Elmowy v The Queen

[2015] NSWCCA 85

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Elmowy v R [2015] NSWCCA 85
Hearing dates:	13 March 2015
Decision date:	06 May 2015
Before:	Macfarlan JA at [1]; Simpson J at [53]; Schmidt J at [54]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sexual intercourse without consent – appeal against convictions – whether jury verdicts unreasonable – s 6 Criminal Appeal Act 1912 – appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW), s 66
Cases Cited:	Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 SKA v The Queen [2011] HCA 13; 243 CLR 400
Category:	Principal judgment
Parties:	Alexander Elmowy (Applicant) Regina (Respondent)
Representation:	Counsel: G James QC/G D Wendler (Applicant) N J Adams (Respondent) Solicitors: Saba Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/203487
Decision under appeal	Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 24 October 2014 Before: McClintock DCJ File Number(s): 2013/203487

Judgment

1. MACFARLAN JA: In 2014 the applicant, Alexander Elmowy, was convicted after trial of two offences alleged in the Indictment in the following terms:

“1. Between the 15th day of April 2013 and the 30th day of April 2013, at Bondi in the state of New South Wales, [Alexander Elmowy] did have sexual intercourse with [the complainant] without her consent and knowing that [she] had not consented to the sexual intercourse.

2. On 10 June 2013 at Bondi in the state of New South Wales [Alexander Elmowy] did attempt to have sexual intercourse with [the complainant] without her consent and knowing that [she] had not consented to the sexual intercourse.”

2. The applicant seeks leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the ground that the jury’s verdicts are unreasonable (see s 6(1) of the Act). In determining such a ground of appeal, this Court must make “an independent assessment of the evidence, both as to its sufficiency and its quality” and determine “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] and [14]). The “central question” to be answered in making such an independent assessment is whether the court is satisfied that the applicant was guilty of the offences (ibid at [20]).

3. Having made such an assessment, I am, for the reasons stated below, of the view that the Crown proved its case beyond reasonable doubt and that it was therefore open to the jury to convict the applicant.

THE EVIDENCE AT THE TRIAL

The complainant’s evidence

4. In about August 2010 the complainant who was then aged about 20 formed a relationship with the applicant who was aged about 22. She moved into the home in which he lived with his parents and younger brother. In March 2011 she moved with the family to another home but in about October 2011 she moved out of the home at the request of the applicant and his family. She said in cross-examination that she was deeply in love with the applicant at that time. After a short period living with her mother, the complainant moved in January 2012 into an apartment in Bondi. The applicant helped her to find the apartment and assisted her in moving. They continued their relationship but it was deteriorating and ended in mid-August 2012. After that, they continued to speak to each other about once a week and had sexual contact about once a month. This continued until April 2013.

5. In the first half of April 2013 the complainant and the applicant had a consensual sexual encounter but the complainant became aware after it that the applicant had had sex with another woman on the previous day. The complainant told him that she did not want to see him again, nor have any contact with him. However two weeks later she sent him a text message with a property sale result that she thought would interest him and told him that she wanted to maintain a friendship. At the end of April the applicant came, by arrangement, to the complainant’s apartment to collect a box of his belongings that remained there.

6. The complainant gave evidence as follows of what became count 1 in the Indictment against the applicant.

7. After arriving at the apartment, the applicant sat on the bed because he had hurt his leg at sports training. The complainant told him about her new job. In cross-examination she agreed that she told him that she felt more independent and confident but denied suggesting that they resume their relationship and telling him that she missed him and that he was looking good (transcript p 78-9).

8. After about 15 minutes she offered to give him a hand to pull him off the bed. He grabbed her hand and instead of pulling himself up off the bed, pulled the complainant down to him on the bed. She said “what are you doing I didn’t invite you here to have sex with me. Please, I don’t want this”. He pulled his pants down with one of his hands and put his penis inside her vagina for two to three minutes, until he ejaculated. One hand was pinning her down as he slid his pants down with the other. He did not take his pants off completely. While this was happening the complainant was trying to squirm away from him. She struggled but did not scream.

9. The applicant then got up went to the bathroom and left the apartment. After he left, the complainant was in shock, upset and confused, and started to cry.

10. She said that she did not go to the police after this incident because she was confused and “didn’t know whether or not, like he – he was allowed to do what he just done, and I just wanted to forget about it and like pretend that it’d never happened and just sort of move on with my life and just forget it” (transcript p 20).

11. When asked in evidence whether she told anyone about the incident, the complainant said that she told Sam Williamson in early May 2013 that “the last time [the applicant] had sex with me he pinned me down and forced himself on me” (transcript p 20, pp 83-4).

12. The complainant gave the following evidence concerning what became the subject of count 2 in the Indictment.

13. In early June 2013 the applicant contacted the complainant and requested that she return a dress that he had given to her. She told him that she would deliver it to the apartment of a mutual friend who lived in the same building as her. On 10 June 2013 the applicant sent a text message to the complainant saying that he was at that apartment. The complainant told him that she would drop down to the apartment but “just to hold on because I’d just jumped out of the shower, just to give me five minutes and I would take the dress down …” (transcript p 21).

14. However a few minutes later the applicant arrived at the complainant’s door. She was wearing pyjama shorts and a bra as she had just had a shower. She let the applicant into the apartment and, as she turned around to get the dress from the wardrobe, he grabbed her around the waist and pushed her onto the bed. He got onto the bed on top of her and put her legs on his shoulders and put one hand on her chest and neck area. She tried to resist him. He pulled down his pants and pulled his penis out but she moved her legs around the bed saying “please don’t do this to me” and “I don’t want to do this”. He held her down while she moved around on the bed to prevent him inserting his penis (transcript p 22). After two to three minutes of trying to force his penis inside her, he said “if you’re not going to let me fuck you then at least let me pull myself and cum on you”. He then masturbated for about 10 seconds and ejaculated on her stomach. He then released his hold (transcript p 22).

15. The complainant immediately jumped up and went to the shower. When she came out the applicant was gone.

16. The complainant said that within a day or so of 10 June 2013 she told her boss at work, Ms Helen Saunders, “pretty much … everything that happened” on 10 June 2013.

17. On 12 and 13 June 2013 the complainant and her friend Jessica Fletcher who lived in Hong Kong exchanged a number of text messages. A transcript of these was tendered and became exhibit 1 at the trial (see [28] below).

18. The complainant gave evidence that on 12 June 2013 she changed her telephone number so that the applicant could not contact her anymore. However she received more messages from the applicant about two weeks later as he had obtained the complainant’s new number from a mutual friend. Messages passing between them on 29 June 2013 were exhibit 3 in the proceedings (see [29] below). They related to a loan that the applicant had made to the complainant and that the complainant was repaying by instalments.

19. In cross-examination, the complainant said in relation to the principal text message of 29 June 2013:

“At the time I read it I was upset that he had obtained my number, because I changed my number so that he couldn’t contact me and I didn’t understand why he was contacting me when the money was already being automatically debited every week from my account, so when this texting was going on, I was really upset, I was upset that he was contacting me. I didn’t want anything to do with him, I didn’t, after what he had done to me like I didn’t want him to be talking to me, so any of this, just straight over my head, I wasn’t, yeah, I was upset that he had my number, that’s the main thing that I was worried about, that he was contacting me when I didn’t [want] him to be” (transcript p 88).

20. On 30 June 2013 the complainant went with her mother to Waverley police station where she told a police officer “that I was scared of Xander and that I wanted protection because of what he had done to me” (transcript p 37). She then gave a formal statement. She said that she did not go to the police immediately after the 10 June 2013 incident as “I was embarrassed, I wanted to forget about it. I thought that changing my number would be enough for him to not contact me anymore” (transcript p 40).

Mr Samuel Williamson

21. Mr Williamson gave evidence that the complainant was a longstanding friend of his whom he regarded as a sister. He said that in early May 2013 she told him of an incident that occurred between herself and the applicant. He said: “I don’t remember the exact conversation but as the statement [not in evidence] says she basically said along the lines of something physical that she didn’t want to do” (transcript p 115). He said that she was clearly upset by the incident and that “[s]he was just withdrawn, head down, it was as if she’d let it slip out, she didn’t want to talk about it, she didn’t want to tell me but she had”. He said that he had never seen her like that before.

Ms Jessica Fletcher

22. Ms Fletcher gave evidence of the accuracy of the transcript of text messages which was exhibit 1 at the trial. The messages were communicated using the messaging system known as “Whats-App”.

Ms Helen Saunders

23. Ms Saunders who was the complainant’s boss at work said that she had spoken as follows to the complainant on the telephone in mid-June 2013 when the complainant did not come in to work:

“I called her and she was very quiet, she wasn’t her usual bubbly and she told me she – she’s having some personal problems and that her sick leave was not due to work commitment, as in stress through work, she was off sick with personal problems and she’s clearly upset by her voice and her tone and the way she was communicating which was very sad” (transcript p 131).

24. Ms Saunders said that soon after this conversation she spoke to the complainant in a private meeting room at work and that the complainant told her that “she had been sexually assaulted by her ex-boyfriend” in her apartment. Ms Saunders stated:

“She actually kind of described what happened, so she told me that her ex-boyfriend had been in contact with her and via text message asking to give a – him a dress back that he had bought her during the relationship, I think it was worth – it was quite expensive. So she had told him that she would leave this dress with a mutual friend who lived downstairs in the apartment block, I think, so I believe she dropped the dress off, maybe a couple of days before, that’s a bit unclear, I can’t remember when she said she dropped it off but I know she said she dropped the dress off. But instead of him picking the dress up from the mutual friend downstairs, he came to her apartment he knocked on the door and she told me that she called out and asked who it was because she’d just come out of the shower and didn’t immediately go and open the door because she was – I think she may have been just in a towel. So she – when she realised it was her ex-boyfriend, she then opened the door to let him in and he then came into the apartment and on a couple of occasions asked if they could have sexual intercourse. She repeatedly said no to him. He – she told me he then forced her onto a nearby bed and proceeded to masturbate. She was constantly calling out, she didn’t want anything to happen, she didn’t want to have sex with him and he masturbated and ejaculated over her. She was really upset. She told him then that he was never ever to do that again and he smirked at her and said ‘Do what?’. He then left the apartment. So in terms of the question, her description of the incident was to me, in my mind, was sexual assault and that’s how she described that, what had happened” (transcript p 132).

25. Ms Saunders said that a week or so later the complainant told her that her ex-boyfriend had obtained her new mobile phone number and had started to contact her again via text message. The complainant told her that: “She was going to report – because he’d got her number again, she felt again threatened, that she was going to report the incident” and “she was going to report another incident, that’s what she said, she was going to report another incident that happened previously. She didn’t tell me anything about that incident, there’s no details, she just said she was going to report that sexual assault that she told me about and another incident” (transcript p 133).

26. In cross-examination Ms Saunders agreed with the proposition that she had the impression from the description given to her by the complainant that “the boyfriend came into the apartment and sort of as it were hassled her for sex and she refused” (transcript p 134).

Senior Constable Elizabeth Cook

27. A statement of Senior Constable Cook was read to the jury. She said that on 30 June 2013 the complainant attended at Waverley Police Station with her mother “and told me that she wanted to report a sexual assault”. The complainant then gave a description of the two incidents the subject of the Indictment. Senior Constable Cook observed that the complainant “was embarrassed about talking about [the subject of the complaints] and when questioned further she started getting teary and upset”. The complainant was recorded to have said that “she had told some friends and work colleagues what happened and they told me to report it” (transcript p 156). She said that she had seen a doctor because she could not sleep and was depressed.

Exhibit 1: text messages between the complainant and Ms Fletcher

28. The transcript of these messages was in the following terms: “C” refers to the complainant and “JF” to Ms Fletcher.

“12 June 2013

6:04 pm	JF: Yo
7:04 pm	C: Hellooo
7:05 pm	JF: What happened with Zander?
7:06 pm	C: he won’t leave me alone. Every time I forget him he pops up and wants something off me
7:06 pm	C: He pretty much tried to rape me on Monday
7:06 pm	C: Whilst I was screaming no get off me etc
7:07 pm	JF: WTF?!
7:07 pm	JF: [the complainant’s name]
7:07 pm	JF: Why were you even in that position?!
7:15 pm	C: because he asked to have a very expensive dress he bought me back
7:15 pm	C: And he was at Keithys house downstairs so he came up and knocked onto door to get it
7:17 pm	JF: WTF?!!
7:17 pm	JF: Why does he want it back what a prick!
7:17 pm	JF: How expensive was it?
7:20 pm	C: About $700
7:20 pm	C: It didn’t fit
7:21 pm	C: Yea I was so scared Jessy
7:21 pm	C: Like he was being so nice about getting it even though its a low thing to ask for
7:24 pm	JF: WTF he’s such a freak
7:24 pm	JF: I would call the police next time
7:47 pm	JF: Dude he’s fucking crazy
7:48 pm	JF: So what happened he forced himself on you?!!
7:57 pm	C: Yes
7:58 pm	C: He grabbed me and pushed me Down on to my bed and I was screaming no and he pulled his pants down and was trying to stick his cock inside of me whilst holding me down and I was just moving my legs around like crazy he couldn’t
7:59 pm	JF: WTF?!
7:59 pm	JF: So how did he stop?!!
7:59 pm	C: So he put his hand around my neck and pulled his cock for literally 5 seconds and came all over me
7:59 pm	C: Got up and left
7:59 pm	JF: Dude report him
7:59 pm	C: I was speechless
7:59 pm	JF: So he just jacked off in front of you?!!
7:59 pm	C: Yes
8:00 pm	JF: [the complainant’s name] WTF
8:00 pm	C: Because I just was not going to let him pin me down
8:00 pm	JF: Call the cops
8:00 pm	JF: That is fucking disgusting
8:00 pm	C: What are they going to do
8:00 pm	JF: List him
8:00 pm	JF: Report him at least so it’s on his records
8:00 pm	JF: What a fuck
8:00 pm	C: I sent him a txt being like WTF don’t ever do that again no means no
8:00 pm	C: And he replied back saying what are you talking about thanks for the dress
8:01 pm	JF: Dude I wouldn’t even talk to him
8:01 pm	JF: I would just report it
8:03 pm	C: No I can’t I just want to forget it
8:07 pm	JF: That’s so fucked
8:07 pm	JF: Don’t let him inside again
8:07 pm	JF: Your house
8:08 pm	C: I won’t – at least he can’t contact me anymore
9:23 pm	JF: Good
9:30 pm	JF: Now can you see what a piece of shit he is?!
9:30 pm	JF: You can’t still have feelings for him

13 June 2013

6:12 am	C: Yes I know he is the scum of the earth and I don’t want to be with him ever. [B]ut part of me still loves him. I don’t know if that’ll ever change. I’m just upset because I was finally going [through] days where he did not even cross my mind at all – I was forgetting totally! Now I’ve gone a bit backwards.
8:46 am	JF: Urgh how can you he sexually assaulted you!!!
8:47 am	C: I know he did – I’m fucked!
8:51 am	JF: Yep
8:51 am	C: At least I know that I don’t want to be with him ever and I don’t want to see him
8:52 am	JF: Yes but you still have feelings that’s what is worrying!!”

Exhibit 3: text messages between the applicant and the complainant (denoted as “C”)

29. The text messages were as follows:

“29 June 2013

10.38 am

AE: I have been more than fair. We agreed upon $100/week sometime ago. $4K from Thailand and $2.5K I have you to clear your CC debt. $20/week with a pay rise and a new job is unacceptable. I will call you to discuss because I know you won’t be calling me. $20/week is ridiculous and $5 is an insult!

C: First and last chance you get to hear from me so listen up. I do NOT owe you 4k    from Thailand. Yes for C.C it is 2.5k I paid you 500 from my tax last year and 500 when we broke up. An insult? Be grateful you’re getting automatic weekly payments. You have absolutely no idea of my financial situation so don’t you dare assume anything, ever. I changed my number for a reason – leave me alone Alexander. You have no reason to contact me at all the payments are scheduled payments. So please leave me alone and do not contact me again, ever.

11.05 am

AE: I don’t want you in my life either but the only item you are dragging this out. Constantly made promises and fooled me to get your way. Now you are dragging it out. Your true colours have shown! What do you owe me for Thailand if its not $4K?

11.21 am

AE: I am happy to get a letter drawn up from the solicitor or pursue a statement of claim. I really have no issues to make all correspondence through them so we don’t talk for the outstanding monies.”

The applicant’s evidence

30. The applicant gave evidence that when the complainant was asked to move out of his family home in about November 2011, she became hysterical, screaming “no”. He said that when she moved into her Bondi apartment he spent two nights a week there but the relationship was disintegrating. In about August or September 2012 they broke up but continued to have sex once or twice a month on average. He said that the sexual encounter the subject of count 1 in the Indictment was consensual and in fact initiated by the complainant (transcript p 184). He also said that on the occasion in June when he collected the dress from the complainant that they did not have any physical or sexual contact.

31. In cross-examination, the applicant gave evidence of an occasion in early April 2013 when he and the complainant had sexual intercourse. He said that the complainant’s observation of a mark on his neck obtained during recent sexual intercourse with another woman led to the complainant saying that she did not want to have sexual intercourse with him anymore. His evidence of the timing of this conversation (early April 2013) indicated that it occurred some weeks before the occasion the subject of count 1 which the applicant accepted occurred “[t]owards the end of April, 2013” (transcript p 163).

32. The applicant accepted in cross-examination that he knew that when the complainant changed her mobile phone number (on 12 June 2013) that she did not want him to contact her but that he obtained her new number from a mutual friend and sent her a text message on 29 June 2013 (exhibit 3).

Character evidence

33. Three persons gave character evidence on behalf of the applicant.

RESOLUTION OF THE APPEAL

34. In support of his submission that the jury verdicts were unreasonable and his convictions should be set aside, the applicant relied upon the following passage from the judgment of the plurality in M v The Queen [1994] HCA 63; 181 CLR 487 at 494:

“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence”.

35. The applicant submitted that, to aid its independent assessment of the evidence, the Court should view the audio visual recording made of the complainant’s evidence. As pointed out in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [31], reference by an appellate court to the transcript of evidence is sufficient in the absence of particular circumstances requiring a different approach. There is nothing of that character in this case as there is no basis for thinking that the written transcript does not adequately reflect the complainant’s evidence. Moreover, as is also apparent from SKA v The Queen (at [29] and [30]), the viewing of a video of the evidence of one witness only (no video being available in this case of the evidence of other witnesses) might well result in an undue focus upon the evidence of that witness, to the possible detriment of the accused person. For these reasons, I have not viewed the recording.

36. The applicant relied upon some 13 matters to support his contention that the jury verdicts were unreasonable. I deal with these as follows.

37. First, the applicant relied upon inconsistencies between the complainant’s and Senior Constable Cook’s evidence of what the complainant said to the latter on 30 June 2013. However, such inconsistencies as there are are minor, and the substance of the complainant’s evidence concerning Counts 1 and 2 is reflected in Senior Constable Cook’s evidence of what the complainant said. As a result Senior Constable Cook’s evidence provides evidence of complaint, supportive of the prosecution’s case.

38. Secondly, the applicant relied upon two changes made by the complainant to a statement she signed on 1 July 2013. However in my view the changes were minor and not of present significance.

39. Thirdly, the applicant submitted in relation to the late April incident that it “is difficult to appreciate how penetration could have been effected if the [applicant] did not take his pants completely off”. However the jury was well able to form a view about the practicality of what the complainant described. I do not consider that any impracticability has been demonstrated by the applicant.

40. Fourthly, the applicant relied upon a difference between the evidence of the complainant and that of Mr Williamson to the extent that Mr Williamson did not recall being given any particulars of the April incident. This is consistent with a simple difference in recollection and is of no present significance. What is of more importance is that Mr Williamson confirmed that the complainant had told him that she had been sexually assaulted by the applicant.

41. Fifthly, the applicant submitted that the fact that the complainant let the applicant into her apartment prior to the 10 June incident suggested that the late April incident had been consensual. However, this does not follow. On the complainant’s evidence, the applicant suddenly and unexpectedly arrived at her door. To give him the dress that he wanted returned, rather than sending him away, was a not obviously unnatural reaction to his arrival. In allowing the applicant to enter the apartment, the complainant was not admitting a stranger but someone with whom she had cohabited for a substantial period of time. Whilst he had sexually assaulted her on an earlier occasion, she was “embarrassed, ashamed and … confused” by the event and had not decided to report it to the police (transcript p 20). She admitted the complainant to her apartment merely to enable her to return to him the dress that he had given her.

42. Sixthly, the applicant relied upon differences between, on the one hand, the complainant’s evidence of the 10 June incident and her description of what she told Ms Saunders and, on the one hand, Ms Saunders’ evidence of what the complainant told her. Ms Saunders accepted the proposition when it was put to her in cross-examination that the complainant told her that the applicant had in effect “hassled” her for sex when he arrived at the apartment whereas this did not form part of the complainant’s evidence. Indeed, the complainant denied that this occurred. Nevertheless, Ms Saunders’ evidence provided significant support to the prosecution’s case as it was evidence of a contemporaneous complaint by the complainant of a recent sexual assault of her by the applicant in her apartment (as well as of the earlier sexual assault). Most of the details were consistent although there was the discrepancy just referred to. That could well have come about as a result of a misunderstanding or misrecollection by Ms Saunders of a description by the complainant of her resistance to the applicant’s repeated attempts to have sex with her by inserting his penis into her vagina. In any event, the discrepancy is not of such significance as to cast doubt on the complainant’s credibility or reliability.

43. Seventhly, the applicant relied upon the complainant’s evidence that she had also told another work colleague, Ms Hayley Osbourne, of the 10 June incident and the fact that the prosecution did not call Ms Osbourne as a witness nor explain her absence. It may be that Ms Osbourne could not recall the conversation or that the complainant was simply mistaken about speaking to her. The point is of limited significance but the trial judge in any event brought the point to the jury’s attention by giving it a Jones v Dunkel direction concerning Ms Osbourne.

44. Eighthly, the applicant submitted that it was “astonishing” that in light of the complainant’s description of how the applicant held her down during the 10 June incident that there was no evidence of bruising or injury occasioned to her. However there was no evidence that any of the witnesses at the trial, other than the police, would have been in a position to observe any such injury and, so far as the police were concerned, they did not first see the complainant until some three weeks after the incident. Moreover, it is by no means clear that bruising would have resulted from the incident, particularly in light of the complainant’s description of what she meant by the applicant having his hand on her throat or neck. She said that his hand moved from her throat to her shoulders. The trial judge and counsel described her demonstration in the witness box as indicating places on her upper chest at the base of her throat and between her throat and her sternum (transcript pp 99-100).

45. Ninthly, the applicant relied upon the complainant’s answer of “I didn’t know what would happen” to a question put in cross-examination to the effect that when she said in her police statement that she was willing to attend court if the matter should proceed that far “did you think that this matter would not end up in court?” (transcript p 105). Why this answer was said to be of significance was not explained. In my view it was not significant.

46. Tenthly, the applicant pointed out that the trial judge gave to the jury a Jones v Dunkel direction in relation to a doctor that the complainant said that she consulted prior to her attendance on the police. However the only evidence of the consultation was that Senior Constable Cook had recorded in her notebook that the complainant had said she had seen a doctor because she could not sleep and was depressed, and that the doctor had referred her to a psychologist. There was no basis for inferring that the doctor would have been able to provide relevant evidence concerning the sexual assaults or evidence of complaint. Neither party suggested at the trial that the doctor might have been able to do this.

47. Eleventhly, the applicant referred to the complainant’s comment to Ms Fletcher recorded in exhibit 1, that the applicant was “the scum of the earth” and Ms Fletcher’s comment in the same exhibit that the applicant should be reported “so it’s on his records”. Assuming the truth of the complainant’s allegations of sexual assault, these were hardly surprising comments to be made in the course of the communications with Ms Fletcher. They do not therefore conflict with the complainant’s evidence.

48. Twelfthly, the applicant submitted that he “was not in any way embarrassed or contradicted by cross-examination”. This is a factor to be taken into account although it is difficult to reconcile his evidence, on the one hand, that the complainant was upset in early April 2013 when she found out that the applicant had recently had sex with another woman and that the complainant told him that she did not want to have any further sexual intercourse or “physical closeness” with, on the other hand, his evidence (denied by the complainant) that later in the same month she initiated and consented to the sexual intercourse the subject of count 1 in the Indictment. Moreover, in assessing the significance of this factor, account must be taken of the advantage which the jury had, but this Court did not have, of seeing and hearing the witnesses, including the applicant, give their evidence.

49. Finally, the applicant referred to the complainant having on five occasions requested a break during evidence. It is clear from the transcript that the complainant was upset whilst giving evidence and found the experience stressful. Her requests for breaks did not reflect adversely on her credit or her reliability. They were understandable reactions to her upset and stress.

Conclusion

50. Having conducted an independent assessment of the evidence at the trial, my view is that the prosecution proved its case beyond reasonable doubt and that the applicant’s convictions are not unsafe, unsound or unreasonable. For the reasons that I have given above, none of the points made by the applicant on appeal, either in isolation or in combination with the other points, raise any doubt about the soundness of the verdicts of the jury which had the advantage of seeing and hearing the evidence of the witnesses whose credibility and reliability was in issue. There was no suggestion on appeal that the jury was not properly instructed as to onus of proof and all other relevant matters.

51. The following matters are strongly supportive of the verdicts:

1. The complainant’s evidence of events was, on my reading of the transcript, sensible, logical and credible. Her cross-examination by the applicant’s counsel did not raise doubts as to the credibility or reliability of her evidence. In particular, the complainant adequately explained such delays as there were in complaining of the sexual assaults.

2. The record in exhibit 1 of the text messages passing between the complainant and Ms Fletcher was compelling contemporaneous documentary evidence of a complaint by the complainant that strongly supported the prosecution case. The messages were expressed in understandably colloquial terms, having a ring of credibility to the information and sentiments conveyed. Exhibit 1 was admissible not only to support the credibility of the complainant but to prove the truth of the facts which she asserted in the text messages and repeated in her evidence (s 66 of the Evidence Act 1995 (NSW)).

3. The prosecution case was likewise supported by the complaint evidence given by Mr Williamson and Ms Saunders. Differences between their evidence of the complaints and that given by the complainant were not of a marked or unusual character. They did not detract from the clear evidence of those persons that the complainant complained to them of her sexual assault by the applicant.

52. For these reasons, whilst I would grant leave to appeal, I would dismiss the appeal.

53. SIMPSON J: I agree with Macfarlan JA. Having considered the whole of the evidence, I am satisfied that the applicant was rightly convicted of both offences.

54. SCHMIDT J: I agree with Macfarlan JA.

55. At trial the jury did not accept the applicant’s case that the complaints against him had been made in the aftermath of the breakdown of his former relationship with the complainant, who had used sexual allegations as a weapon against him; that their relationship had broken down after the complainant had learned of his infidelity, even though she had later contacted him again; that after she had changed her phone number, he had obtained the new number from a mutual friend, in order to contact her about the debt she owed him; that there were various problems with the complainant’s evidence, including discrepancies between her evidence and that of other witnesses; and that that he was a truthful witness, who had given believable evidence which the jury would accept, that the intercourse the subject of count 1 had been consensual and that the events the subject of count 2 had never occurred.

56. The applicant also submitted that it was relevant that while the complainant had needed various breaks, while giving her evidence, she had needed none when being cross-examined about photographs of her home. This was submitted to have revealed that her demeanour and evidence were not convincing or reliable, with the result that he was entitled to the benefit of the doubts which arose from the complainant's evidence.

57. The jury, nevertheless, preferred the complainant’s evidence over that of the applicant.

58. In those circumstances, for the reasons given by Macfarlan JA, I, too, take the view that the video of the complainant’s evidence should not be viewed on appeal, notwithstanding that the complainant required five breaks while giving her evidence.

59. Having considered the evidence, I also agree with the conclusion which his Honour has reached on the conviction appeal, that the verdicts were not unreasonable, for the reasons given. The question is whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt (see Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]). The evidence did not require the jury to have necessarily entertained a doubt about the applicant’s guilt.

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Decision last updated: 06 May 2015