Smith v R

The Crown case

1. Briefly stated, the complainant and the applicant were in an abusive and dysfunctional relationship. The complainant was functionally illiterate. It was the Crown case that on an evening in November 2012 at the Redfern residence of the complainant's friends Paul Claxton and Keith Saunders, the applicant barricaded the complainant in a room, physically assaulted her, digitally penetrated her and had penile/vaginal intercourse with her without her consent. The complainant was said to have reported the assault to Mr Claxton and Mr Saunders the following day. This conduct constituted counts 1 and 2 on the indictment, and was referred to as the "Redfern Incident".
2. It was alleged that on another occasion in 2015 the applicant held a knife to the complainant's throat, causing a small cut. The Crown case was that directly after this took place, the complainant reported the incident to her neighbour Kerry Smethurst. This incident constituted count 3 and was referred to as the "Knife Incident".
3. The Crown alleged that on the same day as the Knife Incident, the applicant came to the complainant's house with a sawn-off shotgun and threatened the complainant. This formed the basis of count 4 and was referred to as the "Shotgun Incident".
4. The fifth and final count was alleged to have occurred just after the Shotgun Incident. It was the Crown case that the applicant took a yellow-handled knife out of his bum bag and threatened the complainant before proceeding to have penile/vaginal intercourse with her without her consent. This was described as the "Lake Haven Incident".
5. The complainant provided statements on 2 December 2012 (which was typed up and formalised on 20 May 2013) and 21 July 2015; two recorded interviews on 14 September 2015; and one recorded interview on 8 June 2016. She also provided evidence at the trial. It was the Crown's case that the complainant's evidence did not stand alone in relation to counts 1, 2 and 3. The Crown submitted that counts 1 and 2 were supported by the complaint evidence of Keith Saunders and Paul Claxton, and that count 3 was supported by the complaint evidence of Kerry Smethurst. The Crown accepted that there was no corroboration for counts 4 and 5.
6. The Crown also relied upon tendency evidence in relation to counts 3, 4 and 5. It relied on five incidents involving acts of violence as tendency evidence. It was the Crown case that these acts relied on as tendency evidence were acts of violence committed upon a female with whom the applicant was in an intimate relationship during or following an argument. It was submitted that this evidence could be relied upon in support of the complainant's allegation that she and the applicant argued, that he became angry and threatened violence. The Crown accepted that if this tendency evidence were to be rejected, the Crown's case for counts 4 and 5 would rest entirely upon the complainant's evidence.

Evidence

1. As the first ground of appeal turns upon the evidence before the trial judge, it is important to set out the complainant's evidence (both at trial and from her prior statements), along with the evidence of Mr Saunders, Mr Claxton and Ms Smethurst, which the Crown relied upon as corroboration for certain counts. The applicant did not give evidence at the trial, but his record of interview with the police was tendered as evidence.

Counts 1 and 2 - "the Redfern Incident" (convicted)

1. The complainant met the applicant around 2012 and they entered into a relationship shortly thereafter. The complainant gave evidence that a few months before Christmas 2012 she caught the train with the applicant to Central station. They were going to visit the Redfern residence of two friends, Paul Claxton and Keith Saunders. She said that she brought the applicant along so that he could meet her friends. She had consumed Valium earlier that day. At the Redfern premises, the four of them had some drinks and smoked marijuana, before all going to bed around 11pm. The applicant and the complainant retired to the same bedroom.
2. Once inside, the applicant closed the door and barricaded it shut using a chest of drawers and a blue barrel. He proceeded to push the complainant around, punching her down her side, grabbing her arms, grabbing her mouth, throwing her around the room and attempting to rip off her pyjamas. She tried to scream but the applicant told her to "shut the fuck up, don't scream", and put his hands over her mouth. To save her pyjamas from ripping, the complainant told the applicant, "I will take it off". She was naked and said to the applicant, "No you don't have to do this to me. Why are you doing this to me?" to which the applicant responded, "shut the fuck up". The complainant said that the applicant then "put his hand on my vagina so he could put his penis inside me". He digitally penetrated the complainant before engaging in non-consensual penile/vaginal intercourse. The digital and penile penetration lasted about five minutes, before the applicant got up and began pacing around the room. He then got back into bed and told the complainant to "shut up and go to fucking sleep".
3. During the night, the complainant woke up and needed to go to the bathroom. The applicant asked her what she was doing. When she explained that she was going to the bathroom, the applicant said, "you're not fucking going anywhere, get back into bed". The complainant begged the applicant to allow her to go to the toilet, but he would not let her go and she ended up going to the toilet in the corner of the bedroom.
4. In the morning, the complainant told the applicant that she needed to go to the bathroom and he moved the cupboards out of the way. She went straight to the lounge room where her friends were and said to Mr Claxton and Mr Saunders, "[the applicant] raped me last night". She said, "look at what he's done to me" and lifted up her top to show them the bruises down the side of her body. At trial, she confirmed that she did not have those bruises prior to attending the premises in Redfern. The applicant then entered the room and Mr Claxton asked him if he had hurt the complainant the night before. The applicant replied, "no she's a fucking liar".
5. The complainant subsequently left the Redfern premises and the applicant followed her. As soon as she arrived home in the Central Coast, she reported the incident to the police and made a statement. In that statement, she reported the physical assault upon her, but made no mention of the sexual assault. The police took photos of the bruises on her body.
6. The complainant did not report the sexual assault until her interview with police on 14 September 2015, and did not mention the digital penetration until her further police interview on 8 June 2016. She said that she did not initially report the sexual assaults because she was embarrassed and felt degraded.

Count 3 - "the Knife Incident" (convicted)

1. The complainant gave evidence that there was an incident where the applicant "cut [her] throat, just nicked [her] throat". She said that this took place at her unit in Lake Haven sometime after the applicant's release from custody. She said that the applicant used a "pirate's knife" that was as "wide as [her] shoulders" to cut her throat. In her oral evidence, the complainant first stated that her throat was cut twice, but later asserted that it was only cut once. She gave the following evidence about the applicant's conduct: "[he] [k]icked me, he spat on me, he was pulling my hair, made me get on my hands and knees and he threw an ounce of marijuana on the floor and he had the scales on the table and he was weighing it, he made me pick up little bits at a time and put them on the table and he was weighing it till I picked it all up and the whole time he was kicking me, spitting on me and treating me like an animal"
2. A man named Alec was also in the unit at that time, and witnessed everything that the applicant did. The complainant said that Alec did nothing to assist her and asked for the bong. The applicant then let the complainant get back up before going to retrieve the knife and putting it to her throat. The complainant asked the applicant, "What are you doing, what are you doing all this for?" She said that the applicant then "gave me a little nick and I felt a warm sensation". There was blood on her hands.
3. The complainant then said, "You fucking arsehole. Why are you doing all this to me?" She said that the applicant did not seem to care and replied, "It's all right, I've got a witness", referring to Alec. He then told her that if she rang the police he would stab her "all over [her] body". After the incident, the complainant told Ms Kerry Smethurst, her neighbour, about the attack. She said to Ms Smethurst, "Look what he's done to me now", to which Ms Smethurst just shook her head.

Count 4 - "the Shotgun Incident" (acquitted)

1. The complainant gave evidence that on the same day as the Knife Incident the applicant came out with a double-barrelled, sawn-off shotgun. He cocked the shotgun, placing two bullets in the two barrels. She gave evidence that he kissed the first bullet and said that it was for her, and blew on the second bullet saying it was for him. At this point, Alec left the complainant's unit. The complainant said that the applicant proceeded to assault her and said that he was going to "blow [her] fucking head off".

Count 5 - "the Lake Haven Incident" (acquitted)

1. The complainant gave evidence that directly after the Shotgun Incident, the applicant "started smacking [her] around" and then pushed her onto the lounge and put the gun to one side. He pulled out a yellow-handled knife from his bum bag and told her to take her pants off. She said, "no, there's no need for this, you don't have to do this". The applicant responded by grabbing the knife and saying, "I'll stab you here, here, here and here", gesturing all over her body. The complainant then took off her clothes and the applicant proceeded to have non-consensual sex with her on the lounge. The knife was left on the lounge during the intercourse.
2. The complainant said that she was trying to call out to get someone to notice and call the police but that the police weren't called. She said that she told the applicant that she did not want to have sex with him, saying, "you don't have to rape me, I'm going out with you". She said that the penile/vaginal intercourse lasted around two or three minutes before the applicant got off and drifted to sleep.
3. The following day, the complainant said that she went to Sydney and complained to her daughter about being "raped" before going to Redfern Police Station and making a formal complaint.

Prior statements and cross-examination

1. As outlined above, the complainant made a number of prior statements. These were the subject of cross-examination as to inconsistencies between those statements and her evidence in chief. It is unnecessary to go through each inconsistency in great detail, but I will outline those inconsistencies highlighted by the trial judge in his judgment and relied upon by the applicant in his submissions on appeal. The effect of these inconsistencies will be discussed when considering the first ground of appeal.
2. In her statement to police on 20 May 2013, the complainant said that she had gone to Redfern with the applicant as he had been evicted from his house in Wyong. She said that she had contacted Mr Saunders and he had agreed that the applicant could live at his place in Redfern. Under cross-examination at trial, the complainant said that she could not recall saying this to the police and later denied saying it at all. She said that the applicant had not been evicted and didn't need a place to live as he was living with her at the time.
3. In that same statement, the complainant asserted that on the day in question she had met the applicant and Mr Saunders at Central station. Under cross-examination she denied both of these statements, reasserting that she caught the train down to Central with the applicant and that she met Mr Saunders at his property.
4. The complainant also said in that statement that the applicant had asked her to go into the bedroom to have a private chat, after which she had been assaulted. She denied this in her oral evidence, saying she had no reason to talk privately with the applicant.
5. In her statement dated 21 July 2015, the complainant stated that the events giving rise to counts 3, 4 and 5 occurred on separate days. The Knife Incident was said to have occurred on 25 or 26 March 2015, the Shotgun Incident around 20 June 2015 and the Lake Haven Incident around 14 May 2015. Under cross-examination as to this inconsistency, the complainant stated that the three Incidents occurred on the same day.
6. In the same July statement, the complainant described the knife used by the applicant in the Knife Incident as a "serrated knife", which she believed was a "large hunting knife" about 30 to 50cm long. Under cross-examination the complainant reiterated that the knife was a pirate style knife, but gave somewhat varied descriptions of the knife.
7. The complainant subsequently stated that she had felt "under a little bit of duress" when signing the July 2015 statement. Accordingly, in her first interview with police in September 2015 the statement was read to her. After hearing the statement, the complainant confirmed, "That's exactly what happened".

Evidence of Mr Saunders

1. Mr Saunders gave evidence at trial, having provided a statement a few weeks earlier. In his evidence, Mr Saunders confirmed that he had known the complainant since about 2006 and that he first met the applicant in November 2012 when the applicant turned up at the doorstep of his property in Redfern/Waterloo with Mr Claxton and the complainant. He said that he was not expecting to see the complainant and the applicant, nor was he expecting to see Mr Claxton.
2. His first observation of them was that they were "nice, happy, a bit intoxicated maybe". He recalled that the complainant was intoxicated and the applicant "maybe not as much but yes". He gave evidence that they all consumed alcohol, marijuana and Valium at the house that evening. He told the applicant and the complainant that they could stay the night.
3. The next thing he remembered was waking up in the morning and going to the lounge room. Mr Claxton had already left for work. The complainant emerged from the bedroom, told Mr Saunders that the applicant had raped her and said, "Look he tore my sleeve". She showed him the ripped sleeve and the marks under her arms. When asked if he could remember the complainant showing him anything else, he replied, "maybe a bruise on her leg but I'm not a hundred per cent sure. I can't remember". He thought he remembered the complainant saying, "[the applicant] got nasty with me last night and wouldn't let me out of the bedroom and raped me".
4. Mr Saunders said that the complainant did not say anything else to him about the sexual assault "until about a year later" when he went to visit her in Lake Haven. At Lake Haven, the complainant gave a version of events that accorded with what she had told Mr Saunders that morning in Redfern.

Prior statement

1. Mr Saunders first made a statement to the police on 3 November 2016, a few weeks before the trial began. Under cross-examination, Mr Saunders acknowledged that he did not use the word "rape" in his prior statement to the police. In that statement, he alleged that the complainant had said, "[the applicant] got nasty and forced himself on me".
2. When asked about this discrepancy, Mr Saunders responded, "I didn't want to use the word rape because I was not sure if that's what she had used…But I've been thinking about it and I'm pretty sure she did say that word". Despite first saying in oral evidence that he was not "one hundred per cent" sure that the complainant had used the word "rape", he ultimately asserted that he was "a [sic] hundred per cent sure" that the complainant used the words "rape", "nasty" and "got physical with me".

Evidence of Mr Claxton

1. Mr Claxton did not give evidence at trial, but the statement he gave to police dated 26 August 2016 was tendered by consent. In that statement, Mr Claxton said that he first met the applicant around the beginning of 2015 when the complainant introduced the applicant to Mr Claxton and Mr Saunders on a trip down to Redfern.
2. He said that at some time during 2015 the complainant came on her own to his house in Redfern and was moderately affected by alcohol. He said that she stayed the night and that the next morning the complainant said to him and Mr Saunders in their living room, "Bob raped me". He said that he responded by telling her that she needed to go to the police before going to his bedroom. When he returned, Mr Saunders informed him that the complainant had gone to see her daughter.
3. It is relevant to note that the date referred to by Mr Claxton, being some time in 2015, is a number of years after the night in November 2012 when the sexual assault was said to have taken place.

Evidence of Ms Smethurst

1. Ms Smethurst confirmed that she was a neighbour of the complainant and had known her for over three years. Ms Smethurst first met the applicant when he visited her with the complainant. She said that the complainant usually visited her daily.
2. She agreed that sometime in late 2014 or over a year prior to September 2015 she did not see the complainant for a few days. When Ms Smethurst finally saw the complainant she had bruising under her left eye. The complainant told Ms Smethurst that she hadn't been coming over as things were not too good.
3. At about 10am sometime in early July 2015, the complainant came to visit Ms Smethurst. She appeared to be a bit distressed and upset but not crying, and showed Ms Smethurst a mark on her neck. Ms Smethurst described that mark as a little cut that was a couple of centimetres long but not bleeding. The complainant said to Ms Smethurst, "Look what he has done". The complainant did not say anything else and left almost immediately.
4. Ms Smethurst told the police that the two aforementioned incidents were the only two violent episodes that the complainant had ever mentioned to her and that she had never seen signs of aggression from the applicant to the complainant. She said that the only noticeable difference observed when the applicant was around was that she saw less of the complainant.
5. Under cross-examination, Ms Smethurst conceded that the complainant had never said that it was the applicant who gave her the mark on her neck or the black eye. She agreed that when the complainant said, "Look what he's done" no mention was made of who "he" was.

Applicant's Record of Interview

1. In the applicant's record of interview conducted on 22 July 2015, he was asked about counts 3, 4 and 5. No questions were asked about counts 1 and 2 because at the time of the interview, the complainant had not yet made the complaint about the sexual assault at Redfern. He described his relationship with the complainant as a "shit relationship" and said that the allegations made by the complainant were "dead set bullshit". He said that the complainant had a motive to lie as she was upset that he had recently started dating a younger woman.
2. He said that he and the complainant "argue every fucking day" but denied the allegations. He said that in the past he had grabbed the complainant by the throat and threatened her but that he had never punched her. He said that they were both alcoholics and that the only time he had ever hurt the complainant was when they were "revved up" and she fell backwards and hit her head after a physical altercation between them.
3. The applicant specifically denied holding a knife to the complainant's throat. He acknowledged that he did carry a knife. He said he loved knives and that his nickname was, "the Bladerunner". However, he denied carrying a knife in the way alleged by the complainant and denied ever using a knife to threaten the complainant. When the details of the alleged sexual assault (count 5) were put to the applicant he called the complainant a "fucking liar" and said that any sex they had was consensual. He also said that if he had raped her, she would have gone to the police that night. He said that in the past, she had reported altercations between them on the day of the event.
4. When asked about the Shotgun Incident, the applicant denied having access to a shotgun or ever having brought a gun to the house. When asked if he had friends who had guns, he replied, "No comment".

Ground 2: hearsay direction

1. It is convenient to deal with this ground first because, if made out, any error on the part of the trial judge might assist in the determination of Ground 1.
2. Ground 2 is directed to the trial judge's alleged failure to give himself a hearsay warning in relation to the evidence of complaints made to Mr Claxton, Mr Saunders and Ms Smethurst. This evidence has been outlined above and need not be repeated here.
3. In order to advance this ground of appeal, the applicant must first obtain leave under r 4 of the Criminal Appeal Rules (NSW). Leave must be sought as trial counsel for the applicant did not seek the direction now complained of. The operation of r 4 was recently considered by this Court in Roos v R [2019] NSWCCA 67. In that judgment, Gleeson JA (Harrison and Davies JJ agreeing) set out the relevant considerations under r 4: Rule 4 of the Criminal Appeal Rules (NSW) provides that no direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial shall, without the leave of the Court, be allowed as a ground for appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing. Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. The criterion for the exercise of r 4 has been the subject of discussion in this Court. In Picken v R [2007] NSWCCA 319, Mason P (Hidden and Harrison JJ agreeing) noted at [20] that there have been varying formulations of the test for identifying a miscarriage of justice in this context, referring to Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; and R v Wilson (2005) 62 NSWLR 346 at 352 [20]. The test proposed by McHugh J in Papakosmas v The Queen, which is a negative constraint, was doubted in Greenhalgh v R [2017] NSWCCA 94 at [8] (Basten JA, Button J agreeing), where the view was expressed at [16] that this Court should be cautious in laying down principles to be applied when exercising a broad discretionary power under r 4. Nonetheless, it is generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R at [20] - [21]; ARS v R [20111] NSWCCA 266 at [147] (Bathurst CJ, James and Johnson JJ agreeing); Greenhalgh v R [2017] NSWCCA 94 at [47]-[48] (N Adams J) cf [7]-[21] (Basten JA, Button J agreeing).
4. His Honour went on to cite Mason P in Picken v R; R v Picken [2007] NSWCCA 319, who said at [22]: The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge.
5. In the present case, the error identified by the applicant is the failure to give a hearsay warning. It is suggested that such a warning ought to have been given in the light of the complainant's "lack of reliable and consistent evidence".
6. No detailed submissions were made in relation to this ground of appeal. The applicant's written submissions simply said this: Particularly given all that was known about the complainant and her lack of reliable and consistent evidence, such a warning ought to have been given in this matter.
7. In oral submissions a similar point was made by counsel for the applicant: [C]learly there were unreliabilities in the complaint and obviously there is complaint evidence, but there was an obligation to warn the tribunal of fact that the evidence may be unreliable. The presiding judge observed that the trial judge had repeatedly said that the matter was not straightforward because of the evidence of the complainant, to which counsel for the applicant replied: No [the trial judge] was cognoscent [sic] of the issues. I guess 165 subs 2c warn the jury of the need for caution in determining whether to accept the evidence, so it's really that focus and whether that has been sufficiently made out. If it has well that point falls away.
8. Section 165(2)(c) of the Evidence Act 1995 (NSW) provides: If there is a jury and a party so requests, the judge is to: (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. It may be accepted that the subsection has application in a judge-alone trial: Criminal Procedure Act 1986 (NSW) s 133(3).
9. The direction now complained of was never sought by the applicant's trial counsel. There was ample opportunity for such a direction to be sought, particularly in the light of the several discussions at trial between the trial judge and counsel about various directions that the judge ought to give himself. There is no obligation on a judge to give a warning under this subsection if it is not requested by a party: Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [232]; Groundstroem, Christoffer Andreas v R [2013] NSWCCA 237 at [57].
10. Nevertheless, at the outset of his judgment, Judge Bozic SC gave himself a complaint direction in the following terms: Another aspect of this case is that the Crown relies on evidence of complaint made by the complainant in relation to counts 1 and 2, that is, the Redfern incident, and also in relation to Count 3, the hunting knife incident. If I find the complaint was made in the way alleged, then I can use evidence of what was said in the complaint as some evidence that the incident the subject of the particular charge I am considering did occur, that is, I can use it as some evidence independent of the evidence given by [the complainant] in the witness box. That is because the law says, because of the circumstances in which a complaint was made, a tribunal of fact is entitled to use what was said in that complaint as evidence of the truth of what the complainant was alleges. The tribunal of fact is entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. Ultimately, it is a matter for me as to whether I draw the conclusion in this case and so treat the complaint evidence of the facts giving rise to the particular charge against the accused, in addition to the evidence that has been given about it in this courtroom. If I do choose to use the evidence of complaint in relation to counts 1 and 2 and of the separate complaint evidence in relation to Count 3, then what weight I give the evidence is a matter for me to decide. (emphasis added)
11. After a detailed analysis of the complainant's evidence, Judge Bozic SC returned to the question of the complaint evidence and said the following: Submissions have been made about both the honesty and the unreliability of the complainant. It seems to me that, for the reasons I have identified, there are obvious reasons why caution has to be exercised and why her evidence is or may potentially be unreliable. But I have looked at the various matters, I have taken into account the inconsistencies, I have seen and observed her and, while there are doubts that I have about aspects of her evidence and her reliability, I have not formed the view that she is a dishonest witness. … As I said, having given myself the complaint direction, I am satisfied that the following morning the complaint was made and that is a matter of some significance.
12. These comments by the trial judge suggest that he was fully aware of the caution that needed to be exercised in relation to the evidence of complaint and that his decision ultimately to accept the complaint evidence was heavily informed by his analysis of the credibility of the complainant. Whilst there were undeniable inconsistencies in the complainant's evidence, these were considered at length by the trial judge. The complainant's unreliability was the only basis on which it was suggested that a warning should have been given.
13. In any event, the applicant has failed to identify and formulate the direction said to have been required at trial. In Greenhalgh v R [2017] NSWCCA 94, Basten JA noted (at [21]): Finally, in cases where no direction was sought, it will usually be a precondition to a grant of leave under r 4 that the omitted direction should be expressly formulated. It will be difficult for the appeal court to assess the significance of the omission, being far removed from the context provided by the trial; it will be almost impossible if the terms of the proposed direction are not formulated."
14. Accordingly, the applicant has failed to demonstrate error in respect of this ground and leave under r 4 is refused.

Ground 1: Unreasonable verdict

1. This ground of appeal is expressed in the following terms: The verdicts of guilty for Counts 1, 2 and 3 are unreasonable having regard to the nature and quality of the evidence and the verdicts of not guilty on Counts 4 and 5. In this way, the applicant does not rely upon the acquittal on counts 4 and 5 as a ground in itself alleging inconsistent verdicts, but rather relies upon the acquittal as casting further doubt over the reliability of the complainant's evidence in relation to the first three counts. This is explored further below.

Relevant principles

1. The legal principles that govern an assessment of whether a judge alone verdict is unreasonable are well known. These principles are set out by the plurality (French CJ, Bell, Keane and Nettle JJ) in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 where their Honours said: "The nature of a criminal appeal from a judge alone [6] Section 133 of the Criminal Procedure Act 1986 (NSW) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt of the accused and that such a finding has the same effect as a verdict of a jury. In that sense, "finding" means an ultimate finding of guilt as opposed to a finding of fact leading to the finding of guilt. The section also provides that the judge must include in his or her reasons for judgment the principles of law applied and the findings of fact on which the judge relies; and that, if any Act or law requires a warning to be given to a jury in such a case, the judge is to take the warning into account in dealing with the matter. … [9] As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone. For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge's finding of guilt is "unreasonable" or "cannot be supported". … … [11] Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge's finding of guilt to a jury's finding of guilt "for all purposes". It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt. [12] Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen: "It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." … [56] Starting with the first of the judge's supposed errors, the question for the Court of Criminal Appeal was not whether it was "satisfied that the judge's account was correct" but whether her Honour's findings as to the sequence of events were not reasonably open. And, plainly, they were open. Contrary to the Court of Criminal Appeal's reasoning, the judge's analysis of the pertinent evidence did not overlook that Allen did not look out of his window until after the first two shots had been fired. Allen's observation of the appellant going into the house after the third shot had been fired (which, on Mrs Filippou's version of events, would have been the second occasion that the appellant went back into the house) was of the appellant walking calmly inside, then coming out again, and then crouching over the deceased and using his arms in a pulling motion. As the judge rightly observed, that version of events was starkly inconsistent with Mrs Filippou's recollection that the appellant had run or walked back in quickly on the second occasion in an agitated state of mind and then driven away in his utility. Thus, for the reasons which her Honour gave, she was entitled to prefer Allen's version of events over Mrs Filippou's variously stated recollections." (Footnotes omitted.)
2. Accordingly, the question for this Court is not whether the judgment of Judge Bozic SC was correct, but whether his ultimate finding of guilt in relation to each of Counts 1, 2 and 3 was reasonably open to him. Specifically, the Court must determine whether it was open to the trial judge to find the applicant guilty on counts 1 to 3 in the light of the nature and quality of the evidence and in the light of the acquittal on counts 4 and 5.

Submissions in relation to counts 1 and 2 ("Redfern Incident")

1. The applicant submitted that the trial judge's verdict in relation to counts 1 and 2 was unreasonable in the light of the unreliability of the complainant's evidence, the delay in her complaint about the sexual assault and subsequent explanation of that delay and the quality of the complaint evidence from Mr Saunders and Mr Claxton.
2. In terms of reliability, the applicant argued that the inconsistencies in the complainant's account of the Redfern Incident rendered her account of events wholly unreliable. These contradictions, it was submitted, could be seen in the complainant's inconsistent account about the applicant being evicted from his home; the complainant meeting the applicant at Central station; the complainant meeting Mr Saunders at Central station and the applicant asking the complainant to have a private talk in the bedroom. The applicant submitted that in the light of the insufficiencies in the complainant's evidence, and the importance of that evidence to the Crown case, it was not open to the trial judge to be satisfied of the applicant's guilt to the requisite standard.
3. In terms of the delay, the applicant highlighted that the complainant did not report the 2012 sexual assault until 14 September 2015. In oral argument, counsel for the applicant acknowledged that any assessment of the delay must be made with reference to the explanation proffered. Here, it was submitted that the complainant's explanation that she was "too embarrassed" and that she felt "ashamed" and "degraded" were wholly insufficient in the circumstances. The applicant advanced a number of reasons why it was not open to the trial judge to accept the complainant's explanation.
4. The applicant submitted that when the complainant gave her statement to police in July 2015 about the events giving rise to counts 3, 4 and 5, she described these events in "graphic" detail, particularly as to the further alleged sexual assault. In that statement, the complainant said the following: He touched me on the right breast with his left hand. He tried to kiss me. I turned my head to the right. I said "Leave me alone, why are you doing this?". He touched my vagina on the outside of my clothing. I was wearing pink coloured tracksuit pants and a pink top. He touched the outside of my clothes. He pulled my head back by grabbing my jaw with his left hand and pushed his mouth onto mine and kissed me. … I got off the lounge and took off my track pants and underwear. I still had my top on. As soon as I took my pants off, he put the knife back into his slot. He stood up and dropped his track suit pants (he does not wear underwear). He had an erection. He pushed me onto the lounge. I was facing him. He pulled my legs apart. He inserted his penis into my vagina. He began to have sex and thrust a few times which didn't last long, a few seconds. … After he had ejaculated inside me he took his penis out of me and rolled over on the lounge and fell asleep. Some of his semen went on the couch.
5. It was submitted that the complainant's willingness to provide this level of detail in July 2015 undermines any suggestion by the complainant that she was too ashamed or embarrassed to report the Redfern Incident prior to doing so in September 2015. Counsel for the applicant submitted that even if one accepts that there was a sufficient explanation as to why the complainant did not raise the sexual assault when first reporting the physical assault in 2012, any such explanation ceases to carry weight by the time she made her July 2015 statement. He argued that the complainant's statement of July 2015 detailed sexual acts that would cause embarrassment akin to that alleged to be caused by the Redfern Incident.
6. It was further submitted that any suggestion that the complainant was "too embarrassed" is inadequate given that, on her own evidence, the complainant had told both Mr Claxton and Mr Saunders about the sexual assault. Counsel for the applicant also made reference to the fact that the complainant had spoken with a female officer, Constable Nicole Bird, when first reporting the physical assault in 2012, and that she had various opportunities to speak with other female police officers after that initial report.
7. In terms of the complaint evidence, the applicant was critical of the evidence of both Mr Saunders and Mr Claxton. In terms of Mr Saunders, the applicant criticised his use of the word "rape" in his oral evidence, which did not appear in the statement he had made days earlier, and drew attention to Mr Saunders' initial ambivalence in his oral testimony as to whether the complainant had used the word "rape". The applicant also drew attention to Mr Saunders' statement that Mr Claxton had left for work prior to the complainant entering the lounge room and recounting the sexual assault. It was emphasised that this ran contrary to the complainant's assertion that she immediately reported the sexual assault to both Mr Saunders and Mr Claxton.
8. Mr Saunders' evidence was said to be particularly questionable given his drug consumption on the day in question. Inherent in this submission, as acknowledged by counsel in oral argument, is a challenge to the sub-finding that Mr Saunders was an acceptable witness.
9. As for the evidence of Mr Claxton, counsel for the applicant submitted that, contrary to the conclusion of the trial judge, Mr Claxton's evidence referred to a night in 2015 and not the night of the Redfern Incident. It was submitted that both the date and the surrounding circumstances of Mr Claxton's account differed so significantly from that of the complainant's account of the Redfern Incident that he must be referring to a different occasion. Particular emphasis was placed upon the fact that in Mr Claxton's version of events, the complainant was staying in Redfern on her own (as opposed to staying with the applicant) and that the next morning she went to visit her daughter (as opposed to returning to the Central Coast). In the light of these differences, it was submitted that Mr Claxton's evidence could not be relied upon as corroboration that a complaint was made by the complainant on the morning following the Redfern Incident.

Submissions in relation to count 3 ("Knife Incident")

1. Somewhat akin to the applicant's submissions in relation to counts 1 and 2, the submissions in relation to count 3 focused on the inconsistencies in the complainant's account of the Knife Incident and the quality of Ms Smethurst's complaint evidence.
2. In terms of the inconsistencies, the applicant relied upon the complainant's inconsistent descriptions of the knife in question, submitting that the descriptions "materially varied beyond any and all acceptable limits of description". In his written submissions, counsel for the applicant noted that the complainant had described the knife as a "serrated knife", "a large hunting knife" and a "pirate's knife". Further, the applicant placed emphasis upon the complainant's contradictory evidence about the chronology of events constituting counts 3, 4 and 5 and about whether the complainant's throat was cut once or twice. These inconsistencies were said to undermine the reliability of the complainant's account of the Knife Incident. Consequently, it was submitted that there was insufficient evidence to warrant a finding of guilt on count 3.
3. As for the evidence of Ms Smethurst, it was submitted that this evidence did not corroborate the complainant's account of the Knife Incident. Counsel for the applicant emphasised that the complainant did not identify the applicant when reporting the Knife Incident to Ms Smethurst. Counsel for the applicant argued that the complainant's statement, "Look what he's done to me now" was ambiguous and invited speculation. He stated that even if one were to accept that the complainant was referring to the applicant, there remains a real difficulty in accepting the veracity of the complaint itself as the evidence is tainted by the unreliability of the complainant.

Submissions in relation to the acquittal on counts 4 and 5

1. Whilst the acquittal on grounds 4 and 5 was not relied upon as a distinct ground of appeal, the applicant relied upon these acquittals as further evidence that the complainant's evidence in relation to counts 1 to 3 should not have been accepted by the trial judge. In essence, the applicant submitted that the trial judge's rejection of the complainant's evidence in relation to the last two counts worked to undermine the reliability of her evidence in relation to the remaining counts. The consequent poor quality of her evidence, combined with the applicant's assertion that there was insufficient corroborative complaint evidence, meant that it was not open to his Honour to find the applicant guilty on counts 1 to 3.

Consideration

1. The submission that underpinned the whole challenge to the verdict based on its unreasonableness was the unreliability of the complainant's evidence. That was said to manifest itself not only by reason of the inconsistencies in the statements and interviews of the complainant but also in the way that those inconsistencies undermined the complaint evidence from Mr Saunders, Mr Claxton and Ms Smethurst.
2. The trial judge was, however, very conscious of the issues raised by the inconsistencies in the various statements and interviews and the inconsistencies that arose from the complainant's own evidence. His Honour said at the outset of his judgment when considering which directions he ought to give himself (p 4): The complainant has made a number of previous statements to which I will refer. They contain inconsistencies. She is a person who has been in an abusive relationship with the accused for some years. She is functionally illiterate and a person with drug, alcohol, and possible mental health issues. In those circumstances, both parties agree that it was appropriate that I give myself a Murray direction, in other words, that the Crown case largely depends on accepting the reliability of the complainant. That being so, unless I am satisfied beyond reasonable doubt that she is both an honest and an accurate witness in the account she has given, I cannot find the accused guilty. In the circumstances of this case and the evidence to which I will refer, it will be necessary, in determining whether the Crown has proved the case beyond reasonable doubt, to examine the evidence of the complainant very carefully in order to satisfy myself that it is both honest and reliable.
3. The trial judge summarised a number of the inconsistencies with the Redfern incident as follows (pp 18-19): It is perhaps useful to refer to the complainant's evidence in cross-examination and the asserted inconsistencies by reference to a document prepared by Mr Murray, which became MFI1, which is a six page document that details at least 46 examples of relevant inconsistencies. It can be dealt with as follows. …In relation to the various accounts of how the complainant and the accused came to be at Redfern, the complainant was cross-examined about those at some length and it was submitted that the only explanation for the various differing accounts is that the complainant lied. Thus, in evidence, she said that she took the accused to meet Keith and Paul, her friends. In her statement of 20 May, she says that she took the accused to Redfern because he needed a place to live. In her evidence, she said she could not recall saying this to police and then said there was no reason why she would have said that, and then denied saying this to police. At transcript 46.20, she said that the accused had not been evicted, but that he was living with her and he did not need a place to live. In her evidence, she said she went to Sydney with the accused by train. In her statement of 20 May 2013, she said that she met the accused at Central. She denied in her evidence meeting him at Central. In her statement of 20 May, she said that she met Mr Saunders at Central and, in her evidence, she said that she met him at the Redfern flat and that he arrived five minutes after she and the accused did. The complainant denied telling Constable Bird that she had met Mr Saunders at Central, notwithstanding that that is recorded in the officer's notes. In her evidence, she denied having an argument with the accused over the fact that she was taking too many Valium tablets, whereas Mr Saunders remembers such an argument. Although Constable Bird recorded the complainant saying that she went to the bedroom of the Redfern flat to speak privately with the accused, in her evidence in cross-examination she said that she had no reason to do so. There are also various inconsistencies about which the complainant was cross-examined in relation to whether there was a private talk in the bedroom, what was said in the bedroom, and there are some inconsistencies about the furniture in the room, how the door was obstructed, and what was said on the train on the way home. Needless to say, the complainant was cross-examined about the fact that, prior to 6 [scil.8] June 2016, there was no reference ever made to being digitally penetrated. Her response in evidence was, "I can't remember every detail, for Christ's sake". The complainant also said that she told both Mr Claxton and Mr Saunders of the rape the following morning, whereas Mr Saunders says that Paul had left for work when the complainant came out. In her interview of 14 September 2014, at question 93, she said that she showed Mr Claxton the bruises in the morning but makes no reference to Mr Saunders.
4. His Honour then set out his approach to those inconsistencies in this way (p. 42): In relation to counts 1 and 2, I approach the matter as follows. I take into account the matters that I have referred to above regarding the complainant. I take into account that there are a large number of inconsistencies. I have taken into account that she is an alcoholic and that, on this particular evening, she had consumed alcohol and prescription drugs, namely, Valium. I have taken into account that this was an ongoing abusive and dysfunctional relationship and I have reflected upon the fact that I have found her accounts in relation to counts 4 and 5 to be unreliable and I have given consideration as to the effect that that should have on her credibility and reliability.
5. His Honour went on to consider the complaint evidence and said this (p. 42): Of particular importance in determining this count is the complaint direction which I have given myself, and which I have set out above. In that regard, I remind myself that the question is: has the complainant acted in a way that someone would be expected to act if they had been sexually assaulted in the way that she says? Is that the sort of conduct that one would expect? What is the complaint evidence and does it accord with that description, namely, that she has acted in the way one would expect? I am satisfied that the following morning the complainant made an immediate complaint that she had been raped to her close friends. In that regard, I have no hesitation in accepting the evidence of Mr Saunders. He was straightforward, he was transparently honest, he considered both the complainant and the accused to be friends. Indeed, the accused had stayed with him after this incident. I accept his evidence that the complainant said, "Bob got nasty with me last night, and wouldn't let me out of the bedroom and raped me", and that was accompanied by showing him the torn pyjamas and some bruising. I reiterate that Mr Saunders was, in his somewhat quiet way, 100% sure that the word, "rape", was used. Similarly, Mr Claxton, in his statement, said that the complainant used the words, "Bob raped me". While there is some difference between Mr Claxton and Mr Saunders as to whether they were both there, or whether the complainant [sic] was made to each separately, it is clear and I accept that a complaint was made by the complainant to each one and that, notwithstanding the dates specified by Mr Claxton, that it is clear that he could only have been referring to this one particular occasion. That is important because I am able to use that evidence in two ways, and I do so use it. I find that the making of the complaint is some evidence in addition to that given by the complainant that the events did occur. It is also some evidence that assists in whether or not I should regard her evidence on this aspect as being reliable. It is important because it was submitted by Mr Murray that the complaint evidence cannot overcome the numerous inconsistencies to which I have referred above, which ultimately would persuade me that she is an unreliable and dishonest witness. There is the delay in the complaint to police, and that was an extensive delay, but given that this was not the first complaint being made to Claxton and Saunders, I accept her evidence her evidence [sic] that she did not say anything to police because of her embarrassment. As I have said -- the complainant is someone with significant drug and alcohol issues. Even by November 2012, she was in a relationship with the accused which was apparently violent, abusive, and dysfunctional. She said she felt degraded by what had happened. I accept that and I accept that it would not have been easy for her to tell a police officer about what had happened to her. Putting all those matters together, I have examined the evidence. I have borne in mind that there are the inconsistencies and I have borne in mind the potential unreliability which can flow from the findings I have made in relation to counts 4 and 5. Submissions have been made about both the honesty and the unreliability of the complainant. It seems to me that, for the reasons I have identified, there are obvious reasons why caution has to be exercised and why her evidence is or may potentially be unreliable. But I have looked at the various matters, I have taken into account the inconsistencies, I have seen and observed her and, while there are doubts that I have about aspects of her evidence and her reliability, I have not formed the view that she is a dishonest witness. In considering the Redfern incidents, it is true that there are a number of obvious and significant inconsistencies, for example, as to how and why the accused arrived at the Redfern flat. At one stage, she said in a statement it was because the accused had been evicted. That was not her evidence. In that regard, I note that in the police facts in relation to the Redfern incident, it is said that the police spoke to the hotel at which the accused had been living and he had been evicted on 28 November. But there are differences in the accounts, as I have said, as to why and how they turned up and even as to what the complainant had been doing earlier on in the evening. There is no doubt that there are different versions and there is also no doubt that there was a delay in making the complaint, but there is also no dispute that they were at Redfern on that particular evening, that they were, that is, the complainant and the accused, were in a bedroom, and, indeed, that there were acts which led to a charge of assault and contravening an AVO for which the accused pleaded guilty. As I said, having given myself the complaint direction, I am satisfied that the following morning the complaint was made and that is a matter of some significance. Ultimately, having considered all that evidence, having seen and heard the complainant, having seen and heard Mr Saunders, having given consideration to the extent to which other aspects of her evidence which suggest unreliability affect her evidence regarding counts 1 and 2, I am satisfied that I am able to rely on her evidence as to what took place in the room at Redfern that evening.
6. In assessing the significance of the reasoning of the trial judge set out above, it must be remembered that the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 stressed at 493 the importance of the jury (or here, the judge, as Filippou makes clear) being the body entrusted with the primary responsibility of determining guilt or innocence. That consideration provides a stronger brake on this Court reaching a view concerning the unreasonableness of a verdict where the judge, as here, set out in considerable detail how he has dealt with the inconsistencies in the evidence that give rise to the doubt in the first instance.
7. Further, the finding of guilt is not to be disturbed unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence is all one way, or the judge has misdirected himself on a matter of law as to result in a miscarriage of justice. There has been no misdirection in the present case and the evidence is not all one way. There is evidence to support the allegation made against the applicant, although it may be accepted that it is not easy to make consistent all the details surrounding the events.

Counts 1 and 2

1. Given his Honour's finding that he had no hesitation in accepting the evidence of Mr Saunders, the inconsistencies surrounding the detail assume considerably less importance. Cross-examination ultimately resulted in Mr Saunders being more certain than he was initially that the complainant had told him she had been raped. It was open to his Honour to accept Mr Saunders' evidence. Mr Saunders clearly made a favourable impression on the judge who described him as "transparently honest". In that regard, the trial judge had the advantage over this Court which can only read Mr Saunders' evidence in the transcript.
2. Further, additional support derives from Mr Claxton's statement. It may be accepted that the statement itself contains errors, particularly as to the year of the offending. However, it appears that the first time Mr Claxton was approached for his recollection of events was shortly before the trial, almost four years after the offending. The other error he made in his statement about when the complainant and the applicant first met (which he alleges occurred in 2015) more easily enables a conclusion to be drawn that the offending took place in the year they met, being 2012, and not 2015 as he said.
3. Although it was open to the defence to make the submissions concerning Mr Claxton's statement that were made, it was ultimately a matter for inference by the trial judge whether Mr Claxton's statement supported both the complainant and Mr Saunders. A consideration in that regard was the fact that the defence was prepared to allow Mr Claxton's statement to be tendered without his being cross-examined. There is no other evidence to suggest that there were two occasions when the complainant was sexually assaulted at Mr Claxton's premises. It cannot be said, therefore, that the trial judge's conclusions about what Mr Claxton's statement demonstrated were not open to him.
4. In the light of the acceptance by the trial judge of the evidence of Mr Saunders and Mr Claxton, and when his Honour provided detailed reasons for accepting the honesty and reliability of the complainant notwithstanding the inconsistencies in her evidence, the applicant fails to show that his Honour's conclusion as to the applicant's guilt in respect of counts 1 and 2 was not open to him.

Count 3

1. Two matters were said to point to the unreasonableness of the verdict with respect to count 3. The first matter was the inconsistent statements made by the complainant in relation to the type of knife used by the applicant and the confusion about the dates when this incident occurred in relation to the incidents the subject of counts 4 and 5. The second matter concerned the complaint to Ms Smethurst.
2. His Honour acknowledged the inconsistencies in relation to the knife. He said (at p. 20): In relation to the knife incident, the complainant was cross-examined about having given different descriptions of the knife. In her evidence, she described it as a, "pirate knife", or a, "banana-shaped", knife. In her 21 July statement, she described it as a, "serrated knife". At various points in her evidence, she said it was not a serrated knife and, again, in her interview of 14 September she described it as a large hunting knife. In relation to the knife incident, the shotgun incident, and the Lake Haven incident, again, the complainant was cross-examined in her evidence about whether or not the man, Alec, was in the flat at the time and it was contrasted with her interview of 14 September 2015, where there is no mention of anyone being present in the flat at the time. Attention was drawn in her evidence to the fact that she said that the shotgun incident, the knife incident, and the Lake Haven incident occurred on the same night and the shotgun and knife incidents occurred when Alec was present. In her evidence at page 68 line 20, the complainant said that another man was with the accused when he entered with a shotgun, whereas it was put to her that she had never referred to another man being present prior to giving evidence. She said that was because she had never been asked.
3. When his Honour later came to consider count 3 he said (at pp 39-40): I turn now to Count 3. In relation to Count 3, the complainant said that there was only one occasion on which she was cut on the throat by the accused. She said that she showed it to her neighbour the next day. In my view, that evidence is corroborated by the evidence of Ms Smethurst. Ms Smethurst said that in early July 2015 the complainant appeared to be distressed, showed her a mark on her neck which was a couple of centimetres long and said, "Look at what he's done". She did not say anything else and left almost immediately. It was submitted by Mr Murray that it was simply speculation to conclude that she was referring to the accused, given, for example, that the complainant's son also goes to the unit. In my view, it is not speculation that the reference was to the accused. It is difficult to interpret the reference as being to anyone other than the accused, given the tendency evidence, the statements made by the accused in his record of interview about how he is a, "knife person", the uncorroborated evidence that the relationship was a violent and abuse one, and the absence of any evidence that the complainant's son was violent towards her. Mr Murray also submitted that, in determining whether the Crown had proved Count 3 beyond reasonable doubt all the evidence had to be considered, including the description of the knife by the accused. As I have said, in that regard, particularly, Mr Murray's submission was that one cannot prove this count by cherry picking the facts. In the statement of 21 July 2015, the complainant described the knife as a, "serrated knife about 30 to 50 centimetres long" and "a large hunting knife". When asked about this description, she said at p 33 line 22 and following that it was not "sherrated(as said), a pirate's knife". She went on to say, "I'm talking about the big, long knife, the pirate's knife'. She also said at p 34 line 41 that it was a pirate's knife, but one where one side was smooth and one side was "a little bit jagged". She also said, at p 33 line 10, "I just explained how roughly - I'm just guessing how long the knife is. At one end, it was all completely plain and clear and the other side has just got a few jagged edges". It is not at all clear to me that these descriptions are all entirely inconsistent. In any event, in my view, those descriptions that I have set out above are not matters which ultimately affect, in my view, the reliability of the evidence as to the nature of this incident. (emphasis added)
4. In relation to the complaint evidence of Ms Smethurst, the main point made by counsel for the applicant at the trial was that that Ms Smethurst's evidence related solely to the complainant's statement, "Look what he has done". It was suggested that the complainant did not name the applicant, and that "he" might have been the complainant's son.
5. Ms Smethurst gave her evidence by the Crown Prosecutor leading her through her statement. At the outset the Crown Prosecutor indicated that he understood there was "no problem with me paraphrasing", and counsel for the applicant agreed.
6. The cross-examination, in its entirety was as follows: Q. Madam you know Robin as Bob, don't you? A. Yes I do. Q. Since Bob lived with Lynne you have never seen anything to say that it was not a pleasant thing in Lynne's life, have you? A. No, not really, at the time no. Q No? A. No. Q. And she never at any time said that Bob put the mark on her neck, did she? A. No. Q. She never said that Bob gave her a black eye, did she? A. No. Q Or bruising under her eye? A. No, not at the time, no. Q So she has never told you that Bob did anything to her, has she? A. Not at the time, no. … Q. Let me read what you said to the police, "Lynne was crying and upset, showed me a mark on her neck. Lynne said 'Look what he has done" correct? A. Correct, yeah. Q. Never mentioned Bob's name? A. No. Q. And when the bruise was under her eye she never mentioned Bob's name? A. No. Q. Did you know her son Adam? A. Yes I did, yeah. Q. A fellow about 6 feet 5, 6 feet 6 tall? A. Yes. Q. And you would agree with me if I said that when he was there, there was often noise? A. Not - yeah sometimes.. Q. Arguing? A. Not arguing. I haven't heard him and his mum argue, no. Q. You heard his voice raised though, haven't you? A. I've heard him, I've heard him speak to his - he's got a dog, he speaks to the dog I don't - I don't recall him actually yelling at his mother, no I don't Q. So you never heard Bob yell at Lynne either, had you? A. I didn't, no, no. Q. And indeed you say that when you were in Bob's presence he treated you with kindness and respect? A. Bob, yeah he did back then, yeah, I said that, yeah. Q. And you have only ever seen him treat Lynne with kindness and respect as well, haven't you? A. And yeah in my home yeah he - he - when they were there together, yeah. Q. Never heard sounds, you are a woman 60 years of age? A. 61, yeah. Q. 61? A. Mm. Q. You have got a lot of experience in life? A. Yeah. Q. You have certainly lived near people who are neighbours who have domestic problems? A. Mm, yeah. Q. Over your time, haven't you? A. Yeah, yeah. Q. That wasn't the household you lived next-door to with Robin and Lynne, was it? A. Well no I didn't hear anything Well if anything did happen behind closed doors I didn't hear it as at - at that time, no I didn't.
7. His Honour's conclusion that it was not speculation that the reference to "he" was a reference to the applicant, was open to him on the evidence. His Honour was entitled, when considering that matter, to have regard to the complainant's evidence that she had told Ms Smethurst about the knife incident. Her evidence was that she said to Ms Smethurst, "Look what he's done to me now". There was no evidence at the trial that could enable any inference to be drawn that the complainant's son might have injured her. As can be seen from the cross-examination, all that was suggested to Ms Smethurst about the complainant's son was that he and the complainant had argued, but Ms Smethurst denied it. Nothing else was put to her to suggest any violence on the part of the son.
8. During the cross-examination of the complainant, questions were asked of her concerning the death of her brother in 2006. His Honour intervened to enquire of the relevance of the questions. In the absence of the complainant, counsel for the applicant said this: MURRAY: My instructions are that in around 2013/14 this witness and her son were present with my client at the witness' home when they discussed that her son, Adam had killed her brother, and he confessed to having bashed the brother and killed him in Sydney and that was said in front of my client. There was further discussion about how this witness had been taking money of his and that they were concerned, because my client had recorded the conversation, they were concerned that my client would cause them some problems and the suggestion that I'm putting to her is that she is attempting to discredit and imprison my client for that reason. HIS HONOUR: For what? What's the reason? MURRAY: Well I can't comment on the sense of that but I can only put to you that that is what my instructions are. My client reported that conversation to police at the MRRC remand centre when he was taken into custody and a police officer came in and took a recording after he reported it to Crime Stoppers. CROWN PROSECUTOR: I struggle to see the relevance, but in any event it has been asked and denied. HIS HONOUR: All right I will allow it, I will allow it, but you might just bear in mind when you are questioning her the nature of the questions and what is being brought up with her. All right. CROWN PROSECUTOR: Your Honour I would object to anything further along the lines. The proposition has been put to her and she's denied it. Unless there's going to be-- MURRAY: I will leave it at that.
9. The only further mention of the complainant's son was the matter put to Ms Smethurst, and the suggestion in submissions that "he" might be a reference to the son. His Honour was entirely correct in saying that it was not speculation that the reference to "he" was a reference to the applicant. What would amount to speculation, in the light of the evidence, would be that the person referred to was in fact the complainant's son.
10. His Honour concluded in relation to Count 3 (at p. 41): In relation to Count 3, as I have set out above, what the Crown needs to prove are the elements of the charge. In relation to that particular count, the Crown has to prove that the accused used an offensive weapon, namely, a hunting knife, with intent to commit an indictable offence, namely, intimidation. An offensive weapon, for these purposes, is one that in the circumstances is used, or intended to be used, or threatened to be used, for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. I am satisfied that the knife used was an offensive weapon.
11. The different descriptions of the knife used were subsidiary to what the Crown had to prove. The offensive weapon in the indictment was said simply to be a knife, not a hunting knife (his Honour correctly recited the terms of the indictment at the commencement of his judgment). His Honour had the complainant's evidence that the applicant used a knife to cut her on the neck. His Honour had the complainant's evidence that she told Ms Smethurst and showed her the wound. His Honour had Ms Smethurst's evidence of what the complainant said to her, and her evidence of seeing the wound. He had the applicant's ERISP where he disclosed his fascination for knives. The applicant fails to demonstrate that it was not open to his Honour to find the count proved on that evidence, notwithstanding inconsistencies in the description of the knife used.
12. In my opinion nothing is shown to indicate that the verdict in relation to count 3 was unreasonable.

The acquittal on counts 4 and 5

1. When his Honour came to discuss counts 3, 4 and 5 he said this (pp 36-39): In relation to those three counts, there is a difficulty. The difficulty is that in her evidence, the complainant said that these three incidents all occurred on the one evening as an unfolding course of events. This is contrary to the statement she first gave to police on 21 July 2015. As I have said, in that statement she said that the knife incident, Count 3, occurred in March 2015 within about two weeks from the accused's release from gaol. She said that the Lake Haven incident, Count 5, occurred at the beginning of May 2015. She said that the shotgun incident, Count 4, occurred at about 20 June 2015. In other words, when she first spoke to police she said there was about a month between the knife incident and the Lake Haven incident, and a further six weeks between the Lake Haven incident and the gun incident. The complainant appears to have adopted the statement and the chronology of events in the interview of 14 September 2015, when her statement was read out to her by her friend and support person. After the statement was read out to her she said, "That's exactly what happened". A further difficulty in relation to the complainant's evidence is that, after the day on which the three incidents allegedly all occurred, she travelled to Sydney and complained to her daughter. The complainant was adamant that she told her daughter that the accused had raped her, this being a reference to the Lake Haven incident. So that chronology, according to the complainant, then, is as follows. The knife incident, the gun incident, and the Lake Haven incident all occurred on the one day. The following day, she travelled to Sydney and made a complainant about being raped to her daughter. The following day, 21 July 2015, she went to the Redfern Police Station and made a statement on her version of events, which occurred only two days earlier. There are two problems with this version of events. The first is that, according to Melanie King, the complainant's daughter, the complainant did not complain of being raped, nor of the knife incident, nor of the gun incident. The complainant stayed with her daughter for a week, yet made no mention of any incidents of a gun or of the sexual assault. The complaint she did make was of the following: 1. That he kept her hostage; 2. That he had knives; 3. That he made her do things; 4. That he was intimidating and controlling; 5. That he made her have oral sex and ejaculated on her face; and 6. That if she refused, he said that he would cut her up. The second problem is that the complainant did not go to the Redfern Police Station and say, "These things have happened to me two days ago". As I have said, she went to the police and gave a version of three events occurring on three separate dates at least a month apart from each other. Further, she told the police that the most recent of the events occurred on 20 June, that is, one month before she spoke to the Redfern police. Inferentially, there was nothing that had occurred within the four weeks preceding her speaking to the police. While counts 3, 4, and 5 all specify the alleged offence as occurring between 16 March 2015 and 21 July 2105 [sic], in order to convict the accused I would have to be satisfied beyond reasonable doubt that those offences, taken together, occurred in the way alleged by the complainant, that is, part of one evening's unfolding events. In relation to counts 4 and 5, the Crown Prosecutor, as I have indicated, accepted that there is no corroboration of the complainant's account. While I accept, of course, that it is not necessary for the complainant to be corroborated in order to convict the accused, nevertheless, in circumstances where there are flaws and inconsistencies in a complainant's account, the absence of corroboration can be significant. I do not accept the complainant's evidence that she complained to her daughter of being raped. This is a complainant which would have been remembered by Ms King. I accept, rather, that the complainant complained in terms set out in Ms King's statement of general abuse of such seriousness that Ms King told her mother to go to the police. I will return in a moment to give separate consideration to the knife incident, that is, Count 3. Ultimately, it is difficult to know what to make of the complainant's evidence in relation to counts 4 and 5, the gun incident and the Lake Haven incident. It may be that the incidents occurred in much the way described in the complainant's statement to the Redfern police. It may be that her evidence was confused, had become jumbled in the stress, anxiety, and anger that she occasionally exhibited in giving evidence. Whatever the explanation, for the reasons I have given, evidence in relation to counts 4 and 5, in my view, is unreliable and that unreliability is not overcome by the tendency evidence and I am not, therefore, satisfied beyond reasonable doubt of counts 4 and 5. (emphasis added)
2. His Honour has provided detailed reasons why he could not be satisfied beyond reasonable doubt regarding the offending constituting counts 4 and 5. The absence of corroboration was a significant matter, as was the daughter's different account of what the complainant allegedly told her daughter. It is not difficult to understand why the tendency evidence was not sufficient to overcome the difficulties with the complainant's inconsistent accounts. That may be contrasted with the corroborative evidence from Mr Saunders, Mr Claxton and Ms Smethurst, all of which the trial judge accepted.
3. This Court has recently considered the nature of the enquiry to be made where there are apparently inconsistent verdicts: AH v R [2019] NSWCCA 152. Justice Simpson reviewed the various authorities in this Court and the High Court at [53] to [62]. I am satisfied that the trial judge's reasoning which led him to the acquittals for counts 4 and 5 is in accordance with those authorities, and that no error is demonstrated by reason of the convictions for counts 1, 2 and 3 notwithstanding the acquittals on counts 4 and 5.

Orders

1. I propose the following orders: 1. Grant leave to appeal against conviction with respect to ground 1. 2. Refuse leave to appeal with respect to ground 2. 3. Dismiss the appeal.
2. FAGAN J: I agree with Davies J.

Amendments 26 July 2019 - Paragraphs [11] and [64] amended. 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: 26 July 2019