Douglas v R - [2005] NSWCCA 419

No judgment structure available for this case.

CITATION:
Douglas v R [2005] NSWCCA 419

HEARING DATE(S): 14 November 2005

JUDGMENT DATE:

23 December 2005

JUDGMENT OF:
Simpson J at 1; Adams J at 152; Hoeben J at 156

DECISION:
1. Appeal against convictions dismissed; 2. leave granted to appeal against each sentence; 3. each sentence appeal dismissed.

CATCHWORDS:
appeal against conviction - application to appeal against sentences - assault occasioning actual bodily harm - common assault - aggravated sexual assault - sexual assault - self-defence - whether self-defence ought to have been left to jury - lies - cross-examination of appellant - whether excessive delay in complaint

LEGISLATION CITED:

Crimes Act 1900 s59(1), s61, s61I, s293, s418, s419
Criminal Procedure Act (1986) s293, S294

CASES CITED:
Alford v Magee [1952] HCA 3; 85 CLR 437
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Pemble v The Queen [1971] HCA 20; 124 CLR 107
R v Tangye (1997) 92 A Crim R 545
Stevens v The Queen [2005] HCA 65, unreported, 21 October 2005
Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; 162 CLR 645
Zoneff v The Queen [2000] HCA 28; 200 CLR 234

PARTIES:
Jerry Douglas - Appellant
Crown - Respondent

FILE NUMBER(S):
CCA 2005/1170

COUNSEL:
D Woodburne - Crown
P Hamill SC - Appellant

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/1027

LOWER COURT JUDICIAL OFFICER:
Latham DCJ

2005/1170

SIMPSON J
ADAMS J
HOEBEN J
Friday 23 December 2005

Jerry DOUGLAS v REGINA

Judgment

1 SIMPSON J: On 2 August 2004 the appellant was arraigned in the District Court on an indictment containing thirteen counts (of which two, Counts 8 and 10, were alternatives, to, respectively, Counts 7 and 9, and were subsequently withdrawn). A jury was empanelled and a trial proceeded over the next 12 days. The jury returned verdicts of guilty on five counts, not guilty on four counts, and were unable to agree in respect of two counts.

2 All five offences were alleged to have been committed against the same victim, KL. The charges, the dates on which the offences were alleged to have been committed, and the verdicts, are set out in the table below.

Count No	Nature of charge	Date of commission alleged in indictment	Verdict
1	Assault occasioning actual bodily harm	Between 11 November 1998 and 20 January 1999	Guilty
2	Assault occasioning actual bodily harm	Between 31 December 1998 and 1 July 2000	Not guilty
3	Assault occasioning actual bodily harm	15 June 2002	Not guilty
4	Assault occasioning actual bodily harm	Between 1 August 2002 and 1 October 2002	Guilty
5	Assault (common)	Between 31 October 2002 and 16 March 2003	Guilty
6	Assault (common)	3 March 2003	Not guilty
7	Aggravated sexual assault	5 March 2003	No verdict
8	Assault occasioning actual bodily harm (alternative to Count 7 – withdrawn)
9	Aggravated sexual assault	5 March 2003	No verdict
10	Assault occasioning actual bodily harm (alternative to Count 9 – withdrawn)
11	Assault (common)	13 March 2003	Not guilty
12	Sexual assault	13 March 2003	Guilty
13	Sexual assault	13 March 2003	Guilty

3 The charges of assault occasioning actual bodily harm were brought under s59(1) of the Crimes Act 1900 and carry a maximum penalty of imprisonment for five years; the charges of common assault were brought under s61 of the Crimes Act and carry a maximum penalty of imprisonment for two years; and the charges of sexual assault (simpliciter) were brought under s61I of the Crimes Act and carry a maximum penalty of imprisonment for fourteen years.

4 On 9 December 2004 the appellant was sentenced in respect of the five counts on which he was convicted. The sentences imposed were:

5 The effective total sentence was thus of imprisonment for ten years, commencing on 18 August 2004 and expiring on 17 August 2014, with a non-parole period of six years, expiring on 17 August 2010.

6 The appellant appeals against the convictions and seeks leave to appeal against the severity of the sentences imposed.

the Crown case

7 In outlining the Crown case it is necessary to include reference to the facts and circumstances alleged against the appellant in respect of those counts on which he was not convicted, as well as those which resulted in verdicts of guilty. What follows is, of course, an account of what the Crown alleged; it should not be read as containing findings of fact, particularly in relation to those counts on which the appellant was not convicted.

8 In 1998 the complainant, then aged about 35, was employed as a bar attendant in an establishment known as Uncle Buck’s Bar in Mt Druitt. The appellant was employed as the Assistant Manager. He occupied a flat above the bar. After some months the two developed an intimate relationship which was initially a satisfactory one, but which, after about six months, began to deteriorate, with the appellant becoming argumentative with and violent towards the complainant.

9 The first incident the subject of the indictment occurred towards the end of 1988, in the flat. After an argument the appellant hit the complainant in the face with his fists several times. She suffered bruising and a black eye. This incident was the foundation for the first count in the indictment, on which the appellant was convicted.

10 About six months later the complainant was living in a flat in Lemon Grove. Another argument took place. The appellant punched the complainant in the face with a closed fist, again causing a black eye. This incident gave rise to the second count in the indictment, of which the appellant was found not guilty.

11 The third incident was alleged to have occurred on 15 June 2002, which date the complainant could pinpoint because it was her birthday. By this time both the appellant and the complainant were working at the Macquarie Arms Hotel at Windsor, she as a bar attendant and he as licensee. He again occupied a flat above the hotel.

12 On the occasion in question the complainant was in the flat, preparing to go out for dinner with the appellant, when he entered the flat and an argument about the state of the flat began. The appellant punched the complainant in the face and arms. She suffered a black eye and bruising to other parts of her body. The appellant confined her in the flat for two weeks until the signs of the assault subsided. This gave rise to the third count on the indictment on which the appellant was acquitted.

13 The next incident was said to have occurred in about September 2002, again in the flat above the Macquarie Arms Hotel. The appellant and the complainant had both been drinking. Another argument took place, resulting in the appellant punching the complainant in the face, causing a cut above her eye and bleeding. This constituted the fourth count on the indictment, on which the appellant was convicted.

14 The fifth offence was alleged in the indictment to have been committed between 31 October 2002 and 16 March 2003. During the course of the trial the indictment was amended, to allege commission of the offence between 11 June 2001 and 21 February 2002.

15 The complainant and the appellant were temporarily residing with the complainant’s sister at Glenmore Park. After an argument the appellant hit the complainant, once, in the face. This gave rise to Count 5, the first charge of common assault, of which the appellant was convicted.

16 The next offence was alleged to have been committed on 3 March 2003; after another argument, the appellant slapped the complainant across the face. This gave rise to the sixth count (the second of common assault), of which the appellant was found not guilty.

17 The seventh count was of aggravated sexual assault, the circumstance of aggravation alleged being the malicious infliction of actual bodily harm. The complainant then lived in a flat in Luddenham. On 5 March 2003 the appellant and the complainant had dinner. Each consumed some alcohol. An argument developed. The appellant began hitting the complainant in the face, with a clenched fist, and “yelling” at her that she was going to die. She asked him to stop because it was hurting her and this brought about a short pause in the assault. The complainant went to the kitchen to wash her face, which was painful. The appellant followed her and “shoved” her, causing her to fall to the floor, and continued hitting her. The complainant attempted to protect herself by covering her head and face, and “wrapping [her]self into a ball”. The complainant was “yelling and screaming”, asking the appellant to stop, and hoping to attract the attention of neighbours and have them call police. She was crying. The appellant told her that she was going to die, that he was going to break her legs and arms and that “[she] was gone this time”. The appellant continued hitting and kicking her. He put his hand across her mouth to prevent her screaming and to try to pacify her. He pulled her by the hair and dragged her about three metres across the floor to the refrigerator. He took a Bacardi Breezer bottle from the freezer, with which he hit the complainant across the head, in the face, and around the body. The complainant curled herself into a ball in an attempt to protect herself. He kicked her. She was crying, asked him to stop, and was frightened for her life. The appellant ceased the attack and drank the contents of the bottle. The complainant rose from the floor, with some difficulty, and returned to the living room. The appellant pushed her, and she fell and hit her head on a television set, and her elbow on the tiles around the fireplace. On this count the jury were unable to reach a verdict.

18 Count 8 was an alternative to Count 7 and was withdrawn during the trial.

19 The next count, Count 9, was also of aggravated sexual assault, the circumstance of aggravation again being the malicious infliction of actual bodily harm, and was alleged to have occurred on the same day, and immediately following the incident the subject of Count 7. While the complainant was still lying on the floor, the appellant removed her clothing, pulled her off the floor, and began to remove his own clothing. She protested, but he said he was going to give her pain. He inserted his penis into her vagina. She asked him to stop and attempted to get up. He pushed her back. He then inserted his penis into her anus, and “just rammed it there”. After about fifteen minutes he ceased and went to bed. The complainant was bleeding from the anus. She sustained bruises, swelling to her face, and soreness to her left side and legs. On this count, also, the jury were unable to reach a verdict.

20 Count 10 was an alternative to Count 9, and was withdrawn during the trial.

21 The offences the subject of the final three counts, Counts 11, 12 and 13, were all alleged to have been committed on, essentially, the same occasion, as part of a continuing event, on 13 March 2003.

22 The complainant picked the appellant up after work. They went out for dinner in Penrith. They returned to her flat in Luddenham. An argument developed, the appellant hit her in the face, jabbed her in the ribs and told her he was going to kill her. He grabbed her by the front of her shirt and told her that he had not finished with her yet. She asked him to stop, and asked him not to hit her. This was the foundation for Count 11. The appellant was found not guilty.

23 The complainant, in real fear of the appellant, picked up her car keys and ran from the house, out a side door. She jumped from the veranda, injuring both of her legs. She lay on the ground, screaming for help. The appellant came out of the house and put his hand over her mouth so neighbours would not hear. He carried her into the house and put her on the lounge, telling her that she could not go anywhere now. He put ice on her ankles. She lifted her leg, which he hit because he thought she was going to kick him. She lay on the lounge, in pain, crying, and he told her “to stop being a sook”, that she had not broken her legs, but had only torn ligaments. She was unable to put weight on either of her legs. As the medical evidence showed, she had in fact a fracture in the left knee, and another in the right ankle. The appellant carried her to the bedroom and began to remove her clothing. He ordered her to perform fellatio upon him, which she did. This gave rise to Count 12 in the indictment, on which the appellant was convicted.

24 After the complainant had fellated the appellant, the appellant, despite the complainant’s vehement protests, penetrated her vaginally with his penis. Although she screamed, and repeatedly requested that he stop, he continued until ejaculation. This gave rise to Count 13 on the indictment, on which the appellant was convicted.

25 The principal Crown witness was, of course, the complainant. She said that, after the events of 13 March, she had asked the appellant to call an ambulance to take her to the hospital. He refused. The following morning he took her to the Hawkesbury Hospital at Windsor. There the complainant related the events to medical staff, who notified police.

26 Police attended and the appellant was arrested at that hospital.

27 Supporting evidence was called in the Crown case from a number of witnesses. None of it is the subject of any ground of appeal. Some of this evidence appears to have been tendered as evidence of complaint. In addition there was medical evidence, and evidence of other witnesses tending to corroborate some aspects of the complainant’s account, including her claims of injury and bruising. The complainant’s sister, Ms Kelly Bonny, gave evidence that related to Count 5. She confirmed that the complainant and the appellant had stayed with her and her partner at Glenmore Park for a period of about three months, and that, on one occasion during that time, she had seen the complainant crying. Ms Bonny directly asked her if the appellant had hit her and the complainant said that he had. Ms Bonny said that the complainant had a red mark under her right eye.

28 It was as a result of cross-examination of Ms Bonny that the date specified in the indictment in relation to this count was amended.

29 The complainant’s mother, Mrs Joyce Gillespie, also gave evidence. She said that, during the time that the complainant was working at Uncle Buck’s, she (Mrs Gillespie) noticed bruising to her face and eyes, which the complainant explained by saying she had “knocked it on a cupboard”. She said that where the complainant had previously regularly visited her (she had the care of the complainant’s children) she ceased doing so on a regular basis, saying that she had to work. When she did visit she had bruising to her eyes or face. Mrs Gillespie said she confronted the complainant one day and asked if the appellant was responsible for the bruising. The complainant said that he was.

30 She spoke to the complainant on 6 March 2003 by telephone. On that occasion the complainant told her that the appellant had “bashed her and raped her”.

31 She said that, in early 2002, she visited the complainant at the Macquarie Arms and saw the appellant. The appellant told her that the complainant had a cut on her eye, caused by his throwing a book at her. She herself later observed the cut on the eye, together with a bruise. When she asked the complainant about this, the complainant confirmed that the appellant had thrown the book, and said that he had punched her also.

32 She said that she visited the complainant a couple of days after her birthday, in June 2002, and found her lying in the bed in the flat above the hotel. She had a bruise on her left eye. Early in 2003, again visiting the complainant at the Macquarie Arms, she observed bruises to the complainant’s body. She corrected her earlier evidence, saying that she thought this was the occasion when the complainant was in bed.

33 On that occasion Mrs Gillespie observed that the complainant had bruises on her arm, her face, lumps on her head, and parts of her hair missing. She also had bruises down her ribs. She told Mrs Gillespie that the appellant had pulled her hair and that he had been kicking her while she was on the floor.

34 On 12 March 2003 the complainant telephoned Mrs Gillespie. She was at the rooms of her general practitioner. Mrs Gillespie picked her up and drove her home.

35 On 14 March 2003 Mrs Gillespie received another telephone call from the complainant, this time from Hawkesbury Hospital. Mrs Gillespie and her husband went to the hospital and picked her up.

36 Four employees of the Macquarie Arms gave evidence. Ms Shannon Batey said that the complainant used to come to work with bruises on her legs, arms and face, and on one occasion, on her left eye. She explained the bruise by saying that the appellant had become angry and punched her. In September 2002 she said that her back was sore. She showed Ms Batey bruising to her back. She said that the appellant had thrown car keys at her and they had hit her in the back.

37 Shortly after her birthday in June 2002 the complainant told Ms Batey that the appellant had become angry and had beaten her up again.

38 Ms Misty-Anne Slee gave evidence that, after she had commenced work at the Macquarie Arms in December 2001, she observed the appellant being verbally aggressive and abusive to the complainant. She also gave evidence of an occasion in March 2002 when she was required to work on 16 consecutive days, working her own and the complainant’s shifts. She saw the complainant on about the twelfth or thirteenth day, walking down the hotel stairs with bruising to her left eye. About two weeks later she and the complainant had a long conversation in which the complainant told her that the appellant had hit her in the face. Subsequently, about June 2002, she had a conversation with the complainant who again told her that the appellant had assaulted her.

39 On one occasion, Ms Slee said, she had observed the appellant using physical violence towards the complainant. This occurred in the bar. The complainant and the appellant were having a verbal argument. The appellant kicked the complainant in the shin. The complainant left the room.

40 Mr Mark Wyrzuc gave evidence of an occasion late in 2002, after the hotel had closed. The complainant ran into the office. She was crying and emotionally upset.

41 Ms Victoria Russell also observed bruising to the complainant’s body on occasions, and a black eye. The complainant always explained these by saying that she and the appellant had been fighting.

42 Constable Joanne McGinn was a Constable of Police. On 14 March 2003 she and Detective Senior Constable David Frewin were called to the Hawkesbury Hospital where they spoke to the complainant. Constable McGinn noticed that the complainant had hair missing from her head in various areas and some bruising.

43 The police officers then spoke to the appellant, who was in the reception area of the hospital, and arrested him and conveyed him to the Windsor Police Station. When cross-examined about the missing hair, Constable McGinn said:

“It appeared to me as if chunks were missing from out of her hair as in various areas of her head.”

44 Dr Geoffrey Dunn was a medical practitioner who was a member of the general practice of which the complainant was a patient. He had himself been consulted by the complainant. He gave evidence from the records of the practice. This included notes of consultations with other members of the practice. On a date which could not be determined from the records, but was between 11 November 1998 and 22 January 2001, it was recorded that the complainant had been assaulted “by boyfriend”, and that he had assaulted her on several previous occasions. The notes recorded that the complainant had been punched in the face, kicked in the chest and that the appellant had had his hands around her neck. She had bruising to the left upper thigh and right knee.

45 An entry made in respect of 12 August 2002 recorded:

“Assault, abuse before, hit face, chin, hit to ground and kicked, bruises to left side of the face and eyelid, chest and chin, left lower leg, under arms, dorsum of the hands and conservative treatment”

46 Reading from the notes of 12 March 2003, Dr Dunn gave the following evidence:

“Last Wednesday, 05/03/03 at night, allegedly assaulted by boyfriend, bashed patient with fist, foot, bottle on head. Five year relationship, also indicates that she was hit with the fist and the foot on the trunk as well. ...

Multiple bruises on the upper body, trunk and limbs. On examination of scalp, there was no obvious swelling or bruising, soft tissue tenderness over certain areas ...

The face, there was a small fading bruise on the left side of the cheek, the trunk ... On the right arm, ... there was a 3 x 3 cm bruise and just below it a 3 x 2 cm bruise. On the left hand side at the shoulder there were two bruises, one 3 x 3 just underneath it there was a 2 x 1 and then on the upper part of the arm there was a 7 x 4 cm bruise. ... On the left hand side there was a 7 x 2 cm bruise and underneath there was a 2 x 2 cm bruise. On the right hand side at about the same level, ... there’s a 7 x 2 cm bruise. Then on the right side but lower down ... 2 x 2 cm bruise. On the right leg ... posteriorly, round the back, that 2 x 2 cm bruise ... at about mid thigh there was a bruise 4 x 3 cm.”

47 Dr Dunn gave evidence from the notes, which he appears to have been translating and explaining as he did so. What appears above is taken directly from the transcript and appears to represent his attempt to reconstruct the notes from which he was giving his evidence. It is not clear what is a direct reading from the notes and what, if anything, is his interpolation.

48 Dr Dunn was asked about an entry on 13 March 2003. This recorded bruising to the chest area which was x-rayed. The x-ray was normal. This consultation was before the events the subject of Counts 7, 8 and 9.

49 The complainant’s next consultation with the practice was on 24 March. She had been discharged from hospital on 20 March. Dr Dunn said that the notes recorded:

“She had been admitted to Nepean District Hospital as she had jumped off a balcony on thirteenth of the third to get away from her boyfriend.”

50 Dr Ramesh Nadrajah was the Director of the Emergency Department of the Hawkesbury Hospital. He examined the complainant when she attended there on the morning of 14 March. He said that she was in pain. She had suffered two major bone injuries, one on the left knee and one on the right ankle, and some bruising. X-ray examination revealed a fracture in the right ankle and another in the left knee.

51 She was referred to Dr Michael Walsh, an orthopaedic surgeon. Dr Walsh said that, on suffering those injuries, the complainant would have been “immediately crippled with pain”:

52 After his arrest the appellant participated in an electronically recorded interview. It was a lengthy interview, commencing at 12.50 pm, and terminating at 2.42 pm. He was not asked about all of the individual allegations of which the complainant gave evidence. He was asked about the events of 5 March 2003 and 13 March 2003. As to the first date, the question that was put to him was this:

“Q18: ... So what can you tell me about the allegation that you seriously assaulted [the complainant] on the 5th of the 3rd, 2003?”

“She grabbed me sort of thing, I pushed her over, she went over on the table sort of thing. She got back up and I said, and then we just started wrestling again, and that was, and that was basically it.”

53 The subject of the appellant’s suspicion that the complainant was being, or had been, unfaithful to him recurred throughout the interview. However, all references to this were deleted from the recording of the interview that was played to the jury, and the transcript with which they were provided. This was done in accordance with a ruling by the trial judge that the evidence was evidence of sexual reputation within the meaning of s293 of the Crime Act, and was, therefore, inadmissible. The appellant claimed that the complainant had apologised to him for her conduct. That evidence was the subject of ground 4 of the appeal, which was abandoned.

54 After many more questions, the appellant was asked more about his assertion that the complainant had slapped him. He said that she slapped him in the face, but it was “just a slap” and did not leave bruising or soreness. However, he then went on and said that following her slapping him, he grabbed her by the shirt and threw, or pushed the complainant. At one point he said:

“I pushed her over on the table.”

“She’s highly, I mean her nickname in the hotel, her nickname is Agro, like she does, that’s her nickname, she’s had it all her life, you know. She’s highly volatile, she’s, sort of thing, then she came at me, so like I said, and then she came, and then, like I said, we just were on the ground like for a minute, like we were wrestlin’.”

55 He denied having hit her with a bottle of Bacardi Breezer.

56 When asked about the incident in which he acknowledged throwing a cookbook at the complainant, the appellant said that the complainant had not physically assaulted him.

57 At Q140 the appellant was asked about the complainant’s allegation that he had ripped hair from the back of her head. His answer was:

“When we wrestled, yes, there was hair, she grabbed my hair, she was pulling my hair and I was pulling hers, and I said, ‘Let go’, and she would not let go, and as I said, we were both pulling each other’s hair, but didn’t, yeah.”

58 When asked about their relationship, at Q168, the appellant said:

“It has always been very highly volatile, like I said she’s very, very um, how can you put it, she’s always snapping, she’s always going off. I’ve got a staff don’t like her, I’ve got customers don’t like her, she’s a, like I said, her nickname’s Agro, she speaks her mind too much, which I’ve told her a thousand times not to. She’s, like I’ve said, everyone knows her by Agro, some of them don’t even know her name is [...], that what she’s like, she’s just - - -.”

59 It was then put to the appellant that the complainant had alleged that, following that assault, he had sexually assaulted her. He said he understood the allegation and said “I totally deny that”. He repeated his “total denial” and said that they apologised to each other and agreed to try to work things out. He told her she needed therapy. He said they then had consensual sexual intercourse. This took place in the TV room on the lounge. He said that they had anal as well as vaginal sex. However, a little later (Q223), he said that they had, on that occasion, only had sex “the one time”.

60 The appellant was then asked about the events of the previous evening, 13 March 2003.

61 In answer to Q247, the appellant said:

“Um, there was no assault by myself, if jumping off a half a metre is an assault, then, the alleged assault, ‘cos I mean, like she fell down, we were talking about the incident, I was asking her about it, we were talking about it, um, again, about it ... [the incident being the complainant’s alleged affair] then she just, um, she took off, she took off, she said, ‘I don’t want to talk about this any more’, and then she said, like she goes, she said, like you know, ‘You’re getting upset, I don’t want to talk about,’ and then she took off and she jumped off the ledge, so how’s that an assault?”

62 The appellant was then asked about the allegation that he had slapped the complainant on the face. He gave a lengthy series of answers, the effect of which was a denial. He said that he gave a telephone to the complainant and invited her, if she was scared, to telephone her mother. He said, in answer to Q279:

“I swear on my child’s life that I didn’t slap her once. Like I said, I told you before, the wrestlin’, threw the book, all that sort of stuff, that’s fine. I did not touch her last night, I did not. This is a joke.”

63 The appellant then agreed to provide a DNA sample for investigative purposes.

64 The trial commenced on 2 August 2004. The appellant was then represented by senior counsel. On Monday 9 August 2004 the proceedings commenced, in the absence of the jury, with senior counsel advising the trial judge that her instructions had been withdrawn that morning. This was at a point when the Crown case had all but closed. Arrangements were made for replacement counsel to be provided with the tape recordings of the evidence and time to familiarise himself with the materials. The trial resumed on 11 August.

the defence case

65 The appellant gave evidence. His evidence was broadly consistent with what he had said in his interview. He denied ever having assaulted the complainant, except on one occasion, on 5 March 2003, when, he said, he threw a cookbook at her. He maintained that all instances of sexual intercourse between them had been consensual.

66 He asserted that the complainant was of a highly volatile temperament, and that their relationship was marked by arguments and that these, in turn, were characterised at times by physical aggression on the part of the complainant, who would punch him in the mouth, hit at his face, and try to scratch his eyes out. On these occasions he sometimes slapped, but never punched, her.

67 The appellant was asked about the events of 5 March 2003. He repeated that he and the complainant had had a discussion (about his suspicions concerning her conduct) that escalated into an argument which culminated in his throwing the cookbook at the complainant. He said that the cookbook struck her in the face, that the complainant came towards him and slapped him across the face “pretty hard”. He said he grabbed her by the shirt and threw her (on another occasion he said “pushed”) and she hit the table. He said she came towards him again and he grabbed her again, they began wrestling, she was pulling his hair and he was pulling her hair. He said he then went into the kitchen and she followed. He did not have a clear recollection of what happened then but they were talking. They then had consensual vaginal and anal sex. They slept together in the same bed that night and the following several nights. They had sexual relations about three times during that period.

68 The appellant was asked what caused him to slap the complainant or push her away and he replied:

“Well, when you’re being spat in the face and someone’s, like, trying to scratch your eyes out and things like that, well then, I have retaliated. I know it’s not the right thing to do, shouldn’t have done it, but I did.”

69 When asked what was the purpose of his doing so, the appellant said:

“Well, it’s self defence.”

“Well, the purpose is that she’s attacking me and if I don’t push her away, then she’s just going to keep attacking me.”

70 In answer to another question, about whether there were instances of “actual physical action of aggression” on his part, the appellant said:

“No. I’ve never hit [the complainant] without the [the complainant] – or pushing [the complainant] away without [the complainant] attacking me, I’ve never.”

“I’ve never gone and – I’ve never hit [the complainant] without her actually hitting me first, no.”

71 The appellant was then asked about the events of 13 March. He said that he and the complainant had been out for dinner and had returned home when the issue the subject of their dispute (her asserted infidelity) arose. He said this did not last very long as the complainant did not wish to talk about it. He said he walked into the kitchen and the complainant left. His words were:

“... I walked into the kitchen, she, like I said, I didn’t see her take off, I didn’t see her leave. Next thing I know, she’s gone. I’ve gone out – I heard something, I’ve gone outside - -“

72 He denied spitting in the complainant’s face. He was asked about the allegation that he had begun jabbing the complainant in the ribs, which were already bruised from the previous incident. He described this as “just a complete lie”. He returned to his assertion that the complainant had jumped off the “ledge”. He said:

“She just, like I said she was at the door and she just took off OK. We were talking, she said, ‘I don’t want to answer any more of your questions’ whatever, fuckin’ like, you know, and she just took off. I am goin’ and I just went, ‘What are you doing?’ And then she just jumped off the thing and she was going, ‘I think I’ve done something, blah, blah, blah’. And I, so I grabbed her, I’ve taken her back, like I said, you know, she said ‘I think I’ve broken it’, or whatever, so I picked her back up and I’ve taken her inside.”

73 He said he did not see the complainant jump from the patio, but saw her rolling on the ground. He said she could not walk on her foot so he picked her up and carried her inside and saw that one foot was slightly swollen but satisfied himself that she could move her toes, from which he concluded that there were no fractures. He thought that she had sprained her ankle. He volunteered that she did not ask him to take her to the hospital that night, but complained the following morning that she could not move her foot as a result of which he suggested going to the hospital. He denied covering her mouth with his hand to stop her from screaming.

74 The appellant was then asked about the complainant’s allegation that he had forced her to have oral sex with him. The appellant said that after he had carried the complainant inside, he put ice on her leg and gave her a drink. He then carried her into the bedroom where they lay together affectionately and then had consensual penile/vaginal sexual intercourse. He then performed cunnilingus upon her and she fellated him.

75 Each allegation was put succinctly to the appellant in cross-examination. I extract his answers in relation to the events the subject of each count:

“Never punched her, did not punch her, no”.

“No, did not – no did not punch her, no”

“No, I did not punch her, no.”

“I did not punch her, no.”

“I did not punch her, no. Pushed her away, didn’t punch her. ... No, I didn’t push her on the face.”

“No” (to a suggestion that he had slapped her across her face at her flat at Luddenham).

“No. I didn’t punch her, no - - ...

I didn’t punch [the complainant] in the face on 5 March, no ...

... Like I said, I did grab her by the shirt and pushed her over, yeah.

In respect of the occasion the subject of these counts, the appellant denied successive allegations that he had hit and kicked the complainant as she curled into a ball; that she was yelling and crying and screaming for him to stop; that he said she was going to die and that he was going to break her arms and legs; that he dragged her by the hair to the front of the refrigerator; that he hit her over the head and on the side of the body with a Bacardi bottle; that he kicked her; that he pushed her causing her to fall and hit her head on the television; that he said he was going to give her pain; that he inserted his penis in her vagina and she told him to stop; that she tried to get up but he pushed her onto her back so that she was bent face down on the lounge; that he rammed his penis into her anus and she screamed; that she was crying and telling him that she did not want to; that he again said “I’m going to give you pain, bitch”; that he ejaculated into her anus and she was bleeding; that he knew she was scared and in pain on that night; and that he knew she did not want to have sex with him when he inserted his penis in her vagina and then in her anus.

“Never” (to an allegation that he hit the complainant’s face).

In relation to these counts the appellant denied successive allegations that he jabbed the complainant in the ribs; that he said he was going to kill her; that he grabbed her shirt and she said “Don’t hit me”; that she was crying and said, “Stop, don’t hurt me more”; that after she fell off the balcony he covered her mouth with his hand; that, despite her saying she did not wish to do so, he demanded that she perform fellatio upon him; that he lifted both her legs in the air; that she screamed and was crying tears from her eyes; that she told him that she needed to go to hospital; that he refused to take her and told her to stop whingeing; that she was crying out in pain as he removed her clothing over her fractured knee and ankle.

the grounds of appeal

76 Five grounds of appeal against the convictions were pleaded. They were framed as follows:

“1. The trial miscarried as a result of the failure of the trial judge properly to direct the jury in relation to the issue of self-defence.

2. The trial miscarried as a result of the failure of the trial judge properly to direct the jury on the question of lies alleged by the Crown to have been told by the appellant in the course of his interview and his evidence.

3. The trial miscarried as a result of unfair cross-examination of the appellant by the learned Crown Prosecutor.

Criminal Procedure Act [1986]

Criminal Procedure Act

77 At the commencement of the hearing of the appeal, ground 4 was abandoned.

ground 1: self-defence

78 This ground relates to the convictions on Counts 1, 4 and 5, of assault occasioning actual bodily harm and common assault.

79 Senior counsel for the appellant contended that a direction in accordance with s418 of the Crimes Act 1900 ought to have been given; indeed, he went so far as to contend that such a direction was “critical” in the circumstances of the case. By s418(1) a person is not criminally responsible for conduct undertaken in self-defence. S418(2) defines the circumstances in which conduct is to be treated as conduct undertaken in self-defence. Relevantly, conduct believed by the accused to be necessary and carried out to defend the accused, (or to defend some other person), or to prevent or terminate the unlawful deprivation of the liberty of the accused or another person, where the conduct is a reasonable response in the circumstances as perceived by the accused person, is conduct undertaken in self-defence. There was never the slightest suggestion that the appellant engaged in any conduct to defend any other person, and that can be put to one side. The section is relevantly in the following terms:

“S418(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

There are three distinct components of the defence. They are:

(i) that the accused believes that the conduct is necessary to defend himself or herself or another person (or for one of the other purposes identified in the section and not presently material);

(ii) that the accused carries out the conduct for that purpose (see subs(1)); and

80 By s419, where the application of Part II, Division 3 of the Crimes Act (in which Division the provisions relating to self-defence are to be found) is raised, the prosecution bears the onus of proving, beyond reasonable doubt, that the accused person did not carry out the conduct the subject of the charge in self-defence.

81 The words in s419 “in which the application of this Division is raised” are of some significance.

82 At trial, counsel did not address to the jury any argument that the conduct alleged against the appellant had been carried out in self-defence. It would have been (tactically) difficult for him to do so, given the appellant’s firm denial that he had committed any of the alleged assaults other than that he had thrown a cookbook at the complainant. Nor did the appellant give any evidence that he believed the conduct (which he denied) was necessary to defend himself or to secure his liberty. There was thus no real evidentiary basis for such an argument to be put. The appellant having opted to put all his eggs in the denial basket, it would have been tactically unattractive for counsel to adhere to the denial but to opt for an entirely inconsistent alternative that necessarily involved acceptance that the assaults had occurred. It is, on two bases, understandable that counsel did not address the jury on self-defence. The two bases are the realistic acceptance of the absence of an evidentiary basis, and the tactical considerations to which I have just referred.

83 Those tactical considerations need not, however, have precluded a request in the absence of the jury that the judge direct the jury in accordance with s418. No such request was made. Yet it is now contended that the failure of the trial judge to give such a direction was erroneous.

84 It is trite to observe that a judge is required to direct the jury on the issues as they have emerged in the trial: see Alford v Magee [1952] HCA 3; 85 CLR 437 at 466. However, senior counsel for the appellant relied upon a second line of High Court authority to support his contention that, in a criminal trial, a judge is required to direct the jury in relation to any defence reasonably available on the evidence, even in circumstances where it is not invoked by the accused person: Pemble v The Queen [1971] HCA 20; 124 CLR 107 at, for example, p 118. Senior counsel relied upon a passage in the joint judgment of Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; 162 CLR 645, at 665, in the following terms:

85 He also relied upon the more recent decision of the High Court in Stevens v The Queen [2005] HCA 65, unreported, 21 October 2005. That was a case in which the accused was charged with murder. The accused and the deceased had been alone together in a room when the deceased died as the result of a gunshot wound. The accused claimed in evidence that the deceased had been about to shoot himself when he (the accused) sought to intervene and prevent him from doing so. The Crown case was a circumstantial one.

86 The Criminal Code of Queensland excluded criminal liability for an event that occurs by accident. Counsel who appeared for the accused sought directions to that effect. The trial judge declined to leave accident to the jury.

87 By a majority, the High Court held that the refusal to leave accident to the jury was erroneous. This was because, notwithstanding the accused’s evidence, there was sufficient evidence from other sources to enable the jury, if they saw fit, to conclude that accident was a reasonable explanation of the event. (It appears to have been generally accepted that the explanation given by the accused did not amount to a claim of accident.) McHugh J said:

“29 A jury is entitled to refuse to accept the cases of the parties and ‘work out for themselves a view of the case which did not exactly represent what either party said.’ ... the appellant was not required to establish by inference that [the deceased] had died by accident. Nor was he required ‘to prove particular facts that would tend to support such an inference.’” (internal references omitted)

88 Kirby J agreed with the proposition that a jury is not required to accept, in its entirety, either the prosecution or the defence case. A jury is entitled to form its own opinions about the facts, so long as the resulting verdict is not appellably unreasonable. However, his Honour said this in the context of acknowledging (twice) that the jury’s entitlement to find a version of the facts not contended for by either party still depends upon there being evidence to support that alternative factual basis. His Honour put it this way:

there was evidence that engaged the Code provision

prima facie

reasonably engaged by the evidence

89 As I have noted above, in that case McHugh J expressly held that four pieces of evidence existed that would have entitled the jury to return a verdict of not guilty based on the failure of the Crown to exclude accident.

90 It is therefore necessary to examine the evidentiary issues that arose in relation to each of the offences the subject of this ground. It is for that reason that I have set out above, in perhaps tedious detail, the evidence, particularly what was said by the appellant in his record of interview, and in his testimony.

91 The first incident, it will be recalled, was the event said to have taken place at the end of 1998, in the flat above Uncle Buck’s Bar, when, the complainant said, the appellant hit her in the face with his fists several times. The appellant was not asked about this when interviewed by police and his position on this charge only emerges from the evidence he gave in the trial.

92 At the commencement of his evidence he gave a general outline of the relationship between himself and the complainant. He said that they argued numerous times and that the arguments would develop into a “yelling match” and that sometimes they became physical. He said that the complainant spat in his face “plenty of times” and punched him in the mouth, kicked him, and tried to scratch his eyes out. He said as a consequence of this conduct on her part, he pushed her away on occasions and slapped her, but denied ever punching her. When asked about pushing her away, he said:

“Well, it’s self-defence.” (t 12)

93 In cross-examination it was put to the complainant that had initiated the violence on this occasion, by “attacking” the appellant. The nature of the attack alleged was not, however, specified. It was also put to her that the appellant had pushed her away, in an attempt to prevent the attack. She denied each suggestion.

94 The suggestions contained in these questions were not supported by the evidence given by the appellant.

95 In his evidence in chief the appellant was specifically asked about the event the subject of the final count, but gave an entirely unresponsive answer (t 15). He was then asked whether, apart from 5 and 13 March, there was any time when he actually assaulted the complainant. He said:

“ ... I’ve never hit [the complainant] without her actually hitting me first, no.”

96 When cross-examined directly about the incident the subject of the first count, the appellant’s response was:

“Never punched her, did not punch her, no.” (t 65)

97 Immediately before that, in response to a suggestion put directly to him that the complainant had never showed any physical violence, the appellant said:

“She started all the physical violence, she’s the one that went to the doctor to get something done about it.”

98 In his interview (in one of the passages excised from what went to the jury, but which has been put before this Court, and in another passage that was not excised), the appellant had also asserted that he had urged the complainant to seek some form of therapy. This, however, was in the context of his suspicions of her infidelity.

99 Given that, in respect of this count, the appellant simply denied the conduct alleged against him, it is impossible to see how a direction on self-defence could rationally have been given. On what evidentiary matters was the judge to direct the jury? The answer given by the appellant, extracted above in [70], is indicative, not of self-defence or even self-protection, but of retaliation. The only evidence was that of the complainant that the appellant had punched her and that of the appellant denying her evidence. There was not the slightest evidence that the complainant had initiated any altercation, whether verbal or physical, and no evidence from which any such inference could be drawn. There was no evidence on which a jury could have any conclusions as to the appellant’s perception of the circumstance.

100 While it remained for the Crown to negative a belief on his part that the conduct (that he denied) was necessary to defend himself (as distinct from conduct he engaged in by way of retaliation) nevertheless, there must be some evidential basis before an issue of self-defence may be left to the jury. S419 depends upon the issue of self-defence having been “raised”: see, e.g. Colosimo v Director of Public Prosecutions (NSW) [2005] NSWSC 854, per Johnson J; R v Nguyen (1995) 36 NSWLR 397, per Priestley JA. It was not here raised in any meaningful way. The mere reference, by the appellant in his evidence in chief, to self-defence, in lay terms, did not do that. Nor did generalised assertions that it was the complainant who initiated violence in the relationship.

101 Nothing in Stevens or Pemble requires that a judge direct a jury in respect of matters that are purely fanciful.

102 Count 4 related to the incident alleged to have occurred in about September 2002 in the flat above the Macquarie Arms Hotel, and involved, again, an allegation that the appellant punched the complainant in the face after an argument.

103 The appellant was not asked about this in the interview and said nothing directly about it in evidence in chief. He was asked directly in cross-examination, and denied punching the complainant.

104 In these circumstances, it is impossible to see how a self-defence direction could rationally have been given. The issue simply did not arise. There was no evidence on which to direct the jury.

105 The fifth count related to the incident between June 2001 and February 2002, at the complainant’s sister’s home, when, it was alleged, the appellant hit the complainant in the face. In cross-examination the appellant said of this allegation:

“I did not punch her, no. I pushed her away, I didn’t punch her.”

106 To the extent that the appellant mentioned the words “self-defence”, in general terms, at the outset of his evidence, it is plain that this was not based on any accurate perception of what the law provides in this respect. The most that could be read into the appellant’s general answers is that he retaliated against alleged attacks on him on the part of the complainant on occasions other than those the subject of these three counts. Indeed, he himself used the word on one occasion. Retaliation is not self-defence. There was no conceivable basis on which a self-defence direction could, let alone should, have been given.

107 The proposition that such a direction ought to have been given may be tested by reference to the factual matters to which reference would have been made in the direction. Those passages of the evidence favourable to the appellant would have included his evidence about the complainant’s “highly volatile” personality, both in the record of interview and in his evidence; his assertion in the evidence that the complainant spat in his face, scratched at his eyes, punched him in the mouth and kicked him; his unspecified reference to “self-defence”; and his assertion that he never hit the complainant unless she had hit him first.

108 As against that, it would have been necessary also to direct the jury of the appellant’s descriptions of the events of 5 March, when he said he grabbed the complainant by the shirt, threw her (or pushed her) into some furniture; his acknowledgment that he had pulled her hair (even though he also claimed that she pulled his hair); the consistency of the hair pulling with the independent evidence from other sources confirming the complainant’s hair; and the evidence from a number of other witnesses of having observed bruising or other marks on the complainant.

109 I would reject this ground of appeal.

ground 2: lies

110 In cross-examination the Crown Prosecutor put, on a number of occasions, to the appellant that he had lied, either in his interview with police, or in his evidence. It was therefore submitted on his behalf that a direction along the lines proposed in Zoneff v The Queen [2000] HCA 28; 200 CLR 234 ought to have been given. There the High Court held that, in circumstances where it is alleged that an accused person has told lies, but this is not raised for the purpose of suggesting that he had done so out of a consciousness of guilt, it is unnecessary and undesirable that a direction of the kind mentioned in Edwards v The Queen [1993] HCA 63; 178 CLR 193 be given. The majority in the High Court suggested that, in those circumstances, a direction, incorporating a caution against reasoning that, just because a person is shown to have told a lie about something, that is evidence of guilt, “might appropriately have been given”. Their Honours suggested that a direction of the kind there proposed may well be adaptable to other cases in which a risk of misunderstanding about the significance of lies arises, even though the prosecution has not suggested that the accused told the lies because he or she knew that the truth would implicate him or her in the commission of the offence.

111 Nowhere in Zoneff is a direction of the kind there postulated mandated. The direction there formulated was expressed as one that “might appropriately have been given”. The case was, moreover, described as an “unusual” one. This was because that appellant had appeared unrepresented at the trial. The Crown Prosecutor adhered to a longstanding convention that, where an accused is unrepresented, the Crown foregoes its right to address the jury. That left the issues less defined than they otherwise might have been. This led the majority in the High Court to the view that the trial judge might have had concerns about the true nature of the issues between the parties (or, perhaps, the jury’s understanding or perception of the true nature of those issues), which might have been allayed by the direction suggested.

112 A similar issue arose in this Court in R v Tangye (1997) 92 A Crim R 545. Hunt CJ at CL, with whom McInerney and Sully JJ agreed, said:

“In my view, even in cases where the lie is relied upon by the Crown only in relation to the credit of the accused, it is best for the judge to direct the jury that they should not find him guilty simply because he has told a lie, but it is not an error where that has not been done, and it is even less meritorious as an appeal point when the trial judge (as here) has not be requested to do so.”

113 One example of a lie said to have been told by the appellant to the police in the interview is to be found in his answer to question 66. He was asked if he saw any injuries to the complainant after she had been hit with the cookbook. The appellant’s answer was barely responsive and was somewhat confused. I set it out in full:

So we took her to the doctor’s the next day

114 The cookbook incident, on the appellant’s account, had occurred on 5 March. The medical records showed that there had been no consultation on 6 March. It was therefore put to the appellant, and with some vigour and repetition, that his claim to police that he had taken the complainant to the doctor on 6 March was a deliberate lie, and one which he told in an attempt to give an innocent explanation for the bruising the complainant suffered the previous day, and that the lie was intended to create a false impression that he was concerned about the complainant. (In the circumstances, it is difficult to see how falsely stating that he had taken the complainant to the doctor on 6 March could provide “an innocent explanation” for her bruises; the appellant’s own account was that she had bruises because he had, with some force, thrown a cookbook at her. Far more plausible was the suggestion that he had falsely made that claim in order to create an aura of concern for her welfare.) The appellant answered this by saying that, at the time he was interviewed, he had been confused.

115 The interview with the appellant took place on 14 March. Although the medical records showed that the complainant had attended at the doctor the previous day, there was no suggestion that the appellant had been involved in that attendance. In any event, it is difficult to conceive that, on 14 March he could have been confused about having taken the complainant to the doctor more than a week earlier. The inescapable conclusion is that at no relevant time did the appellant take the complainant to the doctor. There was no other occasion about which he could have been confused. He did take her to the hospital, but that was on 14 March, the same day as the interview. He could hardly have confused that event – taking the complainant to a hospital in Windsor – with the event he falsely stated had occurred – taking the complainant to the medical practice in Penrith more than a week earlier. It was legitimate to cross-examine the appellant about the false statement. The proposition that the false statement was made to provide an innocent explanation does not, it seems to me, have much, if any, logic, but it is also unlikely that it did any harm: or, more to the point, that the absence of a Zoneff direction did any harm.

116 It is of some interest that, at no point in the written submissions, did senior counsel for the appellant maintain that a direction in accordance with Edwards ought to have been given. When asked about this during oral argument (t 25) he unambiguously foreswore such a proposition.

117 No direction of the kind it is now contended ought to have been given was sought by counsel for the appellant at trial. Nor did counsel himself address the jury on that subject. The Crown Prosecutor had made some references to the contention that the appellant had lied about various matters. Some of these were the subject of directions by the judge when her Honour was dealing with the evidence.

118 As the Crown on appeal has pointed out, the trial judge was at pains, in the usual way, to remind the jury of the onus and standard of proof, of the appellant’s right to silence, of his exposure of himself to cross-examination by giving evidence, and all of the usual matters. Had a Zoneff direction been sought, I have little doubt that her Honour would have given one.

119 In my opinion there is no substance in this ground of appeal. The tenor of the cross-examination was that the appellant had lied about various details of the events in question; but no suggestion was made that, because he lied, the jury could, on that basis alone, find him guilty of the offences charged.

120 I would reject this ground of appeal.

ground 3: cross-examination of the appellant

121 The following propositions were put on behalf of the appellant:

“(i) the cross-examiner asked questions which the appellant was unable to answer without traversing important (and disputed) rulings of the trial judge;

(ii) the cross-examination was unnecessarily and unfairly emotive and inflammatory;

(iii) the cross-examiner put emotive propositions to the appellant which were not supported on the evidence and which raised the character and sexual propensity of the appellant in an impermissible and prejudicial way.”

122 The transcript gives some idea of the period over which the cross-examination of the appellant took place. It records that he began giving his evidence (in chief) at 11.14 am. His evidence in chief is recorded in about 26 pages of transcript. Cross-examination occupied the balance of the day, and spilled over, briefly, into the following day and is recorded in about 60 pages of transcript.

123 Complaint was made on behalf of the appellant of the nature and tone of the cross-examination directed by the Crown Prosecutor to the appellant. Some excerpts of the impugned cross-examination have already been mentioned, in the context of ground 2. At one point the Crown Prosecutor asked the appellant if he were “just making it up as you go along...”. She suggested that his behaviour was part of a pattern of the relationship in which he had to control the complainant; that it was his fantasy to have someone he could dominate; that it was his fantasy that the complainant was “enjoying” (the Crown Prosecutor’s word) the sex against her will. She also asked him about passages in his interview in which he had referred to the complainant’s apology to him, and suggested that these assertions were incorrect.

124 This last aspect of the questioning was described on behalf of the appellant as “ill advised” and “unfair”. Presumably, this was because of the exclusion of evidence identifying the conduct for which the appellant claimed the complainant had apologised – her asserted infidelity.

125 Complaint was also made of another aspect of the cross-examination. This concerned evidence that the appellant had offered the complainant a telephone so that she could ring her mother. In the interview, the appellant had said that he had offered her the telephone to ring her mother because he thought that in this way he could obtain some information about the person with whom he thought the complainant had been having an affair. That answer had in fact been edited from the interview that went before the jury.

126 Other parts of the cross-examination were said to be in “highly emotive language”. By way of example, the following question was cited:

“I am suggesting you used it as an excuse just like women who suffer punches from their partner and say they ran into a doorknob. I’m suggesting the excuse you used is you threw a book at her?”

127 The Crown Prosecutor suggested on one occasion that the appellant beat and sexually assaulted the complainant in order to show her who was boss; to control her and have power over her; and that he obtained sexual gratification or pleasure from doing so.

128 It was submitted that there was no evidence upon which to base a generalised assertion of sexual violence or fantasies of domination, and that it was wrong for the cross-examiner to imply that there was a generalised history of sexual violence in the relationship or a propensity in the appellant to obtain sexual gratification from domination and control.

129 It was submitted that the Crown Prosecutor’s conduct went beyond the limits of legitimate cross-examination and caused irreparable prejudice.

130 I have found this ground particularly difficult. This is because, from a reading of the transcript, it is impossible to appreciate the tone of the cross-examination or the atmosphere in which it was conducted. It would be fair to describe the cross-examination, as it appears from the printed page, as “robust”. However, I do not detect any unfairness in it. Neither, it seems, did the trial judge (a highly experienced judge), nor counsel for the defence. Defence counsel at that point protested, but at the Crown Prosecutor making what he called “a mini-speech”. He did not protest at the vigour with which the cross-examination was conducted, nor its content. This Court was referred to no instance where objection was taken on the ground that the cross-examination was unnecessarily or unfairly aggressive. The transcript suggests that the appellant was well able to handle the questions in the terms they were asked.

131 It is not to the point that no evidence of sexual fantasy or sexual domination was called; there is a distinction between instructions adequate to ground a proper cross-examination, and the possession of evidence in admissible forms. One can readily appreciate that the Crown Prosecutor may have had instructions (presumably from the complainant) that fall short of constituting admissible evidence.

132 One reason I have found this ground difficult, however, is what I might call the “psychological” content of some of the questions, particularly those concerning sexual fantasy and sexual domination. Notwithstanding those concerns, I do not think the cross-examination was outside legitimate bounds.

133 In the written submissions some criticism was also made of the trial judge, who asked some questions herself during the cross-examination. There is no ground of appeal that raises the conduct of the judge as distinct from the conduct of the Crown Prosecutor. The questions she asked were well within the bounds reasonably available to a trial judge.

134 I would reject this ground of appeal.

ground 5: Criminal Procedure Act 1986, s294

135 S294 of the Criminal Procedure Act applies only to trials of prescribed sexual offences. Counts 7, 9, 12 and 13 were all charges of prescribed sexual offences. The remaining charges were not allegations of prescribed sexual offences.

136 The section requires that, where a witness is cross-examined in a way that suggests the absence of or delay in making complaint of the offence alleged, a trial judge must warn the jury that absence of or delay in complaint does not necessarily indicate that the allegation is false, and must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in, or refrain from, making such a complaint.

137 What the trial judge said to the jury was this:

“Now it [delay in complaint] doesn’t necessarily indicate that the allegation is false because the law recognises that there are many reasons why victims of crime may either refrain from complaining or delay in complaining and that is a feature which is common, as you heard from one of the witnesses in this trial, it is a feature which is common to persons who have been sexually assaulted by someone known to them and in the circumstances of this particular trial may I say that the complainant provided an explanation for why she did delay in going to the police, or why she did delay in telling people of the various assaults by the accused upon her.”

138 The only criticism that is made of this direction is that it was not limited to the charges involving prescribed sexual offences; it was given in general terms, in relation to all charges, including the charges of assault and assault occasioning actual bodily harm that are not charges of prescribed sexual offences. Particular reference was made to the generality of the phrase “victims of crime”.

139 There is no substance in the criticism. While the section does not mandate that a warning be given to the jury in relation to the non-sexual assault charges, it was nevertheless open to the judge to give such a direction if the circumstances so warranted. In my opinion, the circumstances did so warrant. The non-sexual assault charges were closely linked with the charges of prescribed sexual offences, and were said to be part of a continuing pattern of conduct on the part of the appellant. They were charges of offences of a similar genus. If the appellant had not been charged with any prescribed sexual offence, only with the non-sexual offences, it would still have been entirely appropriate to give the warning in the terms in which this was given. These were allegations of domestic violence, to which the reasoning that led the legislature to enact s294 equally applies.

140 I would reject Ground 5.

141 I would, accordingly, dismiss the appeal against conviction.

ground 6: sentence

142 Two criticisms, essentially, were made of the approach taken to sentencing by the judge. The first concerns the sentences imposed in respect of the assault offences (two of assault occasioning actual bodily harm, and one of common assault). As I have set out above, the charge of common assault carries a maximum penalty of imprisonment for two years; on this charge the appellant was sentenced to imprisonment for one year, to be served concurrently with the sentences imposed in respect of the two charges of assault occasioning actual bodily harm, in respect of each of which he was sentenced to imprisonment for two years, the second made partially cumulative (by one year) upon the first. The total sentence imposed in respect of the assault offences was imprisonment for a fixed term of three years. The sentences in respect of the sexual assault offences having been made wholly cumulative upon these sentences, none of that three years was in any way subsumed in the subsequent sentences. On behalf of the appellant it was submitted that this resulted in a manifestly excessive overall sentence.

143 The appellant was born on 5 December 1965. He was 33 years of age at the time of the first offence, 38 at the time of the last. He had no criminal record of any significance, the only entry being for assault and trespass, committed in 1985, and therefore properly to be disregarded.

144 It was argued that, had it not been for the sexual assault charges, the appellant would have been dealt with on these charges in the Local Court, exposing him to a maximum penalty of imprisonment for two years. In those circumstances, it was submitted, the sentence imposed exceeded a legitimate discretionary range.

145 I do not think this can be sustained. While the sentences may be seen to be severe, they related to offences committed over a period from late 1998, to 2002 and 2003. Contrary to what is implied in the submissions put forward on behalf of the appellant, the assaults were serious, two of them causing actual bodily harm.

146 I do not think it can be said that these sentences were manifestly excessive.

147 I do not read the appellant’s written submissions as challenging the sentences imposed in respect of the sexual assaults as manifestly excessive; rather, senior counsel submitted that the sentencing judge proceeded on a factual basis that was not open in the circumstances. This was drawn from a passage in the remarks on sentence in which her Honour referred to the charges upon which the appellant was acquitted or in respect of which the jury failed to agree. She then observed that the offences upon which he was convicted were not isolated instances in the relationship.

148 It was submitted that, in the absence of conviction in respect of the other charges, this approach was erroneous.

149 I do not accept this. Even on the five counts of which the appellant was convicted, it is obvious that they were not isolated occurrences. Further, the appellant’s own case was that he had engaged in physical altercation with the complainant on other occasions.

150 I would grant leave to appeal but dismiss the appeal against sentence.

151 The orders I propose are:

1. Appeal against convictions dismissed;

2. leave granted to appeal against each sentence;

152 ADAMS J: I agree with the judgment of Simpson J and with her Honour's reasoning. I wish to add a few comments of my own.

153 Although there are many cases in which a generalised statement by the accused, whether before the jury by way of statement to the police (or some other person) or by way of evidence, to the effect that he or she never acted violently towards the complainant except in self defence will be sufficient to raise the issue of self defence for determination by the jury, this case was not one. As Simpson J's analysis of the course of the evidence shows, the only real question in respect of each of the allegations of unlawful violence on the complainant was whether the events she described occurred at all. If the jury had any reasonable doubt that it was the complainant who initiated the violence, then they must have acquitted. The issue of self defence was therefore never a live one, even if the appellant's evidence was accepted.

154 What precisely is meant by "raising" an issue of self defence is not easy to define. I lean to the view that, for example, in a circumstantial case where the course of events leading to a death is unclear so that the question whether the accused acted in self defence is left open, though the jury might accept that he or she committed the act that amounted to the assault (or death), it will nevertheless be necessary to consider whether the prosecution had established that the accused had not acted in self-defence even though, say, the accused's case is alibi. The issue is "raised" by the incomplete circumstantial evidence itself. For obvious practical reasons such cases will be rare.

155 That, in the present case, the appellant did not and the evidence itself did not raise self defence as to the violence alleged in the charges is made clear by the omission of counsel to seek any direction as to the issue from the learned trial judge.

156 HOEBEN J: I agree with Simpson J.

**********

Citations

Douglas v R [2005] NSWCCA 419

Most Recent Citation

Cases Citing This Decision

14

SW v Khaja [2020] NSWCA 128

Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293

TT-Line Company Pty Ltd v Burrows [2023] TASFC 4

Cases Cited

8

Statutory Material Cited

2

Alford v Magee [1952] HCA 3

Edwards v The Queen [1993] HCA 63

Pemble v The Queen [1971] HCA 20

Actions

Download as PDF Download as Word Document

CITATION:	Douglas v R [2005] NSWCCA 419
HEARING DATE(S):	14 November 2005
JUDGMENT DATE:	23 December 2005
JUDGMENT OF:	Simpson J at 1; Adams J at 152; Hoeben J at 156
DECISION:	1. Appeal against convictions dismissed; 2. leave granted to appeal against each sentence; 3. each sentence appeal dismissed.

CATCHWORDS:	appeal against conviction - application to appeal against sentences - assault occasioning actual bodily harm - common assault - aggravated sexual assault - sexual assault - self-defence - whether self-defence ought to have been left to jury - lies - cross-examination of appellant - whether excessive delay in complaint
LEGISLATION CITED:	Crimes Act 1900 s59(1), s61, s61I, s293, s418, s419 Criminal Procedure Act (1986) s293, S294
CASES CITED:	Alford v Magee [1952] HCA 3; 85 CLR 437 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Pemble v The Queen [1971] HCA 20; 124 CLR 107 R v Tangye (1997) 92 A Crim R 545 Stevens v The Queen [2005] HCA 65, unreported, 21 October 2005 Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; 162 CLR 645 Zoneff v The Queen [2000] HCA 28; 200 CLR 234
PARTIES:	Jerry Douglas - Appellant Crown - Respondent
FILE NUMBER(S):	CCA 2005/1170
COUNSEL:	D Woodburne - Crown P Hamill SC - Appellant
SOLICITORS:	S Kavanagh - Crown S O'Connor - Appellant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/1027
LOWER COURT JUDICIAL OFFICER:	Latham DCJ