Saunders v R

Solicitors: Ryan Paten Le (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2016/237496 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 21 February 2019 Before: Hanley SC DCJ File Number(s): 2016/237496

HEADNOTE [This headnote is not to be read as part of the judgment] On 3 December 2018, a jury unanimously found the applicant not guilty of three counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation alleged was that the applicant occasioned actual bodily harm to the complainant. In relation to the first count, the jury returned a verdict of guilty to the statutory alternative of sexual intercourse without consent contrary to s 61I of the Crimes Act. On 21 February 2019, the applicant was sentenced to a term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 6 months. The Crown case at trial was that the three offences took place during a short period in the early hours of 7 August 2016 against a single complainant, with whom the applicant had been in a spasmodic and long-distance relationship which was ultimately terminated by the complainant. On that date, he was visiting the complainant at her home which she shared with certain family members and her two children. In relation to the first count, the Crown case was that the applicant forced the complainant to perform fellatio on him by threats and the actual infliction of violence. The second and third alleged offences involved non-consensual penile/vaginal penetration and digital penetration of the complainant's anus; the Crown alleged that these acts were also accompanied by violence. The Crown case included tendency evidence which comprised a set of Agreed Facts which detailed physical assaults perpetrated by the applicant on two previous domestic partners, referred to as JD and LS. The applicant had pleaded guilty to offences of violence in each instance. The applicant sought leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and an extension of time in which to do so. He relied upon three grounds of appeal, which alleged that: (1) Tendency evidence relating to offences involving [JD] from 2004 and 2007 was wrongly admitted. (2) The trial judge erred in directing the jury that there was evidence of a tendency when the applicant was intoxicated. (3) The verdict of guilty for the alternative to count 1 is: (a) inconsistent with the verdicts of not guilty on counts 2 and 3 and (b) is unsafe and unsatisfactory. Held (per Simpson AJA, Hamill J agreeing and providing additional reasons, Ierace J agreeing), granting leave to appeal and an extension of time in which to appeal, and dismissing the appeal: As to ground 1 (1) The tendency evidence in relation to JD was not wrongly admitted; it possessed the degree of probative value required by s 97 of the Evidence Act 1995 (NSW). The admitted assault on JD bore significant similarity to the conduct alleged by the complainant and constituted powerful evidence of a tendency to use violence against female partners including by pulling their hair, punching and hitting them. The acknowledgement on behalf of the applicant at trial that he perpetrated a moderate degree of force on the complainant using a remote control in one instance did not render the tendency evidence regarding JD superfluous: Simpson AJA at [70]-[75]; Hamill J at [113]; Ierace J at [133]. Hughes v The Queen (2017) 263 CLR 336; [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Taylor v R [2020] NSWCCA 355; The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, referred to. (2) One feature of the case that contributed to the probative value of the tendency evidence was the applicant's acknowledgement in an interview with police that he had pulled the complainant's hair and his statement that she liked being "grabbed on the back of the hair". In the circumstances, the tendency evidence had particular probative force regarding the issues of consent and the applicant's state of knowledge: Hamill J at [114]-[118]; Simpson AJA agreeing at [107]; Ierace J agreeing at [133]. As to ground 2 (3) This ground concerned the trial judge's suggestion in his Honour's directions to the jury that the tendency evidence in relation to JD and LS involved the applicant being intoxicated, where the Agreed Facts did not explicitly indicate this. This was not an appropriate case in which to grant leave to appeal on this ground, which was required under r 4.15 of the Criminal Appeal Rules 2021 (NSW), because the applicant's counsel at trial failed to object to this aspect of the trial judge's directions: Simpson AJA at [81]-[82]; Hamill J at [113]; Ierace J at [133]. (4) No miscarriage of justice was occasioned by the trial judge's mistaken reference to intoxication because it was not material to the outcome of the trial, a conclusion which is reinforced by the failure of the applicant's counsel to object to this aspect of the directions: Simpson AJA at [80], [84]-[95]; Hamill J at [113]; Ierace J at [133]. Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, considered. AK v R [2022] NSWCCA 175; Crease v Barrett (1935) 1 Cr M & R 919; 149 ER 1353; Tomlinson v R [2022] NSWCCA 16; Zhou v R [2021] NSWCCA 278, referred to. As to ground 3 (5) As to the first aspect of ground 3, the Court noted that the acquittals on counts 2 and 3 were "puzzling" in light of the verdict of guilty to the statutory alternative to count 1, but concluded that the jury accepted the complainant's evidence in relation to count 1 as honest and reliable. Having regard to the role and position of the jury in the determination of guilt of criminal offences and assessing the alleged inconsistency of verdicts against a test of logic and reasonableness, this was not an appropriate case for the Court's intervention: Simpson AJA at [101]-[106]; Hamill J at [113]; Ierace J at [133]. Baden-Clay v The Queen (2016) 258 CLR 308; [2016] HCA 35; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56; McKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, referred to. (6) Upon considering the whole of the evidence and record of the trial, including the applicant's recorded interview, the applicant's state of mind was a live issue in the trial such that it did not necessarily follow that the acquittals on counts 2 and 3 cast doubt on the jury's view of the complainant's credibility: Hamill J at [119]-[131]; Simpson AJA agreeing at [107]; Ierace J agreeing at [133]. Fallah v The Queen [2010] NSWCCA 212; Ganiji v R [2019] NSWCCA 208; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, referred to. (7) As to the second aspect of ground 3, upon an independent assessment of the whole of the evidence the Court concluded that the verdict of guilty to the statutory alternative charge available on the first count was open to the jury and thus not unreasonable: Simpson AJA at [98]-[100]; Hamill J at [113]; Ierace J at [133]. Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728; M v The Queen (1994) 181 CLR 487; [1994] HCA 63, referred to.

JUDGMENT

1. SIMPSON AJA: On 26 November 2018 the applicant was arraigned in the District Court on an indictment that charged three counts of sexual intercourse without consent, committed in circumstances of aggravation, each alleged to have been committed on 7 August 2016 against the same complainant (TF). In each count the circumstance of aggravation alleged was that, at the time he committed the offence, the applicant occasioned actual bodily harm to the complainant.
2. Each count was brought under s 61J(1) of the Crimes Act 1900 (NSW) ("Crimes Act") which provided: "61J Aggravated Sexual Assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years." By subs (2)(a) "circumstances of aggravation" include: "(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any person who is present or nearby …" (Since the date of the alleged offences, subs (2)(a) has been amended, but not in a way that affects the substance of the provision).
3. By s 61HA(3) (applicable at the time the offences were alleged to have been committed, since repealed and replaced by s 61HK) a person who has nonconsensual sexual intercourse knows that the other person does not consent if he or she - 1. knows that the other person does not consent, or 2. is reckless as to whether the other person consents; or 3. has no reasonable grounds for believing that the other person consents.
4. By s 61Q(1) of the Crimes Act a jury that was not satisfied (to the criminal standard) of all elements of an offence against s 61J, could, if appropriately satisfied, return a verdict of guilty of an offence against s 61I, which provided (and still provides): "Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to sexual intercourse is liable to imprisonment for 14 years."
5. On 3 December 2018 the jury returned unanimous verdicts of not guilty on all counts on the indictment. In relation to the first count, pursuant to s 61Q(1), it returned a verdict of guilty of an offence against s 61I - that is, of sexual intercourse without consent, but without the circumstance of aggravation (causing actual bodily harm) alleged in the indictment.

The Crown case - a synopsis

1. The Crown case may be summarised as follows.
2. In October 2015 the applicant (then not quite 33 years of age) and the complainant (then 30 years of age) met via Facebook, and commenced a relationship, although the applicant lived in a regional city on the north coast of NSW and the complainant lived in a Sydney suburb.
3. Notwithstanding the geographical distance between their residences, a domestic relationship of sorts developed between the applicant and the complainant. That relationship was spasmodic because of violence directed by the applicant towards the complainant. By February 2016 the complainant was pregnant with the applicant's child. The complainant terminated the relationship on a date not disclosed in the evidence.
4. Sometime prior to 7 August 2016 the applicant travelled to Sydney. He stayed for one and a half to two and a half weeks at the complainant's home, which she shared with her mother and her two children.
5. All offences were committed over a short span of time in the early hours of 7 August 2016 after the applicant and the complainant had returned to her home after a party at a local hotel to celebrate the birthday of the complainant's aunt. The applicant had become angered when the complainant spent some time talking to a male friend. He had consumed significant quantities of spirits during the day and evening.
6. The first offence was constituted by the applicant forcing, by threats and the actual infliction of violence, the complainant to perform fellatio on him. The second offence was constituted by non-consensual penile/vaginal penetration, and the third by digital penetration of the complainant's anus. In the case of each alleged offence, the Crown alleged that the act of sexual intercourse was accompanied by violence such as to cause to the complainant actual bodily harm. In one instance of violence, the applicant used a remote control device to strike the complainant. It will be necessary in due course to say more about the detail of the alleged offences.

Pre-trial and trial chronology

1. During the morning of 7 August 2016 the complainant was taken by ambulance to the Nepean Hospital. A police officer took a statement from her, and attended her home, where the applicant was still present. The applicant agreed to take part in an electronically recorded interview and was taken to Mt Druitt Police Station for that purpose. His responses were largely, if not entirely, exculpatory. He was charged with the offences on the indictment. He acknowledged that the various forms of sexual intercourse alleged had taken place, but said that, in each case, it was consensual, and, indeed, was the complainant's preference. He denied perpetrating any violent act on the complainant.
2. A trial was fixed to commence on 9 April 2018. On 12 February 2018, pursuant to s 97 of the Evidence Act 1995 (NSW) ("Evidence Act"), the Crown served on the applicant's solicitors a Notice of its intention to rely on tendency evidence. The Notice was relevantly as follows: "The tendency sought to be proved is [the applicant's] tendency to act in a particular way, namely, between 24/09/2004 and 07/08/2016, in western Sydney, to physically and verbally assault, women, with whom he was in or had been in a domestic relationship, in their homes, at night, while intoxicated, by pulling their hair, punching and/or kicking, and hitting them with an object, while making threats of general and graphic violence, and making statements that he is unaffected by the victim's tears."
3. Attached to the Notice was a table setting out details of the conduct on which the Crown proposed to rely. Put briefly, that was evidence that, in the course of two previous domestic relationships, the applicant had perpetrated physical (but not sexual) violence on his then partner. In each case, the applicant had been charged with, and pleaded guilty to, offences of violence. On behalf of the applicant objection was taken to the admission of the proposed tendency evidence.
4. On 4 April 2018 a voir dire was conducted with respect to the admissibility of the proposed tendency evidence. The trial judge ruled on the objection, giving reasons. Despite efforts on the part of both parties, the reasons have not been able to be located. From other sources, it can be seen that the trial judge allowed some of the proposed evidence, and disallowed other parts of it.
5. A trial commenced on 9 April 2018 as scheduled, but aborted the following day, 10 April, for reasons it is not necessary to explore. The complainant had given evidence and had been cross-examined, although it is not clear from the material before this Court whether cross-examination had concluded. It seems likely that it had not.

(i) The Crown case - the evidence

1. In order to explain the basis of grounds 1 and 2 of the proposed appeal, each of which concerns the tendency evidence, it is necessary to set out in some detail the account of the relevant events given by the complainant and the content of the evidence admitted as tendency evidence.

The complainant's account of the events of 7 August 2016

1. The following account is drawn from the complainant's evidence in chief.
2. The complainant met the applicant through Facebook and met him "face to face" for the first time in October 2015. Their relationship became intimate. By February 2016 the complainant was pregnant (there was no issue that the applicant was the father of the child). The complainant said that the relationship was initially "okay" but then the applicant began being violent towards her. She gave an account of one occasion when the applicant dragged her out of bed by her hair into the kitchen and slammed her head into the floor. She said the relationship was very stressful and she could not deal with it and terminated it.
3. In August 2016 the complainant was living in a house in western Sydney with her two children, then aged 4 and 2. Her mother was also living in the house to give assistance to the complainant. The complainant was then 7 months pregnant.
4. In late July or early August the applicant came to Sydney and, because the relationship with the complainant had come to an end, stayed with his mother. However, contact with the complainant resumed and the applicant went to stay at the complainant's house for what the complainant thought would be one night, but was extended to several nights. The relationship again became intimate.
5. During the day of Saturday 6 August both the complainant and the applicant consumed alcohol. An argument developed after the applicant discovered, on the complainant's phone, a Facebook dating site. The complainant asked the applicant to leave. He declined.
6. At about 6 pm the complainant, the two children and the applicant travelled by taxi to a hotel where a party was to be held for her aunt's birthday. Other members of the family travelled separately. During the course of the evening the complainant was talking to a family friend called Wayne Adams. The applicant told the complainant that, if Mr Adams did not leave the table, he (the applicant) would "glass" him (Mr Adams). Just before 10 pm the complainant told the applicant that they had to take the children home but, before they did so, he should purchase more liquor. He did so. The complainant's uncle drove all four to the complainant's home. The complainant's mother had arranged to stay that night with one of the complainant's sisters.

Medical evidence

1. A forensic nurse examiner at Nepean Hospital examined the complainant. She recorded an area of tenderness on the top of the head, an area of erosion on the inside of the complainant's cheek, pain in the jaw, swelling and tenderness in the scalp and left upper forehead.

The tendency evidence

1. The tendency evidence allowed by the trial judge concerned physical assaults perpetrated by the applicant on two previous domestic partners (JD and LS) with respect to which he had been charged and entered pleas of guilty, and an occasion on which he had threatened to assault JD. These were the subject of the Agreed Facts, Exhibit E. Three instances of domestic violence offences, two against JD, and one against LS, were recorded in the Agreed Facts.

JD

1. The first incident occurred on 25 September 2004. The applicant and JD had been in a domestic relationship for a number of years. They separated at a time not disclosed in the evidence. On 24 September 2004 the applicant, JD, and a friend with whom JD was living after the separation attended an RSL club. An argument developed between the applicant and JD and JD left the club alone at about 10.40 pm, went home and went to bed. At 3.50 am the applicant knocked on the rear door of the premises and demanded that JD come to the door, which she did. She and the applicant argued. JD attempted to close the door, the applicant grabbed her hair and dragged her outside to the rear yard, demanding that she come with him. He punched her in the face more than once, while dragging her to his vehicle which was parked at the rear of the premises, and which she then entered. The applicant drove a short distance before returning the premises. JD ran from the car, the applicant followed her, further assaulted her, and dragged her, again by the hair, to some vacant land where he again punched and kicked her in the face and body. JD escaped and returned to her home and hid in an upstairs room. The applicant attempted to follow her, but was prevented from doing so by members of her family.
2. The second incident occurred on 21 March 2007. This involved the applicant calling JD on her mobile phone at about 11.40 pm on 20 March, telling her that he was on his way over. She made it clear that he was not welcome. At a little after 4.30 am the following morning the applicant came to JD's premises and knocked on the door. JD ignored the knocking and called police. The applicant banged on the door and knocked on the window, threatening to break the door down and to beat JD. He banged on the rear door and said: "Let me in. When I get inside, I am going to jump all over your head. Let me in … I'm going to give you two more chances, then I'm going to kick the door in." He advanced towards the bedroom where JD had taken refuge, and then left, continuing to shout threats to "flog ya worse than ever before".
3. The final incident relied on as tendency evidence involved LS, with whom the applicant was in a domestic relationship in 2014. On 10 August 2014 the applicant became suspicious that LS was engaged in an online dating site. LS denied knowledge of the dating site. The applicant became aggressive, LS attempted to leave, and the applicant pulled her by the hair and back inside with sufficient force to cause her to land on her back. The applicant punched her with a closed fist to the face, on 5 or 6 occasions, and to the ribs. LS asked him to stop. The applicant told her to get up and go to the kitchen "otherwise I'll show you what I'm made of … what these fists can do". He said: "I have no sympathy for you sitting there crying. I love seeing people sit there crying and quivering, it doesn't bother me a bit. It's wrong but I love it. Like how you are now. I love seeing that."

(ii) The applicant's case

1. The applicant did not give or call evidence in the trial. He relied on the content of the recorded interview of 7 August 2016. As noted above, notwithstanding the applicant's denial in the interview with police of having struck the complainant with a remote control device, in opening at the commencement of the trial, defence counsel told the jury that it was not in dispute that on their return to the complainant's home the applicant and the complainant argued, that the applicant struck the complainant, and that when he did so he had a remote control device in his hand.
2. The answers given by the applicant in the recorded interview were exculpatory. He agreed that he and the complainant had argued, but said that all sexual activity was consensual. He denied striking the complainant.
3. In short, the applicant said that, on their return to the complainant's home, he put the children to bed, while the complainant put some music on. He said that an argument developed when he discovered, on her phone, evidence that she had engaged with an online dating site. He said that he made a sexual advance to her, but she wanted to keep drinking. He persisted, without success, until, eventually, he fell asleep. However, he said that: "We ended up making love on the, on the lounge there."
4. He said that the complainant was "fine" and they "had a bit of fun". He gave a detailed description of the sexual activity. It is not necessary to go into the description except to observe that, on the applicant's account, the sexual activity involved fellatio with the complainant kneeling on a cushion while the applicant sat on a sofa. (That had some consistency with the account given by the complainant).
5. The applicant confirmed that he had been angered by the complainant's interaction at the RSL club with Wayne Adams, and that he (the applicant) had threatened to assault Mr Adams with a glass.
6. It was put to the applicant that the complainant alleged that he had struck her in the face with a remote control device. He denied the allegation. He volunteered that the complainant "likes her hair being grabbed … she likes being grabbed on the back of the hair" and said that the complainant began "kissing me very passionately". He said that the complainant at times asked him to penetrate her anus digitally.

Proposed grounds one and two: tendency evidence

1. Section 97(1) of the Evidence Act provides as follows: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
2. At the time of trial, and until 1 July 2020, s 101 of the Evidence Act relevantly provided as follows: "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." (In 2020, subs (2) was amended so that its concluding words are now "the probative value of the evidence outweighs the danger of unfair prejudice to the defendant" (Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)); that is, the word "substantially" has been removed, thus lowering the bar for the admission of the evidence (Taylor v R [2020] NSWCCA 355 ("Taylor") at [122 (xviii)] per Bell P (as the Chief Justice then was, in dissent, but not on this construction)).

Ground 1

1. It will be observed that ground 1, by which complaint is made of the admission of the tendency evidence, is confined to the evidence concerning the applicant's treatment of JD. No equivalent complaint is made of the admission of the evidence concerning the applicant's treatment of LS which, it was accepted, met the relevant tests for admissibility.
2. As can be seen from the terms of the legislation set out above, tendency evidence is not to be admitted in a criminal trial unless it satisfies three tests: (i) it must be established that reasonable notice of the intention to adduce the evidence has been given (s 97(1)(a)); (ii) it must be established to the satisfaction of the trial judge that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party tendering the evidence, have "significant probative value" (s 97(1)(b)); and (iii) the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the accused person (s 101(2)). No issue arises in this case as to reasonable notice having been given.
3. "Probative value" is defined in the Dictionary to the Evidence Act to mean: "The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." In a criminal trial, the facts in issue are those that establish the elements of the offence in question: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 ("Hughes") at [16] per Kiefel CJ, Bell, Keane and Edelman JJ.
4. The significance of the probative value of evidence is to be measured by reference to the nature of the facts in issue to which the evidence is said to be relevant, and the significance or importance of the evidence in establishing those facts. The evidence must (at least) be influential in the context of factfinding: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [46] per French CJ, Kiefel, Bell and Keane JJ.
5. In this case, the facts in issue in relation to each count on the indictment were: (i) that the applicant had sexual intercourse with the complainant; (ii) that the complainant did not consent to the sexual intercourse; (iii) that the applicant knew (in one of the ways specified in s 61HA (3) - see [3] above) that the complainant did not consent to the sexual intercourse; (iv) that at the time of, or immediately before or after the sexual intercourse, the applicant intentionally or recklessly inflicted actual bodily harm on the complainant.

Ground Two

1. Ground two is a complaint about the manner in which the trial judge directed the jury with respect to the tendency evidence. The direction was in the following terms: "You also have evidence that the accused committed other acts in the past, and they are set out in Exhibit E in the Court as evidence against the accused. The Crown alleges that this evidence, as identified in the agreed set of facts in Exhibit E, reveals that the accused has a tendency to physically and verbally assault women with whom he was or had been in a domestic relationship in their homes at night, whilst intoxicated, by pulling their hair, punching and/or kicking and hitting them with an object, whilst making threats of general and graphic violence and making statements he is unaffected by the victim's tears. … The evidence suggesting that the accused had a tendency can only be used by you in the way the Crown has asked you to use it, that is, to make two findings. The first is to find one or more of the acts occurred. Now, that is not in dispute, and Exhibit E indicates an agreement between the parties as to what occurred in relation to the charges and offences against [JD] in 2004 and 2007 and [LS] in 2014. So you know that those acts occurred and the accused agrees that they did, and, in fact, you have heard he pleaded guilty in respect of the offences against those two women. Having established that, you then go on to consider whether, from those acts, you can conclude that the accused had the tendency that the Crown says he has, and that is the tendency to physically and verbally assault women he has had a relationship with, or has a relationship with, in their homes whilst intoxicated by violence and also making threats of a general and graphic violent nature. If you cannot draw that conclusion, then, again, you must put aside any suggestion that the accused had the tendency alleged. So unless you can come to that conclusion, you put that evidence aside." (italics added) No objection was taken to the direction. Except for one thing, the direction reflected with some precision the tendency identified in the Tendency Evidence Notice.
2. The short point made on behalf of the applicant in support of this ground is that the direction was factually wrong in that it went beyond what was contained in Exhibit E. Specifically, there was, in Exhibit E, no mention of the applicant having been intoxicated during the past episodes of violence on either JD or LS.

Ground 3

1. By ground 3 a two pronged attack was made on the conviction. First, it was said that the verdict of guilty on Count 1 is inconsistent with the verdicts of not guilty on Counts 2 and 3. Second, it was said that, in any event, the verdict is unreasonable within the first limb of s 6(1) of the Criminal Appeal Act. Dealing with the second prong first, the principles on which a verdict of guilty may be set aside as unreasonable are thoroughly entrenched: M v The Queen (1994) 181 CLR 487; [1994] HCA 63. They are (at [7] per Mason CJ, Deane, Dawson and Toohey JJ): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." [citations omitted]
2. In Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 the task of the court determining an appeal on the unreasonable verdict ground was encapsulated (at [7]) as: "…to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty [of the offence charged]."
3. It is sufficient to dispose of that aspect of ground 3 to say that, after making my own independent assessment of the evidence, I am satisfied, on the whole of that evidence, that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of an offence against s 61I of the Crimes Act, the offence of which he was convicted. The nature and quality of the evidence was such as to eliminate, to my mind, any reasonable doubt that the applicant was guilty of the offence of which he was convicted.
4. Moreover, examination of the applicant's submissions demonstrates with clarity that the contention that the verdict was unreasonable was no more than an alternative way of putting the first prong of ground 3 - that the verdict of guilty on Count 1 was inconsistent with the verdicts of not guilty on Counts 2 and 3.

Extension of time

1. Pursuant to s 10(1)(b) of the Criminal Appeal Act this Court is conferred with a wide discretion to extend the time prescribed for filing a notice of appeal, or notice of intention to appeal or notice of intention to apply for leave to appeal. A wide variety of factors, some of them pulling in different directions, are to be considered: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The Crown opposed the grant of an extension of time, on the stated basis of "the interests of justice with respect to the finality of proceedings", noting, in particular, that the grounds of appeal were not filed until almost 3 years after the conclusion of the trial, that the entirety of the sentence had expired, and that the reasons of the trial judge for admitting the evidence are not available.
2. The evidence established that the applicant had very promptly filed a notice of intention to appeal but that a good deal of the delay that ensued was attributable to the (ultimately unsuccessful) attempts to locate the trial judge's reasons for admitting the tendency evidence. Thereafter, counsel's commitments impeded the progress of the preparation of written submissions.
3. Having regard to the gravity of a conviction for sexual assault, I do not give any weight to the circumstance that the applicant has served his sentence. The long delay would, ordinarily, tell strongly against the grant of an extension of time, although that circumstance is somewhat - but only somewhat - ameliorated by the need to spend time in the effort to locate the tendency evidence reasons.
4. In the end, with some reservations, I would grant the extension of time sought.
5. The orders I propose are: 1. Time in which to seek leave to appeal extended to 20 August 2021; 2. Leave granted to appeal against conviction; 3. Appeal dismissed.
6. HAMILL J: I have had the considerable benefit of reading the draft judgment of Simpson AJA. I agree with the orders proposed by her Honour and, generally, with her Honour's reasons. I would add the following additional reasons for my agreement that each of the grounds of appeal must be dismissed, despite counsel's well-reasoned and persuasive submissions. I rely on the summary of the evidence provided by the presiding Judge but will emphasise a few pieces of evidence that are important to my concurrence.

The tendency evidence

1. In addition to the reasons provided by Simpson AJA, there was a feature of the case that gave the tendency evidence a particular capacity to affect the assessment of the facts in issue.
2. As Simpson AJA has explained, one of the acts of violence asserted by the complainant was that the applicant pulled her hair during the incident. She said, "he grabbed the back of my head, my hair and was forcing me to give him oral" and "he had his fingers in my hair and holding it with a tight fist." [1]
3. In his recorded interview with the police, the applicant acknowledged that he pulled the complainant's hair but claimed that "she likes being grabbed on the back of the hair" (Q 308). The applicant was asked (Q 328) "did you grab her hair like that?" and he replied: "When, when she was doing it, yeah. But I didn't grab her and force her in there. Like, she likes that. I was grabbing on her hair and playing with her pussy at the same time. And then, giving her a kiss and fucken, that's how she likes it." [2]
4. Both tendency witnesses (whose allegations formed part of the agreed facts in Exhibit E) gave evidence of the applicant pulling their hair. In each case, the police were involved.
5. In the circumstances, and where the applicant asserted that the complainant "liked" having her hair pulled, the earlier incidents and the intervention of the police on behalf of his two previous romantic partners, had a particular probative force to the issue of consent and to the applicant's state of knowledge.

Ground 3 and inconsistent verdicts

1. I agree with Simpson AJA's description of the mixed verdicts in this case as "puzzling". On my review of the whole of the evidence, the prosecution case on each count was very strong. Yet the jury, after a lengthy deliberation, rejected the prosecution's case (or, more correctly, had a reasonable doubt about it) in relation to counts 2 and 3. As to count 1, the verdict reflected a reasonable doubt about the circumstance of aggravation (the intentional or reckless infliction of actual bodily harm).
2. I have had difficulty resolving this ground. If the jury's verdicts of not guilty on counts 2 and 3 reflected a finding that it doubted the complainant's credibility as to her allegations in those counts, it is not immediately apparent why that doubt ought not to have also applied to the first count: cf Jones v The Queen (1997) 191 CLR 439 at 453, 455; [1997] HCA 56 as explained in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [25], [35] and R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [125]-[137], and applied, for example, in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [319]-[324], (Simpson J, as her Honour then was, dissenting on this issue), Norris v The Queen [2007] NSWCCA 235; 176 A Crim R 42, Collins v R [2020] NSWCCA 198 and Dadley v R [2021] NSWCCA 267.
3. A review of these, and similar, cases demonstrates that while general principles may readily be distilled, the application of those principles can be difficult. The outcome is driven by the particular facts and circumstances of the case under consideration.
4. In approaching the task, three matters must be borne steadily in mind. First, "the test established by s 6(1) of the Criminal Appeal Act 1912 is unreasonableness, not inconsistency": MFA v The Queen at [36]. Secondly, the task must be undertaken "in the context of the system within which juries function, and of their role in that system": MFA v The Queen at [34]; see also, more generally, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38][39]. Thirdly, it should not readily be concluded that "mixed" verdicts are "inconsistent in the relevant sense" or that a jury has compromised its function: Mackenzie v The Queen (1996) 190 CLR 348 at 367; [1996] HCA 35; R v TK at [136].
5. None of this is to underestimate the responsibility of this Court to review closely the record of the trial, to ensure that the verdict on count 1 is reasonable and able to be supported, taking into account the acquittals on counts 2 and 3.

Endnotes

1. Tcpt, 9 April 2018, pp 21, 25.
2. MFI 9.
3. MFI 9.
4. MFI 9. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2022