion on first ground of appeal 121 To my mind, there are a number of matters which could rationally explain the jury's verdicts in the present case. It is clear that the complainant's account of the events is not entirely accurate and her recollection of the time at which events occurred and the sequence of those events may be confused. Given that on any version the relevant events occurred over a number of hours this is not surprising. 122 The complainant's account of the events relevant to the first count were not supported by corroborating evidence. Furthermore, the evidence of Neils Mosegaard and more particularly Lisa Phelan suggests that the initial sexual encounter between the complainant and the appellant could have been consensual. The overhearing of a conversation in which the complainant suggested that the appellant reminded her of a former boyfriend and the giggling and mimic conversation justified a doubt as to whether or not the initial sexual activity occurred without the complainant's consent. However, even if the jury had doubts about the complainant's evidence on that aspect of the matter the evidence which supports the jury's findings in relation to the other two matters is of quite a different character and, to my mind, amounted to a strong Crown case. 123 Of particular significance are the reports of a woman crying and screaming and the evidence of deafening loud music at a time which is consistent with the complainant's account of the loud music being used to mask the activity inside the room. This conclusion is also supported by the evidence of the complainant's distress and complaint. 124 The Crown also submits that the evidence of bruising and facial injury to the complainant together with the degrading character of the acts committed, including the urination by the appellant in the complainant's face, are relevant to explain the jury's verdict. To my mind, this evidence is less convincing. The appellant says the complainant consented to sexual activity involving acts of violence and degradation. In this event the fact that they occurred may not be corroborative of the complainant's allegations. 125 I am satisfied that the direction which her Honour gave with respect to the assessment of the complainant's credibility was appropriate. Her Honour reminded the jury of the significance of the complainant's evidence and stressed that if before the jury could reach a different verdict in relation to any count "there must be a logical or rational basis for that decision." In the circumstances it did not follow that there was no relevant difference between the complainant's evidence on the first count and her evidence on the other matters. In any event her Honour raised for the jury's consideration the possibility that they might conclude that there was only one issue - "the honesty of the complainant" - which together with her directions as to the impact of doubt on one count and their consideration of the other counts was, in my opinion, the appropriate direction. 126 With respect to the direction given in relation to the use of drugs and alcohol I am also satisfied that the direction was adequate. By her direction the trial judge was plainly directing the jury to have in mind the possibility that the complainant's account may have been affected by drugs or alcohol. No doubt for sound forensic reasons, defence counsel decided that the directions on this matter given by her Honour were satisfactory - no issue was raised with them. 127 This ground of appeal fails.

Second ground of appeal 128 During the course of the trial counsel for the appellant made an application pursuant to s 293 of the Criminal Procedure Act 1986 to cross-examine the complainant about her sexual history. He handed up a written application setting out the grounds and scope of the proposed examination. The written application sought to adduce evidence in relation to six matters:

The complainant's sexual activity with persons other than the appellant within 48 hours of the alleged assault, including with Stefan Kuczborski;

A representation made by the complainant to Dr Andreardis that she had sexual intercourse with a person at 4.00 am on the morning of the alleged assaults.

The nature of the complainant's work at the Eros Club;

Whether the complainant engaged in prostitution at the Eros Club;

A verbal representation said to have been made to the appellant approximately 10 or 11 days prior to the day of the alleged assaults to the effect that the complainant and another girl who worked at the Eros Club had a bondage and sex session with a client;

A representation by the complainant to the appellant that she and other workers at the Eros Club had sex with the manager in exchange for favourable shifts said to have been within approximately two weeks before the day of the alleged assault. 129 Section 293 is in the following terms: "(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity,

(a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900 with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

(d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision." 130 Counsel advanced two general propositions. The first proposition was that the injuries apparent in the photographs of the complainant could have come about as a result of earlier sexual and dance activity. The second proposition was that the complainant had informed the appellant of certain prior sexual activity which according to his instructions, "influenced his belief that at the time of the alleged conduct that the complainant was or was likely to be consenting …. To the certain types of behaviour which might otherwise be considered a little unusual." 131 In the course of submissions counsel for the defence indicated that the application was made because although he accepted that sexual intercourse occurred the appellant denied that it was of the frequency, nature and quality alleged by the complainant, and submitted that it was therefore not "the sexual intercourse so alleged" within the meaning of s 293(4)(c)(i). 132 In the submissions in this appeal counsel drew the court's attention to the fact that a Basha-type enquiry was held in the absence of the jury during which the complainant's "boyfriend" (Stefan Kuczboski) gave evidence. Mr Kuczboski told the court that on the evening of Friday, 7 March 2003 he attended at the Eros Club at about 9.30 or 10 pm, he had "a drink or two", viewed the complainant's strip show which lasted for about three songs, and then, for between 20 minutes and ½ hour, had sexual intercourse with her in a change room of the complex, at stages utilising a table. He said that she appeared to have had "a couple of drinks". 133 Counsel for the appellant at the trial also indicated in his submissions that the complainant reported to the doctor who examined her on the Saturday night that the last consenting intercourse she had before the assault was with a person other than the accused at about 4 am that Saturday morning. The evidence does not disclose whether this act of intercourse was with a person other than Mr Kuczboski. It was submitted that the proposed evidence was also relevant to the issue of motive for the complainant to fabricate the complaint, if the sexual activity with the appellant had in fact been consensual, but later regretted by her. 134 At the trial, the judge initially expressed the view that she did not think that s 293(4)(c) was applicable (apparently referring to the first two matters in the list of six), although she said that her view may alter when she was aware of the nature of the injuries to be disclosed by the evidence. Her Honour maintained her preliminary view after receiving evidence of those injuries, indicating that she wanted more evidence of them, on the voir dire from the examining doctor. Her Honour foreshadowed that if the doctor determined a finding in respect of vaginal tenderness was consistent with consensual intercourse, then the evidence of injuries would "go nowhere" in terms of the prosecution case. 135 The issue was next raised towards the end of cross-examination of the complainant, when counsel for the appellant submitted that a denial by the complainant that tenderness to her vaginal area was not attributable to actions by the appellant re-activated the issue. Her Honour responded: "I thought I'd already ruled on this, that in my view, sexual intercourse so alleged, you don't come within the first part of this." The prosecutor added: "I thought that was a point your Honour had already ruled against [counsel for the defence]." 136 The transcript suggests that her Honour had not given a judgment on this issue, and was referring to her earlier-stated preliminary views. She said that she was still waiting on the evidence of the examining doctor. Nevertheless, her Honour again stated that if the treating doctor indicated that the tenderness was not indicative of non-consensual intercourse, she would not allow the defence to lead evidence of the complainant's earlier sexual activity. Counsel for the defence submitted to her Honour that the jury might rely on the complainant's opinion, and therefore regardless of the doctor's evidence on that point, he should be entitled to cross examine the complainant on her earlier sexual activity. 137 Her Honour gave her judgment at the commencement of the eighth day of the trial allowing cross-examination only on the third matter in the list. 138 Prior to doing so, counsel for the defence sought to put further submissions in support of his application in respect of s 293(3), (4)(c) and (6) in light of the evidence of Kim Szmanowicz that the complainant had indicated over the phone that she had a fight with her boyfriend (or ex-boyfriend), thereby establishing a nexus sufficient for subs (4). Ultimately her Honour permitted the complainant to be recalled for further cross-examination to clarify her relationship with Mr Kuczborski on that date, and put to her that she had an argument or fight with him that evening. However, her Honour ruled against the defence exploring the matter of any sexual activity that evening with Mr Kuczborski.

Appellant's submission on the appeal 139 It is submitted that her Honour's judgment in relation to matters (1) and (2) referred only to the matter of the vulval tenderness. She made no mention of the oral submissions of the defence in relation to bruising and injuries to other parts of the complainant's body. It is submitted that her Honour had overlooked this part of the defence application. Further, in relation to the vaginal tenderness, her Honour referred to the opinion of the examining doctor to the effect that the tenderness was not indicative of whether intercourse had been consensual or non-consensual, and on that basis excluded matters (1) and (2). Consistent with her earlier oral indication, she made no mention of the fact that the complainant had already given evidence that, in her opinion, the tenderness was caused by the actions of the appellant. 140 All the jury heard from the complainant in terms of her sexual expression and history was that she was an exotic dancer, who had recently broken up with her boyfriend, although they were still seeing each other on a casual basis. Further, they learned that he had called in during her shift and they had an argument. They heard from Stefan Kuczborski, that his perspective was that the relationship was "well and truly over" and "she didn't try to get back or anything like that." 141 It is submitted that the jury would have assumed from this evidence, and the comprehensiveness of the history the complainant provided of the twelve hours that preceded the episode with the appellant, in particular to the time that she was not working, that she positively had not had recent sexual intercourse, or any other form of intimate physical interaction, with anyone other than the accused, that could possibly account for any of the recent bruising observed by Dr Andreadis. 142 It is further submitted that the effect of her Honour's ruling in respect of matter (5) was that the appellant could not explain why it was that he ventured into exploring unusual sexual practice with the complainant; which he submitted was because he understood that she had herself recently engaged in an unusual sexual practice, being a bondage and sex session. From the jury's perspective, the evidence of the appellant appeared to be that, for no reason at all, he chose to suggest to the complainant that their first sexual experience should be one that was highly unusual to say the least. Further, that during the episode, she indicated that she wanted to be tied up, but he was reluctant to engage in that behaviour. 143 Finally, it is submitted that the jury would have concluded that this was an odd - if not bizarre - account, and it would have impacted negatively on their assessment of the appellant's credibility. Had he been permitted to give evidence of the matters canvassed in the application, these aspects would have been placed in a context and, if either accepted by the jury or considered a reasonable possibility, they would have assisted his case.

Conclusion on the second ground of appeal - Was her Honour correct to exclude the evidence? 144 The relevant offences were a prescribed sexual offence and, accordingly, s 293 applies. 145 The starting point when considering the section is that evidence in relation to sexual reputation is generally not to be admitted: s 293(2). Section 293(3) extends this prohibition to evidence that discloses or implies that the complainant has or may have had sexual experience or a lack of it or may have taken part or not taken part in any sexual activity. 146 To this general exclusion of evidence s 293(4) provides a number of exceptions. The exception relied upon by the appellant is that provided in s 293(4)(c) which is in the following terms: "Subsection 3 does not apply: …. (c) If: (i) the accused person is alleged to have sexual intercourse (as defined in s 61H(1) of the Crimes Act 1900 with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person. 147 There are two limbs to the exception in subs (c). The first limb provides that the exception will only operate when the accused person does not concede the sexual intercourse "so alleged." If the concession is not made then evidence of previous sexual experience or activity may be admitted but only if it is "relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person." 148 One difficulty in the application of the subsection occurs where, as in the present case, the appellant concedes the three acts of sexual intercourse with which he was charged took place. However, the complainant alleges that during the course of the relevant events other acts of sexual intercourse took place. Because some of those acts of sexual intercourse are not conceded it is submitted that evidence is admissible to prove that the complainant had earlier engaged in sexual intercourse (see other problems with the section discussed but not resolved in R v Tubou [2001] NSWCCA 243). 149 It was not made plain which acts of intercourse were denied. Furthermore, as I understand the position the issue at the trial was not whether the complainant had consented to the relevant acts of intercourse (they were not denied) but whether injuries to the complainant, which were said to support the allegation of lack of consent, could have been due to the earlier acts of sexual activity with other people. 150 In these circumstances there are two primary questions which must be resolved. Firstly, is the exception limited to the acts of sexual intercourse the subject of the charges and secondly, the meaning of injury in subs 4(c)(ii). 151 However, there is a further issue. Even if the test provided by s 293(4)(c) is satisfied, before the evidence could be admitted it would have to have a probative value which "outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of the admission." 152 It is important to keep in mind that s 293(4) provides exceptions to what is otherwise a prohibition on the tendering of evidence of a complainant's sexual experience. It has at least two purposes. One is to ensure that complainants are not unnecessarily distressed, humiliated or embarrassed by the trial process. Another is to ensure that the jury is not diverted from consideration of the true issues in the trial by evidence in relation to a complainant's other sexual activities. 153 To my mind subs (4) should be confined to the acts of sexual intercourse the subject of the charge. Unless construed in this manner there could be many cases where the evident purpose of the prohibition intended by this section would incidentally be overcome. 154 In the present case the complainant gave evidence of sexual intercourse beyond the matters charged, being part of the complete sequence of events. The appellant accepts that the intercourse charged occurred and accordingly accepts one aspect of the central issue in the proceedings. The other acts of intercourse are relevant because they reveal the sexual relationship between the appellant and the complainant together with the complete sequence of events and accordingly, the Crown was obliged to tender that evidence. However, by putting the "secondary" sexual conduct with the complainant in issue the accused says that he is able to explore the sexual activity of the complainant with other persons. 155 The matter can be tested in this way. If in the present case only the three acts of intercourse had been alleged and the appellant accepted that they occurred, but says they were consensual, subs 4(c) could have no work to do. There would simply be no issue on which the subsection would provide that the evidence could be tendered. It would be a surprising result if because other acts of intercourse are alleged, but not charged, and denied, the accused has the opportunity to introduce evidence of prior sexual activity. 156 In any event I am satisfied that whatever be the correct interpretation of subs (4)(c) her Honour was correct to exclude evidence in relation to matters 1, 2, 3, 5 and 6 having regard to the final limb of subs (4). The evidence tendered was of vaginal tenderness and bruising of the face and body of the complainant. To my mind, evidence which suggested that those injuries may have been caused by other sexual activity was of marginal, if any, probative value. The appellant accepted the acts of intercourse as charged and furthermore accepted that they were accompanied by violent and unusual behaviour which he asserted to be consensual. The behaviour which he accepted to have occurred was, to my mind, entirely consistent with the injuries the complainant sustained. A revelation of her other sexual activities would undoubtedly have caused distress or humiliation but, in the admitted circumstance of violent sexual activity, would have been of no assistance in determining whether the complainant had consented to that activity. Rather the jury was required to assess the evidence of the complainant and the appellant and consider the impact of the corroborative evidence apart from any injury occasioned to the complainant. 157 Accordingly, in my opinion her Honour was correct in rejecting the evidence relating to matters 1, 2, 3, 5 and 6. 158 To my mind, there is nothing disclosed by the evidence which would require evidence to be admitted pursuant to s 293(6). There was nothing in the Crown case which disclosed or implied the matters provided by sub (9)(i) or (ii). Furthermore, for the reasons to which I have already referred I can identify no unfair prejudice to the complainant in denying the request to cross examine the complainant.

The third ground of appeal - was there a miscarriage of justice resulting from the absence at trial of expert evidence of the likely effects on the complainant of the alcohol and drugs ingested by her in the 12 hours prior to the events in question. 159 The consumption of drugs and alcohol by the complainant was explored extensively by the appellant's counsel at trial. When the police officer, Snr const Gorman, gave evidence, the appellant's counsel sought to cross examine him upon the results of the urine analysis contained in records produced on subpoena from the Royal Prince Alfred hospital and sought to tender the documents relevant to those tests. However, no attempt was made by the appellant to call evidence of an expert nature going to these matters. 160 Indeed, although the matter of the possible ingestion of Ketamine was raised (Ketamine is a tranquilliser used on horses and possibly the pill the complainant was given at the hotel), counsel for the appellant did not press the tender of the evidence which would have allowed that matter to be considered by the jury. The transcript makes plain that this was a considered option taken by counsel. Beyond that decision there is no suggestion that the appellant could not have obtained expert opinion as to the impact of certain drugs on a person's memory and sought to tender it at the trial. 161 Application is now made to this Court to tender reports from Associate Professor Graham Starmer, consultant pharmacologist and Dr Bruce Westmore, forensic psychiatrist, together with a certificate of analysis to which Dr Starmer refers. 162 In his report Dr Starmer concludes that as a result of the ingestion of drugs by the complainant in the hours before the events complained of, her interaction with the appellant may have been affected and the drugs "may have influenced the reliability of her recollection of what had occurred." 163 Dr Westmore proffers the opinion that the drugs which the complainant is alleged to have consumed "could have impacted on her ability to accurately recall events." 164 The strategy employed in defending the appellant, made plain in the cross examination of the complainant, was to develop an allegation that the complainant had made false allegations. Rather than suggesting that the complainant was mistaken and may have had a poor recollection, she was accused of fabricating the allegation that she did not consent to the appellant's sexual acts. That decision, as was the decision not to tender material relevant to Ketamine, was within the discretion of counsel responsible for the conduct of the defence of the appellant (see R v Ranko Ignjatic (1993) 68 A Crim R 333 at 336). 165 Beyond these matters her Honour gave careful directions to the jury regarding the need to carefully consider the evidence of the complainant, including because of her acknowledged use of drugs and alcohol. (I have previously considered them at [122]). The evidence which is the subject of the present application goes no further than to raise the possibility that the complainant's recollection may have been affected by the taking of drugs. Her Honour's directions required the jury to consider this matter. 166 In the circumstances I am satisfied that the evidence now proffered cannot be considered to be fresh evidence. The results of the urine analysis were available at the trial as were the results of blood analysis with the consequence, as the appellant concedes the evidence was constructively available. R v Abou-Chabake [2004] NSWCCA 356. 167 Finally I am satisfied that the evidence if tendered would not give rise to any significant possibility that the jury would have acquitted the appellant had it been led before them. I have already indicated that the defence was conducted on the basis that the complainant was not telling the truth when she denied that the sexual acts occurred without her consent. The lack of consent was corroborated by the evidence of persons who had no reason to give false evidence. I am satisfied that no miscarriage of justice has occurred.

Appeal against sentence 168 Application is made for leave to appeal against the severity of the sentence. 169 The applicant was sentenced on one count of aggravated assault pursuant to s 61J of the Act for which the maximum penalty was twenty years, and one count of sexual intercourse without consent, pursuant to s 61I of the Act. The penalty for this offence was twelve years with a minimum term of nine years. 170 The applicant submits that the remarks of the trial judge on sentence indicate that her Honour arrived at her findings for the purpose of sentence without allowing sufficiently for the fact that the jury had acquitted the appellant on the first count. Her Honour related the complainant's version throughout noting in relation to the first count that "the jury must have entertained a reasonable doubt about whether the complainant consented or the offender realised that she did not consent to this act of sexual intercourse." 171 It is submitted that the significance of this approach by her Honour is that the applicant was sentenced on the basis that the episode commenced and continued until the end in the terms alleged by the complainant, with the bare removal of an episode of fellatio. The applicant's version, even as to how the episode commenced and continued up until the point of the behaviour which found the first conviction, was not considered. No mention was made by her Honour of the evidence of the housemate. 172 It is further submitted that the only basis upon which, consistent with the acquittal, the complainant's version as to what physically happened throughout the episode could still stand was if her Honour was satisfied beyond reasonable doubt that the complainant's account was accurate and the applicant had simply not realised she did not consent to the episode of fellatio in question. It is submitted that this is difficult to reconcile with her Honour's stated view towards the end of the trial that there was not much room in the evidence for the jury to find that Mosegaard could have been mistaken as to whether she was consenting: "… it's obviously his state of belief or knowledge, but in the circumstances of this case they're either going to accept the complainant's evidence - and there's not much room for doubt I wouldn't have thought, if they accept her evidence, as to the state of knowledge, because her evidence is of the struggle, the screaming, et cetera, et cetera." And later: "There doesn't seem to be any room for a mixed signals-type direction on the Crown case and the accused's case." Later still her Honour expressed the view, which she intended to convey to the jury, that if the jury was satisfied beyond reasonable doubt that the complainant had not consented, then on the evidence, it followed that the accused knew she was not consenting. For example: "I am not going to instruct the jury that if follows or falls as a pack of cards or any such thing, but, in my view, there is no room for an accused, on the evidence, not knowing that she did not consent." Any such expression to the jury was opposed by the defence. 173 It is further submitted that on her Honour's own view, stated at the end of the evidence and prior to conviction, the jury were likely to have acquitted the applicant, not because they had a doubt as to whether the complainant was consenting, but because they had a doubt (expressing the test as its lowest) as to the reliability of the complainant's version prior to the events founding the second count. This being the case, it was incumbent on her Honour to make findings of fact that reflected this basis of the acquittal. 174 Having accepted the complainant's version in its entirety for the purposes of sentencing, her Honour found that the criminality was of "a very high order", that the second count fell in the mid range of seriousness and that the third count fell above the mid range of seriousness, having regard to the surrounding circumstances. 175 The disagreement at the heart of the competing accounts of the complainant and applicant was whether there had been an understanding that there would be consensual sexual intercourse, and in the context of some degree of "roughness". Much of the behaviour that, it appears, elevated the criminality to a high order in her Honour's view, occurred prior to the commission of the second count. This included the urination, the first attempt at binding the complainant, the writing of words on her body and the placing of a dildo in her mouth. 176 It is further submitted that her Honour's findings are inconsistent with her observation, in relation to the second count, that fellatio is generally regarded as less serious than penile-vaginal penetration, and her finding that all the physical injuries, including the aggravating feature for the second count, were, to use her Honour's words at a later stage of the remarks, "relatively minor". 177 Finally it is submitted that her Honour's characterisation of the applicant's criminality and findings of the relative seriousness of the offences was directly consequent to her factual findings. Although the pools of sentences handed down for offences pursuant to sections 61J and 61I of the Act since the legislative amendments to the Criminal Procedure Act are necessarily small, the sentences imposed are the heaviest so far handed down for such offences. Accordingly, the submitted error led to the imposition of sentences that are so severe as to warrant appellate intervention.

Did her Honour err in imposing the sentences? 178 Although it is apparent that the jury entertained a doubt as to whether or not the original sexual activity between the complainant and the appellant was not consensual, that finding was not relevant to the criminality of the appellant on the second and third counts. 179 The facts and circumstances found by her Honour in relation to the second and third counts reveal a very significant degree of criminality requiring a severe custodial sentence. The sexual assaults were accompanied by personal abuse and degradation of the complainant of a high order. Although the sentences imposed were at the higher end of the appropriate range, I am not satisfied that a lesser sentence was required in law (see s 6(3) of the Criminal Appeal Act 1912). 180 In these circumstances, although I would grant leave to appeal in relation to sentence, I would dismiss that appeal.

Orders: 181 I propose the following orders: 1. Appeal against conviction dismissed. 2. Grant leave to appeal against sentence but dismiss the appeal. 182 GROVE J: I agree with McClellan CJ at CL. 183 SMART AJ: The facts and circumstances are set out in the judgment of McClellan CJ at CL, I agree with McClellan CJ at CL that Grounds 1 and 3 of the appeal should be rejected for the reasons which he gives. I agree that the Crown case on Counts 2 and 3 was a strong one. The difficult point is Ground 2 of the appeal, namely, that the judge erred in disallowing the evidence pertaining to the sexual experience of the complainant. 184 During the trial the appellant sought to cross-examine the complainant about a limited portion of her sexual history. The application sought to adduce evidence in relation to six matters:

The complainant's sexual activity with persons other than the appellant within 48 hours of the alleged assault including, but not limited to, Stefan Kuczborski [an ex boyfriend of the complainant].

A representation made by the complainant to Dr Andreadis on the day of the alleged sexual assault that she had unprotected consenting sexual intercourse with someone other than the accused at 4 am on the day of the assault.

The nature of the complainant's work at the Eros Club.

Whether the complainant engaged in prostitution at the Eros Club.

A verbal representation made by the complainant to the accused approximately 10 or 11 days before the date of the alleged sexual assault on the complainant by the accused to the effect that the complainant and another girl who worked at the Eros Club had a bondage and sex session with a client.

A verbal representation made by the complainant to the appellant that she and other workers at the Eros Club had sex with the manager in exchange for favourable shifts. This representation was made to the appellant approximately two weeks before the date of the alleged sexual assault by the appellant. 185 The judge recorded that the application was made under s 293(4)(c) and 6 of the Criminal Procedure Act 1986.

"Section 293(2) provides:: Evidence relating to the sexual reputation of the complainant is inadmissible Section 293(3) provides: Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) had or may have taken part or not taken part in any sexual activity, is inadmissible. Subsection (4) provides that Subsection does not apply (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in Section 61H(1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

Subsection (6) provides If the Court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience or a lack of sexual experience, of a general or specified nature, (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified." 186 In her judgment of 5 March 2005 the judge held that, at that stage, subs (6) had no application as it had not been disclosed or implied in the case for the prosecution that either of the conditions in (i) or (ii) of subs (6)(a) had been satisfied. 187 The judge continued: "Turning now to an examination of the factual basis for the application under Section 293(4), acts of fellatio are the subject of Counts 1 and 2 in the Indictment and Count 3 is an allegation of penile/vaginal intercourse. These are acts of sexual intercourse as defined in Section 61H(1). The accused concedes that there were two acts of fellatio and one act of penile/vaginal intercourse. The accused does not concede the sequence of events or the number of acts of fellatio. Counsel for the accused submitted that the words the sexual intercourse so alleged should be construed broadly to mean correspondence between the two versions. He relied on R v Dimian (1995) 83 A Crim R 358.

However, in that case the accused fell squarely within subsection (4)(c)(i) in that sexual intercourse was not conceded. In the present case I have come to the conclusion that the condition of the first part of subsection (c) has not been satisfied. The decision in R v Tubou [2001] NSWCCA 243 although not decisive on the interpretation of Section 293(4)(c)(i) tends to support that conclusion.

If I am wrong about this and the words sexual intercourse so alleged should be construed to mean in absolute accordance with the prosecution's version of events then it is necessary to consider whether the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

The complainant told Dr Andreadis that she had engaged in consensual sexual intercourse with a male other than the accused some hours before the alleged sexual assault. On examination of the complainant Dr Andreadis noted tenderness over labia minora and majora.

In her statement of 2 March 2004, Dr Andreadis stated (paragraph 6) Further to that, when I examined A, I elicited vulval tenderness. Based wholly or substantially on the above knowledge, on that isolated finding, I am unable to give an opinion whether sexual intercourse was of a consensual or non consensual nature. As I understand the accused's case, the issue in the trial is consent. Dr Andreadis's findings in respect of examination of the complainant's genital area are completely neutral on that issue. Therefore the probative value of the evidence that the complainant had sexual intercourse with males other than the accused in the period of 48 hours immediately before the alleged sexual assault, does not outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

Turning now to matters 4, 5 and 6; these do not come within any exception to Section 293 on which Counsel for the accused relies.

Therefore, with the exception of matter 3, the nature of the complainant's work at the Eros Club, in my view the matters on which Counsel for the accused applies to cross-examine the complainant and to adduce evidence are precluded by Section 293." 188 The appellant complained that the judge had overlooked that in his oral submissions he relied in his application to cross-examine not only on the vulval tenderness of the complainant but also on the other injuries she had suffered. 189 At the time the judge gave her reasons for her ruling the complainant had given evidence (Transcript of 27 Feb 04, p113 ln 41) and this passage appears in her evidence in chief: "Q. And your genital area, how did you feel? A. It was painful from being forced into intercourse and my anus hurt as well from being penetrated." 190 This evidence related to the period towards the end of the incidents at the shared residence and the complainant's condition after the alleged penile vaginal intercourse. 191 The complainant also gave evidence (at T113) that after the incidents she was exhausted and in a lot of pain from the bruising all over her body, her lips where she had been hit, from where her hair had been pulled and from her ears and cheeks where she had been slapped. She had sore thighs from being sat upon. 192 The evidence of Dr Andreadis was given on 2 March 2004. She said, amongst other things that based solely on the finding of vulval tenderness she was unable to form an opinion whether any sexual intercourse was consensual or non-consensual. However, the doctor stated that based on her total physical examination of the complainant it was her opinion that the complainant had been assaulted. Dr Andreadis relied on the bruising she had observed on the complainant's body which she detailed. Some bruises were obviously old and some were obviously new. She explained that the formation and development of a bruise and the assessment of the timing of its infliction were not an exact science. There were other injuries. 193 The jury may have thought that the evidence pointed to the conclusion that the complainant had been assaulted and that an assault was inconsistent with consent. The jury may have accepted the evidence of the complainant that the vulval tenderness was caused by the appellant's activities. On the evidence it was open to the jury to conclude that the complainant did not suffer from vulval tenderness prior to the appellant's activities, leading up to and involving the commission of the offence, the subject of Count 3. The jury was entitled to conclude that the newer injuries to the complainant's body other than the vulval tenderness, or at least some of them, were suffered in the activities leading up to Count 2. The conclusions may not have been drawn if there were evidence of prior activities and sexual activities in which the injuries could have been sustained. Evidence had emerged of prior recent sexual activities in which the complainant had engaged. 194 It is necessary to return to the terms of s 293(3) and (4)(c). Evidence that discloses or implies that the complainant has or may have taken part in any sexual activity is not admissible. There are a number of exceptions. The exception contained in subs 4(c)(i) requires it to be established that the accused is alleged to have had sexual intercourse with the complainant and the accused does not concede the sexual intercourse so alleged. 195 As to the three counts charged, the accused did not deny that he had had the intercourse alleged. As is so often the case the Crown led a lot of other evidence which, if accepted, went to establish the sexual relationship between the complainant and the accused. The accused denied much of this other evidence. He denied that the intercourse was of the frequency, nature and quality alleged and submitted that he had not conceded the "sexual intercourse so alleged." 196 There are two reasonably open constructions of s 293(4)(c)(i) of the Criminal Procedure Act. First, that subsection is confined to acts of sexual intercourse, the subject of the charges. Secondly, the subsection extends to all acts of sexual intercourse alleged by the complainant including those not charged and relied upon as relationship evidence. 197 One purpose of s 293(3) is to prevent trials degenerating into an enquiry, sometimes wide-ranging, into the sexual mores and life of the complainant and thereby directing the focus of the inquiry from the three important questions, namely, did intercourse take place as alleged, did the complainant consent and did he know that she was not consenting. Another purpose is to limit the distress and embarrassment of the unfortunate complainant. A third purpose is to shorten the length of sexual assault trials. 198 "Relationship" and "sexual relationship" evidence is often of great importance in sexual assault trials and needs to be adequately repelled. It cannot be ignored or left unanswered. Direct denials without more are rarely convincing. 199 It was pointed out that if the Crown only led evidence of the three acts of sexual intercourse charged and the accused admitted these, subs (4)(c) could not apply. It was contended that if the acts of sexual intercourse charged were admitted and the Crown, under the umbrella of sexual relationship evidence adduced evidence of further acts of sexual intercourse, it would be odd if counsel for the accused could cross-examine the complainant upon her previous sexual activity or adduce evidence of it. I do not agree with that contention. It may be necessary to do so to assist in rebutting the conduct alleged in the sexual relationship evidence. An accused cannot be expected to concede the sexual relationship evidence. 200 Sexual relationship evidence is of great importance in sexual assault trials and often makes the difference between an acquittal or a conviction. It frequently provides the background and setting in which the offences charged took place and makes the evidence as to the sexual assault charges appear more credible. If these other alleged offences are the subject of serious doubts or are demonstrated to be lacking in substance, besides putting the offences charged in a different light, there may be a heavy impact upon the credit of the complainant. 201 In R v Tubou [2001] NSWCCA 243, Heydon JA considered some of the problems that arose as to the construction of the predecessor to s 293 but he did not have to and did not deal with the construction problem presently under consideration. 202 In the present case the judge held that as the issue was consent the probative value of the evidence that the complainant had sexual intercourse with males other than the accused in the period of 48 hours immediately before the alleged sexual assault did not outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. In the circumstances of the present case the degree of distress, humiliation or embarrassment suffered is difficult to assess but it would be real. 203 These comments should be made. The activity associated with the sexual intercourse is important and the two cannot sensibly be separated. They comprise a composite incident and the question arises whether the injuries were occasioned during or shortly after that incident. The judge dealt with only part of the evidence relating to the injuries suffered. If the construction I prefer of s 293(4)(c) is correct this affects the exercise of the Court's discretion. 204 I have borne in mind the comment of Heydon JA that consent proved in respect of an antecedent occasion some two days before the day of the offence charged does not prove consent on the latter occasion. 205 It is not easy to assess in advance the probative value of the evidence obtained, or likely to be obtained, in cross-examination or the value of the evidence to be adduced by an accused. The evidence might point to another occasion or other occasions on which the injuries to her body were or might have been sustained. Alternatively, the evidence might negative the possibility of the bodily injuries being sustained on another occasion or other occasions. In either case the probative value of the evidence would be high. The third possibility is that the evidence would be inconclusive, but this is less probable. On the whole I would conclude that the probative value of the evidence to be adduced would outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. In my opinion, cross-examination should be allowed on points 1 and 2 specified at the start of these reasons in paragraph 2. 206 What result should follow? As earlier mentioned, the Crown case on Counts 2 and 3 was a strong one and a little stronger than on Count 1. I would not have regarded the Crown case on the papers on Count 1 as a weak one. The jury were not satisfied to the requisite degree of the truth of the complainant's evidence on Count 1, the accused being acquitted on that count. 207 I think that the appellant has lost the chance of an acquittal which was fairly open. I would allow the appeal against conviction on Counts 2 and 3 and order a new trial. Therefore, the question of sentence does not arise. *********

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