Edmund James Turnell v Regina - [2006] NSWCCA 399

No judgment structure available for this case.

CITATION: Edmund James Turnell v Regina [2006] NSWCCA 399
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 November 2006

JUDGMENT DATE:
13 December 2006

JUDGMENT OF: Sully J at 1; Hidden J at 70; Latham J at 71

DECISION: Appeal against conviction dismissed; Leave granted to appeal against sentence passed in connection with Count 4 of indictment; Appeal against sentence upheld; that sentence passed at first instance be quashed and appellant sentenced to imprisonment for a non-parole period of 4 years commencing 24 August 2005 and expiring 23 August 2009, with balance of term of 2 years to expire on 23 August 2011

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

CASES CITED: R v Abdallah (2001) 127 A Crim R 46
Oldfield v Reg [2006] NSWCCA 219
Browne v Dunn
Weiss v The Queen (2005) 158 A Crim R 133
Cornwell v The Queen (2006) 160 A Crim R 243

PARTIES: Edmund James Turnell
Regina

FILE NUMBER(S): CCA 2006/1962

COUNSEL: P. Miller - Crown
J. Stratton SC - Appellant

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0450

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 16 December 2005

2006/1962
SULLY J
HIDDEN J
LATHAM J

13 December 2006

Edmund James TURNELL v REGINA

Judgment

SULLY J:

Introduction

1 Between 15 and 24 August 2005 the appellant, Mr. Turnell, stood trial in the District Court before Finnane DCJ QC and a jury of eleven. The appellant was so tried upon an indictment containing five counts.

2 Count 1 alleged that on 21 February 2003 at Glebe the appellant assaulted the complainant. Such an offence contravenes section 61 of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 2 years. The appellant pleaded not guilty to this charge. The jury found him not guilty.

3 Count 2 charged the appellant with having assaulted the same complainant at the same time and place, occasioning to her actual bodily harm. Such an offence contravenes section 59 of the Crimes Act and attracts upon conviction a statutory penalty of imprisonment for 5 years. The appellant pleaded not guilty to this charge. The jury found him guilty as charged. He was subsequently convicted and sentenced to imprisonment for a fixed term of 6 months commencing on 24 August 2005.

4 Count 3 charged the appellant with having assaulted the same complainant at the same time and place and with having committed at the time of such assault an act of indecency upon the complainant. Such an offence contravenes section 61L of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 5 years. The appellant pleaded not guilty to this charge. The jury found him guilty as charged. He was subsequently convicted and sentenced to a fixed term of imprisonment of 12 months commencing on 24 August 2005.

5 Count 4 charged the appellant with having had, at the same time and place, sexual intercourse with the same complainant, without her consent and knowing that she was not consenting, and with having maliciously inflicted at the time of such sexual intercourse actual bodily harm upon the complainant. Such an offence contravenes section 61J of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. The standard non-parole period provisions of Division 4 Part 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are applicable to such an offence, the prescribed standard non-parole period being one of imprisonment for 10 years.

6 By reason of the provisions of section 61Q(1) of the Crimes Act, a person charged with the contravention of section 61J of that Act may be found not guilty of that particular offence but guilty of a contravention of section 61I of the Crimes Act. Section 61I establishes an offence of sexual intercourse without consent and with knowledge of the absence of that consent. Such an offence attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. The standard non-parole period provisions of Division 4 Part 1A apply, the prescribed standard non-parole period being one of imprisonment for 7 years.

7 The appellant pleaded not guilty to the section 61J offence charged against him in the indictment. The jury found him not guilty as so charged, but guilty of a contravention of section 61I. The appellant was subsequently convicted and was sentenced to imprisonment for a period of 8 years commencing 24 August 2005; that sentence comprising a non-parole component of 5 years commencing on 24 August 2005.

8 Count 5 charged the appellant with a further contravention of section 61 of the Crimes Act. The alleged time and place of the offence were the same as in the other counts of the indictment. The complainant was the same complainant as in those other counts in the indictment. The appellant pleaded not guilty to this charge. The jury found him guilty as charged. He was subsequently convicted and sentenced to imprisonment for a fixed term of 4 months commencing on 24 August 2005.

9 The appellant now appeals against all four of his convictions. He applies as well for leave to appeal against the sentence passed upon him in connection with count 4, that being the only one of the sentences passed upon him that has not expired by effluxion of time.

10 The following grounds of appeal were notified and were argued at the hearing before this Court:

“1. The trial miscarried because of the Crown’s cross-examination of the appellant about asserted discrepancies between the appellant’s evidence and matters put to Crown witnesses by his counsel.

2. The trial miscarried because of the failure of the learned trial judge to give adequate directions to the jury about what use the jury could make of asserted discrepancies between the appellant’s evidence and matters put to Crown witnesses by his counsel.

3. The sentence imposed upon Count 4 was manifestly excessive”

An Outline of the Crown Case at Trial

11 The Crown case at trial relied, broadly speaking, upon the cumulative effect of the following categories of evidence:

· Evidence given by the complainant as to her version of the relevant facts and circumstances.

· Evidence of injuries sustained by the complainant and consistent with her version of the relevant facts and circumstances.

· DNA evidence establishing bodily contact between the appellant and the complainant. The evidence suggested that such contact had occurred in the vicinity of the complainant’s nipples. It was the Crown case that this evidence was consistent with the allegation of the complainant that the appellant, at one point during the unfolding of the relevant events, had sucked upon her breasts.

· Out-of-Court admissions said to have been made by the appellant to one Paul Mayall and to one Bradley Deeth. The evidence of those witnesses, if accepted, established the making by the appellant of out-of-Court admissions that sexual intercourse had indeed taken place between him and the complainant at the time and place alleged in the indictment.

· Evidence of contemporaneous complaint made by the complainant to one Gary O’Sullivan, with whom the complainant had been conducting a clandestine affair, to the investigating police and to Dr. Edwards who examined the complainant at the Royal North Shore Hospital shortly after the relevant events.

12 The written submissions put in by the Crown in connection with the present appeal contain the following factual overview to which it is convenient now to refer:

“1. The complainant had been in a de facto relationship with the appellant for 2 years before they arrived in Australia from their native England in December 2002, moving into a flat in Glebe. On 7 February 2003 the complainant ended the relationship [T 41]. She remained in the flat due to financial restraints, although she did spend some days away. She sometimes slept in the same bedroom as the appellant, but they did not have sexual relations.

2. On 21 January 2003 the complainant began working for Gary O’Sullivan. By 21 February 2003 the two had also begun a sexual relationship. The complainant did not tell the appellant about this relationship.

3. On 21 February 2003 the complainant arrived at the Glebe flat around 5.30 pm to pick up some belongings. She was moving out the following day, which the appellant knew. When she arrived it was raining and she became soaking wet. She had been working that day, and after work at around 3.30 pm had had intercourse with Mr. O’Sullivan [T 43]. This did not cause her any pain or discomfort.

4. On arrival at the flat the complainant spoke briefly to the appellant, put on a pot of water to boil and, as she was soaking wet, went upstairs to have a shower. At the end of her shower, the appellant walked into the bathroom and asked where she had been the previous night. She wrapped her towel around her and sat on the toilet lid, and replied that she had been out with Gary and two other girls from work (in fact she had only been out with Gary. She did not tell the offender the truth as she felt intimidated and vulnerable at the time.) [T 45]

Count 1

6. He released her and walked into the spare bedroom and took Crown Casino shampoo and conditioner bottles from her bag. He came back to the bathroom and threw them on the floor. He again accused her of lying, and she agreed and told him she had spent the night with Gary. He started abusing her, calling her a slut and a whore. The appellant left and went downstairs crying and distressed. The complainant followed to turn off the boiling water, and then sat on the sofa. The appellant continued to abuse her, and asked where she had been the previous weekend. She confirmed she had been with Gary.

Count 2:

8. The complainant began to cry. She picked up the earring and walked upstairs to the bedroom. The appellant walked in after her. He grabbed both her wrists, threw her onto the bed, and pulled off the towel she had wrapped around her. Holding her wrists with one hand, he pulled off his boxer shorts with the other hand. He straddled her and told her that if she wanted a fucking he would show her what a fucking was. The complainant tried to fend off the appellant and at one stage spat at him [T 98-99].

Count 3:

Count 4:

11. At the end of this intercourse the appellant, who had not ejaculated, got off the bed. The complainant jumped off the other side of the bed and tried to open the patio doors but they were too stiff. The appellant grabbed her by her left arm and pulled her back to the bed. They were both lying on their sides with the appellant behind the complainant. He put his arm around her ribcage, causing her pain which made her cry out, and he told her he wanted to hurt her badly.

Count 5:

13. The complainant, who was naked at the time, jumped off the bed and ran downstairs and tried to leave by opening the front door. By this time the appellant (who was also naked) followed her and pulled her back inside. She ran back upstairs and wrapped herself in the towel. The appellant followed her and appeared to have calmed down.

14. The complainant told him she wanted to call his brother Chris as she was supposed to be meeting him for a drink. When she called Chris she told him that his brother had lost the plot, that he had hit her and wouldn’t let her out of the house [T 61.47]. She did not tell Chris that the appellant had raped her.

15. The complainant then tried to ring Gary O’Sullivan, but the appellant took his business card from her hand, tore it up, and became abusive to her about him. The complainant then rang a mutual friend, Paul Mayall. Paul’s flatmate Julian Davies answered. She told him that the appellant had hit her and wouldn’t let her out of the house. She did not tell him that she had been raped. Mr. Davies handed the phone to Mr. Mayall and the complainant told him the same things she had told Mr. Davies, and asked him to come and get her. She also told two of her friends who called from the UK around this time that the appellant had hit her.

16. Mr. Mayall came to the house about half an hour later. The appellant told him that the complainant had been fucking around, and the complainant told him that the appellant had hit her and forced himself on her [T 64.4]. The appellant said it was her word against his. The complainant then left the house with Mr. Mayall and met up with Mr. O’Sullivan at Wentworth Park. She told him she had been sexually assaulted [T 65.46]. She did not go into detail. She and Mr. O’Sullivan returned to his flat, where he called the police. Two police officers arrived and took her to Glebe Police Station where she gave a partial statement before going to Royal North Shore Hospital where she was examined by Dr. Edwards and gave an account to Dr. Edwards of what had taken place.

17. The following day the complainant spoke to another mutual friend, Bradley Deeth, who told her that the appellant had told him he and the complainant had had an argument and that he had pinned her down [T68.14].”

An Outline of the Defence Case at Trial

13 The appellant was represented at trial by counsel who had very extensive experience in the representation at trial of accused persons. The appellant himself gave evidence at his trial; and he called one supporting witness.

14 The Summary of Trial which was lodged by the Crown in connection with the present appeal contains the following succinct and helpful summary of the appellant’s evidence at trial:

The appellant

53. Prior to 21 February 2003 he and the complainant were still involved in a loving and sexually active relationship [T 243; ERISP exhibit C2]. He denied knowing (that she) was planning to move out. On 11 February 2003 he and the complainant met with Mr. Grant Harris, a friend of his brother, to talk about being sponsored for work. He introduced the complainant as “my girlfriend ”, to which the complainant said nothing [T 247].

54. In late January 2003 the complainant began working for Gary O’Sullivan, whom the appellant had met on one occasion when he picked the complainant up after work.

55. On 21 February 2003 the day was hot so all the doors and windows of the townhouse were open. The appellant was wearing jeans, a T-shirt and boxer shorts. He believed that the night before the complainant had stayed at a friend’s place. Around 5.00 pm it started raining. The complainant came home around 5.30 pm, said hello and went upstairs to put her overnight bag away in the spare room. She came back down and the appellant asked where she had been that night, to which she answered that she stayed at her friend Vicky’s house. The complainant then put on a pot of water to boil and went back upstairs.

56. As the appellant did not know this friend, when he heard the complainant having a shower he went upstairs and looked through her overnight bag. He found shampoo and conditioner bottles labelled from the Star City Casino. As this caused him concern he went into the bathroom and asked the complainant, who had come out of the shower, where she had spent the night. She said at Vicky’s house, and he told her she was lying. He went and retrieved the bottles and took them to the bathroom where he showed them to her, and she admitted that she had lied. He did not do anything after this – specifically, he denied grabbing the complainant by the chin and smashing her head into the tiled wall [T 252.1]. The defence tendered a short video of the bathroom showing the shower/bath and the toilet with a cistern (exhibit A2).

57. The appellant went downstairs feeling distraught. He turned off the pot of water. The complainant came down wrapped in a towel. He asked her where she had spent the previous weekend and she replied that she had spent it with Gary O’Sullivan. He called her a liar, a bitch and a slut.

58. He was upset that she was seeing another man behind his back so he swiped the left side of her face with an open hand [T 253]. The complainant fell backwards onto the sofa.

59. The appellant went upstairs, sat on the bed and cried. The complainant followed, sat next to him and attempted to comfort him. He told her he couldn’t believe she had done this to him, and then he put his arms around her and hugged her. He asked her if they could make love and then they both fell backwards onto the bed. He cuddled her and put his head on her chest [T 255.8]. Her towel had come undone. He was still fully clothed.

60. The appellant got on top of her by straddling her waist with his knees. He did not use his knees to pin her down. He went to kiss the complainant but she turned her head to avoid him. He became annoyed and started shouting and calling her names. The complainant spat in his face and lashed out with her arms [T 256.45f]. He grabbed her upper arms and held her down. She continued to struggle, and was also yelling at him and calling him names. This went on for about two or three minutes. She then kneed him in the groin and he rolled off her. He did not hold a pillow to her face. He did not grab her by both wrists.

61. The complainant then went downstairs and walked out of the courtyard door, but came back inside when the appellant asked her to. She rang the appellant’s brother as she was supposed to be meeting him for a drink, telling that she couldn’t make it as the appellant had “lost the plot”. She then said she wanted to ring Gary O’Sullivan but the appellant told her he didn’t want her to and he tore up his business card. She then spoke to Julian Davies and Paul Mayall and took two calls from friends in England. The appellant never heard her complain of being sexually assaulted. Paul Mayall arrived at the townhouse. The complainant told him that the appellant had hit her and asked him to take her to a friend’s, and then they both left.

62. Around 9.00 o’clock that evening the appellant rang Bradley Deeth to see if he wanted to go out for a drink, but he declined. Mr. Deeth called back the following day and invited the appellant around to his place, and he arrived there around 3.00 pm. The appellant told Mr. Deeth that he had caught the complainant cheating on him, that she had been sleeping with Gary and was leaving him, that he had hit her and roughed her up a bit, and that he had wanted to make love, but they had had an argument [T 262], and that they had fought for a couple of minutes [T 264.1]. He did not tell Mr. Deeth that they had stopped having sex after two minutes. The appellant thought he might have mentioned seeing Mr. O’Sullivan at Glebe Police Station earlier that day when he went to get a declaration signed for his work visa application.

63. On the Monday evening the appellant spoke to Mr. Deeth to ask about the complainant. Mr. Deeth brought up the subject of rape. The appellant denied ever raping the complainant.

64. The appellant denied all the charges and denied that any physical assault (apart from the one the subject of count 2) or sexual activity took place, including sucking on the complainant’s breasts [T 266]. He remained clothed at all times.

I could well have done. I usually wipe my mouth with a towel afterwards

Cross examination

66. The appellant went through the complainant’s overnight bag because he had suspicions about where she had been although he had never voiced these suspicions to the complainant. When upstairs the complainant had also told him that she had spent the previous night with Mr. O’Sullivan,

67. The appellant confirmed that the complainant spat at him upstairs, not downstairs [T 298]. He denied he was changing his evidence to fit in with the prosecution case, even though his counsel had not asked the complainant or Ms Burger questions based on some of the evidence he had given.

68. The appellant clarified that when he put his head on the complainant’s chest this was in the area just below the middle of both breasts, just below the sternum towards the stomach area [T 301.13ff]. There was some possibility that his head came in contact with her breasts leaving some DNA on them.

69. The appellant denied the conversations with Mr. Deeth and Mr. Mayall in the days following 21 February 2003 were as they had described [T 310-312]. He never admitted to having sex with the complainant. He denied he had been hiding out at Mr. Deeth’s home the day after the incident.

70. He vaguely recalled the complainant telling Mr. Mayall that he (the appellant) had forced himself on her, but he did not know what this expression meant [T 312.46].”

The Central Issue at Trial

15 A consideration of the two grounds of appeal against conviction will entail necessarily a consideration of some of the detail of the evidence given, in particular, by the complainant and by the appellant. It is, therefore, important to keep steadily in mind throughout that exercise that the central contest at trial between the Crown and the appellant concerned the alleged non-consensual sexual intercourse between the complainant and the appellant.

16 Thus, the complainant was cross-examined as follows:

“Q. Now, you, see I suggest to you that you understand that my client had no sexual intercourse with you on this afternoon at all?

A. That is incorrect.

Q. And that is just an embellishment that you have made after the event?

A. That is incorrect.” [T 84]

17 And the appellant himself, at the very end of his evidence-in-chief gave this evidence:

“Q. You deny being undressed at any time?

A. I do.

Q. While she was there?

A. Yes.

Q. And deny ever having sex with the complainant on that day?

A. I do.” [T 267, 268]

The Conviction Appeal

18 The relevant grounds are set out at paragraph 10 hereof. It is not necessary to repeat them. The relevant evidence encompasses three particular incidents.

19 The first incident occurred when the complainant, while physically engaged with the appellant, spat at the appellant. There was no issue between the complainant and the appellant about the occurrence of such an incident. There was, however, a difference between their respective versions as to the timing and the location of the actual incident.

20 The complainant herself gave no evidence, during the course of her evidence-in-chief, about this particular incident. That there had been such an incident emerged for the first time during the course of her cross-examination. The relevant passages are at T 98,99. They are:

“Q. Can I suggest to you that after the open handed slap by my client which dislodged your earring, you perhaps justifiably took offence at that, got cranky about it. Would that be fair to say?

A. No I didn’t get cranky about it.

Q. And you, I suggest to you, were abusive to my client?

A. No, your suggestion is incorrect.

Q. Indeed, you spat at him?

A. I did spit at him, yes, but not at that point.

Q. You attempted to hit him with your hands?

A. I tried --

Q. Lash out at him?

A. I tried to fend him off, yes.

Q. I suggest to you, you were the aggressor on that occasion after the spit and he restrained you by grabbing you on the arms?

A. No, that took place while he was – while we were on the bed.

Q. I’m saying it happened at the time of the spitting and you trying to hit him, understand, and he is trying to restrain you?

A. No, that’s incorrect.

Q. Did you ever tell anyone that you spat at my client?

A. I don’t recall.

Q. Until today, I’m sorry. I don’t think you ever told any police that or a doctor?

A. It is not in my statement.

CROWN PROSECUTOR: To be fair it was actually my friend that told the witness that she spat.

SPENCER: She conceded it.

CROWN PROSECUTOR: But my friend mentioned it.

SPENCER: I did, but she said “I spat at him yes”. I asked her did she tell anyone that before.

HIS HONOUR: Did you?

A. I don’t recall. It’s not in my statement.”

21 The appellant gave evidence-in-chief about this incident. According to his version the incident occurred in the upstairs bedroom of the relevant premises. The incident occurred, according to the appellant, while he was straddling the complainant who was lying on the bed in the upstairs bedroom. According to the appellant he was fully clothed at that time. He gave this evidence:

“Q. You asked her would she kiss you?

A. I asked if she would kiss me.

Q. And did she do that?

A I went to kiss her and she was turning her head from side to side.

Q. Trying to avoid you?

A. Trying to avoid me.

Q. How did you feel about that?

A. I said to her, ‘if I was him you would kiss me then, wouldn’t you?’.

Q. ‘If I was……. ‘

A. If I was Gary, yeah.

Q. And did you become annoyed?

A. I did at that point, yes.

Q. Then what happened?

A. I started shouting and calling her names again.

Q. Such as, tell us the best you can what you said to her?

A. ‘You’re a poor, you’re a bitch, a slag’, etcetera, ‘why are you doing this to me? What has he got that I haven’t got?’ etcetera.

Q What reaction did she have, if anything?

A. She then spat in my face.”

[T 256: N B There has been some minor editing of obvious typographical errors.]

22 The Crown Prosecutor, in the course of cross-examining the appellant, took up with the appellant and at some length the question whether the spitting incident, which both the complainant and the appellant accepted to have happened in fact, had happened downstairs or upstairs. What is important for present purposes is not the fact that the cross-examiner dealt with that topic, but, rather, the way in which he did so. In order to explore that topic it is necessary to quote at some length from the relevant transcript. The relevant cross-examination proceeded as follows:

“67. The appellant was cross-examined at length about suggested discrepancies between what was put to the complainant about spitting at the appellant, and the appellant’s evidence in chief. It is necessary to quote from the transcript at some length, to indicate the significance which this issue attracted in the course of the trial. The appellant was asked (TT 296-299, please note that some obvious editing errors have been corrected, where at TT 298 some questions were incorrectly treated as quotations from earlier parts of the transcript):

“Q. Are you sure that you haven’t changed your evidence between the time that Mr. Spencer had cross-examined the complainant up until you came to give your evidence today? Are you sure your whole version of what happened didn’t change?

A. What I told Mr. Spencer is true.

Q. You were sitting behind Mr. Spencer of course when he was asking questions of the complainant, based on your instructions, that’s the truth isn’t it?

A. Yes.

Q. You could hear what he was asking, you understood what he was doing, what he was asking, didn’t you?

A. Yes.

Q. And you were happy with what he was putting to the complainant at your instructions?

A. I don’t recall, yes.

Q. Page 98 of the transcript at line 42, I will read to you now some questions that Mr. Spencer asked of the complainant in cross-examination.

‘Can I suggest to you that after the open handed slap by my client which dislodged your earring, you perhaps justifiably took offence to that, got cranky about it. Would that be fair to say:

A. No, I didn’t get cranky about it.

Q. And you, I suggest to you, were abusive to my client?

A. No, your suggestion is incorrect.’

Was she abusive to you downstairs after you slapped the earring out of her ear?

A. Words were said, but I can’t remember what was said.

Q. So you couldn’t remember if she was abusive or not?

A. I immediately went upstairs.

Q. Well, where did Mr. Spencer get that suggestion from, ‘you were abusive to my client?’,

A. Downstairs or upstairs?

Q. Yes.

A. I probably said a couple of words there, but that was all, then I went upstairs crying.

Q. Never mind about probably, what I am trying to do is to sort out exactly what you say happened?

A. I struck her on the side of the face and I went upstairs.

Q. So this question of being abusive towards you by the complainant, that just came out of the air?

A. She may have said a couple of words, I can’t remember, I can’t recall.

Q. You certainly didn’t give that evidence yesterday, that she said a couple of words to you, abusive or otherwise, did you?

A. I can’t remember.

Q. And Mr. Spencer then went on, according to your instructions, to ask the following questions, following on from the allegations that she was abusive towards you.

‘Q. Indeed you spat at him?

A. I did spit at him, but not at that point.’

A. That’s right.

Q. So she was right, wasn’t she? She did not spit at you downstairs?

A. I didn’t say she spat at me downstairs.

Q. Just a moment. You are sitting behind Mr. Spencer, he has asked these questions. First, he alleged that after you slapped her ear she got cranky. She said “no, I didn’t get cranky”. Then he suggested she was abusive towards you. She said No. Then he said “You spat at him”. Cranky, abusive, spat at him. You see, this is all in the context that this was happening downstairs?

A. No. My answer is no.

Q. That was never your instructions, was it?

A. It didn’t happen downstairs, she spat at me upstairs.

Q. So she was right when she disagreed with the way that Mr. Spencer was trying to say the spitting happened. She said “I did spit at him but not at that point”. She was telling the truth?

A. At which point?

Q. Cranky, abusive towards you, spit, following slapping the ear?

A. She probably was cranky. I just slapped her on the face, she probably was abusive at me.

Q. She was telling the truth when she said she did not spit at you after the slapping on the ear?

A. She did spit at me after I slapped her around the ears.

Q. You know what I am talking about?

A. She spat at me after I slapped her around the ears.

Q. You know full well this was in the context of being downstairs?

A. Not at all.

Q. Let me finish, there was no mention in that short series of three questions posed by your counsel ever suggesting that the whole action moved away from where the slap was delivered?

A. As I said --

Q. You have to at least agree with that?

A. As I said, as soon as I slapped her, I went upstairs and sat on the edge of the bed.

Q. I will keep asking you this question subject to his Honour’s allowance. There is no suggestion in these three questions I have already recited to you a number of times, that the action had moved from the lounge-room to upstairs. There is no suggestion that the action had moved, is there?

A. It did move.

Q. There is no suggestion in those three questions that the action had moved?

A. But it did move.

HIS HONOUR: I think you are at issue.

CROWN PROSECUTOR: You understand what I am asking but don’t want to admit the obvious.

OBJECTION. QUESTION WITHDRAWN”

23 It should be said at once that the statement of the Crown Prosecutor: “You understand what I am asking but just don’t want to admit the obvious” was, to say the very least, wholly inappropriate. What was said was not a question but a comment. There was no question to be withdrawn. The objection should have been upheld plainly; and the jury should have been instructed simply but plainly to ignore that impermissible comment and to concentrate upon responsive answers to proper questions.

24 The Crown Prosecutor then continued, briefly, to cross-examine on this particular topic. The relevant evidence is:

“CROWN PROSECUTOR: Q. Mr. Spencer went on, “Q. Indeed you spat at him? A. I did spit at him, yes, but not at that point”. She thought Mr. Spencer was talking about downstairs, you agree with that?

A. No.

“Q. You attempted to hit him with your hands?

A. I tried to lash out at him. I tried to fend him off, yes.

Q I suggest to you you were the aggressor on that occasion after the spit and he restrained you by grabbing your arms.”

Again she says “No, that took place while we were on the bed”. She was telling the truth?

A. That she spat at me on the bed?

Q. And the struggle between the two of you happened on the bed?

A. That’s right.

Q. Mr. Spencer went on to say,

“Q. I am saying it happened at the time of the spitting and you trying to hit him, understand, and he is trying to restrain you?

A. No, that’s incorrect.

Q. Did you ever tell anyone that you spat at my client?

A. I don’t recall.” [T 299]

25 The Crown Prosecutor then put these propositions to the appellant:

“Q. Then it went on to other things. You see, what I am saying to you is that you are willing to change your evidence as it suits you as more and more witnesses came up in the prosecution case, to suit you own purposes, aren’t you?

A. No I am not. I am just telling you what I know.

Q. I suggest to you that you are all too willing to tailor your evidence so that it fits in with some things that are inescapable?

A. That’s not true.” [T 300]

26 The second incident and the third incident can be dealt with conveniently together. Both incidents derived from expert opinion evidence given in support of the Crown case and to the effect that swabs had been taken from the complainant’s breasts and had been analysed in an attempt to identify a relevant DNA profile. The evidence was to the effect that appropriate scientific examination of the swabs taken from the complainant’s breasts had yielded a DNA profile consistent with that of the appellant and that such match was “rare within the general population”.

27 The Crown elicited in chief the following opinion evidence:

“Q. How can DNA be transferred, for example, to the breasts of the complainant? How could it have got there?

A. Well, there are lots of ways that it could have got there. For the amount of DNA that I obtained, it is much more likely that it came from a wet source, a wet secretion rather than through touching and/or rather than through contact with a dry stain.

Q. You talked about secretions, such things as semen, saliva and nasal mucous, would you agree that they are three types of secretion that are very, very rich in cells that bear DNA?

A. Yes.

Q. So, for example, if the semen, the saliva or nasal mucous of Mr. Turnell had come into contact with the breasts of the complainant, that would deposit a DNA as a major component of the sample that you measured?

A. Yes, that’s correct.

…………………………………………………………………….

Q. What do you say to the suggestion that the wet source of DNA of Mr. Turnell might have been transferred to the breasts of the complainant by means of a bath towel?

A. The stain would need to have been wet and then – there would have been a need for her to take that wet stain and wipe it against the breast.

Q. So if there was a wet stain as you say on the bath towel of saliva, semen or nasal mucous, it would require the complainant to actually rub that particular stain against her breasts in order to transfer the amount of DNA that you found?

A. Yes, there would need to be firm contact between the towel and her breast.” [T 218, 219]

28 The cross-examination of the scientific expert dealt largely with the quantities of the relevant samples that had been analysed and with other technical matters not now relevant. The cross-examination did contain, however, the following:

“Q. You would agree a nanogram or even 10 nanograms could be transferred by someone sneezing on to something, correct?

A. Yes.

Q. Or rubbing a wet towel on their face which might give you that small amount from a buccal swab, from saliva from the mouth I should have said?

A. Yes.

Q A buccal meaning just inside the mouth?

A. Well, a buccal from inside the mouth. A swab from inside the mouth I would have obtained a lot more DNA on that.

……………………………………………………………………..

Q. You did say that that could have got there if the towel was pressed in that area, if the towel I think was wet, is that what you were saying?

A. Yes, if the towel was wet with a substance such as saliva, nasal secretions or semen, if it was wet with that and it was then pressed against her breast.

Q. Saliva coming through the mouth wiped onto a towel, if the towel was pressed against the breast that could transfer at least that amount of DNA?

A. Yes, but the towel would need to be wet.

Q. Yes, well if someone, for example, brushed their teeth and then wiped their mouth with a towel?

A. Well, I would say they would need to have actually spat into the towel to reach that enough (sic).” [T 222, 223]

29 It was, obviously, important for the appellant to rationalise the presence of his DNA on the complainant’s body and in the general area of her breasts. This was particularly important in connection with Count 3, the appellant’s case being that he did not suck the nipples, or indeed any other part, of the complainant’s breasts.

30 The appellant’s case put to the jury two propositions explanatory of the presence of his DNA on the complainant’s body. The first explanation was that he had placed his head on the complainant’s chest in at least the general vicinity of her breasts and that this was a credible explanation for the presence of his DNA in that area of the complainant’s body. The second explanation was that the towel in which the complainant had been wrapped at various times throughout her confrontation with the appellant, was a towel in common use by both of them; and that he, the appellant, had in fact used the towel earlier that morning in the course of brushing his teeth.

31 As the first of those explanations the appellant’s evidence was this:

“Q. When you hugged her what happened?

A. I asked her if we could make love and we both – well we both fell backwards onto the bed.

Q. Did she answer you when you said can we make love?

A. She didn’t, no.

Q. And you put your arms around her after that or before that?

A. Before that and I still had my arms around her.

Q. And you say what happened then, you both fell sideways onto the back?

A. Yes, we both sort of fell backwards onto the bed.

Q. What did you do if anything when that happened?

A. I was still very emotional, still crying, still very upset and I just put my head just to cuddle her, just to put my head on her chest and stomach.

Q. How did she react to that?

A. She didn’t say anything.

Q. Did she do anything?

A. No.” [T 254, 255]

32 And a little later:

“Q. As to the charge which relates to an act of indecency, you recall the complainant suggested you had her pinned down and you were smacking her across the face with your penis, remember that question?

A. Yes.

Q. Did anything like that happen?

A. Not at all, no.

suckle

suckled

A. Yes.

Q. Did that happen?

A. No it didn’t.

Q. You did say to the jury you had your head on her chest while you were on the bed, did you not?

A. Yes.

Q. When you were I think crying and upset and all that?

A. Yes.

Q. Is that right?

A. I was holding her, cuddling her.

Q. You deny that you --

A. I do deny that.

Q. -- kissed or suckled her nipples?

A. Yes.” [T 266]

33 As to the communal towel, the appellant gave the following evidence-in-chief:

“Q. This towel we have heard about, whose towel was that?

A. Just a towel that was in the house that we used. It was hanging on this towel rail in the bathroom.

Q. When you say ‘we used’, you mean both of you used?

A. Yes.

Q. A communal towel?

A. Yes.

Q. You don’t suggest that you had a shower that day, do you?

A. I got up quite late that day, I had a shower about lunch-time.

Q. What about when you got up, did you brush your teeth at all?

A. Yes of course, yes.

Q. Did you use the towel in relation to that?

A. I could well have done. I usually wipe my mouth with a towel afterwards.

Q. Was that the only towel available in the bathroom?

A. It was at that time, yes.

Q. And that’s the towel she later put around herself?

A. Yes.

HIS HONOUR: Q. Was that the towel she used to dry herself?

A. Yes.

Q. So you had only one towel to dry two people?

A. One towel was in the bathroom and the others were in the airing cupboard.” [T 266, 267]

34 The Crown Prosecutor cross-examined the appellant, relevantly, as follows:

“CROWN PROSECUTOR: Q. You talk about falling sideways on the bed. You were still crying you said, and you said you put your head on her chest and stomach. Was she wearing anything at that stage?

A. No, she was drying herself when she was sitting next to me.

Q. Which part of your head did you put onto her chest? By her chest, do you mean her breast?

A. Chest, just here.

Q. Did you make contact with her naked chest?

SPENCER: Can the record disclose what he did?

HIS HONOUR: Perhaps just make that clear for the record.

WITNESS: Just sort of in this area.

HIS HONOUR: That seemed to me to indicate the witness was rubbing his hand between the two breasts, I would have thought.

CROWN PROSECUTOR: Q. Is that an accurate description?

A. Yes, probably just below the sternum, just between the stomach and the breastbone.

HIS HONOUR: It should be noted that the witness demonstrated with his right hand an area that he said was just below the middle of the two breasts towards the stomach area.

CROWN PROSECUTOR: Q. Is there some possibility your head came in contact with her breasts?

A. Quite possibly.

*Q. It’s a shame Mr. Spencer, while you were present, didn’t ask the scientist whether or not that was a possible source of your DNA yesterday?

SPENCER: That’s not a question that this witness could possibly answer. What I ask is what I do is [sic] not for this witness.

HIS HONOUR: What you do is based on the instructions of your client.

SPENCER: Not everyone is completely competent and get everything right, every question, and I certainly don’t. And I don’t think it’s appropriate for this witness. I object to this witness being asked about what I did. It is already conceded he was here, he heard it, but beyond that it is not in his capacity to put his hands up my back and make me speak like a dummy.

LAST QUESTION MARKED * READ

HIS HONOUR: I suppose that’s more a comment.

CROWN PROSECUTOR: I will approach it another way and withdraw that question.

Q. You heard Mr. Spencer ask the scientist questions about the towel might have been the source of your DNA, didn’t you?

A. Yes.

Q. But you didn’t hear Mr. Spencer ask any questions about putting your head on the chest area of the complainant?

A. Can’t remember.

Q. You can’t remember?

A. I can’t remember if he said that or not.

Q. In fact, you probably can’t remember Mr. Spencer asking the complainant any questions about putting your head on her chest, on her naked chest, can you?

A. I can’t remember, no.

Q. Because no such question was asked?

A. I can’t recall.

Q. That’s because you have been, as I said before, you have been making things up as this trial has been going along to suit your own purposes?

A. Not at all.

Q. In fact, you can’t even remember the complainant being asked questions about using a towel that was that was wet that you had previously used, you don’t remember any questions like that, do you?

A. I can’t remember him saying, no.

Q. Because no such question was asked, I suggest to you, you just made up this business about the towel as well, didn’t you?

A. No, I didn’t no.” [T 301, 302]

35 It is necessary to consider, next, use that was made by, respectively, the Crown Prosecutor and the appellant’s counsel at trial of the material thus canvassed.

36 The general tone of the Crown Prosecutor’s address to the jury can be caught from the following excerpt of his address:

“Some of other things that, if she was going to make matters up, would render her the luckiest liar in the world, and of course I am talking about the DNA. All she did, apparently, was to wipe her breasts with a bit of spittle on the towel. So when she happened to give the allegations that she had her breast licked, wasn’t it lucky for her that she just happened to wipe herself with a towel that conveniently placed his DNA on to her breasts? Unless, of course, that really happened. Why, why, why, why do you say these things unless in some way you can sure yourself that you are going to be believed, if you were a practiced liar? Well, the obvious answer to that, ladies and gentlemen, is there was no lie. There was no way she could have known that even independent of anything she said, that science would come to her aid and show that in fact his spittle was on both of her breasts consistent with the way she said he licked them.” [T 340: N.B – there are obviously some typographical errors in this passage but the sense of the passage is sufficiently clear for present purposes.]

37 And, a little later during the address:

“Well, if you believed him if you believed him, if you do believe him then I suggest you will have a doubt about the complainant’s evidence. If you don’t know who to believe out of the two of them, it means you have a doubt about the complainant's’s evidence and you must acquit on one or all of the charges. That is the effect of the accused’s evidence.

But, and let me just select this one particular part, one particular aspect of what I say was a collection of deceitful statements made to you. Let me choose just this one, the DNA. You remember the complainant wasn’t ever cross-examined about having used one towel or a communal towel. You remember as at case went on the Prosecution case went on, suddenly the possibility that some spit might have got on to the towel from the accused suddenly became a live issue. So Mr. Spencer cross-examines the scientist and suggests that is how the saliva got on to her breasts. But you remember, the scientist, at the end of the case Ms Burger, saying to me in re-examination there was four and a half times more of his DNA than hers, four and a half times more of his DNA than hers in this one tiny sample. That was the proportion. She couldn’t estimate the weight, but could tell you proportions. I suggest to you that that is consistent with a direct application of spit from his mouth to her breasts.

So what happened by the time he came to give evidence? I suggest he came up with yet another possibility. Yes, we well, I did use the towel, I wiped my mouth after I cleaned my teeth. Oh, and by the way, I put my head on her chest. First time any of us have heard of it. No question was ever put to the complainant when Mr. Spencer carefully went through his instructions, carefully went through exactly what did and didn’t happen. He was making things up on the run, just as I suggest to you he did way back in 2003.” [T 342, 343 N.B. – any typographical errors have not been corrected.]

38 Learned counsel then appearing for the appellant opened his final address to the jury as follows:

“Members of the jury, this is the last opportunity I will have to talk to you, and there is one thing I want to say about that. If I forget to say something, or I don’t emphasize something that you 11 think is important, please don’t visit my incompetence on my client. We all make mistakes, we all forget things, and I have human failings the same as anybody else. If there is something you think is important that I don’t refer to, please take notice of it. I will endeavour in my submissions to assist you to understand the Crown case and to understand the defence case. Remember this, however, what I say to say, what the Crown says to you, is not evidence. You took an oath to bring a true verdict according to the evidence, not according to oratory or speculation or a variety of other things, the evidence. The evidence comes from the witness-box on oath and from the exhibits that are tendered. There are not many of them in this case, but they are evidence.” [T 345]

39 There followed a fairly lengthy and detailed address which concluded as follows:

“Members of the jury, I have concluded my remarks. I hope I covered matters that will assist you in your determination. I probably have missed something. As I said at the beginning of the address; please don’t visit my incompetence on him. But remember you have taken on oath, you have a duty to give a true verdict, not according to what you might like, what you want, but according to the evidence. My simple submission to you is this; you have a duty and you have a privilege and that privilege is to acquit someone charged with a serious offence if you are not satisfied beyond reasonable doubt of the ingredients of the charge. And that is precisely the position here. Thank you very much.” [T 365, 366]

40 The submissions now put for the appellant suggest that trial counsel, in the passages previously quoted, is to be understood as referring “…….. obliquely to the asserted issue of discrepancies between his cross-examination of Crown witnesses and the evidence of the appellant”. As will appear presently, both the learned trial Judge and counsel himself seem to have taken the same view; as, indeed, does the appellant’s counsel at trial appear to have done.

41 I do not read the quoted passages in that way. It seems to me that what trial counsel was doing was opening and closing his final address with a submission intended to convey to the jury that if, during the course of his address he failed to take up some point or other which the jury thought was relevant and important, then his failure to cover the point in his final address ought not to be visited adversely upon the then accused.

42 During the summing-up the learned trial Judge canvassed with the jury the evidence that had been given by Dr. Berger, the expert opinion witness on the topic of DNA. His Honour referred to the hypothesis which had been put to Dr. Berger of DNA being transferred from a common towel, after its use by the appellant in connection with the cleaning of his teeth, onto the body of the complainant when she, subsequently, wrapped herself in the towel. His Honour said:

“You can look at p 302 and 303 where the Crown Prosecutor was cross-examining the accused about this particular possibility, about line 25 on p 301, “Is there a possibility your head came in contact with her breasts? That would probably explain how some of your DNA got on her breast?” “Quite possibly”. And then he put the proposition, “It’s a pity that your counsel didn’t ask Miss Berger about that”. Now Miss Berger was not asked about that possibility, of a head on a breast transferring DNA, or head between the breasts.

When the complainant was cross-examined, no question was put to her to suggest that she and the accused used a communal towel. Nothing was put to her to suggest that he spat into a towel or brushed his teeth and wiped his mouth with a towel and she would use the same towel. In fact, no question was asked about the towel apart from the fact that she was wearing a towel and the towel came off at some point. Nothing was put to her to suggest that he at one stage had his head between her breasts. The significance of all that is a matter for you. The Crown has put the proposition that the accused is lying and that he had just made all this up. His counsel was representing him and if he told his counsel about these things, they would have been put to the witness, the witness would have been given the opportunity to say yes or no. Well that is a matter for you to determine and there is further reference to it at 315, DNA. (SU 20]

43 Later in the summing-up, and coming to deal with the respective submissions of the Crown and of the defence, his Honour said, relevantly:

“Now if effect the Crown was saying look, here is this very strong Crown case. It is supported by the DNA on the breast. He sucked her, that is what she said. It is supported by the friends to whom he confessed. It is supported by complaints and he has just made up a new case for the purpose of today and conveniently had put his head between her breasts, something that had never been mentioned by Mr. Spencer to anyone, and conveniently produced the communal towel. Well, you think about that, that is an argument.

The defence submissions. Mr. Spencer says to you well look, I might have forgotten to put things, but do not hold that against my client and indeed, that is so. If he just forgets to put something, you would not hold it against his client. I suppose the Crown says well, it is a pretty major thing to forget a wet towel or a communal towel and a head between her breast.” [SU 27]

44 The summing-up occupied a part of each of two successive days. When the summing-up resumed on the second day, the Crown was represented by a Crown Prosecutor other than the Crown Prosecutor who had actually conducted the trial, he having been called away urgently to another Court. At the conclusion of the summing-up the new Crown Prosecutor raised with the learned trial Judge a question of law, touching off the following exchange:

“CROWN PROSECUTOR: “…. …. . There is a matter of law though your Honour and that is, as I understood it, and of course my difficulty is in coming in at this stage of the proceedings but your Honour referred to the jury the question of the towel and the DNA found on the complainant’s breasts and the evidence that the accused gave with respect to that and the fact that no questions were put to the complainant about that. As I understood it your Honour then said that the jury might conclude that if he’d told his counsel those things that those matters would’ve been put to the complainant.

HIS HONOUR: That’s what the Crown put.

CROWN PROSECUTOR: Well if that’s in fact what the Crown put then I’d ask your Honour to deal with it in terms of the decision of the Court of Criminal Appeal in Abdullah which I think is about 1999

HIS HONOUR: What are you asking me to put Miss Cinque, don’t just refer me to cases.

CROWN PROSECUTOR: Your Honour, I don’t know that the Crown in terms did --

HIS HONOUR: I don’t have Abdullah with me so I can’t --

CROWN PROSECUTOR: Well your Honour, I don’t know that the Crown did in terms put to the jury that if he had told his counsel those things then one would’ve expected that it would’ve been put to the complainant. Your Honour that was the very issue that caused the Court of Criminal Appeal to quash the conviction in the matter of Abdullah.

HIS HONOUR: All right, what’s Abdullah say?

CROWN PROSECUTOR: It was a case where the Crown put in his address and it was taken up then by the judge that matters that weren’t put to the complainant or a particular witness by the accused’s counsel that from that, one could assume that it was because the accused hadn’t provided those instructions to his counsel.

HIS HONOUR: In fact, he was cross-examined about that very question. The accused was cross-examined about it. He was cross-examined about this very matter.

CROWN PROSECUTOR: Your Honour I’m dealing simply with the issue. It may well be that I’ve misunderstood it and I apologise if that’s because of the point at which I’ve come to the proceedings but as I understood it, your Honour was indicating and if it was so, that that was the Crown’s argument, that --

HIS HONOUR: P 302, “You didn’t hear Mr. Spencer ask any questions about you putting your head on the chest area of the complainant?” “I can’t remember”. He probably can’t remember any question about Mr. Spencer asking the complainant any questions about putting your head in his (as said) chest? “I can’t remember”. “These things have been made up as things have gone along to suit your own purposes?” was put and then it was put in the submissions – have you Abdullah’s case there?

CROWN PROSECUTOR: I don’t your Honour I’m sorry, I wasn’t anticipating the – your Honour it might be referred to in the practice here, your Honour what’s referred to – does your Honour have the Criminal Practice and Procedure?

HIS HONOUR: Yeah.

CROWN PROSECUTOR: At p 8114 – no your Honour perhaps indeed I’ve got it slightly out of – slightly differently to the way it’s reported here, it’s where the defence counsel opening and the evidence given by the accused were inconsistent the trial judge should draw to the jury’s attention any other reasons for the inconsistency other than that the accused had changed his or her instructions, so that’s perhaps slightly different but my understanding was that --

HIS HONOUR: Well I hadn’t suggested that he’s changed his instructions, where the defence counsel opening --

CROWN PROSECUTOR: My understand was --

HIS HONOUR: -- to draw the attention --

CROWN PROSECUTOR: -- that there have been cases that followed that Abdullah which dealt with the issue in more broader terms such as that that has arisen in this trial in terms of reasons why. Perhaps indeed, your Honour has dealt with that by saying well Mr. Spencer says that the reason is that you know, the reason could be that I’ve forgotten to put certain matters.

HIS HONOUR: But he’s cross-examined about this you see and it’s in the context of the Crown putting to him that he just made it all up.

CROWN PROSECUTOR: Yes.

HIS HONOUR: He made up the towel and he made up the head in the breasts, these were things he made up and he didn’t, the basis for saying they were made up is that at no point were any of these things raised. Now this is not something just raised in addresses.

CROWN PROSECUTOR: No, no I understand that, I appreciate that --

HIS HONOUR: And I think it’s a very important thing the judge never seeks to reverse the onus of proof or suggest that the Crown in some way, that he’s got to answer why he didn’t do this or that or the other, it’s never really been an issue but it was made an issue in the trial and I think the Crown Prosecutor’s entitled to address upon it.

CROWN PROSECUTOR: Certainly your Honour. I’m sorry to have taken up your Honour’s time with that matter.” [SU 31, 32, 33]

45 Very shortly thereafter learned counsel then appearing for the appellant put submissions in connection with the summing-up. The principal thrust of those submissions was that the summing-up had not put fairly, if indeed it had put at all, the substance of the appellant’s case at trial. It was further objected that the summing-up, in so far as it had picked up submissions put by then counsel for the appellant, had dealt with those matters in such a way as to disparage them unfairly.

46 During the course of the submissions put by the appellant’s counsel at trial, and at a point during those submissions where the learned trial Judge had asked counsel whether there was anything else in particular to which counsel wished to draw attention, the following exchanges occurred:

“SPENCER: Well I am concerned about what my learned friend said about Abdallah. I did not see any wrong there but it may be that I’m unaware of the authority which says that it can’t be done. I didn’t see anything wrong with it because your Honour I thought had balanced it by saying what I said to the jury, that --

HIS HONOUR: Yeah well I’ll say it again.

SPENCER: -- and that’s why I didn’t take any complaint about it.

HIS HONOUR: I’ll say it again.

SPENCER: But if the law is that the Crown can’t ask that and you can’t comment on it well then perhaps there is a problem --

HIS HONOUR: It’s a novel law to me --

CROWN PROSECUTOR: No, no --

SPENCER: If that is the law.

CROWN PROSECUTOR: -- I wasn’t suggesting your Honour that that was the law.

SPENCER: I don’t think it is but --

HIS HONOUR: I’m completely unaware of that being the law.

SPENCER: I think I said to the jury you can’t hold against my client something that I didn’t put and your Honour has reinforced that, so I haven’t got any complaint about it.

CROWN PROSECUTOR: In which event, I don’t press it.

HIS HONOUR: I think it’s addressed to – what Abdallah is addressed to is --

SPENCER: Opening.

HIS HONOUR: -- you open in some way.

SPENCER: Yeah, and I didn’t do that --

HIS HONOUR: -- your client comes along and gives inconsistent --

SPENCER: Yeah, that didn’t happen your Honour in this case.

HIS HONOUR: And then I go and point out to them well now, look at that --

SPENCER: Yes.

HIS HONOUR: -- he said this and his client comes along and said that, what do you make of all that.

SPENCER: Yeah.

HIS HONOUR: But that is not the situation, the situation was that the towel became an issue with Miss Berger, the communal towel. It wasn’t suggested to the complainant there was a communal towel.

SPENCER: Well there’s no doubt there was a towel and there was no doubt she had it round her, that’s not in issue --

HIS HONOUR: That’s right but you’ve suggested a – your client --

SPENCER: I did.

HIS HONOUR: -- said there was a communal towel --

SPENCER: I did, or my client did.

HIS HONOUR: Now the Crown Prosecutor cross-examined him about that proposition, cross-examined him about the head and breasts and he suggested he made them both up and he’d made them up for the purpose of tailoring a case.

SPENCER: Yes your Honour.

HIS HONOUR: Now I think he’s entitled to put that.

SPENCER: I haven’t said anything about that.

HIS HONOUR: And that’s all that I was putting.

SPENCER: Yes, I haven’t said anything about that, I make no complaint about it.

HIS HONOUR: Well look, I’ll get the jury back.”

47 The references in the foregoing quotations to the decision of this Court in “Abdullah” is in fact an intended reference to the decision of this Court, (Sheller JA, Dowd and Kirby JJ), in R v Abdallah (2001) 127 A Crim R 46. The appellant in that matter had been convicted of having been knowingly concerned in the importation of a traffickable quantity of cocaine. His case at trial, as opened to the jury by experienced Queen’s Counsel then appearing for him, was to the effect that he had first become aware of the arrival of the relevant package of cocaine on a stated date. The appellant, when he came subsequently to give evidence at his trial, gave a different and later date. Both the Crown Prosecutor in address, and the learned trial Judge in the summing-up, suggested to the jury that it was open for the jury to conclude that the appellant had changed his story by nominating a date more advantageous to his case than the date that had been opened by his counsel, presumably upon his instructions. The appeal was allowed and a new trial was ordered.

48 Had anybody at the present appellant’s trial bothered to take just the few minutes that would have been necessary to obtain a copy of the actual report of the Abdallah decision, then attention would have been drawn to the following statement of principle in paragraph 24 of the judgment of Sheller JA:

Birks

Manunta

49 Those principles can be supplemented usefully for present purposes by the following extract from the judgment of Giles JA, (Grove and Hidden JJ concurring), in Oldfield v Reg [2006] NSWCCA 219:

R v Birks

Browne v Dunn

R v Birks

Browne v Dunn

50 In the present particular case there was, as I respectfully think, a need for the learned trial Judge to be particularly careful in the framing of his Honour’s directions to the jury in connection with the Browne v Dunn arguments that had been pressed upon the jury in the closing address for the Crown. It was important for his Honour to remember, in that connection, his own intervention as recorded herein at paragraph.34. What triggered Mr. Spencer’s objection on that occasion was, not a question in proper form, but a rhetorical statement by the Crown Prosecutor. Mr. Spencer’s objection was clear and was clearly correct. It ought to have been upheld without further ado and the jury ought to have been instructed, simply, to ignore that statement. Instead, and as has already been noted, the learned trial Judge said to Mr. Spencer in the presence of the jury: “What you do is based on the instructions of your client”; a statement which, when made with the authority of the Court itself, was apt to provoke the very mischief against which decisions such as Abdallah and Oldfield expressly warn. The directions given by the learned trial Judge upon this topic have been quoted previously herein at paragraphs 42 and 43. It is, of course, the fact that his Honour was there summarising, very briefly, some only of the arguments that had been addressed to the jury by, respectively, the Crown and the defence. It is, however, the case that what his Honour told the jury in those passages is the entirety of what his Honour said to the jury on the Browne v Dunn point of which the Crown Prosecutor had made such a feature both in his cross-examination of the appellant and in his closing address to the jury. The result was, in my respectful opinion, to leave in a hopelessly unsatisfactory state the need, now recognised by a succession of distinct statements in various decisions of this Court, to ensure by careful and precise directions that the jury approached with care and circumspection any argument based upon the Browne v Dunn principle.

51 In my opinion the errors to which the appellant now points have been established. There must be, therefore, an order for a new trial unless the case is one in which it is proper to apply in favour of the Crown the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW).

52 The correct approach to the application of the proviso has been recently re-examined and re-defined by the decision of the High Court of Australia in Weiss v The Queen (2005) 158 A Crim R 133. The principles now relevant are explored and explained in paragraphs 41 through 47 of the Court judgment. In a subsequent decision of this Court, (McClellan CJ at CL, Hulme and Adams JJ), Cornwell v The Queen (2006) 160 A Crim R 243, McClellan CJ at CL offers the following summary of the Weiss principles, and I gratefully adopt that summary for present purposes:

“

· The appellate court must decide whether a substantial miscarriage of justice has actually occurred;

· The task of the appellate court is an objective task and is to be carried out by consideration of the record of the trial;

· The appellate court must make its own independent assessment of the evidence having regard to the whole of the record of the trial including the fact that the jury returned a guilty verdict;

· It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

· There may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded as to the requisite degree of the appellant’s guilt.” [at para 110]

53 Earlier herein, at paragraph 11, I have noted five categories of evidence upon which the Crown case rested. I have made the required independent assessment of each of those categories of evidence; and it seems to me that they constitute, in the aggregate, a very powerful Crown case. When attention is paid to the case presented at trial by the appellant, much of the complainant’s own version is uncontroversial. It is clear that the appellant had no idea prior to 21 February 2003 that the complainant was carrying on a clandestine affair with Gary O’Sullivan. It is clear that the appellant’s discovery of that fact affronted him in high degree. It is clear that the appellant was so affronted that he lost control of himself to the extent of assaulting the complainant; of verbally abusing her; of having a sustained, violent physical altercation with her; and of straddling her as she lay on the bed, she then being unclothed by reason of her towel having become dislodged. The really controversial question at trial was whether, in that violent and volatile context, the appellant had sexual intercourse with the complainant. The reality of the situation, as the appellant himself described it, left him no scope to assert that there had been sexual intercourse but that it had been consensual. The reality of the situation, as he himself described it, was that he either admitted to non-consensual sexual intercourse, or denied outright that there had been sexual intercourse. The appellant rested his case, as he was of course entitled to do, upon the assertion that there had been no sexual intercourse whatsoever between him and the complainant.

54 Once the appellant embarked upon a defence framed in that way, then he came necessarily into direct collision not only with the evidence of the complainant herself, but with the evidence of Mr. Mayall and of Mr. Deeth, and with the relevant medical evidence, particularly the evidence of Dr. Edwards to the effect that the redness which she observed in the area of the complainant’s vagina was not something that she would have normally expected to see in the wake of consensual sexual intercourse.

55 If the clumsy and inadequate dalliance with the Browne v Dunn point be removed from consideration, it seems to me that the overall strength of the Crown case is so preponderant as to justify a conclusion that, beyond reasonable doubt, there was non-consensual sexual intercourse as alleged by the complainant. That conclusion seems to me to be even more persuasive if there be taken into account the verdict of the jury which, having had the advantage of seeing and of hearing all of the relevant witnesses, but particularly the complainant and the appellant, clearly accepted the complainant’s allegation that there had been an act of non-consensual sexual intercourse.

56 In making my assessment I have not overlooked the evidence given in support of the defence by Mr. Harris, the one witness called in the defence case apart from the appellant himself. Mr. Harris gave evidence to the effect that on an occasion prior to 21 February 2003 he had met the appellant by prior arrangement and for a particular purpose. According to Mr. Harris, the complainant was present with the appellant at that meeting; and the appellant introduced her to Mr. Harris as his “girlfriend”. According to Mr. Harris the complainant made no demur to being so introduced; and thereafter behaved in the way that one would normally expect of somebody who was the appellant’s “girlfriend”.

57 It seems to me that Mr. Harris’ evidence, if it be accepted completely, does no more than establish that the complainant was, so to speak, keeping up appearances so far as concerned her relationship with the appellant. There does not seem to me to be anything in that state of affairs that is fundamentally inconsistent with the fact, common to both the version of the complainant and that of the appellant, that prior to 21 February the appellant thought, albeit mistakenly in fact, that he and the complainant were in a continuing happy relationship, a misapprehension which the complainant was content to leave uncorrected while she pursued her clandestine liaison with Gary O’Sullivan.

58 For the whole of the foregoing reasons I have come to the conclusion that the Browne v Dunn blemish did not bring about a substantial miscarriage of justice; and that it is therefore appropriate to apply in the present case the proviso to section 6(1) of the Criminal Appeal Act and thereupon to dismiss the appeal against conviction.

The Application for Leave to Appeal against Sentence

59 The sentences which were passed upon the appellant in connection with counts 2, 3 and 5 have been served in full. As a practical matter it is necessary, therefore, only to consider in a particular way the sentence passed in connection with count 4. That was a sentence of imprisonment for a non-parole period of 5 years commencing on 24 August 2005 and expiring on 23 August 2010, with a balance of term of 3 years to expire on 23 August 2013.

60 The remarks on sentence contain the following succinct and helpful overview:

“In my opinion I am entitled to make the following findings; the offender committed the offences of which he was convicted in the heat of passion brought on by sudden realisation that the complainant not only was going to leave him but she had commenced a new sexual relationship. The complainant was in no way responsible for the behaviour of the offender and did nothing to provoke him. The offender, despite what he did to the complainant, had some feelings for her and hoped she might return to him even if temporarily. The offender is remorseful about striking the complainant or otherwise assaulting her. The offender has no remorse and no contrition for indecently assaulting and raping the complainant. The offender but for these offences would be a man of good character. The offender normally is quiet, courteous and well mannered towards women. The actions of the offender on this day were out of character for him.

Despite his lack of remorse and contrition, it is unlikely the offender will commit any offences of violence in the future. There are good prospects of rehabilitation of the offender.

The findings which I make against the offender are based on my coming to conclusions against him beyond reasonable doubt.” [ROS 12,13]

61 His Honour gave consideration to the proper effect upon the particular sentencing exercise of the statutory standard minimum non-parole period; and his Honour came to the conclusion that there were circumstances, which his Honour enumerated in the remarks on sentence, justifying the view that the appellant’s offence should attract a non-parole period less than the statutory standard minimum. This conclusion is not now challenged and no more need be said about it.

62 His Honour found special circumstances; and it is not now controversial that his Honour was entitled to make such a finding.

63 The appellant’s challenge to the sentence passed upon him in connection with count 4 asserts latent, rather than patent, error. That is to say, the appellant’s case is that the sentence passed upon him, when compared fairly with relevant comparable sentences, is, plainly, appellably excessive.

64 Both the appellant and the Crown have presented various combinations of JIRS statistics. It is very difficult to extract much worthwhile guidance from the various concatenations of graphs and figures. The samples are, in any event, very small. The further one refines the statistical model in an attempt to bring it into line with a case such as the present one: that is to say, a case of a single offence of sexual intercourse without consent; no prior convictions; and a plea of not guilty, the narrower the available sample becomes. It is, in my opinion, artificial to assess the present case in a way that is too particularly focused upon the bare JIRS statistics.

65 The objective gravity of the count 4 offence was not insignificant, but it did involve somewhat unusual circumstances. The appellant clearly thought up until 21 February that he was still in a stable relationship with the complainant. I think it is clear that up until 21 February he had no idea that she was in fact carrying on a clandestine affair with Gary O’Sullivan. It does not seem to me to be difficult to understand that the appellant, when the truth of that infidelity dawned on him, reacted with affront; that the affront developed into rage; and that the rage caused him to lash out at the complainant in ways which were, as the learned sentencing Judge found and I agree, totally out of character. None of that excuses his having forced sexual intercourse upon the complainant. All of those considerations do, however, explain to some extent the appellant’s offending behaviour; and they characterise that behaviour in a way that is quite different from the characteristics of the more usual cases of non-consensual sexual intercourse which come before the Courts. The appellant’s subjective case was, as the learned sentencing Judge recognised, a very strong one.

66 When those objective and subjective considerations are brought into a balance, then it seems to me that the head sentence of imprisonment for 8 years does fall outside the ambit of a sound sentencing discretion. That conclusion accords with the sense, - and I put the point no higher, - that I have of the overall thrust of the JIRS statistics, such as they are. In my opinion an appropriate head sentence would be one of imprisonment for 6 years.

67 A non-parole period set at 75 per cent of such a sentence would be a period of 4 years 6 months. I agree with the learned sentencing Judge that the appellant’s case is one in which it would be proper to find special circumstances as found by his Honour. Any resulting reduction of the non-parole period must keep in mind the statutory standard minimum non-parole period of 7 years. That is not an easy exercise; but in my opinion it is properly performed by the setting of a non-parole period of 4 years.

68 In coming to that conclusion I have taken into account the matters to which the appellant deposes in his affidavit affirmed on 27 November 2006. The appellant there describes various aspects of his present incarceration and the hardship thereby occasioned to him. He describes as well certain problems that have developed with his eyesight. All of those matters are, of course, relevant to the appellant’s re-sentencing; but it is necessary to be careful not to give effect to those considerations in a way that yields a revised non-parole period that is unreasonably disproportionate to the statutory standard minimum non-parole period.

Orders

69 For the whole of the foregoing reasons I am of the opinion that the Court should order:

[1] that the appeal against conviction be dismissed;

[2] that leave be granted to appeal against the sentence passed in connection with Count 4 of the indictment;

70 HIDDEN J: I agree with Sully J.

71 LATHAM J: I agree with Sully J.

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31/05/2007 - remove complainant's name to protect identity - Paragraph(s) 2; 14; 17; 22; 27; 32; 34; 37 and 40

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Citations

Edmund James Turnell v Regina [2006] NSWCCA 399

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

3

Oldfield v The Queen [2006] NSWCCA 219

Cornwell v The Queen [2007] HCA 12

R v Abdallah [2001] NSWCCA 506

CITATION:	Edmund James Turnell v Regina [2006] NSWCCA 399 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 November 2006
JUDGMENT DATE:	13 December 2006
JUDGMENT OF:	Sully J at 1; Hidden J at 70; Latham J at 71
DECISION:	Appeal against conviction dismissed; Leave granted to appeal against sentence passed in connection with Count 4 of indictment; Appeal against sentence upheld; that sentence passed at first instance be quashed and appellant sentenced to imprisonment for a non-parole period of 4 years commencing 24 August 2005 and expiring 23 August 2009, with balance of term of 2 years to expire on 23 August 2011
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
CASES CITED:	R v Abdallah (2001) 127 A Crim R 46 Oldfield v Reg [2006] NSWCCA 219 Browne v Dunn Weiss v The Queen (2005) 158 A Crim R 133 Cornwell v The Queen (2006) 160 A Crim R 243
PARTIES:	Edmund James Turnell Regina
FILE NUMBER(S):	CCA 2006/1962
COUNSEL:	P. Miller - Crown J. Stratton SC - Appellant
SOLICITORS:	S. Kavanagh - Crown S. E. O'Connor - Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0450
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	16 December 2005