Tsaccounis v R

Tsaccounis v R - [2016] NSWCCA 163 - NSWCCA 2016 case summary — Zoe

Judgment

HOEBEN CJ at CL: Offences and sentence On 29 January 2014 the applicant was arraigned on an indictment which charged 13 counts of various acts of violence and sexual assault against his former domestic partner (the complainant). The applicant pleaded not guilty to all counts and on 14 February 2014 the jury found him guilty of 9 of those counts, being counts 3, 4, 5, 7, 8, 9, 10, 12 and 13. He was acquitted of counts 1, 2, 6 and 11.
The indictment was in the following terms: Count 1 - Between 31 July 2008 and 1 September 2008 at Sydney in the State of NSW did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing she was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW). Count 2 - Between 28 February 2011 and 1 May 2011 at Sydney in the State of NSW did assault [the complainant] thereby occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. Count 3 - On or about 4 June 2011 at Sydney in the State of NSW did assault [the complainant], contrary to s 61 of the Crimes Act. Count 4 - On or about 4 June 2011 at Sydney in the State of NSW did assault [the complainant] thereby occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. Count 5 - On or about 17 July 2007 at Sydney in the State of NSW recklessly did cause grievous bodily harm to [the complainant], contrary to s 35(2) of the Crimes Act. Count 6 - Between 31 July 2011 and 1 September 2011 at Sydney in the State of NSW did assault [the complainant] thereby occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. Count 7 - Between 31 July 2011 and 1 September 2011 at Sydney in the State of NSW did assault [the complainant] thereby occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. Count 8 - Between 30 September 2011 and 1 November 2011 at Sydney in the State of NSW did attempt to choke [the complainant] with intention of enabling himself to commit an indictable offence, namely to intimidate [the complainant], contrary to s 37 of the Crimes Act and s 13 Act No 80 of 2007. Count 9 - Between 1 October 2011 and 31 October 2011 at Sydney in the State of NSW did assault [the complainant] thereby occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. Count 10 - In between 1 October 2011 and 31 October 2011 at Sydney in the State of NSW did have sexual intercourse with [the complainant] without the consent of [the complainant] knowing she was not consenting to the sexual intercourse, contrary to s 61I of the Crimes Act. Count 11 - On or about 28 November 2011 at Sydney in the State of NSW did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing she was not consenting, contrary to s 61I and s 344A of the Crimes Act. Count 12 - On or about 28 November 2011 at Sydney in the State of NSW did assault [the complainant] contrary to s 61 of the Crimes Act. Count 13 - On or about 9 December 2011 at Sydney in the State of NSW did have sexual intercourse with [the complainant] without the consent of [the complainant] knowing that she was not consenting, contrary to s 61I of the Crimes Act.
The offence of common assault, contrary to s 61 of the Crimes Act (Counts 3 and 12) carries a maximum penalty of imprisonment for 2 years. The offence of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (Counts 4, 7 and 9) carries a maximum penalty of imprisonment for 5 years. The offence of recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act (Count 5), carries a maximum penalty of imprisonment for 10 years with a standard non-parole period of 4 years. The offence of attempt to choke with intent to commit an indictable offence, contrary to s 37 of the Crimes Act (Count 8) carries a maximum penalty of imprisonment for 25 years. The offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act (Counts 10 and 13) carries a maximum penalty of imprisonment for 14 years with a standard non-parole period of 7 years.
On 16 May 2014 Whitford DCJ sentenced the applicant to an aggregate sentence of imprisonment for 9 years and 4 months, commencing 19 December 2013, with a non-parole period of 7 years expiring 18 December 2020 with the balance of term expiring on 18 April 2023.
The applicant has appealed against his conviction on the following grounds: Ground 1 - The verdicts of guilty cannot reasonably be supported on the evidence (i.e. are the verdicts are unsafe and unsatisfactory). Ground 3 - His Honour erred in respect of his directions on Count 8 in that he directed the jury that recklessness satisfied the necessary intent. Initially the applicant relied upon other grounds to appeal against his conviction, but these were abandoned before hearing.
The applicant also seeks leave to appeal against his sentence on the following ground: Ground 7 - His Honour erred in failing to find special circumstances. As with the appeal against conviction, the applicant initially relied upon other grounds but these were abandoned either before hearing or at the hearing of the application. Evidence at trial
The complainant was 31 years of age at the time of trial. She is 160cms tall and she weighed approximately 60kgs at that time. She first met the applicant at the Oatley Hotel in Bexley on a Friday night between her 26th birthday (June 2008) and his 30th birthday (July 2008). The applicant and the complainant became friends on Facebook. Approximately a week after their first meeting, they went out together and had pizza at the Oatley Hotel. The complainant recalled having a glass of wine at the hotel. The next thing she recalled was waking up in the applicant's bed at the workshop where he lived. She was naked and lying on her back. There was some light in the room coming from the television. The applicant was kneeling on the bed. He was next to her head and shoulders on her left hand side. He leaned over her and tried to put his penis into her mouth. His penis was 10-15cms away from her mouth. It touched her lip and then she passed out. In cross-examination she said that she did not remember if she said anything to him. She denied willingly removing her clothes at the factory. She did not participate in consensual fellatio. This was the evidence relating to Count 1.
The complainant did not recall anything else about that night. The next thing that she recalled was going to work at Coles at Earlwood the following day. She recalled being in the car-park at Coles where she spoke to Brent Henry, a work colleague. She told him what had happened the night before, but she did not recall exactly what she said. On a couple of subsequent occasions, the complainant went to the applicant's factory to watch movies. She did not stay there overnight, she stayed until 2 or 3am. She did not have anything to drink.
The applicant and the complainant commenced sharing a house as housemates, occupying separate bedrooms, from about December 2009. In mid 2010 they moved to a property at Rossmore. From about December 2010 their relationship developed to a point that they were living as a couple in an intimate relationship. Towards the end of 2011 they moved from Rossmore to a property at Taren Point.
The complainant gave evidence of an incident that occurred in March or April 2011. She said that Carlos Benny, an employee of the applicant, was staying at their home and he and the applicant were building a boat together. The complainant recalled a night when they were sitting outside. Mr Benny and the applicant had been drinking alcohol since after lunch and they were both intoxicated. The applicant had a Rhodesian Ridgeback dog which was big and boisterous. The dog jumped on Mr Benny and he punched the dog in the crotch. The dog went away. The applicant was angry at him. A couple of hours later they were in the lounge-room when Mr Benny dropped a glass onto his foot. The glass broke and he cut his foot. The complainant bandaged his foot and Mr Benny then went to sleep in the spare room.
The complainant was in the kitchen. The applicant was angry with her and accused her of flirting with Benny. He punched her with his right fist on the left side of her head and her eye. Five to ten minutes later, he punched a hole in the wall. The complainant could not recall what happened in between the two punches. The spare bedroom was 4 to 5 metres from the kitchen. The complainant did not scream when she was punched. She did not yell Benny's name. When she looked at her face the next morning, she had a puffy eyelid and bruises on the left side of her face. She also sustained swelling and bruising to the left side of her head and bruising on her arms. Over the next few days, she experienced very bad headaches. Benny was still in the house and the complainant saw him, but did not speak to him. Benny did not ask the complainant what happened to her face. The complainant did not tell anyone about this incident.
The complainant had given evidence about this incident in a previous trial which took place in May of 2013. She was cross-examined as to inconsistencies between the evidence she gave on that occasion and the evidence she gave in this trial. Specifically, in the earlier trial the complainant said that in the course of the assault by the applicant he dragged her into the garage and then slapped her in the face with his right hand so hard that she fell against shelving. She said that he dragged her back again and slapped her in the face on another two occasions. There were some other discrepancies of a relatively minor kind as to whether certain things happened outside the house or inside. The complainant explained the difference in her evidence because she was confused when she gave evidence on the previous occasion but she was not confused when she gave evidence in this trial. That was the evidence relating to Count 2.
The complainant gave evidence that on Friday 3 June 2011 it was her sister's birthday. On that night she was at home with the applicant and his friend, Marty Greg. The applicant and Mr Greg had been working on a boat engine together. They were drinking during the day. The complainant said that she had drunk Wild Turkey and Coca-Cola, but was not intoxicated. She described the applicant as "more than tipsy" and that he was swaying a bit when he was walking. She denied that the applicant and Mr Greg were wrestling inside the house and refused to stop when she asked them. She denied that she threatened to call the police and that the wrestling was the reason why she did in fact call them.
The complainant said that Mr Greg went to sleep in the spare room at around 3am. The spare room was four to five metres from the kitchen. She was in the kitchen cleaning up. A few minutes later, the applicant came into the kitchen and accused her of flirting with Greg. He began to throw glasses and bottles, smashing them on the kitchen floor. He grabbed the complainant by the shoulders and pushed her into a wall next to the fridge. He then dragged her by the hair into the garage and she later realised that some of her hair had been pulled out. The applicant slapped her on the left side of the face and she was projected into shelving in the garage. The applicant slapped her three more times and she passed out.
The complainant said that when she regained consciousness she saw what she described as "blood everywhere". The applicant had apparently cut himself on the broken glass on the kitchen floor. He dragged the complainant to the shower, pushed her into the shower clothed and turned the cold water on fully. She was under the cold shower for about three minutes. The complainant made a triple 0 call and said "I live at 106 Graham Road Rossmore. Please come, he's trying to kill me". She then took the cordless phone, went into the backyard and called triple 0 again, about a minute after the first call. She asked for the police and gave her name and address and hung up. She then took her car keys and got into the car. She drove about 40 metres and then realised that the petrol light was flashing, meaning that the car was almost out of petrol. She drove back to the house. The applicant came towards her and asked "why are the police calling your phone?"
The complainant and the applicant went back inside the house and the police arrived approximately 5 - 10 minutes later. The applicant told the complainant to put on a jumper, which she did, as her clothes were wet. The applicant instructed the complainant to tell the police that nothing was wrong and they went out to speak to the police. The complainant said "I had a nightmare and I was sleep walking". She did not tell the police the truth because she was terrified. She was afraid that "it would have been worse for me". When they returned inside the house, the applicant asked the complainant why she had called the police, but she did not answer him.
The attending police officers gave evidence at the trial. They had not made any notes of their attendance and their evidence was based on their recollection. They were of the opinion that the three persons they spoke to were affected by alcohol. They both said that the light was poor. They did not observe that the complainant's clothes were wet. When they asked the complainant whether she needed help, she declined.
[By way of interpolation, the complainant is a small woman. In contrast, the applicant is a large man with a height of between 185 - 190cms, weighing 100 - 105kgs. The tone of the complainant's voice when making the second of the triple 0 calls is consistent with her being genuinely afraid.] This was the evidence concerning Count 3.
The next morning the complainant went to the kitchen to clean up the mess before returning to the bedroom and lying next to the applicant on their bed. The applicant was kneeling on the bed and punched the complainant to the face and body with his left and right hands about ten times. While he punched her, the applicant said "Why did you call the police? What were you trying to do to me?" Later that day, the complainant noticed that she had bruising to her face around her eyes and also to her arms. Sometime later, when she returned to the bedroom, the applicant commenced hitting her again with both of his hands. He slapped and punched her face for about three minutes. He then stopped and began to cry. He said "I love you so much but you make me so angry. I can't do this anymore". The complainant did not leave the bed and she did not try to get away from the applicant.
A few hours later, the complainant's phone rang. She could see from the caller ID that it was her family ringing. She did not answer the phone. The complainant's family came to the house and called out her name from outside. She saw them and she heard them shouting. She did not respond. The applicant said "don't say anything". After about ten minutes her family left the premises.
The complainant was shown six photographs that were taken at the applicant's birthday on 2 and 3 July 2011. She agreed that no injuries were visible in the photographs. She did not know if she had commenced working at the childcare centre when the photographs were taken. This was the evidence relating to Count 4.
On Saturday night 16 July 2011 Dale and Mandy (surnames unknown) and Carlos Benny were visiting the house at Rossmore. They were all drinking alcohol and were intoxicated. The applicant, Dale and Benny were quite intoxicated and Mandy was "tipsy". The complainant was less intoxicated than the applicant and was aware of what was going on. At about 6am the next day, Dale told the complainant that he and Mandy were going to leave. The complainant attempted to wake up the applicant but was unable to do so. Eventually when the applicant woke up he appeared angry. Once Dale and Mandy had left the house, the applicant pushed the complainant into the lounge and she ended up lying on it. She could not get up because the applicant was standing over her. He did not say anything to her but punched her in the left eye with his right fist. The complainant heard a popping sound and felt excruciating pain. She did not recall if she screamed. She felt her face swell around her left eye. The applicant grabbed the complainant by her shoulders and shook her. He then dragged her by her arms into the bathroom. She did not call out for Mr Benny, even when the applicant dragged her past his bedroom door to the bathroom. He held her by the ears and her hair and banged her head into the tiles in the bathroom three times. He punched her nose with his right fist and her nose began bleeding. He was standing just centimetres away from her and said "Stop your nose from bleeding, you're making me angry". The complainant then ran some cold water over her nose and her face. As she stood up, the applicant punched her in the left side of her mouth with his right fist. She sustained a cut to her lip, a swollen mouth and painful teeth. He then dragged her into the lounge-room. She tried to open the door to Mr Benny's room but was pulled away. The applicant said "he can't help you".
The applicant sent the complainant outside to look for cigarettes in the car. She wanted to drive away but the car would not start. She did not walk out onto the road, she did not call anyone from her mobile phone as she had no phone credit. She agreed that she could have called triple 0 from her mobile phone without credit but was too scared to do so. She could not call anyone from the home phone as it was disconnected.
When the complainant returned to the house, the applicant said "You know not to leave me if anyone else is in the house. You know not to leave my sight … You can't leave. You can't leave your room while you look like this". The complainant lay on the bed next to him, even though he had just assaulted her.
When the complainant got up and looked at her face in the bathroom mirror, her eyes were swollen shut and her face was swollen. Her eye was full of blood and she was in a lot of pain. At about 5 or 6pm the applicant apologised to the complainant. The following day he came into her room. He was crying and said "I'm so sorry I can't believe I did this to you. I'm going to get some help. I'm going to get some money and we're going to go on a holiday". He kept repeating "I'm so sorry I did this to you, I'm so sorry". The complainant stayed in the room for about one and a half weeks until Benny left the house. During that time the applicant brought her food to eat. She did not tell anyone what had happened to her.
At the time of this incident, the complainant worked as a carer at a childcare centre. She was unable to return to work for one and a half to two weeks. She attended a medical centre at Prestons on 26 July 2011 in order to obtain a medical certificate for being absent from work. Before she attended the doctor, the complainant Googled "bloody eye". She also applied makeup to her face to cover her bruises. The applicant drove the complainant to the centre as she was "not allowed" to go there by herself. The complainant saw Dr Saakar at the medical centre. She told her that she blew her nose too hard and had a subconjunctival haemorrhage. Dr Saakar asked the complainant if she had been struck and she said "no". She was afraid to tell the doctor the truth so she lied about her injuries. The applicant was waiting for her outside the medical centre and she was concerned that if she told anyone what happened he would kill her.
The complainant worked at the childcare centre for about two and a half to three months. She was not sure of the dates when she started and finished her job there. She agreed that she had trouble with her sinuses while she was working at the centre. Some months later the complainant underwent x-rays and a CT scan. They showed that she had a fracture to the lower floor of her eye socket and that her sinus cavity was full of blood or liquid. She denied suffering any injuries as a child, teenager or young woman that involved an impact to her face. She did not suffer any fractures to her eyes or nose, other than those caused by the applicant. This was the evidence in relation to Count 5.
In August 2011 the complainant went camping at Port Hacking with the applicant and his cousin, Yiannie Orfanos. She knew him because he lived a few houses away from them in Rossmore. He sometimes "dropped in" to see them after work and he often stayed for dinner. On this occasion they stayed in a tent at Port Hacking. The applicant drank alcohol during the day. During the evening he drank vodka and fruit juice. He became quite intoxicated. The complainant agreed in cross-examination that she had drunk a glass and a half of a vodka fruit juice mix which the others were drinking. The complainant was not sure how much Orfanos had to drink, but it was not a lot.
When the applicant and the complainant were alone in their tent, he became angry and accused her of flirting with Orfanos. The applicant and the complainant were both standing up. The applicant pushed her backwards and she fell. She landed with her back on an Esky. The complainant was concerned that Orfanos would hear the noise so she said "It's okay, I just tripped" but the applicant said "no, I pushed you". She did not go outside to ask Orfanos for help. She did not leave the tent until the next morning. She did not discuss the incident with the applicant or Orfanos the next morning. She did not tell anyone about it when she got back home. She suffered "massive bruising" on her back, going from the top of the left shoulder blade down to her right hip. The bruises were there for a week. She said that she could not recall for how long the visible signs of this injury remained on her body.
Orfanos was called by the Crown at the request of the defence. He said that he had spent much of his time down at the river fishing. He did not hear the applicant and the complainant having an argument, he did not observe that the complainant had suffered any injury. This was the evidence relating to Count 6.
At some time in August 2011 while they were at Rossmore, the applicant became angry with the complainant after she ate a piece of pizza which was left over from their meal the previous night. It was night and the applicant was very intoxicated. He slapped the complainant on the face about 20 times with his left and right open hands. As he was hitting her, the applicant was saying repeatedly "Did you eat my pizza, did you eat my pizza?" The complainant responded each time that she had eaten the pizza. The applicant then hit the complainant's head against the oven door a couple of times, after which he opened the oven door and slammed it with such force that the glass in the front of the oven shattered all over the kitchen floor. He then pushed the complainant onto the tiles and she landed on some of the broken glass from the oven door and banged her head on the floor. She had some glass lodged in her elbow and the applicant cut his foot. The complainant ran to the car with her keys, but the applicant took the keys from her and threw them into the grass. The injuries suffered by the complainant included bruising to the face, a lump on the back of her head and glass in her elbow. This was the evidence relating to Count 7.
In October 2011 the complainant and the applicant were at home. The applicant had not been drinking. It was about 4am and he was working on the computer, setting up a Facebook page for his business. The complainant was sitting to his left and was falling asleep. She was playing music in the background. The applicant was not happy about that and said "What's wrong with you, you're ruining my life, I should chuck you away you bloody moll". He said that all of her music was bad and started to snap her CD's into pieces. He then grabbed her by the arm and threw her across the room into the breakfast bench. She ended up leaning on the bench with her buttocks and thighs against the bench. Her thigh was sore and was swollen. He put his hands around her throat and his thumbs behind her windpipe. He lifted her slightly off the ground and started to choke her. She subsequently had bruises around her neck. Her toes were still touching the floor when the applicant lifted her off the ground. She did not scream out in pain during the incident. She could not breathe. The applicant said "This time I'm going to make sure you can't tell anybody". She did not tell anyone about it. This was the evidence in relation to Count 8.
The applicant let go of the complainant's throat. He grabbed her hair and dragged her from the kitchen into the lounge-room. She was standing on the left side of the fish tank when he slapped both sides of her face with his right hand. She was projected to the other side of the room and fell to the ground. The applicant said "Get up". He pulled her by her hair, then grabbed her by the hair and ears before banging her head into the wall three times. He then banged her head three times into the adjacent wall, leaving holes in the wall. The complainant was scared that the applicant was going to kill her and she wet her pants. This was the evidence concerning Count 9.
The complainant told the applicant that she needed to go to the toilet. She ran to the toilet and one minute later, the applicant followed her there. He asked "What do you have on you? What are you hiding? Do you have your phone on you?" He felt her body. The applicant dragged the complainant by her hair into the room where she stored her clothes. He said "This isn't a room of a girl, look at this shit everywhere. You're a piece of shit". The applicant rammed the complainant's head into the bedroom wall three times. He pushed her across the room into the wall. The complainant passed out in the bedroom.
The complainant next recalled waking up on the lounge. She was naked, lying on her side in a foetal crouching position. She felt "excruciating pain" and realised that the applicant's penis was in her anus. The pain continued for two or three minutes. She screamed in pain. The applicant was not restraining her, but she did not try to move away. She was in shock. She yelled "Stop, stop, please just stop" but he kept going. After a couple of minutes, he ejaculated and withdrew his penis. He rolled over and went to sleep on the lounge. This was the evidence relating to count 10.
The following morning, the complainant saw the injuries to her head, face and neck. She did not examine her anus for injuries but was unable to defecate for three days. The applicant told her "You'll be all right, just put some makeup on" and he sent her to the shops to buy him cigarettes. The complainant left the house to get cigarettes. She did not drive to the police station while she was out because she was scared. She did not tell anyone about what had happened. The complainant did not recall showering before she left the house.
As a result of this incident, the complainant sustained bruises to her neck and the side of her head. She also had hand-marks around her neck. A few days later, she went to the childcare centre where she had previously worked. One of her colleagues, Sharlene, said "What happened to you? Who did this to you?". The complainant replied "He hit me". The complainant then drove back to Rossmore. She did not go to her parents' house, nor to the police to seek help. She did not tell Sharlene about the sexual assault. She did not remember if she ever told Sharlene that she was clumsy and bumped into things. That was not the truth. She may have said it to explain how she came to be bruised.
On or about 15 November 2011 the complainant and the applicant moved to Production Avenue, Taren Point. Before they moved to the new address, the complainant patched up the holes in the wall of the Rossmore address, where her head had gone through the wall and where the applicant had punched the walls. They painted the patched walls so they matched. The oven also had to be replaced because it could not be fixed.
On Sunday 26 November 2011 there was a party at the Taren Point home for one of the applicant's friends who was setting up a new business. The applicant's parents were there, as well as a friend of the applicant called Chris. The applicant was "quite drunk". The complainant only had one drink. At about 2.30am Chris went to move his car. He was intoxicated and scratched the side of the applicant's boat with his car. The side panel of his car was damaged. The applicant told Chris not to worry about it and the guests left the party.
At around 2.30 - 3am, about 20 minutes after all the guests had left their house, the applicant and the complainant went upstairs. The applicant lay down on the air mattress and the complainant sat on the floor. The applicant said "Get away from me, you f…. bitch" and he pushed her away. He then pulled her close and punched her left temple with his right fist. The punch did not leave a bruise but it hurt her. The applicant said "I'm sorry, I'm sorry" so the complainant remained next to him and did not leave the room. He hugged and kissed her and said "Take off your top". The complainant removed her top and her bra. He then said "I didn't tell you to do that, put your bra back on", so the complainant put it back on. The applicant said "That's a disgusting bra" and ripped it off her. He then ripped off her pants. The applicant grabbed the complainant's head and pushed it towards his flaccid penis. His penis was near her mouth. In cross-examination she said that her lips touched his penis for a couple of seconds. He then pushed her head away and vomited on the floor. The complainant brought him a bottle of water and he drank some water. He vomited again and then went to sleep. This was the evidence relating to Count 11.
The following morning the complainant went downstairs. She cleaned up, walked the dog and made breakfast. The applicant came down the stairs and appeared to be in a good mood. He asked her "What's wrong with you?" and she replied "I wanted to stay away from you after what happened last night". The applicant became angry. He asked "Why are you bringing up shit from last night?" The complainant went upstairs and the applicant followed her. She told him that she wanted to leave the relationship. He said "If you want to leave, then leave". The complainant said "I'll just go grab my bag". The applicant grabbed her shoulders and slammed her against the wall. She sustained hand marks on the top of her arms. They looked like "brown spots". He then grabbed her ears and her hair and rammed her head into the wall. The applicant asked "Why do you have to make me angry. You know I like it quiet in the morning".
There was a knock at the front door. The applicant grabbed the complainant's cheeks. He told her not to cry and to "act normal". The applicant's friend Chris was downstairs at the front door. He had brought coffee for the applicant. The complainant remained upstairs and the applicant went down to open the door. About 10 minutes later, the complainant went downstairs. Her face was red from crying but it was not bruised. She did not recall for how long Chris remained in the house. Later that day the applicant apologised and again said "You know I like it quiet in the morning". This was the evidence relating to Count 12.
Despina and Marika were siblings of the complainant. She recalled attending a christening for Despina's son in 2011. She also recalled attending a birthday celebration for "Yaya", the applicant's grandmother, at their home in Taren Point. She was not sure whether that birthday party was held on 27 November. She attended a birthday party for Marika in October or November 2011. She did not recall if she had any visible injuries at Marika's birthday, at the christening or at Yaya's party.
Some text messages sent by the complainant on 5 December 2011 and 8 December 2011 to the applicant were placed before the court. These were expressed in affectionate terms, e.g. on 8 December at 11pm the complainant sent a message saying "Babe I just got home. Good night sweet dreams. I hope you have a good sleep. Muah, muah" ("muah" is meant to be the sound of a kiss).
On 8 December 2011 the complainant, the applicant, Mr Benny and Chris were at Taren Point. The men were celebrating so the complainant was "allowed" to stay over at her parents' house. She slept at her parents' house and at 6am the following day she received a text message from the applicant. He said "Morning see you soon". She called the applicant and he asked why she was awake. The complainant told him that her mother was getting ready for work. He sent her a message that said "The front door is unlocked, lock it on your way in, see you soon".
The complainant dressed in her clothes from the previous day (as she had no other clothes at her parents' house) and drove to Taren Point. She entered and went upstairs. Mr Benny was sleeping on the lounge. The applicant was awake and lying on the bed upstairs. The complainant gave the applicant his car keys. He asked "Aren't they the clothes that you had on yesterday?" and she said "Yes". The applicant said "You dirty bitch". The complainant said she would go and have a shower. She started down the stairs to have a shower. The applicant followed her, grabbed her right shoulder and turned her around. He put two fingers from his left hand inside her underpants and into her vagina. He lifted her slightly. His fingers were inside her vagina for about five seconds. He did not say anything to her and she did not say anything to him. When he took his hand out she said "it hurts". The applicant smelt his fingers and said "Go and have a shower you dirty bitch" and shoved her down the stairs. This is the evidence relating to Count 13.
On 11 December 2011 the complainant and the applicant went to the St George Motor Boat Club for dinner. Afterwards they returned to their home at Taren Point. The complainant had arranged for her father to pick her up from her house at 9pm. She was to stay at her parents' house. At 9pm her father and sister arrived. Within 5 minutes of them leaving, the applicant started to call the complainant and send her text messages. She did not respond. The applicant then rang the complainant's father and sister. The complainant spoke to the applicant on her sister's phone. He said he was going to come over.
Within a few minutes of the complainant arriving at her parents' house, the applicant arrived. The complainant and her family were outside. The applicant said "This is going to turn to shit real fast isn't it?" The complainant replied "No … it's not". The applicant said to the complainant's father "I'm going to take [the complainant] for a coffee and her father said "No you're not, she's not going anywhere, she's staying here". When asked the complainant said "No, I don't want to, I don't want to go with you, I don't want to be with you anymore after everything that you've done to me. I can't be with you". The applicant suggested that the complainant just needed to have a rest but she said "no". He asked "Is this really what you want?" and the complainant said "yes". The applicant said that he was confused and hugged and kissed the complainant goodbye. He asked "Is anybody going to come knocking at my door?" to which the complainant responded "No, no". The applicant left the premises.
After the applicant left, the complainant spoke to members of her family. She told her parents, her sisters Rosanna and Karina, and Karina's boyfriend Steven that the applicant had hit her. She did not tell them that he had sexually abused her because she was too embarrassed. A day or two later, she told her sister Tina about the sexual assaults. The complainant attended Hurstville Police Station on 12 December 2011 where she made a signed police statement. She did not tell the police about the sexual assaults at this time as she was too embarrassed. She provided additional statements to the police on 20 December 2011 and 10 January 2012 providing details of the sexual assaults.
After the complainant made her second statement, the police suggested that she call the applicant on the telephone and attempt to have discussions with him. The police obtained a warrant to permit them to listen to the conversations. On 8 February 2012 the complainant called the applicant twice and the calls were recorded as part of the police investigation. No admissions were made by the applicant who had already consulted his solicitors. He terminated both the conversations.
The Crown called evidence from work colleagues of the complainant.
Brent Henry worked with the complainant at Coles Earlwood in 2008. One day during a coffee break in 2008 the complainant told him that she had woken up to find the applicant pulling his penis out of her mouth and that this incident had occurred at the applicant's factory in Peakhurst. He only saw the complainant socially three or four times after she started a relationship with the applicant.
Sharlene Mourshed was the director of the childcare centre in 2011. She said that the complainant had worked at the centre from 4 July 2011 until the end of September 2011 as a trainee childcare assistant. Ms Mourshed noticed bruises on the complainant's arms while she was working at the centre. The complainant told her that she was bruised from bumping into things because she was clumsy. The complainant was absent from work from 18 July 2011 and returned on 26 July. She told Ms Mourshed that she was absent because she had a sinus infection. When the complainant returned to work she had a bloodshot eye that was "all red" and "a bit puffy".
On or about 27 September 2011 the complainant resigned. She told Ms Mourshed that she was forced to resign - "I'm quitting because he wants me to". About two weeks later the complainant returned to the childcare centre to complete some forms and Ms Mourshed noticed that her ear was bruised and that she had three lines on her ear that were bleeding. The complainant also had bruising to the side of her face. Ms Mourshed asked the complainant what happened and the complainant said "He hit me". Ms Mourshed asked "With what?" but the complainant said she did not know because she had passed out. Ms Mourshed said that generally the complainant's demeanour while she worked at the centre was "nervous and scared".
In cross-examination, Ms Mourshed said that initially the complainant did not provide the centre with a medical certificate for the week when she was away. She just told Ms Mourshed that she had a sinus infection. Later she produced a doctor's certificate. The certificate stated that the complainant was able to return to work but did not explain why she had been absent.
Rachel Fouques worked at the childcare centre with the complainant. She said that there were occasions when she noticed that the complainant had bruises on her arms and also occasions when the complainant showed her bruises on her arms. Ms Fouques recalled an occasion in mid 2011 when the complainant asked her to look at her arms. Ms Fouques saw a bruise and when she asked the complainant about it, she said "I bumped myself. I'm a bit clumsy". On another occasion, about a month after the complainant commenced work at the childcare centre, Ms Fouques saw redness in one of her eyes and a bruise on her cheek. The complainant told her that she had been sick and had popped a blood vessel.
The Crown adduced evidence from two medical witnesses.
Dr Nahida Saakar was a general practitioner. She examined the complainant on 26 July 2011 at the Prestons Medical Centre. She concluded that the complainant had a subconjunctival haemorrhage. The complainant did not mention an injury or visual disturbance to the doctor. She did not say that she had been assaulted. The complainant gave a history consistent with having the flu. She asked for a clearance certificate as she was feeling better after taking antibiotics. Dr Saakar observed redness to the eye. Dr Saakar said that a subconjunctival haemorrhage could result from the flu and could happen spontaneously. If trauma to the eye caused the haemorrhage, she would have expected to see other symptoms with it.
Dr Peijin Tew was a radiologist. On 13 December 2011 she reported on x-rays taken of the complainant's facial and nasal bones. These x-rays included a CT scan. Dr Tew concluded that the complainant suffered the following injuries: Fractures to the eye sockets with some nerve damage. Blood inflammation or some other abnormality present in the eye sockets. Additional fractures to the right sinus. The opening of the sinuses was blocked. Fractures to the nose. The broken nose was consistent with a single punch, or with multiple punches. Abnormal thickening of the sinus mucosa suggestive of some inflammatory process. There were no abnormalities to the brain, jawbone or ears.
Dr Tew was asked about the age of the various injuries. She said that the left eye and nose and eye sockets were injured more than two weeks before the scans as she did not see soft tissue swelling. The injuries could have been inflicted in July. The nose injury was consistent with one or more blows. The eye socket injuries were consistent with blunt force trauma, like a punch or punches. The injuries were more than two weeks old but the doctor was not able to put an outer limit on how old they might have been. Dr Tew said that a punch to the eye could result in a subconjunctival haemorrhage.
In cross-examination Dr Tew agreed that the blocking of the sinus could have been from an infection or sinusitis. If someone were prone to suffering sinusitis, that could explain the blocking. Dr Tew agreed that a person could fracture a nose through a fall. Dr Tew agreed that if somebody were punched on the left side of their nose, it could cause an injury to the eye socket and both sides of the nose. Dr Tew said that a significant form of trauma was required to break a bone.
The Crown called evidence from members of the complainant's family.
Antonia Comitogianni is the complainant's sister. She did not see the complainant often once the complainant and the applicant were in a relationship. She said that on the few occasions that she saw the complainant, she did not seem to be herself and looked really run down. She looked thin and white in the face. She said that the complainant, instead of being her normal bubbly self, was very quiet.
In March 2011 there was a twenty first birthday celebration for the complainant's cousin, Laura. The complainant attended but the applicant did not. When Ms Comitogianni asked why he was not there, the complainant said that when he drank he became angry so he was not coming. Just before midnight the complainant asked Ms Comitogianni for a lift to her father's house where she had left her car. The complainant appeared panicky. She explained that the applicant said that she had to be home before midnight or he would get really angry.
Ms Comitogianni said that on a Friday or Saturday in June 2011 the family met at their parents' house to celebrate the complainant's birthday. The plan was to celebrate with dinner but the complainant and the applicant did not arrive until after dinner. They stayed for cake and then left. Ms Comitogianni noticed that the complainant was wearing very heavy makeup and that it was darker around her eyes. The makeup was much darker than the complainant's natural skin colour and she did not normally wear makeup. It looked like fake tan. Ms Comitogianni thought that the complainant had bruising on her face, above and below her right eye. When Ms Comitogianni asked the complainant about why she was wearing the makeup, the complainant explained that the light in the bathroom was broken when she applied her makeup. Three photographs of the complainant taken that night became Exhibit F.
On or about 5 December 2011 the complainant came to Ms Comitogianni's home in Blakehurst. She told her about an incident that had occurred at Taren Point approximately two weeks earlier. This was the incident when the applicant's friend Chris had driven his car into a boat when the applicant's parents were present. The complainant told Ms Comitogianni that this had made the applicant very angry. He was also angry because he thought that the complainant was in the car with Chris. The complainant told Ms Comitogianni that the applicant had hosed her down with a hose at about 3am after Chris had left. The complainant told her that when they went upstairs, the applicant had ripped her pants off and said "Come over you dirty slut" and when she went over to him he hit her in the face in the left eye. The complainant told her that the applicant had attempted to make her give him oral sex but he was too drunk and became sick. The complainant said the next morning the applicant had acted like nothing had happened.
The complainant told Ms Comitogianni about an incident which had occurred two days before she moved back with her parents. The complainant told Ms Comitogianni that the applicant had put his hands down her underwear and inserted his fingers into her vagina, then pulled them out and smelled his hands and said "You're a liar" or "a dirty liar" or something like that. Then he said "You're a dirty bitch. Go and have a shower". When she had had a shower, he came upstairs and said to her "You don't look like a girl" or "the clothes that you are wearing, you don't look like a girl, go and fix yourself up".
The complainant also told Ms Comitogianni of an incident which had occurred at Rossmore at about 4am. The complainant told her that she was watching movies on a laptop in the kitchen and that she was very tired but she had to stay awake until the applicant went to bed. The complainant told her that the applicant had said that she was boring and had choked her and pulled her by her hair into the lounge-room. The complainant told her that he had slapped her face three times and that she had fallen down. He had pulled her back up again and bashed her head into the wall three times and then went to another wall and had bashed her head into the wall again where she had fallen down again and that she had urinated and defecated. The applicant had then dragged her into her bedroom and said that this is not a girl's room, this is a pigsty. He then pulled her by her hair into the lounge-room and that at that stage she passed out and was unconscious. Ms Comitogianni said "What happened when you became conscious again?" and the complainant said that she was lying down, face down, with her body on the side and that she was in extreme pain and that he was having sex with her "down there". Ms Comitogianni said "Where? … in your vagina?" and she said "No, the other place". Ms Comitogianni said "In your anus?" and she said "Yes". Ms Comitogianni said "Oh my God, what did you do?" and then the complainant said she was screaming and thinking he would not stop and Ms Comitogianni said "Did he stop?" and the complainant said "No, he just kept going 'til he was finished".
Ms Comitogianni said that there was an occasion when she offered to make pizza for the complainant, but the complainant said that she would never eat pizza again. She told Ms Comitogianni that two months previously, she had eaten some leftover pizza from the fridge and the applicant had asked her if she ate the pizza and she had said that she did. He then slapped her face and asked the question again. He had continued slapping her on both sides of her face and asking if she had eaten the pizza. He did it about 20 times. The complainant did not know when he stopped because she passed out. Ms Comitogianni assumed that the incident had occurred at Rossmore. The complainant told Ms Comitogianni that once at Rossmore the applicant had hit her in the eye and she was in extreme pain and that the eye had blood in it and that she had attended a medical centre. The complainant said that the doctor at the centre asked if somebody had hit her but she had told the doctor that she fell over. The complainant said that the applicant was sitting right outside the door.
Silvestro is the complainant's father. In 2010 he became aware that the complainant and the applicant were in a relationship and that at some point they moved in together. Before the relationship began, he used to see the complainant nearly every day. That decreased significantly after she entered into the relationship with the applicant. Thereafter he used to see her approximately once a month or less.
On Friday 3 June 2011 there was a dinner for the birthday for another of his daughters, Tina. The complainant telephoned and said that she could not attend. In the early hours of the following morning, the police attended the family home. The police asked Silvestro if the complainant lived at the house as a call had been made from a mobile phone registered to that address. He telephoned his daughter and then spoke to the applicant. He said "You're supposed to be looking after my daughter" to which the applicant responded that he had had an accident and cut himself and that the complainant "went off". Silvestro asked "Is that how you look after your girlfriend?" and the applicant replied "That's all I f'ing seem to do". The applicant was angry. The police left the house while he was talking to the applicant on the phone.
The following afternoon Silvestro, his wife and his youngest daughter went to the complainant's house at Rossmore. He drove up the driveway and parked near the house. Outside the house he saw a Toyota Corolla that the complainant had been using. The windows were down and it was wet inside. The applicant's utility vehicle was parked outside the house and it was locked. He called the complainant on her mobile phone but no-one answered. They walked around the house and tried to look into the windows. Everything was shut. They assumed no-one was at home. They stayed there for about 45 minutes.
On Sunday 5 June 2011 the complainant called him. She apologised and said that she went out with friends. The applicant told him that they were out on a boat with friends and that was why they could not be contacted the previous day.
Silvestro visited the complainant at Rossmore in October 2011. He told the applicant that he wanted her to move back home with him. The applicant said that he needed the complainant to help him move to Taren Point. This would be in about a month and after that the complainant could move back to her parents' house. In November 2011 the applicant and the complainant went to Silvestro's house and they discussed the complainant moving home again. At that time he thought the complainant looked pale, unwell and sickly.
On 11 December 2011 Silvestro telephoned the complainant and said "today is the day". At about 6pm the complainant called him and asked him to pick her up which he did. He then picked up his daughter Rosanna from the airport. While they were in the car, the complainant told him that the applicant had been bashing her. They drove to their home at Bexley. The applicant arrived about 15 minutes later. The applicant was outside the brick fence of the house, standing on the footpath. He said that he wanted to speak to the complainant. Silvestro and his family members were inside the fence. The complainant was standing three or four metres away from him and the applicant was speaking mainly to her. The applicant asked her "Is the shit going to hit the fan and is someone going to knock on my door?" He did not know if the complainant responded or if there was any further conversation. Silvestro said that the complainant had not previously sustained fractures to her face, eyes or nose.
Detective Senior Constable Jones was the officer in charge of the investigation. He contacted Mr Benny and explained that he was investigating serious assaults against the complainant. Mr Benny said that he was not aware of anything like that and he said that he was not in contact with either the complainant or the applicant. He was asleep in bed on the night when police arrived at the Rossmore house. He refused to make a statement. Mr Greg was located and he refused to make a statement.
Detective Jones was unable to locate Dale and Mandy whose surnames were unknown.
The first call made by the complainant to triple 0 was answered by a Telstra operator. This call was not recorded. The second call to triple 0 went directly to the police. The police then returned the call. The two phone calls in which the police were involved were recorded. The recording of the calls was played to the jury and became Exhibit G.
Detective Jones arrested the applicant on 8 February 2012 and cautioned him. The applicant exercised his right to silence.
Gabriele Kennedy was a real estate agent. She inspected the Rossmore property after the complainant and the applicant had moved out. She noted that the oven was damaged and that there was no glass frontage.
The applicant gave evidence. His case was that he had never physically or sexually abused the complainant. The following is a summary of his evidence.
After having met the complainant on an earlier occasion, a few days later he and she went on a date to the Oatley pub. They had pizza and a few glasses of wine. Afterwards they went back to the applicant's warehouse. They were "fooling around" and performed consensual oral sex on each other. The complainant did not fall asleep when they were having oral sex. He denied that the complainant had woken up to find his penis near her mouth. He stated that he and the complainant were both consenting.
He moved his factory from Peakhurst to Sylvania and at some point the complainant moved in with him. They used to eat dinner together and often went out together. Friends and family visited them at Sylvania. In 2010 he and the complainant moved to Rossmore. They lived on a five acre block. He used the sheds for his work as a marine mechanic and boat builder. From the house it was about a 15 minute round trip to the closest shop. The complainant liked to help him work on his boats and he bought her a mask to wear. He had a Rhodesian Ridgeback which was a large dog.
In March/April 2011 Carlos Benny worked as a subcontractor for him. He had been living with the applicant and the complainant at their house in Rossmore from about February 2011. He stayed in the spare bedroom. The applicant recalled an incident when Mr Benny was playing with the dog and the dog jumped on him. Mr Benny dropped his glass and it cut his foot. Mr Benny then punched the dog. The applicant said, "Don't punch the dog". They had all been drinking. He was tipsy. He denied that Mr Benny cut his foot a couple of hours after the incident with the dog. He denied accusing the complainant of flirting with Mr Benny. He denied punching the complainant or punching the wall. He did not see any bruising or swelling on the complainant's body that evening or the next day.
He did not recall what happened the next day. He thought that he and Mr Benny continued working on a boat. He denied that he was angry when Mr Benny punched the dog and denied that he was angry with the complainant. He went to sleep on the lounge after Mr Benny went to bed. He thought that the complainant went to sleep in her room. He used to sleep in the lounge often as that was where his CPAP machine was set up.
He recalled an occasion on 3 - 4 June 2011 when Marty Greg was at the house. They were working on a new engine for his speedboat. He drank beers and bourbon and was intoxicated. Mr Greg stayed over that night as he was too intoxicated to drive home. The complainant had a "fair few drinks" and was "fairly intoxicated". He denied that he accused the complainant of flirting with Mr Greg. He did not break glasses and bottles in the kitchen. He was not violent towards the complainant. He did not put her in the shower, or say "now I'm going to get him" [i.e. Mr Greg].
He said that he and Mr Greg were wrestling in the lounge and the complainant was concerned and said "Stop, or I'm going to call the police". They stopped but then started again. The wrestling lasted 10 - 15 minutes. They ended up in the spare room. Mr Greg had the applicant in a head lock and he bit Mr Greg on the back.
The police telephoned and spoke to him but he did not know that it was the police calling. He hung up the phone because he could not hear properly. There was music in the house all night. He listened to the recording in court. He agreed that he could not hear any music during the call. He said he was standing 10 - 15 metres away from the stereo when he spoke to the police on the phone.
He recalled that at one point Mr Greg came inside and said that the police were looking for the complainant. He did not tell the complainant to put on a jumper and he did not instruct her to tell the police nothing was wrong. All three of them went out the front. They told the police that they were drinking because it was Saturday night. The police officers left the premises. He went back inside the house and asked the complainant why she called the police. She said "You were wrestling and it looked serious and I was asking you to stop, and you didn't stop". He was not angry with the complainant for calling the police.
The next morning he helped Mr Greg to hook up his boat. He did not tell the complainant to stay inside. He did not see any injuries to the complainant's face. He did not hear Mr Greg ask the complainant what happened to her face. He did not tell the complainant that he loved her but that she made him "so angry". He did not recall her family coming to the premises the next day. He did not instruct the complainant not to say anything.
He did not recall if the complainant tidied up the kitchen that morning. He denied that the complainant wore makeup to a party at her parents' house in June in order to cover up the injuries to her face. He denied that there were bruises under her eyes. He said that she had black bags under her eyes and wore makeup to cover the bags. He never caused any bruising to her.
In cross-examination he agreed said that there were holes in the lounge-room walls but these were from when he and Mr Greg were wrestling. He patched up the holes before they moved out of the Rossmore premises.
There was an occasion when he, the complainant, Dale, Mandy and Mr Benny were at their house. They were drinking and dancing until about 4.30 or 5am. He, the complainant, Dale and Mandy went into the spa. They were all naked in the spa and drinking. The next morning he woke up at lunchtime. He denied that he was angry when he was woken and he denied sending the complainant inside when he was outside speaking to Dale and Mandy. He denied assaulting the complainant once Dale and Mandy were gone. He denied pushing the complainant into the lounge, punching her left eye or punching her nose. He denied that she was relegated to her bed and denied taking food into her room.
He thought that Mr Benny initially went to sleep on the lounge and then later moved into a room. He denied assaulting the complainant and causing her nose to bleed. He did not drag her past the room where Mr Benny was asleep and say "He won't help you". He did not send the complainant to the car to get his cigarettes. Mr Benny stayed with them for a total of three weeks. He was still there for a couple of weeks after this night. He denied apologising to the complainant and saying that they would go on a holiday together.
He first noticed that the complainant had a red eye on a Sunday or Monday. There was no puffiness or bruising around the eye. In late July 2011 he drove the complainant to a medical centre. She had a red eye and needed a certificate in order to return to work. He parked the car in the car-park and waited there while the complainant saw the doctor. He did not know why he drove her to the medical centre. The complainant told him that she did not want to scare the little children at school with her red eye.
He recalled a camping trip to Port Hacking when his cousin, Yiannie Orfanos, was there. They were all a bit tipsy. He drank beers and vodka and the complainant drank vodka. Yiannie drank bourbon but he did not have much to drink. He denied accusing the complainant of flirting with his cousin. He denied pushing her backwards into the esky.
He denied that there was an incident in August 2011 when the complainant ate some of his pizza. He did not break any glasses and he did not hit the complainant's face. He did not see any bruising on her face. The oven door shattered when he accidentally let go of it and the door sprung back up. The handle of the oven door was piping hot so he let go of it. The following day he made inquiries with the oven company in relation to replacing the door. He was told that he needed to get a new oven. He denied that he pushed the complainant onto the toilet floor. He did not cut his foot and the complainant did not get glass in her elbow. He denied dragging the complainant outside next to the garbage bins and throwing her keys into the grass.
He recalled an occasion in October 2011 when he was sitting at the computer and updating his Facebook page at night. The complainant was watching a movie at the time. He denied that he insisted on the complainant staying up with him until he went to bed. He denied that he was angry with her that night because she was falling asleep. He denied breaking her CDs and pushing her into the kitchen bench. He denied trying to choke her. He did not ram her into a wall, slap her or insult her. He denied having anal sex with her. The following morning he did not tell her to put on some makeup and go and buy him cigarettes.
They moved into premises at Taren Point on 5 or 6 November 2011. There was a factory downstairs and he resided on the mezzanine level. On 26 November 2011 there were a number of people there for a demonstration during the day. That evening some of them remained for a barbeque, including his parents and his friends, John and Chris. He had a few drinks. Chris accidentally reversed a car into his boat. He was not angry with Chris and there was no damage to the boat. At the end of the barbeque Chris left and the applicant's parents were the last to leave. He did not recall at what time they left.
He and the complainant tidied up and went upstairs to sleep. He denied that that he was angry with the complainant that night. He denied punching the complainant and asking her to take off her top. He did not rip her clothes. He did not push her head towards his penis in an attempt to have oral sex. He did not vomit. He denied arguing with the complainant the following morning and he denied pushing her against a wall. When Chris arrived with coffees, he denied telling the complainant "don't cry, act normal".
On 8 December 2011 the complainant slept at her parents' house. Chris and Mr Benny were at the Taren Point house with him. On 9 December he exchanged text messages with the complainant. He recalled that she arrived at their home while he was asleep. Mr Benny was also there sleeping on the lounge. He was not angry with her. He denied having a conversation with the complainant when she came home. He did not call her a "dirty bitch" or tell her to have a shower. He did not put his fingers inside her vagina. He got up at about 10am and the complainant was downstairs at the time.
He gave evidence of a conversation which took place between him and the complainant outside the complainant's parents' house on 11 December. He reported the conversation as follows: He said "What's going on?" The complainant said "My parents think it's best that we have a break". He said "Oh are you okay, want to go for a coffee or something?" and then her father said "No, she doesn't want to go for a coffee". He said "All right, fair enough". Then he grabbed his washing and put it in the car. They went and moved outside and that is when he said "Are you okay? Anything you want to talk about?" She said "No, I just need a break, you know, after moving I'm tired". He said "Okay", gave her a kiss and a cuddle and left.
He denied asking the complainant if everything was going "to turn to shit" and if he should expect a knock on the door. After he drove away from the house, he sent a text message to the complainant asking what was going on and saying that he was confused. She did not reply to that message.
He identified a number of photographs taken at his birthday celebration on 2 July 2011, a photograph taken on 15 August 2011 and a photograph taken in September 2011. It was common ground that those photographs did not show any injuries suffered by the complainant. He agreed that he had not produced any photographs of the complainant taken in March or April 2011 but denied that this was because photographs taken at that time would have shown her with bruising.
He said that he used to organise a Performance Outboard Club for his fellow performance boat enthusiasts. In March and April 2011 the complainant accompanied him on an outing at Port Hacking. On 22 May they attended an outing on the Georges River and on a third occasion they went to Akuna Bay. In 2009 when they lived at Sylvania he and the complainant were involved in a boating accident. The complainant hit her face on the dashboard. She told the applicant that it hurt. Pictures of the damaged boat were tendered as Exhibit 4. After the crash her face was red under her eyes and her cheek. She did not attend the doctor. She said that she did not need to see the doctor. In cross-examination he denied that he "came up" with the story about the boat crash in between the first and the second trials. CONVICTION APPEAL Ground 1 - The verdicts of guilty cannot reasonably be supported on the evidence (i.e. are the verdicts are unsafe and unsatisfactory).
In written submissions (prepared by counsel other than counsel who appeared on the appeal), little assistance was provided to the Court as to the basis for this ground of appeal. Assertions were made in general terms without specific reference to the evidence.
The following matters were asserted: The Crown case was a word on word case with there being little independent corroborating evidence for the complainant. The applicant had denied all allegations. There was late complaint. The complainant had lied to Dr Saakar. Logically there was no reason why the verdicts would be different for all or any of the counts.
The written submissions asserted that significant inroads had been made into the complainant's credibility which were identified as follows: There was no explanation for why the complainant did not scream, call out or otherwise seek assistance from persons who were close by such as Carlos Benny and Marty Greg. The evidence of the complainant concerning the triple 0 calls was inherently unlikely and was in conflict with the observations made by the police officers, who observed that she was clothed and did not observe any wetness. That the complainant remained in her bedroom for a week after one of the assaults was inherently unlikely and no corroborating evidence was called. It was inherently unlikely that the applicant would have sent the complainant to the shops the morning following the forced anal intercourse. The only explanation the complainant gave for not leaving the applicant or seeking assistance was fear or that he would cry and apologise. It was inherently unlikely that the applicant would drive the complainant to the medical centre if he had caused the injury. To the extent that there was evidence of complaint, it was long after the events complained of. The complainant did not initially say anything to the police about the sexual assaults.
On the appeal different counsel appeared, and whilst adopting the written submissions, focused on what was said to be an inconsistency in the verdicts of the jury. The submission was that the not guilty verdicts in respect of Counts 1, 2, 6 and 11, when taken with the guilty verdicts in respect of the other nine counts, amounted to "an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty". Counsel submitted that the difference in verdicts gave rise to a factual and logical inconsistency given that the complainant was clearly rejected as a witness of truth in relation to the counts on which the applicant was acquitted. There was no rational basis for that outcome and there was no way to reconcile the verdicts. As a result counsel submitted that the verdicts were an affront to logic and common sense and should be set aside in their entirety.
Counsel sought to rely upon the observations of Simpson J (with whom McClellan CJ at CL and Latham J agreed) in TK v R [2009] NSWCCA 151; 74 NSWLR 299 where her Honour said: "97 Central to the decision in Jones was the circumstance that the accused person, facing multiple charges, was convicted of only two of them, and acquitted of one; and that no rational explanation could be found, on examination of the evidence, for that diversity. Inherent in the judgments is the proposition that the jury must be found to have experienced a doubt about the credibility of the complainant in respect of that count on which they acquitted. It was not a case in which, with respect to any count, the evidence, standing alone, was insufficient to warrant satisfaction, beyond reasonable doubt, that the accused was guilty of the offence. What was important was the mere fact that, in respect of the first and third counts, the jury expressed themselves to be satisfied beyond reasonable doubt of the accused's guilt; but, on the second, they expressed themselves to be not so satisfied. The High Court could find no rational explanation in the evidence for that diversity, and, accordingly, took the view that, since the jury must be taken to have experienced a doubt in respect of one count, that doubt must, rationally, also have attended the others. They applied that doubt to those counts on which the accused was convicted." (The reference to Jones is a reference to Jones v The Queen [1997] HCA 12; 191 CLR 439.) Consideration
It should be noted that in his summing up, the trial judge comprehensively set out the submissions of both counsel and in particular, identified the matters in the complainant's evidence which required consideration by the jury. The resolution of these issues was quintessentially a matter for the jury who had the advantage of seeing and hearing the witnesses which this Court did not. In relation to the issues relied upon in the applicant's written submissions, these were issues of fact in relation to which the primacy of the position of the jury in resolving disputes questions of fact has been acknowledged in many cases (see particularly Mackenzie v The Queen [1996] HCA 35; 190 CLR 348).
The following extracts from his Honour's summing up make it clear that the very issues identified by the applicant were put fairly and squarely to the jury for their decision. "In any case like this one where the Crown relies substantially on one person to prove a case against another, it is important that the jury are told that they exercise caution before they convict the accused. Unless you are satisfied that the complainant is an honest, reliable and accurate witness in the account she has given, you cannot find the accused guilty. Therefore you need to examine the evidence of the complainant very carefully in order to satisfy yourselves that you could safely act upon the evidence to the high standard required in a criminal trial. In considering her evidence you should of course look to see if other evidence supports it. This caution that I am asking you to take is not based upon any personal view I have of the complainant. In any criminal trial where the Crown relies wholly or substantially upon the evidence of a single witness, a jury must always approach that evidence with particular care because of the onus and standard of proof placed upon the Crown. I am not suggesting to you that you are not entitled to convict the accused upon the evidence of the complainant - and in fact you are entitled to convict the accused upon the evidence of the complainant - but the direction I am giving you is that you can only do so after you have carefully examined the evidence and satisfied yourselves that it is accurate and reliable beyond reasonable doubt. It flows from all of this that if you have doubts about one or more aspects of the complainant's evidence on one count, those doubts ought to be considered when assessing her overall credibility and whether the Crown case has been proved on each of the other counts. It is entirely a matter for your judgment but you might think that there was nothing to distinguish the evidence of the complainant on one count from her evidence on another count. For example, if you have a reasonable doubt about the complainant's credibility in relation to one count it might make it difficult to see how the evidence of the complainant could be accepted in relation to other counts. But as I have said, it is entirely a matter for your judgment and for you to decide whether that is so or not. I have already directed you that you are not to compromise. It would be wrong if say half of you accepted her evidence beyond reasonable doubt and half did not, to average it out and convict the accused on some counts and find him not guilty in relation to others. (SU 24.2 - 25.4) … In considering the complainant's evidence and whether it does satisfy you beyond reasonable doubt, you will need to carefully consider any matter which affects its reliability. One matter which may positively affect the reliability of the account given by her is the question of whether or not and when she complained about the accused's conduct towards her. There are two ways in which evidence about complaint and timing of complaint might bear upon your consideration of the complainant's evidence. Firstly, as going to her credibility or, secondly, as evidence supporting the fact that the violence and sexual acts which she alleges did occur. Evidence that a person complained very soon after something happened to them may show that the complainant has acted in a way in which you might expect someone who has been assaulted to act. In that way, it might make the evidence of the complainant more believable. In the present case, the Crown contends that the complainant complained to Mr Henry in the sense of relating some of the details of the first count to him the very day after that first incident. In respect of the other incidents, the complainant did not complain or report any of the specific incidents which occurred in the period from March through to December 2011 until she first related them to her family, in particular her sister in December, and then when she made her statements to the police in December 2011 and January 2012, and there is also the more general evidence the Crown relies upon of complaint about being hit which she made to one of the childcare workers, and you have heard evidence about that. The Crown case, and you have heard the complainant's evidence about this, is that the failure to complain immediately was brought about by fear on her part. The complainant says she was frightened that if she revealed what she says had been going on, her safety would be threatened. By contrast, the defence says that the fact that no complaints were made or calls for help, et cetera, made at around the time of the incidents tends to undermine the complainant's account. It is a matter for you entirely to assess and weigh those various matters. The Crown also relies on the evidence of the complainant that when she first complained to the police she made a statement about the various violent acts, but made no complaint then and not until January about the various sexual acts, and that the reason for that was embarrassment in relation to those additional matters on her part. If you think that the complainant has done what you would expect someone in her position to do, that may support the Crown case because you may find that there is consistency between her conduct and the allegations she makes against the accused. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate account or statement does not become more reliable just because it is repeated on one or more occasions. On the other hand, if the complainant has not acted in the way you would have expected someone to act after being assaulted in the way she has described, then that may indicate that an allegation is false. But bear in mind when considering this issue that there may be good reasons why a complainant did not raise the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false. The absence of a complaint or a delay in making a complaint is a matter that you may take into account in assessing the credibility of the complainant's evidence as to what she says the accused did to her. However, the delay in making a complaint about an alleged assault does not necessarily indicate that the allegation is false. As I have said, there may be good reasons why a victim of an assault, whether it be a sexual assault or some other violent act, may hesitate in making or refrain from making a complaint or telling anyone about it at the time. In considering whether and to what extent any delay by the complainant in coming forward affects her credibility, you should take into account the whole of the circumstances, including what she said about it. Remember, ladies and gentlemen, the question is not what you would have done in the circumstances. You should consider the complainant's explanation in the light of her particular circumstances as you find them to have been on the evidence. It is a matter for you to consider whether the failure to complain at the time of a particular incident or the delay in complaining does or does not affect the reliability and the credibility of the account. What I have just outlined relates to one way in which the evidence of complaint, or absence or delay in complaint might be used. That is in relation to credibility and whether the making [of] a complaint or the delay in making one makes the evidence more or less believable. The second way in which evidence of complaint might be used is that you can use the evidence of what was said in the complaint as some evidence that such an assault did occur. That is, you can use it as some evidence independent of the evidence given to you of that incident by the complainant in the courtroom. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against the accused. A jury 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 and more likely to be accurate. It is entirely a matter for you whether you draw that conclusion in this particular case and so treat the complaints made, in particular to the complainant's sister, and to the police in December 2011 and January 2012 as evidence of the various alleged assaults by the accused, in addition to the evidence that has been given about them by the complainant in this courtroom. If you do use the evidence of complaint as some evidence of the assaults the subject of the various charges, then what weight you give to it is a matter for you. Of course, once again the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become reliable just because it is repeated more than once. Also in considering the complainant's evidence and whether it does satisfy you of the accused's guilt you should of course look to see if it is supported by other evidence. It is the Crown case that the complainant's evidence is supported by other evidence that has been put before you, and you were taken through the evidence in the Crown address. I will not repeat it but, broadly speaking, to support the complainant's account the Crown relies upon the evidence of her father, of her sister, of Mr Henry, of the other childcare workers, and the evidence of the doctors. And of course there is the triple-0 call and the photographs, and the Crown submits there are numerous details of the complainant's account which are accepted by the accused." (SU 31.1 - 34.9)
Contrary to the written submissions of the applicant, there was a substantial quantity of corroborative evidence for the complainant. The most significant is that of her fellow workers (who were quite independent) and the doctors, in particular Dr Tew. So far as the applicant's position is concerned, the evidence of the facial fractures was damning. The jury on that issue were perfectly entitled to disregard the applicant's evidence (unsupported as it was) of the complainant having been involved in a boating accident some years before.
In summary, while there were some discrepancies in the complainant's evidence, these were matters for the jury to take into account and there was ample evidence, if the jury accepted it, to establish the Crown case beyond reasonable doubt.
This leaves the question of whether the verdicts were in fact inconsistent.
When considering the use which can be given to what the High Court said in Jones v The Queen, it is useful to look at how that case has been subsequently interpreted and applied. In TK v R McClellan CJ at CL said: "4 To my mind the decision of the majority in Jones is of confined application. The majority were of the view that having regard to the facts of that case and informed by the fact that the jury did not accept that the complainant's evidence on count 2 was sufficient to convict the appellant of that count, it was not open to the jury, relying on the complainant's evidence, to convict on count 1. However, as Spigelman CJ emphasised in Markuleski the decision in Jones is largely dependent upon the factual analysis of the majority. This was also the approach to Jones adopted by Winneke P in R v KT (Supreme Court of Victoria, Court of Appeal, 8 October 1998, unreported). Spigelman CJ emphasised that difficult questions arise when all that appears to differentiate between verdicts of guilty and not guilty on individual counts is whether the jury was satisfied that the complainant's evidence would support a finding beyond reasonable doubt (see [98] of Markuleski). 5 In Markuleski Wood CJ at CL indicated that with the benefit of the analysis by Spigelman CJ the view that his Honour expressed in R v Kaboni [2000] NSWCCA 387 had changed. His Honour, correctly in my view, accepted that Jones was not authority for a presumption that where the only direct evidence of the offences was that of the complainant and where the jury had convicted on only some of multiple counts, the guilty verdict should be regarded as unreasonable. 6 It seems to me that there are problems in an appellate court concluding that because a jury does not convict on one or more counts any conclusion as to the general creditworthiness of a complainant can be drawn. As the judgments in Markuleski point out there may be many reasons why a jury does not convict on a particular count. The High Court has been careful to emphasise that an appellate court must allow for the advantage of the jury when considering questions arising under s 6(1) of the Criminal Appeal Act. The most significant advantage is assumed to be that of observing the witness as they give their evidence. It is a very significant step to conclude that the reason for the jury's decision to acquit on any count is that they were so unable to accept the complainant's evidence on that count that her evidence was not capable of founding a conviction on another count. The consequence of such a decision by an appellate court is that the jury has not been faithful to the fundamental directions from the trial judge, namely that the Crown must prove its case beyond reasonable doubt on each count. As the law presumes that the jury has been faithful to a trial judge's directions (HML v R [2008] HCA 16; (2008) 245 ALR 204 per Kirby J at [52]; Gilbert v R (2000) 201 CLR 414 at 420 per Gleeson CJ and Gummow J), the starting point for any analysis must assume that this is so. The burden of satisfying the appellate court that there has been a miscarriage of justice rests upon the appellant."
The quote from Simpson J in TK relied upon by the applicant was no more than her Honour summarising the effect of Jones v The Queen. Her Honour was not seeking to adopt what was there said but it was part of her review of the decided cases. In the same case, as part of that review, her Honour said of Markuleski v R: "105 Spigelman CJ began by extracting the passages from M to which I have already referred - including that paragraph in which the majority said: " … the ultimate question must always be whether the court 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." 106 His Honour then referred to and quoted from Mackenzie, citing the test as: " … one of logic and reasonableness." He said that, in Jones, there was nothing illogical about the divergent verdicts, and that Jones: " … represents a particular application of this test of 'reasonableness'." 107 He then said: "[10] It is against this background, that the test for an unreasonable verdict - whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty - must be applied to the whole of the facts and circumstances of a particular case." (The references to Markuleski and M are references to Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82 and M v The Queen [1994] HCA 63; 181 CLR 487).
Later in TK v R, as part of her analysis of the law, Simpson J said: "127 What is implicit in that paragraph of MFA is that, where unreasonableness of a verdict of guilty is asserted by reason of a mix of verdicts, the inquiry is wider than that stated in M. In M no question of inconsistency arose, and, in cases of that sort, the inquiry is as to the adequacy of "the whole of the evidence" to support the verdict. In cases of the Jones variety, a further dimension is added - the "circumstances" of the particular case. That goes beyond "the whole of the evidence" and includes an examination of the significance of the acquittals, and what can be read into those verdicts. 128 That is not, on my reading, an adoption (for inconsistent verdict cases) of the most commonly quoted M test. The foundation for the test stated in MFA is not confined to "the whole of the evidence" but incorporates "all of the facts and circumstances of the particular case". That is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals. In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. The inquiry may also permit examination of circumstances that give "insight" (Mackenzie), to the extent that is permissible, into the jury's thinking. …" (The reference to MFA is a reference to MFA v The Queen [2002] HCA 53; 213 CLR 606.)
When focusing upon the evidence relating to those counts on which the applicant was acquitted, there was a logical and reasonable basis for the jury entering such verdicts. This did not involve the jury necessarily rejecting the complainant as a witness of truth. In any event, as a matter of law and as juries are always told, it was open to them to accept some evidence of a witness and to reject other evidence.
There are clear points of distinction between the evidence relating to Count 1 and that relating to other counts. Count 1 was the oldest count. The offence was said to have occurred in 2008. The complainant's evidence, unlike that in relation to most of the other counts, particularly those on which the applicant was convicted, was relatively brief. There were considerable gaps in her recollection which left a number of matters unexplained. There were also discrepancies between her evidence at trial and that which she told Mr Henry, e.g. Mr Henry's evidence was that her first recollection was of the applicant removing his penis from her mouth, whereas her evidence at trial was that at most the penis came in contact with her lip.
It should also be noted that the trial judge gave detailed directions as to the ingredients required for each offence to be made out. In relation to Counts 1 and 11, the allegation was of an attempt at sexual intercourse without consent. The evidence in relation to each of those counts did not amount to evidence of actual attempted penetration. In Count 1 the evidence was that the penis touched the complainant's bottom lip.
The actual evidence was: "Q. Now when you say that and when you say he was trying to put his penis into your mouth, can you tell us exactly what it was that was happening in terms of any movement with his penis relative to you? A. John was about - his penis was about 10-15 centimetres away from my face and it was coming closer. His penis had touched my lip and then I had passed out again." (30.1.2014 - T.2.44) "Q. So his body's moving towards your mouth and his penis is moving towards your mouth, yes? A. Yes. Q. Where are his hands, well hand or hands? A. I don't remember. Q. You didn't notice his hands? A. No. Q. You said in your evidence that his penis touched your lip, which lip did it touch? A. My bottom lip. Q. And about where on your lip did it touch? A. This side at the bottom. Q. Was he saying anything at that time? A. I don't remember. Q. What did you say? A. I don't remember. Q. You didn't say what, what are you doing, stop? A. I don't remember. Q. What did you do? A. I passed out." (31.1.2014 - T.106.7)
For sexual intercourse to take place, there needs to be penetration of the lips (R v Preval (1984) 3 NSWLR 647). Here there was no actual evidence of sexual intercourse and the question of whether there was "an attempt" was a matter very much for the jury. Given the extremely vague nature of the complainant's evidence, it was well open to the jury not to be satisfied beyond a reasonable doubt that an attempt at sexual intercourse had taken place. The jury could have had that doubt based on the vagueness of the evidence rather than any disbelief or non-acceptance of what the complainant had said.
In Count 11 the evidence was that the penis was flaccid and there was no contact with the complainant's mouth. In Count 11, the applicant's conduct could be appropriately characterised as no more than drunken groping with no specific intent before he became sick and fell asleep. It is also important in relation to Counts 1 and 11 that there was no evidence of the applicant trying to engage in sexual intercourse at a time when the complainant had clearly indicated her unwillingness.
The jury were reminded on a number of occasions, both in the summing up and in counsel's address, that they had to be satisfied beyond reasonable doubt with respect to each ingredient of the offences. A reasonable and logical explanation for the acquittal in the case of Counts 1 and 11 is that the jury were not satisfied that the ingredients of each offence had been made out.
There is also a logical and reasonable explanation for the acquittal in relation to Count 2. When giving evidence in relation to Count 2 in the earlier trial, the complainant appears to have become confused as to the facts surrounding that incident and the incident which formed the basis for Count 3. In the earlier trial the complainant had given evidence about being dragged into the garage and thrown against a wall.
Her evidence as to Count 2 in this trial made no mention of the garage or being thrown against a wall. They were factual matters associated with Count 3. The complainant explained the discrepancy under cross-examination when she said that she was confused at the time of the first trial but was not confused in her evidence in this trial. It was a reasonable and logical approach on the part of the jury in this trial to have some doubts about the accuracy (as distinct from the honesty) of that evidence and not to be satisfied beyond reasonable doubt as to what occurred in relation to Count 2.
Count 6 is probably the most minor of the assaults alleged against the applicant. In the course of an argument with the complainant, he was accused of pushing her so that she fell onto an esky which was in a tent. As a result of that fall, she experienced bruising on her back. It was open to the jury not to be satisfied that the applicant intended to do more than simply push the complainant, as distinct from deliberately intending to push her in such a way as to cause her to fall against the esky and onto the ground. Moreover, in directing the jury about the meaning of actual bodily harm. His Honour said that it "includes any hurt or injury which interferes with the health or comfort of the victim". It may well be that by comparison with the more serious harm caused in other assaults the jury had a doubt that the bruising had that effect.
By comparison with the violence of the other assaults perpetrated against the complainant, and the significant injuries which were thereby caused, it was open to the jury in relation to this count not to be satisfied as to the fact of an assault and that it caused actual bodily harm. This would not necessarily involve a non-acceptance by the jury of the complainant's evidence. There is a real difference between the facts of this event and the other assaults charged which all involved punching and acts of extreme violence in relation to which there could be no doubt either as to intent nor as to the resulting harm.
In relation to these four counts in which verdicts of acquittal were entered, the observation of the plurality (Gaudron, Gummow and Kirby JJ) in Mackenzie v The Queen at 367 is apposite: "4 Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed: "[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty." We agree with these practical and sensible remarks."
I would grant leave for the applicant to rely upon this ground of appeal but would dismiss it. Ground 3 - His Honour erred in respect of his directions on Count 8 in that he directed the jury that recklessness satisfied the necessary intent.
The basis for this ground of appeal emerges from the following part of the trial judge's summing up: "The final of the offences that is charged on the indictment is an offence of attempt to choke with the intention to intimidate. That is count 8. There are two elements of that offence, which the Crown must satisfy you about beyond reasonable doubt. The first is that the accused intended to intimidate the complainant and the second is that he attempted to choke her. As you have before you on that sheet that I have given you, as a matter of law, intimidation looks at the conduct of the accused and its likely effect on the complainant rather than examining the actual effect on the complainant. It includes conduct that might cause a person to fear for his or her safety or that might cause a person to have a reasonable apprehension of injury to themselves. Again, intention looks at the state of mind of the accused when he commits the intimidating conduct. A person intends to cause fear of harm if he knows that the conduct is likely to cause fear in the other person. In terms of that knowledge there are two ways in which the Crown might establish knowledge. They can do so by either satisfying you beyond reasonable doubt that the accused actually knew that his conduct was likely to cause the complainant to be afraid. Or alternatively, it can establish knowledge by proving that the accused was reckless about the impact of his conduct on the complainant in the sense that he realised that it was reasonably possible that his conduct may cause the complainant to be afraid but he carried on regardless, not caring one way or the other. In this case the conduct upon which the prosecution relies is the combination of the actions of the accused in putting his hands around the complainant's throat as she was lying across the kitchen bench and the words, which the complainant says the accused uttered at that time, which were to the effect that, "This time I'm going to make sure you won't be able to tell anyone." The Crown submits that the words used by the accused demonstrate the requisite intention on his part. And if you accept beyond reasonable doubt that those words, either by themselves or accompanied by his actions, demonstrate that the accused intended to intimidate the complainant, the Crown's case is that the first element will be satisfied. As to the second element, the Crown relies on the accused's actions. If you accept the complainant's account beyond reasonable doubt you will not have any difficulty concluding that the accused attempted to choke the complainant. Again, the accused has said to you - and the defence case is - that this incident never happened." (SU 21.5 - 22.8)
The applicant submitted that s 37 of the Crimes Act 1900 was in the following form when the offence occurred: "37 Attempts to choke etc (garrotting) Whosoever: By any means attempts to choke, suffocate or strangle any person or by any means calculated to choke, suffocate or strangle attempts to render any person insensible, unconscious or incapable of resistance with intent in any such case to enable himself or herself or another person to commit or with intent in any such case to assist any person in committing an indictable offence shall be liable to imprisonment for 25 years."
At the time of trial s 37 had been amended to include liability if the offender "is reckless as to rendering the other person unconscious, insensible or incapable of resistance".
The applicant submitted that s 37 as it stood at the time of the offence did not make any allowance for recklessness and that his Honour erroneously introduced recklessness as an element of the offence thereby misleading the jury and giving rise to an error of law. The applicant submitted that the conviction on Count 8 should be quashed. Consideration
It is correct that recklessness formed no part of s 37 as it was at the time when the events said to give rise to Count 8 occurred. It is equally correct, that on the facts which were before the jury no issue of "recklessness" could possibly arise. If, as they clearly did, the jury accepted the factual background, i.e. that the applicant said the words attributed to him and that he was choking the complainant to such an extent as to cause bruising to her throat at the time that he said those words, no question of recklessness arises. An offence of specific intent has been made out. There is no room for any other interpretation. This was not a case of a person being convicted of an offence unknown to the law at the time the actions giving rise to the offence occurred. The evidence given by the complainant falls fairly and squarely within the terms of s 37, as it then was and the jury so found.
In raising the issue of recklessness and explaining it to the jury, his Honour was in error for the reason submitted by the applicant. However, the error did not produce a miscarriage of justice. This was because the factual basis for Count 8 could not give rise to a finding of recklessness. His Honour's reference to recklessness was simply irrelevant. It is also important to have regard to the way in which the trial was run. The applicant's defence was that these acts did not happen.
This ground of appeal has not been made out. Accordingly, although I would grant leave to appeal, I would dismiss the appeal. SENTENCE APPEAL
Before the hearing of the appeal, Ground 6 was abandoned and during the hearing, Ground 5 was also abandoned. This left a single ground seeking leave to appeal against sentence. Ground 7 - His Honour erred in failing to find special circumstances.
The aggregate sentence imposed by his Honour was a head sentence of 9 years and 4 months, commencing 19 December 2013 with a non-parole period of 7 years expiring 18 December 2020. The indicative sentences for each of the offences were as follows: Count 3 (common assault) - 12 months. Count 4 (assault occasioning actual bodily harm) - 12 months. Count 5 (recklessly causing grievous bodily harm) - 3 years with a non-parole period of 2 years and 3 months. Count 7 (assault occasioning actual bodily harm) - 6 months. Count 8 (attempt to choke with intent to intimidate) - 8 years. Count 9 (assault occasioning actual bodily harm) - 12 months. Count 10 (sexual intercourse without consent) - 6 years with a non-parole period of 4 years. Count 12 (common assault) - 3 months. Count 13 (sexual intercourse without consent) - 2 years and 6 months with a non-parole period of 1 year and 10 months.
His Honour dealt with special circumstances as follows: "It was submitted that I would find special circumstances in this case. As I understood it, four matters were advanced in that regard. First, that this is the offender's first experience of full time custody; second, that there should be allowed a period of supervision in order to deal with issues relating to the abuse of alcohol; third, the offender has been placed against his wishes in protective custody; finally, that the offender has a condition known as sleep apnoea, for which he had been receiving some treatment in the community. In my view none of those matters, either alone or in combination, justifies a finding of special circumstances. I do not understand that the first time in custody has ever, in and of itself, been an adequate ground for a finding of special circumstances. There is no evidence which justifies any conclusion on my part that the offender has a problem with alcohol that needs to be addressed. Certainly the consumption of alcohol was a feature of some of the offences but not all of them. There is no evidence either that some treatment in respect of alcohol is indicated in the case of the offender, or that the offender wishes to undergo any such treatment. Even if there had been evidence of that nature there does not seem to me to be any basis in this case for a conclusion that the issue could not be adequately or appropriately addressed without the finding of special circumstances. In the context of a sentence that must necessarily be imposed in the case of this offending, there will be adequate time for appropriate supervision in the context of the statutory ratio. While the offender has been placed for the time being in protective custody, there is no evidence that supports the proposition that by reason of that status the conditions of custody will be any more harsh such as to justify a finding of special circumstances. Finally, there is no evidence that indicates that any ongoing treatment is required for sleep apnoea, nor any to suggest that, to the extent any future treatment is required, the condition is not as capable of adequate treatment whilst in custody as it is in the community." (Sentence judgment T14.2 - 15.3)
The written submissions in relation to this ground went no further than to assert: "It is submitted that the first time in custody plus the extent of alcohol's contribution to the offences and that the accused suffered from an alcohol problem plus the protection issues there should have been such a finding."
In oral submissions it was submitted that this was a case where the excessive consumption of alcohol was associated with most of the offences and certainly the most serious offences, so that his Honour should have found that treatment was required by the applicant. Consideration
In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 a five judge bench (Spigelman CJ, Mason P, Grove and Sully JJ and Newman AJ) considered "special circumstances" as set out in s 44(2) of the Crimes (Sentencing Procedure Act) 1999 (NSW) and the extent to which it operated as a fetter or constraint on the exercise of the sentencing discretion. It was there accepted that "special circumstances" could not be confined to cases in which a longer period of supervision was required although many cases in which "special circumstances" were found, would be of that kind. The Court restated the proposition that, although it might be open to a sentencing judge in the exercise of his or her discretion to have regard to certain facts in combination as "special circumstances", a sentencing judge was not bound to do so. The existence of factors which may amount to special circumstances did not alter the discretionary nature of the judgment for which the statute provided. The Court also restated that the ultimate constraint was that the non-parole period must itself appropriately reflect the criminality involved in the offence (at [63]).
Here the sentencing judge set out in detail his reasons for not finding "special circumstances". In line with what was said in R v Simpson, it was open to his Honour had he so determined, to find special circumstances based on some or all of the four propositions put to him. He was not, however, obliged to do so. No error in his Honour's approach has been identified. I would refuse leave to rely upon this ground of appeal. Conclusion
The orders which I propose are as follows: 1. In relation to the conviction appeal, I would grant leave to appeal but dismiss the appeal. 2. In relation to the application for leave to appeal against sentence, leave should be refused.
ROTHMAN J: The test for an unreasonable verdict is as described by Hoeben CJ at CL, whose reasons in draft I have had the advantage of reading. I have read the evidence and formed the same view as his Honour. I also do not accept that the verdicts of acquittal are inconsistent with the guilty verdicts. Nor do the acquittals raise any reasonable doubt in my mind about the convictions. Any further comment would be repetitious.
I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons.
R A HULME J: I have read in draft the judgment of Hoeben CJ at CL. My own assessment of the evidence leads me to agree with the reasons of his Honour for the rejection of Ground 1 of the appeal against conviction. I also agree with his Honour's reasons with regard to the other grounds. I agree with the orders proposed.

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