Franklin v Regina - [2021] NSWCCA 260

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Franklin v Regina [2021] NSWCCA 260
Hearing dates: 10 May 2021
Decision date: 08 November 2021
Before: McCallum JA; Beech-Jones J; Hamill J
Decision:
(1) Extend until 1 September 2020 the time within which the applicant may seek leave to appeal against his conviction.
(2) Grant leave to raise ground 2(c) in the notice of appeal and otherwise refuse leave to raise grounds 2 and 3.
(3) Reject the affidavit of Craig Franklin sworn 3 September 2020, including its annexures, other than the report of Professor Young dated 3 September 2020.
(4) Apart from the first two lines on page 4, admit the report of Professor Young dated 3 September 2020 and her oral evidence given on 10 May 2021.
(5) Dismiss the appeal.

Catchwords:
CRIME – Appeal – domestic violence and sex offences – whether trial judge erred in admitting DNA evidence – whether trial judge erred in not discharging juror or jury – fresh evidence – reports from experts said to undermine complainant’s credibility – whether “fresh evidence” – whether evidence such as to give rise to doubt about convictions – where applicant received diagnosis of Autistic Spectrum Disorder after trial – report from psychologist as to implications of such a diagnosis – whether miscarriage of justice established – allegations of police misconduct – whether verdicts unreasonable

Legislation Cited:
Criminal Procedure Act 1986 s 293
Crimes Act 1900 (NSW), ss 61, 61J(1), 86(2)(b)
Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6(1), 12(1)
Evidence Act 1995 (NSW), ss 135, 136, 137
Jury Act 1977 (NSW), s 53B(d)

Cases Cited:
Caleo v R [2021] NSWCCA 179
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
MRW v R [2011] NSWCCA 260
Norman v R [2012] NSWCCA 230
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1
R v Bauer (2018) 266 CLR 56; [2018] HCA 40
R v Thompson [2014] EWCA 836
Rattenv The Queen (1974) 131 CLR 510
RD (a pseudonym) v R [2021] NSWCCA 94
S v R [2008] EWCA Crim 6
Thompson v R [2014] EWCA 836
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Xie v R [2021] NSWCCA 1

Texts Cited:
Maras, K, Crane, L, Walker, L, & Memon, A (2019) Brief report: Perceived credibility of autistic witnesses and the effect of diagnostic information on credibility ratings. Research in Autism Spectrum Disorders, 68, Article 101442.

Category: Principal judgment
Parties: Craig Franklin (Applicant)
Regina (Crown)
Representation:
Counsel:
In person (Applicant)
C Young (Crown)
Solicitors:
Unrepresented (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2008/11561
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 September 2009

Before:

Nicholson SC DCJ

File Number(s):

2008/11561

Judgment

THE COURT: This appeal concerns convictions entered following a trial by jury that concluded over 12 years ago. The applicant, Craig Franklin, was charged with four domestic violence and sex offences alleged to have been committed against his then girlfriend on the morning of 9 April 2007. He pleaded guilty to one, an assault occasioning actual bodily harm (slapping or punching her in the face causing her nose to bleed) but denied the remaining charges. He was arraigned in the District Court on 4 February 2009 on an indictment containing those three counts, as follows:

common assault contrary to s 61 of the Crimes Act 1900 (NSW);

detaining a person with the intent of obtaining an advantage (sexual gratification) contrary to s 86(2)(b) of the Crimes Act; and

aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act (the circumstance of aggravation being the infliction of actual bodily harm).

The trial proceeded before Nicholson SC DCJ and a jury at the Goulburn District Court between 4 and 17 February 2009. The jury found the applicant guilty on all counts. He was sentenced for all four charges on 18 September 2009 to a total term of imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months. The sentences had expired by some years by the time the appeal was commenced.
The applicant requires leave to appeal as none of the grounds of appeal involves a question of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). An additional hurdle to the appeal is the fact that it is out of time. A notice of intention to seek leave to appeal was filed within time. However, following two extensions of the time within which that notice had effect, it expired on 29 October 2010. The notice of appeal was filed almost 10 years later, on 9 September 2020.
The Crown acknowledged that the Court has a wide discretion to extend the period for which a notice of intention to apply for leave to appeal has effect: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [12]-[13]. In particular, the Crown accepted that the determination as to whether it is in the interests of justice to grant the extension sought requires the Court to consider the prospects of success of the appeal. As in many cases, it is not possible to undertake that assessment without in effect conducting the substantive appeal and determining the applicant’s grounds of appeal on their merits.
The applicant, who is legally trained, provided detailed submissions and also sought to rely on fresh evidence in the appeal. In order to determine whether to grant the extension of time sought, it has been necessary for the Court to consider and assess the entirety of that material. Having done so, we have reached the conclusion that the appeal should be dismissed. Having regard to the seriousness of the charges and the detail in which the issues in the appeal have been addressed by both parties, the appropriate course is to grant the extension of time needed to commence the appeal and to deal with each ground on its merits. Our reasons for concluding that the appeal must be dismissed are as follows.

Evidence at the trial

The applicant and the complainant met in April 2003 and were in a relationship (with some breaks) until 9 April 2007 when the incidents giving rise to the criminal charges occurred. The applicant became a barrister during the period of their relationship.
In early 2005, the applicant had a one-night sexual affair with another woman. When told of the affair, the complainant was very upset and demanded that the applicant leave her house. She subsequently inflicted deliberate damage on his barrister’s wig and wrote insults in his legal textbooks with a red marker. After numerous phone calls from the applicant, she allowed him to move back into her flat in June or July 2005. The relevance of those matters of background is that the defence argued at trial that she had a tendency to act in a particular way when she was angry and resentful and that there was a reasonable possibility that she had done the same on the occasion of the assaults alleged in the indictment. The argument was that she was angry at having been assaulted (in the admitted charge) and reacted by spontaneously making up false allegations against the applicant by way of revenge.
The applicant and the complainant had further periods of being together and then separated before re-establishing their relationship for the last time in early 2007, a few months before the alleged offences.
On Friday 6 April 2007, the complainant stayed at the applicant’s flat in Sydney. They decided to take a trip to the Canberra region the following day. The complainant gave evidence in the trial that the purpose of the trip was to get things right with their relationship, “to try to get it solid.” The complainant booked accommodation at the Rydges Eagle Hawk Resort. They left Sydney on the Saturday morning and arrived at the hotel at around 5pm that afternoon, having done some sightseeing along the way.
The following morning (the Sunday), they engaged in consensual oral intercourse. They then spent the day sightseeing. They had some verbal disagreements throughout the day.
That evening, the applicant purchased two or three bottles of wine. He and the complainant had dinner at a restaurant and returned to their room at around 9pm where they got into a spa together. From this point onward, there are significant differences between their accounts.

The complainant’s evidence

The complainant gave evidence that she and the applicant drank wine while in the spa. She said she did not finish her first glass, while the applicant had more than one glass. She said there was no sexual intercourse in the spa. The applicant’s evidence was they had sex in the spa (“incomplete”). He also said that the complainant fell as she got out of the spa (which would explain some of her bruising). In her evidence, the complainant denied that. She said she went to bed at around 11pm while the applicant continued to watch television in the lounge.
The complainant said she was woken by the applicant joining her in bed when the alarm clock radio beside the bed displayed a time of 12:44am. The applicant began to touch her intimately, to which she responded, “no baby, I’m trying to sleep”. By the smell and the behaviour of the applicant, she thought he was quite drunk at that time. The complainant said that the applicant got upset and began calling her names before punching the bed next to her body and tightly grabbing her bicep. She tried to ignore him. However, the verbal insults continued and she eventually moved to the lounge room with the intention of sleeping on the sofa bed.
The complainant said that, after she had settled in the sofa bed, the applicant came and sat next to her making further offensive statements. After a few minutes he went back to the bedroom. She went outside for a cigarette, taking a key with her. The applicant followed her and told her to return to the room.

Count 1: Assault

The count of common assault was based on what was alleged to have occurred when the complainant went back into the motel room. She said they sat on the sofa bed together and the applicant was “saying offensive things”. She said he slapped her around five times before she pushed him in the chest. She said that the applicant then hit her again and that she recoiled into a foetal position using her hands to protect herself. He continued to insult her throughout. After around three minutes, he went into the bedroom, slamming the door behind him.
The complainant said she remained on the sofa bed for around two and a half hours, unable to sleep. Eventually she got up and quietly opened the bedroom door to see if the applicant was asleep, as she wanted to use the toilet and then leave without him hearing her. After using the toilet, she returned to the lounge and got dressed, with the intention of leaving.
At around that time, which she estimated to be approximately 5am, the complainant heard the applicant go into the bathroom. He told her that she should come back to the main bed. She suggested they should instead leave and beat the traffic, to which he ultimately agreed in “kind of an aggressive tone.”
The complainant drove with the applicant sitting in the front passenger seat. They stopped at the motel reception. An invoice tendered at the trial indicated that they checked out at 5:34am. The complainant went into the reception area. She said the applicant followed her into the reception area but stayed near the entry door. The complainant settled the account and asked the night manager if there was a train station nearby. In her evidence she explained that she was thinking that, if the applicant was going to be “objectionable and offensive and insulting”, it would be better if he made his own way home on the train. The manager told her there were trains out of Canberra.
After the complainant returned to the car, the applicant said, “just drive” and started giving directions. The complainant said that, once they left the motel, he started slapping her across the face while she was driving and told her to pull over. The complainant said that, after she had pulled over, the applicant continued to slap her, breaking her glasses in the process. The applicant then told her to keep driving and to take the next exit. She said that while she was driving along the Federal Highway, the applicant continued to hit her and yell “nasty things”.

Count 2: Take with intent to obtain advantage

The count of kidnapping was based on the complainant’s evidence concerning that leg of the trip. In her evidence at the trial, she drew a diagram of the roadway off the Federal Highway which was the exit she said the applicant directed her to take. She estimated that, after leaving the hotel, she had been driving for less than 10 minutes before turning off, around 8km. She said the roads they passed before that point appeared to be private, dirt roads. The evidence at trial established that the first major turn-off was Sutton Road.
The complainant said that, once she had pulled over and turned the lights off, the applicant demanded that she get in the back seat of the car. She expressed concern as she believed he intended to drive and she thought he would have been well and truly over the limit and that it would have been very unsafe for him to drive. He said “just get in the fucking backseat”. She turned the car off, pulled out the keys and got out of the driver’s side door. As she opened the rear driver’s side door, she grabbed her handbag and started running back towards the T-intersection where she had turned in. While she was running, she was trying to get her phone out of her pocket to call police. However, her phone was locked and she was unable to make a call before the applicant caught her, around 15 to 20 m from the car.
The complainant said the applicant then grabbed her by the arm and roughly pulled her back to the car, telling her to get into the back seat by the rear driver’s side door. She said she opened the door and that, before she could get in, he kicked her at the top of her left thigh, forcing her into the back seat and closing the door.
The complainant said the applicant then got in the back seat by the rear passenger’s side door and started punching her face and head with closed fists. She tried to protect her head with her arms. At one stage, she was able to pull her left foot up and push it against the applicant’s chest. He momentarily stopped hitting her before saying “move your fucking foot or I’m going to kill you”. She removed her foot and the punching resumed for a short period while the applicant said some “offensive, awful things” to her. The complainant noticed at that point that her nose was bleeding.

Count 3: Aggravated sexual intercourse without consent

The complainant said the applicant then undid his pants and demanded that she perform fellatio on him. She said, “I can’t, I can’t, I don’t even have any saliva”, to which he responded, “I don’t care, just suck it” and then, “And I don’t want any of that shit you did last time, just sucking on my knob, put my whole cock in your mouth.” He also told her to wipe the blood off her nose and let her have a sip of water. She wiped her nose with her hand. After a while, the applicant complained that she did not have his “whole cock” in her mouth. She tried to take more but was having difficulty breathing. She said the applicant then pushed the back of her head with his hand, causing her to gag. She pulled her head off to get some air and he pushed it back down.
The complainant said that the effect of his forceful pushing was that she couldn’t breathe, her head was hurting, her body was shaking and she was having little tremors. She said to him “I can’t, I can’t, my head”. The applicant was asking her offensive questions and leaning over to punch her in the head in between. He told her to lick the blood off his knuckles, which she did. She said the applicant did not ejaculate. The complainant said that she performed fellatio on the applicant because he told her he was going to kill her and “just for survival I was doing whatever he said.”
The complainant said the applicant then told her to get back into the driver’s seat, which she did. He moved back into the front passenger’s seat. She said that, once she started driving, the applicant punched her in both eyes causing her to “see stars” and struggle with visibility. She continued driving. He slapped her and continued to make offensive comments.
The complainant said she ended up stopping at the Charles Anderson VC Reserve after the applicant said that he needed a drink of water. She got a bottle of Coke out of the boot and gave it to him. She said that, when she got back into the driver’s seat, the applicant hit her with an open hand to her face and head approximately 20 to 30 times and continued with the verbal abuse. That was the basis of the charge of assault occasioning actual bodily harm to which the applicant pleaded guilty.
The complainant said that the applicant made her look at her face in the mirror and she could see that she was coloured and had big bumps on her forehead. She did not try to run as there was nowhere to go and her previous attempt to escape had been unsuccessful. The applicant continued to verbally abuse her and she was saying “I’m sorry, I’m sorry” to try to placate him. She went to the toilets to get some water but it was not fit for drinking. They remained in the rest area for around an hour.
The complainant said that she started driving again, planning to stop in Goulburn for water. Before they arrived in Goulburn, the applicant changed into a different pair of trousers that were in the back seat. They stopped at the Goulburn McDonalds as the applicant was hungry. The complainant said the applicant told her to clean herself up while they were there. She took the keys to the car and walked directly to the toilets. She saw a woman through the first door and asked if she could call the police.
That woman was Ms Carmel Shaw, who gave evidence in the trial. Ms Shaw said she was in the ladies’ toilets at McDonalds with her two young daughters at about 7:50 that morning when a lady approached her and asked her to call the police. She said the lady was crying and “very agitated” and that she had blood on her face and hands. Ms Shaw said the lady said “my boyfriend has attacked me” and said “don’t let anyone see you make the call”. Ms Shaw said the lady went into the toilets while she (Ms Shaw) remained in the vestibule and called triple 0 to say that a lady had been attacked, but she didn’t know much more.
It is clear that the lady described by Ms Shaw was the complainant. The complainant said she entered the ladies’ toilet and locked herself in the cubicle furthest from the door before also calling triple 0. Some time later, the police knocked on the toilet door and she spoke with them in the vestibule. She could see the applicant sitting some metres from the car. The complainant told the police officers that the applicant had “beaten [her] up”. It is common ground that she made no allegation of sexual assault at that stage.
The complainant followed the police back to Goulburn police station in her car and they took the applicant in a police wagon.

The applicant’s evidence

The applicant participated in a recorded interview (ERISP) with police that morning which was admitted into evidence at the trial. He also gave evidence at the trial.
In the ERISP, the applicant agreed that he drank about two bottles of wine that night. He said that he did not recall everything that happened the night before his arrest. He could not recall what time he went to bed. He remembered that the complainant had not slept in the bedroom the whole night. He could not remember why but thought it might have had something to do with the alcohol he had consumed. He denied that there was any name-calling or physical assault in the motel (count 1).

The applicant remembered that they had left the motel early to beat the traffic. He said the complainant woke him up. In his evidence in the trial he said she shook him to wake him up. He said she was the one who honked the horn at the motel reception (her evidence was that it was him). He denied that he followed her into the reception area. He denied calling her names or saying offensive things.
The applicant’s evidence was that, after they left the motel, he fell asleep in the car. He said the complainant woke him and he asked how long they had been travelling, to which she responded “45 minutes”. He said the first place they stopped was at the rest area at Lake George. The applicant denied that the couple had stopped at any point before the Anderson VC rest area and denied any sexual assault.
In his ERISP the applicant accepted that they had an argument there and agreed that it did get “a little physical”. He said the argument was about their relationship. He admitted that he slapped the complainant across the face and to her head about 10 to 15 times. He gave similar evidence in the trial. He said the argument began over the fact that they had left so early and she told him it was because she was sick of going to places he had been to with a previous girlfriend (that was put to the complainant and she denied it). The conversation turned to a relationship the complainant had with another man during a break in her relationship with the applicant. According to the applicant, the complainant said he (the applicant) was “dull and boring” and the other man was “a lot of fun”. He said the complainant told him “extremely detailed experiences” and that he couldn’t bear it any longer and he “tried to stop her mouth from talking and that degenerated rapidly into slaps and finally a wild swinging of [his] arms”. In his evidence in the trial, the applicant said that he had punched the complainant with a closed fist a couple of times and slapped her about 10 times. The complainant in cross-examination denied that there was any punching at the Anderson VC rest area; she said the punching occurred earlier.
The applicant said in his ERISP and in evidence in the trial that he changed his pants when they reached McDonalds as they had blood on them, which had come from his hand and the complainant’s nose when he struck her at the rest area. He denied any physical assault of the complainant other than at the rest area and denied any sexual assault.

Medical assessment of the complainant

The complainant was examined by Dr Patricia Whelan at 11:30am on 9 April 2007 at Goulburn Hospital. Dr Whelan gave evidence that the complainant gave a history of having been hit at a motel at Rydges at Eagle Hawk, followed by further physical assaults in a car, forced fellatio in the back seat of the car and other hitting after that.
Dr Whelan ascertained that the complainant suffered from Sjojrens syndrome, a disease of the salivary glands which impedes the production of saliva. She said that sufferers need to drink to alleviate dryness of the mouth. She said that, while the complainant presented as being shocked, she related in a logical and consistent manner.
Dr Whelan carried out a complete physical examination using a three-page form to note the complainant’s injuries. The detail of her evidence is considered below in the discussion of ground 2(a). In short, the doctor’s evidence at trial was that the complainant’s injuries were consistent with having received multiple blows to the head, her glasses being broken, trauma to her nose and the assaults that she described. Dr Whelan said it was unlikely that the bruising was consistent with a fall onto a hard surface.

Police evidence

Four police officers gave evidence at trial: Senior Constables Franca and Gray, Leading Senior Constable White and Detective Roberts. Their evidence is summarised as necessary in the discussion that follows.

Ground 1: Errors of Law

Ground 1 asserts a series of errors of law. Ground 1(a) is that the trial judge erred in admitting a statement made by Constable Gray concerning the circumstances in which the complainant first came to make a complaint of sexual assault. That ground was formally abandoned at the hearing of the appeal but the applicant said the point may arise in the context of other grounds. In short, it was the applicant’s case at trial that, when the complainant spoke to police to report the assault at the Anderson VC rest area (which he admits), Constable Gray improperly invited her to make a complaint of sexual assault in response to which she fabricated the allegations that supported counts 2 and 3.

Ground 1(b) – DNA Report

A number of the applicant’s grounds concern the DNA evidence adduced in the trial by the Crown. Ground 1(b) (considered here) contends that the primary judge erred in admitting the DNA evidence. Ground 2(a) (considered later in this judgment) contends that fresh evidence in the report of Professor Duflou refutes the inferences available from that evidence while ground 2(d) (also considered later) contends that the DNA evidence indicating the presence of the complainant’s blood on the fly of the applicant’s trousers was planted there by corrupt police.
The DNA analyst, Mr David Bruce, produced three reports. The applicant’s complaints are concerned with the third, which reported the results of the analysis of samples taken from of the pants worn by the applicant at the time of the alleged offences. The report ultimately relied on by the Crown as the basis for the evidence given in the trial is referred to by the applicant as “Report 2” because it superseded the second report. There was no factual issue in the trial as to the existence of blood on the applicant’s pants. As already noted, the applicant himself told police he had changed pants at Goulburn because the pants he was wearing that morning had blood on them. Those were the pants seized by police and tested by the DNA analyst. The factual issues in the trial were whose blood it was and how and when it might have got there.
In that context, the applicant did not suggest at trial that the DNA evidence was not relevant. He applied to have it excluded at the trial in the exercise of the trial judge’s discretion under s 135 or s 137 of the Evidence Act 1995 (NSW). Following a voir dire during which Mr Bruce was cross-examined by junior counsel then appearing for the applicant, the trial judge rejected that application. His Honour gave ex tempore reasons for that ruling.
Ground 1(b) contends that the ruling entailed error:

“Refusal to Exclude Evidence: Admission of Division of Analytical Laboratory (DAL) Report 2:
Judge Nicholson erred in admitting DAL Report 2 because it cannot provide any evidence of how or when DNA got onto trouser and so cannot assist the prosecution in this case. Admission of the report is grossly unfair under the circumstances and likely used by the jury for impermissible speculation or unreasonable reliance on DNA’s apparent certainty in the sea of uncertainty.”

As expanded in the applicant’s written submissions, the error alleged is that the trial judge failed to undertake the balancing exercise required under ss 135 and 137 of the Evidence Act 1995 (NSW). Those sections provide:
Section 135 provides:

135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.

Section 137 provides:

137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

In order to determine this ground, it is necessary to explain the probative value of the evidence in more detail and to understand the way in which the applicant contends it carried a risk of unfair prejudice. It may be noted that it was no part of the application at trial to have the evidence excluded on the basis that the blood was placed on the trousers by corrupt police.
As already explained, the sequence of events described by the complainant was that, before she and the applicant reached the Anderson VC rest area (where the admitted assault occurred), they stopped at an earlier point along the Federal Highway. She said the applicant told her to get in the back seat of the car, assaulted her in such a way as to make her nose bleed and then forced her to perform fellatio on him. She said, after her unsuccessful attempt to escape and when they were both in the backseat, the applicant started punching her with closed fists and that “at one stage [she] noticed that [her] nose was bleeding”. She then described the applicant directing her to perform oral sex but before she did so she had to “wipe the blood off [her] nose” with her hand. After that, she performed oral sex by putting her mouth over his penis. She said that later, when they were at the McDonalds restaurant at Goulburn, she wiped away blood from around her face.
The applicant told police during his ERISP that he thought the blood on his pants would be his blood but he agreed that the complainant had “a little bit of blood around her nose”. He gave similar evidence before the jury; that he had changed his pants because they had blood on them. However, in that evidence (following the admission of the DNA evidence), he said he thought the blood had come from his hand and also from the complainant’s nose which he said was bleeding when they were at Lake George. He was asked to describe the flow of the bleeding from her nose and said it was “running”. That was contrary to what the applicant had told police during the interview about her having only “a little bit of blood around her nose”.
The DNA analyst tested five areas on the applicant’s blood-stained pants. Exhibit J at the trial were photographs of the applicant’s pants showing the location of those blood stains, as follows:

area i: left leg

area ii: right leg

area iii: waistband

area iv: inside front of fly seam area

area v: inside back of fly seam area

The significance of the DNA evidence was that it supported a finding that the complainant’s blood was found on the applicant’s pants in the area of the fly, which tended to support her account that she had been forced to perform fellatio after being assaulted in a way that caused her nose to bleed. DNA testing of areas iii, iv and v revealed a DNA profile mixture from two individuals. It was determined that it was approximately 1 in 700 million times more likely to obtain the profile if it originated from the applicant and the complainant than from the applicant and an unknown unrelated individual. In areas iii and v, human blood was detected; in area iv, a screening test for blood was positive.
The cross-examination on the voir dire was directed to the amount of DNA found in each sample. Mr Bruce agreed that, in sample iii (from the waistband of the pants), the ratio of male DNA to female DNA was roughly one to one, with possibly slightly more male DNA. He agreed that, if the complainant “had a bleeding nose and the blood nose came into contact with any part of the trousers or dripped onto any part of the trousers”, he would expect the complainant’s DNA to be a “significantly high percentage” of the blood stain. However, he could not say that the percentage of her DNA found in area iii was inconsistent with her nose dripping onto the trousers or coming into contact with that area. It may be noted that at no stage had the complainant given evidence that her bleeding nose dripped onto or came in direct contact with the waistband of the applicant’s pants.
Importantly, Mr Bruce said, if the assumption was that the blood of the complainant was transferred onto the applicant’s hand and became mixed with the blood of the applicant and that the applicant then used that hand to undo his trousers, it would be impossible to say whether the proportion of DNA should be stronger for the woman than the man.
In area v, the concentration of male to female DNA was between 2:1 and 3:1. Mr Bruce agreed with the following: “if area (v) was created by blood dripping from the female nose or the female nose coming into contact with area (v), if there was only one deposit you would have expected in that situation to find more of the female DNA?” (emphasis added).
It may be noted that the question asked Mr Bruce to assume there was “only one deposit” (being the drop of blood or contact between the complainant’s nose and the area of the fly). The cross-examiner reiterated the point:

“Q: So the fact that the concentration of male DNA is greater argues against that having been deposited in one go from the female nose?
A: Yes, it argues against that coming directly from the female nose, that’s correct.” (emphasis added).

The stain on the inside back of the fly seam (area iv) was the only stain where there was a greater concentration of female DNA than male DNA. In cross‑examination on the voir dire, Mr Bruce accepted that, if the applicant had both his blood and the complainant’s blood on his hands, and assuming he undid his fly, it would be more likely that the explanation for each of the three the blood stains would be the applicant’s hand depositing them during the act of taking off his trousers by unzipping his fly than “the woman’s nose creating that stain either by dripping onto those areas or by being pressed into those areas”. However, he also agreed that, if the woman had wiped her nose when it was bleeding (as she said she had), she could have transferred some of the accused’s blood and her blood onto her hands and then stained the trousers with her hands while holding his penis. In re-examination, Mr Bruce agreed that there was any number of possibilities as to the way in which both types of DNA came to be on the trousers.
The obvious relevance of the DNA evidence was that it was at least capable of providing support for the complainant’s evidence of the events relied upon to support counts 2 and 3 because one scenario in which the complainant’s blood might have come in contact with the zipper area of the applicant’s pants was during the act of performing fellatio after having a bleeding nose. There was evidence that she had her blood on her nose and on her hand and that the applicant was also bleeding at that time (shortly after the sexual assault, he asked her to lick the blood off his knuckles).
The defence objection to the DNA evidence was that, in circumstances where the applicant had admitted hitting the complainant causing her nose to bleed and later removing his pants in order to change them at Goulburn McDonalds, the DNA evidence could not advance the Crown case because it could not rationally advance the conclusion that fellatio took place (since it was capable of being explained by the alternative, innocent hypothesis that the DNA was placed on the pants by the applicant when he changed in Goulburn).
It is trite that, in exercising his discretion to exclude the evidence, the trial judge was required to assess its probative value at its highest: R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [95]:

“…it is not for a trial judge to say what probative value a jury should give to evidence but only what probative value the jury acting rationally and properly directed could give to the evidence. Hence, unless evidence is so lacking in credibility or reliability that it would not be open to a jury acting rationally and properly directed to accept it, the probative value of the evidence must be assessed, for the purposes of s 137, at its highest.”

Taken at its highest, the DNA evidence was plainly capable of supporting the complainant’s evidence. On her account, the applicant could have had his blood and her blood on his hands when she says he undid the button of his trousers and lowered his zipper in the back seat of the car. She also could have had his blood and her blood on her hand after she wiped her nose. There could have been transfer of blood from her hands when she had her fingers around the base of his penis. In short, as Mr Bruce said in his evidence, a mixture of the complainant’s blood and the applicant’s might have been wiped on his pants in the area of the waistband and fly in a number of different ways during such activity.
It is also possible (although it seems less likely) that the applicant still had a mixture of DNA from both sources on his hands when he changed his trousers at Goulburn. The likelihood of that explanation was quintessentially a jury question. That assessment required consideration of a number of features of the evidence including the complainant’s description of the oral sex act; the evidence as to the timing of the alleged sexual assault, the stop at Lake George and the couple’s arrival at Goulburn; the likelihood that a mixture of blood from both sources remained on the applicant’s hands by the time they got to Goulburn; whether that mixture was more likely to be transferred when it was still wet and the absence of blood found on other parts of the pants that might be expected to be touched in order to wholly remove the pants while seated in a car as opposed to only undoing the button and unzipping the fly for the purpose of a forced sex act.
The danger of unfair prejudice identified by the applicant in the application to exclude the evidence was that, given the existence of the alternative, innocent explanation for the presence of both types of blood on the button and fly areas of the pants, the DNA could not advance the Crown’s case. The applicant submitted that, as it was known that the applicant had removed his pants once he got to Goulburn, the DNA evidence was at best equivocal and accordingly that there was a risk of its being used in an “impermissible” or “speculative” way.
In the appeal, the applicant made the same point in a slightly different way, contending that the DNA evidence could not assist the Crown case because it could not prove how or when DNA got onto the pants or that “the trouser had been opened twice as required on their case”.
It may be accepted that DNA evidence cannot, on its own, prove how or when or in what sequence DNA has come to be deposited on an item. It is not at all uncommon for DNA evidence and indeed many other kinds of forensic evidence to be equivocal in that sense. Evidence of an accused’s fingerprint at the scene of a crime is not inadmissible simply because the accused has attended the relevant place on another occasion.
Nor is relevant evidence inadmissible simply because it is weak (and we do not suggest that the word “weak” applies to the evidence in this case). The correct analysis was explained by Gleeson CJ in Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [14]:

“Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is "weak", and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.”

The applicant’s complaint about the admission of the DNA evidence entails a subversion of that approach. It assumes that evidence is inadmissible unless, on its own, it is unequivocally capable of advancing the Crown case. Standing alone, the DNA evidence established only that the applicant’s fly had come into contact with two high yield sources of DNA which very likely came from the applicant and the complainant. That did not prove there was an act of fellatio but it was capable of supporting that conclusion when considered together with other evidence. As explained by Gleeson CJ in Festa, the fact that it was also capable of an innocent explanation did not make it inadmissible or mean that its use to support the Crown case would be impermissible or prejudicial in the relevant sense.
In his submissions in the appeal, the applicant submitted that the trial judge failed to undertake the balancing exercise required when considering s 135 and s 137 of the Evidence Act. It may be accepted that the judge did not address that test in terms. However, his Honour’s reasons are to be understood in the context of the argument put. The asserted prejudice was not unfair prejudice in the relevant sense. Upon analysis, the applicant’s real complaint was that the evidence was equivocal and that it might be used to support the Crown case. The trial judge was right to reject that as a basis for excluding the evidence.
For those reasons ground 1(b) should be rejected.

Ground 1(c) – The Juror’s Note

Ground 1(c) is:

Failure to dismiss Juror or Entire Jury:
Judge Nicholson erred by failing to dismiss a juror or entire jury because of reasonable apprehension that [the applicant] would not receive a fair trial. Nicholson J erred when he avoided his responsibility to decide this matter and improperly required [the applicant] to make this decision while simultaneously refusing to provide [the applicant] with all the information about the circumstances affecting the juror.

This ground should also be rejected. In order to explain why, it is necessary to unpack the assertions on which it is founded. The issue arose during the course of the trial judge’s summing up, which commenced on Friday 13 February 2009. The following Monday, the judge informed the parties that one juror was absent. The relevant exchange was as follows:

“HIS HONOUR:   Mr Barker, Mr Crown I have been informed one of the jurors was injured over the weekend, is not available today, maybe available tomorrow. But more than that I’m not prepared to say at this point at least aloud and there may be a bit more I can fill you in on in chambers, but so far as the public record is concerned that’s as much as I’m prepared to say.
I’m also told that another juror would not be available from Thursday. I do anticipate the absent juror will be available tomorrow. Is there any application other than the matter go over?
BARKER:   Til tomorrow.
CROWN: No your Honour. The provisions in the Jury Act wouldn’t permit your Honour to form an opinion, I’d submit, under s 53.
HIS HONOUR:   We won’t need to get into the argument unless there’s another application. I’m simply inviting consideration of whether – do you want a moment to think about it Mr Barker or—
BARKER:   I should get instructions.”

The judge then evidently dealt with some unrelated proceedings. When he returned to the trial, nothing further was said by Mr Barker or the Crown. The judge brought the eleven jurors into Court and sent them home. The following day the injured juror was back and the summing up continued. The jury was sent out to deliberate their verdicts that morning and returned with their verdicts that afternoon.
The applicant submits that the trial judge “was required to dismiss the affected juror or the entire jury because of reasonable suspicion… that jury impartiality may have become an issue in a fair-minded member of the public.” In oral submissions, the applicant explained that, after the conclusion of the trial, he heard that the juror in question had been “bashed in a pub” the Friday night beforehand. The applicant submitted that was significant for the following reason:

“So in a small country town, where members of a jury are involved in a serious matter, and they go out to the pub and someone bashes them for some reason, perhaps because they won’t tell them what’s going on or because they won’t follow something, what’s the impact of an assaulted juror turning straight back up into the courtroom and listening to the evidence about an assault.”

The applicant put no evidence before this Court to verify his information that the juror had been “bashed in a pub”. Further, there is no basis to conclude that the trial judge had information to that effect. The applicant appears to suggest that can be inferred from the fact that the trial judge asked whether there was “any application” other than for the matter to go over. The applicant’s submission on appeal was that, if it had simply been a case of the juror being unavailable because he was sick, there would have been no occasion to invite any application; the judge would have simply stood the matter over without calling on the parties. The applicant seems to imply that the fact that the judge called on the parties was an indication that his Honour suspected the issue of jury impartiality had arisen.
As indicated by the terms in which ground 1(c) is framed, the applicant goes so far as to contend that, in calling upon Mr Barker, the judge acted in a way that was “completely inappropriate” and shirked his responsibility to decide the matter himself “while simultaneously refusing to provide the applicant with all the information about the circumstances affecting the juror”. He further submitted that the prosecutor had attempted to prevent the judge from fulfilling his obligation to consider whether to discharge the juror.
Those were extraordinary allegations. They were without foundation and should not have been made.
There was nothing sinister in asking Mr Barker (and the Crown) whether there was any different application before standing the trial over to the following day. It is entirely appropriate for a judge presiding over a criminal trial to give the parties an opportunity to be heard before taking any step in the trial, even if that step seems obvious or inevitable. That is simply an incident of the obligation to afford procedural fairness so as to ensure that the trial is fair. It is quite wrong to characterise that step as one taken by the judge to avoid the responsibility to decide the matter, let alone to suggest the judge improperly required the applicant to make the decision for him.
Further, it is positively mischievous to suggest that the judge took that step “while simultaneously refusing to provide [the applicant] with all the information about the circumstances affecting the juror”. As the transcript plainly reveals, the judge offered the parties the opportunity to obtain more information in chambers. It was entirely appropriate for the protection of the juror’s personal information not to reveal more in open Court.
In oral submissions, the applicant indicated that, in contending that the juror should have been discharged, he relied on s 53B(d) of the Jury Act 1977 (NSW). It is appropriate to set out the whole of s 53B:

53B Discretionary discharge of individual juror
The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if—
(a)    the juror (though able to discharge the duties of a juror) has, in the judge’s or coroner’s opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or
(b)    it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or
(c)    a juror refuses to take part in the jury’s deliberations, or
(d)    it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror.

The applicant submitted that s 53B(d) was engaged. That was on the basis of the unproved assertion that the juror had been “bashed in the pub”. Even if that allegation had been proved, it would afford no basis to apprehend that the juror would not perform the functions of a juror in an impartial manner.
For those reasons ground 1(c) should be rejected.

Ground 2: Fresh Evidence

Ground 2 of the appeal is entitled “fresh evidence”. As explained below, the applicant seeks to tender various reports and other evidence annexed to his affidavit sworn 3 September 2020 that were not adduced at his trial to demonstrate that a miscarriage of justice occurred.
Subsection 12(1) of the Criminal Appeal Act confers on this Court the power to receive further evidence “if it thinks it necessary or expedient in the interests of justice”. This is not a free-standing power to receive evidence, but one which must be exercised having regard to the particular ground of appeal: Xie v R [2021] NSWCCA 1 at [437] (Xie). If the substance of the ground of appeal involves an attempt to contradict the jury’s verdict, then the rules concerning the admission of fresh or new evidence are engaged (Xie at [438]). This is the case for the bulk of the evidence sought to be tendered in support of ground 2 although the material sought to be tendered in support of ground 2(c) also concerns the fairness of the applicant’s trial.
In MRW v R [2011] NSWCCA 260 at [46] (MRW), Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely:

"First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial …; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant."

In relation to whether the material in question is evidence that was not available as at the time of the trial, the relevant issue is whether that material “could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case”: Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at 516 per Barwick CJ (Ratten). If the material sought to be relied upon does not satisfy that test and is only new evidence, then to demonstrate that there was a miscarriage of justice the applicant must satisfy this Court that the new evidence is such that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520; Xie at [433] to [434]).
As already noted, the material sought to be relied on in support of this ground of appeal was annexed to an affidavit sworn by the applicant on 3 September 2020. The Crown objected to the tender of those annexures on the basis that they did not meet the tests for the receipt or consideration of fresh or new evidence outlined above. However, it was accepted that the evidence would have to be considered and the Court would rule on its admissibility in its reasons. Otherwise, the applicant contended that the application of the above tests for fresh or new evidence in relation to any particular report or item of evidence should consider the combined force of the relevant report or item of evidence when considered with the other material sought to be tendered. We will adopt that approach without necessarily accepting it as correct.

Ground 2(a) – Professor Duflou

Ground 2(a) of the appeal states:

“Medical Report of Professor Duflou
Refutes complainant evidence of injuries at Sutton (being dragged back to car) or any sexual assault (injuries to face and mouth), or that complainant’s injuries were consistent with sexual assault as asserted by Dr Whelan at trial.”

This ground can be taken to be asserting that a miscarriage of justice was occasioned by the absence at the trial of evidence from Professor Duflou in the form of the report dated 6 February 2017 which is annexure B to the applicant’s affidavit. Before addressing that report, it is necessary to describe the evidence adduced by the Crown from Dr Whelan and to revisit the DNA evidence.

Dr Whelan’s Evidence

As already noted, the complainant was examined by Dr Whelan at Goulburn Base Hospital at 11.30 am on 9 April 2007. Dr Whelan had considerable experience in examining victims of sexual assault. An expert “certificate” from Dr Whelan was tendered at the applicant’s committal hearing. In that statement she recounted the complainant’s complaints to her in terms that were consistent with the complainant’s evidence at trial. Dr Whelan described the complainant’s injuries as follows:

“10.   She had extensive exquisitely tender areas on her head, over the frontal area, both the right and left parietal, and the right and left occipital regions. (as outlined in the sexual assault examination book). She had multiple tender purple, purple-black and red bruises on her forehead, ears and face as outlined in the forensic examination booklet.
11.   She had a superficial fresh linear laceration ½ cm long on the left side of her nose which was consistent with the history of her glasses being broken. There was dried blood in her left nostril. Inside her mouth there was a red bruise, ½ cm x 1 cm on her right upper buccal mucosa. There were 2 puncture haemorrhages opposite her left upper molars and a puncture bruise on the buccal mucosa inside the left lower lip.
12.   On both forearms there were roundish tender red and blue bruises as outlined in the examination booklet. On her right upper forearm, there was a 3 cm x 5 cm tender blue-black bruise surrounded by a larger area of tenderness. On the dorsum of the left hand and wrist, there was a large, old bruise which the patient attributed to the recent insertion of a canula. However, more distally, there were two tender bruises, one 3 ½ cm x 3 cm and one 2 cm x 1 cm. On the dorsum of the right hand, there was a blue tender bruise 3 cm x 1 cm and on the dorsum of the wrist, two red bruises ½ cm x ½ cm.
13.   The patient’s bruises were still evolving and expanding over the period of her examination, which lasted from 1130 hours to 1320 hours on April 9, 2007. A reference buccal sample was taken and also an oral swab and smear.
14.   Based wholly or substantially on the above knowledge and observations, I am of the opinion that the findings on clinical examination were consistent with the patient’s history of multiple blows to the head, having her glasses broken, trauma to her nose, forced oral penetration and having been forcibly held by the hands and arms.” (emphasis added)

Dr Whelan gave evidence at the applicant’s trial. By reference to a diagram showing the position of the complainant’s injuries, Dr Whelan explained her observations of the complainant in terms that were consistent with paragraphs 8 to 13 of the above statement. Photographs of the complainant were tendered that were consistent with Dr Whelan’s evidence.
At the trial, objection was taken to Dr Whelan giving evidence in accordance with paragraph 14 of her statement and that evidence was not led. Instead, she was asked and answered as follows:

“Q. …. based on your knowledge and experience and the observations you took, is it your view that the injuries that you observed on [the complainant] were consistent with the history of the multiple blows to the head, with the glasses being broken, trauma to her nose and the assaults she described.
A. Yes.”

In cross‑examination, Dr Whelan agreed that she did not see any recent injuries to the complainant’s thighs.

DNA Evidence and the Nosebleed

The complainant’s evidence as to what happened in the backseat of the car is summarised above. Importantly for present purposes, she said that after she tried to push the applicant away with her foot, he punched her some more for a short period and that at one stage she noticed that her nose was bleeding. She then described the applicant directing her to perform oral sex but before she did so she had to wipe the blood off her nose with her hand. After that she performed oral sex by putting her mouth over his penis. She said that later, when they were at the McDonalds restaurant at Goulburn, she wiped away blood from around her face.
The DNA evidence is summarized in detail above. As in the voir dire, the focus of the cross-examination of Mr Bruce in the trial was that if events had transpired as the complainant said, there would have been a higher proportion of female DNA in the blood stains on the applicant’s pants. The defence case sought to undermine the complainant’s evidence by suggesting that, on her version, if she was forced to perform oral sex on the applicant then her bleeding nose must have dripped directly onto the applicant’s trousers but that was not supported by the DNA evidence.
However, in cross‑examination, the complainant did not accept that her nose must have been in contact with or bled directly onto the applicant’s trousers while she performed oral sex:

“A.   I don’t know how much it bled. I don’t think it was – I don’t think it was running. I don’t think it was profuse bleeding, but then with further slaps later it obviously – it may have started again because at the rest area he again had asked me to wipe my nose.
Q.   You say that he – this is before the rest area, he undid a button on his trousers and partially opened the zipper, this is when you were in the back seat.
A.   He lowered the zipper, yes.
Q.   And he pulled his pants down a little bit just enough to expose his penis?
A.   Yes he pulled his pants down enough to expose his penis yes.
Q.   So his clothing, the trousers, were quite close to his penis?
A.   Yeah they would have been quite close.
Q   And his underpants also?
A.   Yes.
Q.   If your story is true your nose must have been touching his trousers as you were fellating him.
A.   But it didn’t have to be in touch.
Q.   Well he’s got his fly partly open.
A.   No, his fly was open and his zipper was down.
Q.   …
A.   It was fully open, his zipper, I think, was fully open.
Q.   …
A.   Mm, well he didn’t pull his pants off altogether, he pulled them down.
Q.   A little bit, right, enough to expose his penis. What I’m putting to you is it would have been very difficult, in those circumstances for you to have done what you did without leaving a considerable amount of blood on his pants?
A.   Well it depends on where my face was in relation to his pants and my nose was.
Q.   Well you told us where your face was, you were right over his penis.

A. Yes it was.” (emphasis added)

Hence the evidence was that, when the complainant was forced to perform oral sex on the applicant, his fly was fully unzipped and his trousers had been pulled down to the extent necessary to expose his penis.

Professor Duflou’s Report

Professor Duflou was provided with various documents including Dr Whelan’s statement noted above, various photographs of the complainant and the applicant, the applicant’s ERISP and extracts from the transcript of the trial and the committal hearing. Professor Duflou opined that the injuries he observed in the photographs “largely correspond with those described by Dr Whelan”.
The balance of Professor Duflou’s report addresses various questions which purport to, but in many respects do not, correspond with the complainant’s evidence at trial. It is necessary to address them in some detail.

First, by reference to a photo of the complainant and the other evidence, Professor Duflou was asked whether the complainant was “punched to both eyes sufficient ‘to see stars’”; ie did her injuries suggest that or were they consistent with that. Professor Duflou stated as follows:

“Was [the complainant] punched to both eyes sufficient “to see stars”? The sensation of “seeing stars” is highly subjective, and can be experienced by many people from blows to any part of the head. In this case, there is focal bruising around both eyes, there is bruising of the forehead, and there is bruising on the bridge of the nose. These bruises are in all likelihood the result of blunt force impact, potentially an open or closed hand, and as such would all be able to elicit the sensation of “seeing stars”. There is a single bruise to the right upper eyelid, and there is an area of bruising to the left lower eyelid. It is possible that these bruises are the result of blows to those respective areas, although I note their limited extent, the lack of extensive bilateral bruising, or “raccoon eyes” as would typically be expected, and the absence of any indication of fracture of the eye sockets or cheeks, which would also been seen frequently in forceful punches to the face. I therefore conclude it is possible for [the complainant] to have been punched in both eye regions, but the injuries observed are not those which would be characteristic of such forceful blows.”

In her evidence at the trial, the complainant said that the applicant “punched me squarely in my left eye”. She was then asked:

“Q. How were you feeling as a result of that hit?
A. You know I saw stars. I thought that was something that only happened in the cartoons but I actually saw stars and I didn’t have visibility back instantly and it was very painful.”

After giving this answer, the complainant said the applicant leaned over and “punched me in the right eye and said, “How’s that then?’”.
Hence, contrary to the question posed to Professor Duflou, the applicant did not say that she was punched in both eyes sufficient “to see stars”. Professor Duflou’s answer supports the suggestion that the blow to her left eye was sufficient for her to “see stars”. His evidence is otherwise consistent with blows having been administered to both eyes although not sufficient to fracture the complainant’s eye sockets.
Second, Professor Duflou was asked “was [the complainant] punched to [the] face and head 20 times?”. To that question Professor Duflou said that he had “no doubt that [the complainant] has sustained blunt force to the head” but if she was punched then it “would almost certainly be much less in number than 20”. At the trial, the complainant did not say she was punched 20 times. Instead, she said she was “hit” to the the face and head prior to running from the car, punched a number of times in the backseat of the car prior to the forced fellatio, hit with an open hand and closed fist after getting back into the front seat and then punched once to each eye whilst driving. She said that, at the Anderson VC Rest Area, she was hit “more with an open hand …. 20 to 30 times.” In cross‑examination the applicant said "/ slapped her 10 times and I may have hit her with a closed hand up to five times". Professor Duflou’s answer to this question is consistent with the complainant’s evidence.
Third, Professor Duflou was asked whether the complainant was punched and slapped on her hands 60 times. Professor Duflou noted some discoloration on the complainant’s hand consistent with the administration of an intravenous sedative (as she said had occurred the week before) and that her injuries “would be most unlikely to be the result of being punched or slapped to the hands 60 times”. This takes the matter nowhere as in her evidence at the trial, the complainant did not say she was punched or slapped on her hands 60 times or at all.
Fourth, Professor Duflou was asked whether the complainant was injured “by her glasses impacting her face bruising her left eye, the bridge of [her] nose, scratching the left side of her nose and causing the inside of her nose to bleed”. Professor Duflou answered by providing his opinion that the “bruising to the right upper eyelid, the left lower eyelid and the bridge of the nose together with a small laceration on the left side of the bridge of the nose and bleeding of the nose are best explained by a blow of some type to the face while the glasses are being worn”.
As noted above, the complainant’s evidence at the trial was that, as she left the hotel and entered the Federal Highway, the applicant started slapping her to the left side of her face and he continued slapping and demanded that she pull over. She said he was slapping her on the left-hand side of the face, which was the side closest to him, but that when she pulled over, he slapped her on both sides of her face. She then said that her glasses fell off and went on the floor underneath on the driver’s side floor. Professor Duflou’s answer is consistent with this aspect of the complainant’s account.
Fifth, Professor Duflou was asked what amount of bleeding “is expected to a nose injury as alleged by [the complainant] and does a bleeding nose stop immediately by either itself or after blood is wiped away with a hand. Professor Duflou noted that bleeding from the nose as a result of injuries was highly variable in quantity and depends on the nature of the injury and the individual circumstances. He said that, once bleeding has commenced from the nose, it typically continues for a number of minutes “usually in the form of slow dripping of blood from a nostril” and added that it is uncommon for the bleeding to stop practically immediately after the injury was sustained”. He said that wiping away blood from a bleeding nose does not cause the bleeding to stop, and in fact it may encourage the bleeding to continue.
This aspect of Professor Duflou’s evidence has some significance in relation to the applicant’s attempts to rely on the evidence of Professor Pandy which is considered next. The complainant’s evidence about her nose bleeding is set out above. Ultimately, there was no issue at the trial that, at some point on the return journey to Sydney, the complainant’s nose was bleeding. In his evidence, the applicant accepted he had blood on his trousers which he said came from “my hand and also from [the complainant’s] nose”. He said her nose bled when he “struck her at Lake George”. When asked about the flow of that bleeding, he said, “it was running”.
Professor Duflou’s evidence concerning the flow of blood does not contradict any aspect of the complainant’s description of the injuries she suffered set out above. The real alleged significance of this evidence, however, concerns the amount of blood found on the applicant’s trousers, a matter that is addressed below.
Sixth, Professor Duflou was asked whether a large triangular bruise on the complainant’s left wrist was “more likely caused by being dragged to [her car] as alleged by [the complainant]” or was the result of an alternative explanation such as her slipping when exiting a spa bath or her wrist colliding with her vehicle’s handbrake. Professor Duflou responded by stating that the bruising was “almost certainly the consequence of an insertion of an intravenous canula” during a colonoscopy procedure performed on the complainant about a week prior to the events in question. In her evidence at the trial, Dr Whelan stated the fact that the bruise was not tender was consistent with her having had that drip inserted. Contrary to the assumption in the question, the complainant did not say that the bruise was caused by her being dragged to the car.
Seventh, Professor Duflou was asked whether the bruises to the complainant’s right wrist were “more likely caused by being grabbed and swung around and then pulled back towards the car with sufficient force that her feet barely touched the ground” as alleged by the complainant, or an alternative explanation such as the altercation between the applicant and the complainant in the front of the car at the Anderson VC Rest Area. In answering that question, Professor Duflou identified three small bruises in the region of the complainant’s right wrist and forearm, but opined that “if the hand and wrist were grabbed very forcibly and [the complainant] was swung around to the extent that her feet barely touched the ground, I would expect there to have likely been more extensive bruising to the wrist, likely abrasion and potentially laceration to the skin underlying the bracelet, and possibly breakage of the bracelet”. In fact, in describing how she was dragged back to the car, all that the complainant said at the trial was that the applicant “grabbed me by the arm and pulled me around”, “grabbed me and I think he was in front of me and was pulling me” and “it was a very, very fast pace and I could hardly keep my feet on the ground”. Hence, the complainant did not describe being grabbed by the wrist, and otherwise gave a description of being dragged back towards the car at a fast pace. Professor Duflou’s evidence does not undermine her evidence in any respect.
Eighth, Professor Duflou was asked whether the bruise and abrasions to the complainant’s forehead were caused by punches as alleged by her, or “an alternative such as slaps and clawing … as explained by [the applicant]”.
Professor Duflou observed that abrasions are relatively infrequently caused by punches to the forehead although they can cause abrasions to other parts of the face. Professor Duflou opined that it was “entirely possible” for the injuries depicted in the photographs to the complainant’s forehead to be the result of contact with fingernails. Both the question and the answer are irrelevant given the evidence that was adduced at the trial. At no point during the trial did the applicant state or “explain” that he scratched the complainant. To the contrary, in his ERISP the applicant accepted that it was “possible” that he hit her with a closed fist several times at the Anderson VC Rest Area. In his evidence‑in‑chief, he was asked whether he punched her with his closed fist and he said “yes” and said he did it a “couple” of times. He also said that he slapped her, but at no stage did he say that he “clawed” the complainant.
Tenth, Professor Duflou was asked whether the injuries and bruises to the applicant’s hands were evidence of “punching by [the applicant] as alleged by the complainant or an alternative explanation of slapping and clawing scratches such as provided by [the applicant]”. Professor Duflou noted that there were injuries to the applicant’s hands that consisted of “minor bruises and abrasions” and that the bruises “indicate blunt force impact of some type” but that most commonly “in injuries seen… following forceful punching there … typical fractures of the fourth and fifth metacarpal bones which was not present here.”
Again, the question and answer are irrelevant given the evidence at the trial in which the applicant accepted that he did punch the complainant and at no stage did he say that he clawed her.
Eleventh, Professor Duflou was asked whether Dr Whelan’s medical report enabled her to conclude [the complainant’s] injuries are consistent with forced oral sex as opposed to a non-sexual physical altercation”.
By reference to Dr Whelan’s statement, Professor Duflou considered the various external and internal injuries to the complainant’s mouth and stated as follows:

“In my opinion, it is not possible to state with any degree of certainty, based on either the injuries observed or on the basis of blood stains or DNA evidence that forced oral sex took place in this case.”

The Crown objected to so much of this evidence as concerned the DNA evidence on the basis that it was outside Professor Duflou’s expertise, a matter noted below. It is not necessary to address this at this point because the question proceeds upon the false premise that Dr Whelan expressed the conclusion in her evidence at the trial that the complainant’s injuries were consistent with forced oral sex. Dr Whelan said that in her statement but, as already noted, that was not her evidence at the trial.
Twelfth, Professor Duflou was asked to provide any further observations in relation to the medical evidence and his knowledge of the evidence given at trial. He opined that to the extent that the applicant gave evidence that he punched the complainant “a couple of times” and slapped her about ten times, then that was “entirely consistent with the injuries observed on both [the complainant and the applicant]”. He also observed that the complainant had been diagnosed with Sjogren Syndrome which manifests predominantly with dry mucosal surfaces including eyes, nose, mouth and the vagina. He stated that the dryness to the nose can lead to an increased propensity to have nose bleeds. Accepting both matters, it does not assist the applicant.
Professor Duflou also stated as follows:

“I note the DNA results and emphasise that I am not an expert in DNA testing or interpretation of the results. Nevertheless, the injuries as described on [the complainant] would not be expected to bleed a large amount given their superficial nature, with the possible exception of a bleeding nose. Similarly, [the applicant] only had two very small abrasions on his hands which in most circumstances would not be expected to bleed at all and would bleed to a very limited extent for the remainder of the time. This suggests that the amount of blood lost by both [the complainant] and [the applicant] was an extremely limited amount, given that [the applicant’s] DNA was the dominant component in areas (ii) and (v) and the only DNA in area (i).”

As noted, the Crown objected to so much of this evidence as involved a consideration of the DNA evidence on the basis that Professor Duflou expressly disclaimed any expertise in DNA testing or interpretation of results. However, we do not interpret this paragraph as involving an expression of opinion outside his area of expertise in that it is more addressed to the likelihood that the injuries shown would have led to substantial bleeding. To the extent it refers to the applicant’s DNA being the dominant component, it is supportable on the basis of the evidence of the DNA expert that was led at the trial. That said, this opinion takes the matter no further because it is not in any way inconsistent with the evidence given by the complainant at the trial.

Conclusion on Professor Duflou’s Evidence

The Crown contended that the evidence of Professor Duflou was available to the applicant at the trial (in the sense explained above) and was therefore not “fresh evidence”. We agree. It was always available to the applicant to retain his own forensic expert to review and consider the Crown material and, if necessary, to give evidence at the trial.
In any event, there is no merit in ground 2(a). The applicant submitted that Professor Duflou's evidence clearly demonstrates that the complainant was not struck or dragged by the arm, that she did not bleed from the nose as she alleged, that this destroyed her credibility and that his evidence renders the convictions unsafe. It follows from the above that we do not accept that submission and that is so even if Professor Duflou’s evidence is considered in combination with the other material the applicant seeks to rely upon. Accordingly, we do not accept that Professor Duflou’s evidence is such that it raises “a significant possibility that the jury acting reasonably would have acquitted” the applicant (MRW at [46]), much less is it evidence from which, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520).
The conventional approach where that conclusion is reached is to reject the tender of the evidence. There does not appear to be any binding authority requiring that course and it would be open alternatively to receive the evidence (on the basis that it is relevant to a ground of appeal) and then to determine whether to accept or reject that ground.
In the present case, the ground based on the evidence of Professor Duflou has no merit. Further, it does not involve a question of law and thus leave to raise the ground is required (Criminal Appeal Act 1912, s 5(1)(a) and (b)). Accordingly, we reject the tender of Professor Duflou’s report and refuse leave to raise ground 2(a).

Ground 2(b) – Professor Pandy

Ground 2(b) of the notice of appeal states:

“Bio Mechanical Report of Professor Pandy
Refutes complainant evidence of sexual assault or any of the physical movements alleged by the complainant in the backseat of the VW Golf vehicle.”

As with Professor Duflou, this ground can be taken to be asserting that a miscarriage of justice was occasioned by the absence of evidence from Professor Pandy at the trial.
Professor Pandy is the Chair of Mechanical and Biomedical Engineering in the Department of Mechanical Engineering at the University of Melbourne. He prepared a report dated 1 August 2017. He was asked to provide answers to various questions that the applicant contends arise out of the evidence given by the complainant at his trial. It is appropriate to address each in turn, although three qualifications to his answers identified by Professor Pandy should be noted. First, he referred to the relative simplicity of the biomechanical models that were developed. Second, Professor Pandy noted that his calculations assume that force transmitted to the upper body remains constant over time “whereas in reality the impact force may vary considerably over time”. Third, he noted that the “values of the co-efficient of restitution and the duration of impact are largely unknown” and were based on estimates derived from literature, although they were tested via a sensitivity analysis.

Kick to the thigh

The first question that Professor Pandy was asked to determine was “whether a kick to the top left thigh on entry to the rear passenger driver side door of the vehicle would result in a person being propelled across the rear passenger seat of the vehicle, as alleged by [the complainant]” (emphasis added). Professor Pandy addressed this question by determining the impact force that would result “as a result of maximum effort kick” which had a mean force of 5250 Newtons. (A Newton is a measure of force whereby one Newton equals the force that gives a mass of one kilogram the acceleration of one metre per second, per second.) Professor Pandy concluded that “it would appear unlikely that [the complainant] was subjected to large impact forces (on the order of 5250 N) arising from a kick delivered to the upper thigh or lower pelvic region” because that level of force may be sufficient to have broken her femur or at least bruised the complainant’s skin and underlying tissue.
However, the question posed of Professor Pandy did not reflect the evidence adduced at the trial. The complainant gave evidence that, after running from the car, she was dragged back to the rear driver’s side door and told to get in. The complainant said “I opened the door and before I went to sit down in that backseat he kicked me to my thigh which forced me in and then he slammed the door behind me”. The complainant said as a result of the kick she “kind of fell into the car” and the top half of her body went towards the middle of the car. The complainant’s suggestion that she was “forced” in is not the same as saying she was “propelled” and does not justify an analysis by reference to the “maximum force kick”. This aspect of Professor Pandy’s report has no bearing on the complainant’s evidence.

Downward Pressure on the complainant’s neck

The second, third and fourth questions put to Professor Pandy asked him to determine:

The seventh point is:

"failure to make phone call or send text message silently for help while the complainant is alone in the Anderson VC rest area toilet block nor even investigate or use the totally secure and lockable disabled toilet block house immediately contiguous and clearly visible at the front of the female toilets."

In short, the applicant's submission is that it is implausible that, if she had been sexually assaulted as she alleges, the complainant would not have used the opportunity of being alone in the toilet cubicle at the Anderson VC rest area to call police or text a friend for help.
The complainant explained her decisions at the rest area in her evidence in chief in the trial. She said after they stopped there, she got the bottle of Coke out of the boot and gave it to the applicant. She got back into the car and he continued to verbally abuse her and call her names. He hit her, she said, about 20 to 30 times while they were seated there. Shortly after that, the other car came and parked there but it had tinted windows and no one got out. She was very thirsty and they had finished the bottle of Coke so she suggested she go and refill the water bottle. He allowed her to do that. When she went to the toilet block she went into one of the toilet cubicles, pulled her phone out of her pocket and unlocked the phone and put it on silent. Asked why she did that, she said:

"Because what I wanted to do was to call the police and call for some help but I thought he would hear me and I didn't want that to happen, and also I didn't want my phone to ring and draw attention to it because if it rang I thought he would get rid of it and I thought I needed – it was some form of comfort to me in terms I could potentially call if I was given the opportunity, so I put it on silent so if it was to ring it wouldn't be audible.”

She said the toilet cubicle had quite a gap underneath the door and had open air above it so she thought if she made a call there the noise would carry. She returned to the car. There was nothing implausible about any of that evidence.
The eighth point is:

"Failure to seek help from the other car parked at Anderson VC at any time. The complainant's story about the car is improbable and her justification for not seeking help from the occupants of this car is perverse."

The complainant's evidence as to why she did not seek assistance from the people in the car that pulled up was:

“Because nobody, at any stage, came out of that car. I didn't see them, I was in such a state of fear that I was unsure who I could trust, whether they would be any help and again whether I would pull other people into a dangerous situation.”

The applicant's submission, in short, is that the explanation is perverse and a better explanation for the complainant's failure to seek assistance from the people in the adjacent car is that nothing had occurred to justify seeking assistance. He said that when "the incident occurred" (referring to his assault) shortly prior to leaving Anderson VC rest area the complainant decided to report it to police instead. The submission requires acceptance of the applicant's timeline, according to which the assault happened immediately before they left the rest area rather than, as the complainant said in her evidence, before she went to the toilet cubicle.
In any event, there is nothing implausible about the complainant's version. She said she was in fear and did not want to take the risk that the people in the car would not help her. Separately, even if they would, she was apprehensive as to the prospect of bringing them into a potentially dangerous situation. The complainant was cross-examined about her thinking at that stage by the applicant’s counsel. There is nothing implausible about her account
The ninth point is:

"Failure to report an allegation of sexual assault at the first opportunity."

This point is based on the fact that the complainant, by her own admission, did not report the allegation of sexual assault by telephone or text message while she was in the toilets at Anderson VC rest area, to the occupants of the car at that area, to the woman she asked to call 000 when she arrived at McDonald's at Goulburn, in her own 000 emergency call or to police who attended at McDonald's until Constable Gray asked her a question directed to that issue. The applicant submitted:

“The complainant's allegation should not be believed because she had many opportunities to make a spontaneous allegation of sexual assault but did not do so until expressly encouraged to do so by Constable Grey. It is significant that the complainant did not make a sexual allegation to Mrs Shaw, a female, in the McDonald's restaurant, but rather only did so to Constable Gray, a male, after he encouraged that complaint.”

We have already considered the complainant's evidence concerning the decisions she made at the Anderson VC rest area. As to Mrs Shaw, it is wholly unsurprising that the complainant made no mention of sexual assault at that stage, as Mrs Shaw was accompanied by her young daughters. Further and in any event, it is quite plausible that the complainant's principal concern at that stage was to escape safely from the applicant. That is what she said in her evidence: "I just wanted to get help as soon as I could."
The 10th and final point is:

“Admission by the complainant she had a history of malice and vengeance against [the applicant] when he did not meet her expectations, or she was angry with him”.

The complainant was cross-examined at length as to her response to learning from the applicant of his brief affair with another woman. The complainant accepted that she had been angry with the applicant at that time and had demonstrated her anger in a number of ways including cutting the genital area out of some of his underpants, defacing his law textbooks with insults about him written in red pen, damaging his barrister’s wig and dumping his belongings on his parents driveway.
The jury had every opportunity to consider the significance of that evidence and whether it undermined the complainant's credibility. Indeed, she was cross-examined on that issue for almost as long as she was cross-examined about the offences. A reading of her evidence conveys the impression that she was a good witness. She did not prevaricate about her actions following the applicant's affair. The impression from her evidence is that she was a forthright, intelligent, careful witness.
The applicant's submissions concerning the credibility of the complainant's evidence have not persuaded us that there is any reason to doubt her account of the offences. Leave to argue this ground should be refused.

3(c) Prosecution case is unreliable and below criminal standard of proof

Under this heading the applicant’s raises four points some of which repeat points that have already been made.

(i) The “Prosecution Timeline”

At trial it was accepted that there was a record indicating that the complainant checked out of the Hotel at 5.34am on 9 April 2007. A police officer gave evidence of attending at the McDonalds’ restaurant at Goulburn in response to a 000 call at 8.10am on 9 April 2007. By reference to a timeline of the CCTV footage it appears that the complainant entered the restaurant 16 minutes before they arrived, that is around 7.54am. The time between those end points is 140 minutes, although both the Crown and the applicant made submissions on the assumption that the complainant entered the restaurant at 7.57am and the time difference was 143 minutes. Nothing turns on the difference.
In his written submissions the applicant’s principal contention is that the prosecution case “was missing 13 minutes”. He contends that the “prosecution case” comprised the following:

(i)   “Actual total elapsed time between Eaglehawk motel and Goulburn is 143 minutes;
(ii)   Time between Eaglehawk motel and Anderson VC rest area Lake George is 45 minutes;
(iii)   Total time stopped at Anderson VC rest area is 60 minutes.
(iv)   Time between Anderson VC rest area Lake George and McDonalds Goulburn travelling well above the speed limit at 130 km/h over the 53.8 km is 25 minutes;
(v)   Prosecution total elapsed time between Eaglehawk motel and Goulburn McDonalds as presented to jury is 45 + 60 + 25 = 130 minutes.
(vi)   Total missing time as presented by prosecution in its case before jury is 13 minutes.”

In her evidence the complainant initially agreed that they stayed at the Anderson VC Rest Area for “about an hour” although she denied they spoke for an hour. Later, she said she they were in the rest area for less than an hour and from there to Goulburn she drove “well above the speed limit to try … hopefully to get booked by police,” something she was challenged on in cross‑examination. In cross‑examination, it was suggested to the applicant that this speed was 130km/hour which is presumably the basis of the calculations noted above.
However, other than the start and end times, the above timeline was not the prosecution case. The prosecution case was not tied to identifying any specific time intervals for the stages between leaving the hotel and arriving at McDonalds at Goulburn. Critically, the complainant did not specify any time between leaving the hotel and arriving at Anderson VC Rest Area and she was not asked to. Rape victims are not generally expected to time the period in which they are attacked. As noted, the applicant was challenged in his evidence that it took 45 minutes to travel to the Anderson VC Rest Area but that was not adopted as the prosecution’s timeline. It was just attacked as an inconsistency in his timeline.
In his closing address the Crown Prosecutor was critical of the applicant’s evidence of timing and noted the complainant’s evidence that she drove from Lake George to McDonald’s at 130km/hour. However, beyond that all that was said about the timeline of events as recounted by the complainant was that:

“[the complainant] says they stopped twice. What she says fits in with the times. We know the start time, we know the finish time, we know the travel time and the times accord with what she is saying.”

We reject the contention that there was any “missing” period in the complainant’s account or that some aspect of the “prosecution timeline” suggests the verdict was “unreasonable, or cannot be supported, having regard to the evidence.”
In addition, under this heading the applicant complains that the Crown Prosecutor misled the jury in two respects. The first concerns the cross‑examination noted above that suggested that the CCTV footage from the McDonalds at Goulburn meant there was too little time for him to change his trousers in the carpark of the restaurant. As noted, it was suggested that the 45 second gap between the complainant’s entrance to the restaurant and the applicant’s entrance was too short for him to change his trousers. The applicant claims the “missing 13 minutes” he has allegedly identified is referable to the period they were parked in the car park. Although we reject the contention that there is any “missing” time period, this criticism is beside the point. The applicant’s evidence in chief was that the complainant told him she was going into the restaurant to get some food, have a cigarette and that she wanted to go to the toilet. He said she asked him if he would like food and he agreed. He said he then changed his trousers and went into the restaurant. In cross‑examination he agreed that he waited a long time for her. His evidence suggests that he changed his trousers after the complainant left the vehicle. That aspect of his evidence is difficult to reconcile with the 45 second delay between the two of them entering the restaurant.
The second complaint concerns the Crown’s contention that the complainant entered the restaurant “almost immediately on arrival” (followed by the applicant). To the extent that this complaint rests on an assertion that the alleged “missing 13 minutes” supports a contention that they both waited in the car park then it has already been addressed. Otherwise, it was the complainant’s evidence that when they arrived at McDonalds the applicant directed her to clean herself as she had blood under her nose, told her he wanted food and that she put a jacket and sunglasses on before entering the restaurant. The Crown Prosecutor adduced that evidence and relied on it. He did not mislead the jury in doing so.

(ii) Biological evidence allegedly did not prove assault

The DNA evidence has already been described. The applicant’s submission in relation to this topic and this ground involves two steps. First, he contends that Dr Bruce’s evidence at the trial included the following concession:

“(i)   Admitted D[N]A analysis of blood stains on the trousers could not distinguish if it were deposited as a mixture or as sequential deposits.
(ii)   Accepted that if blood in location (v) of the crotch area on the trousers had come from the blood from the complainant's nose mixed with some from the [applicant’s] hand it would be expected that female DNA would be greater that male D[N]A and the actual DNA at the location was the opposite;
(iii)   Agreed that it was entirely possible that the DNA mixtures found on the trousers at locations (iii), (iv) and (v) was perfectly explainable by somebody with blood of both parties on their hands undoing their trousers to take them off;
(iv)   Agreed that dried blood could go into solution because of sweat, and that if blood became liquid it would transfer much more easily that if it were dried;
(v)   Blood on the trousers at locations (iii), (iv) and (v) was not only consistent with taking off the trousers but also with putting them on and the DNA evidence was not able to say the number of times.” (emphasis added)

We will address this contention on the assumption that this accurately describes concessions made by Dr Bruce, although we note he accepted some of these matters were reasonable possibilities that could not be excluded rather than accepting they were “perfectly explainable”. Point (ii) assumes that on the complainant’s version of events her bleeding nose must have dripped blood directly onto the applicant’s trousers. We have already rejected that contention.
Based on these concessions by Dr Bruce about possibilities the applicant submitted:

“…. the prosecution intentionally put before the jury D[NA] evidence including that of Dr Bruce knowing that it could not reach the criminal standard of proof to show beyond a reasonable doubt that [the applicant] unzipped and opened his trousers more than the one time he admitted to at the first opportunity in ERISP. [The applicant] further submits that in so doing he was denied a fair trial by the prosecution placing before the jury D[N]A match probability evidence that is well known to be misused by juries in cases such as this where match probability is not in dispute and is irrelevant because the parties are in a relationship to each other and had been intimate white together on holiday over the previous three days.”

The first part of this submission assumes that somehow the DNA evidence of itself had to demonstrate the applicant’s guilt beyond reasonable doubt. The fallacy in this assumption has already been explained ([68]-[70]). The relevant question for the jury and, in a related way, for this Court is whether on the whole of the evidence before the jury the applicant’s guilt was proved beyond reasonable doubt. The most powerful evidence of that was the complainant’s evidence. The DNA evidence that was adduced provided some support for her version and certainly did not contradict it. The fact that the DNA evidence left open reasonable possibilities consistent with innocence on count 3 does not create reasonable doubt on count 3. The prosecution case was not dependent on the DNA evidence. It was dependent on the evidence of the complainant, which the jury accepted beyond reasonable doubt. The balance of the above submission concerns potential prejudice arising from the admission of the DNA evidence. That also has already been addressed.

(iii) Fresh Evidence in relation to Applicant’s sleep

In his written submissions the applicant sought to rely on the evidence he has obtained concerning movie run times as also supporting his evidence that he was sleepy when he entered the car on the morning of 9 April 2007. He submitted this enhanced the likelihood he fell asleep as he claimed.
During the trial the applicant was cross‑examined as follows:

“Q.   And you certainly were not in a sleepy state?
A.   I was. I only had a few hours sleep.
Q.   You tell the court here now that you fell asleep in the car after you left the motel?
A.   Correct
Q.   You told the police in the interview at question 136 you just relaxed?
A.   Yes.
Q.   No mention of sleep?
A.   I only had a couple of hours sleep. That's definitely what I meant.”

The reference to question 136 in this passage is to the following part of his ERISP:

“Q.   Ok. You mentioned that you left 5, 5.30 and [the complainant] was driving.
A.   Yes
Q.   Ok. What did you do then?
A.   I just relaxed.
Q.   Yep.
A.   And she drove.
Q.   Ok. Drove to where.
A.   North to Sydney.
Q.   To Sydney?
A.   Yes.
Q.   And did you stop at all along the way?
A. Yes, we did. We stopped at the, it’s just on the edge of Lake George …”

The evidence about the movie run times is outlined above. As we have said, it is not fresh evidence. Further it does not raise any possibility that the jury acting reasonably would have acquitted the appellant much less warrant a conclusion that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt. The timing of the length of the movies is only of significance if one starts by accepting his assertion that he watched three movies from beginning to end and that it was those particular three movies that he watched. In any event, what was destructive of the applicant’s credit was the above passage in his ERISP which is clearly inconsistent with any suggestion that he fell asleep in the car soon after he and the complainant left the Hotel.

(iv) The conversation with the night manager

Under this heading the applicant repeats his contention about the (alleged) significance of the complainant’s conversation with the night manager at the Hotel on checking out. This has been addressed above and rejected.
The applicant also complains about a suggestion put to him by the Crown Prosecutor in cross-examination at the trial that there was nothing confusing about the signage at the intersection where the complainant left the Hotel to join the Federal Highway. In his evidence in chief the applicant said that the complainant asked for directions saying it was a “complicated intersection”. The Crown contested that and suggested he made that up to account for the 45-minute delay between leaving the hotel and arriving at the Anderson VC Rest Area (on his version). In his written submissions he refers to Google maps and street view material said to support his point. It is far from obvious that they do but, in any event, they are not fresh evidence. The material sought to be relied on does not, considered by itself or with the other material, raise any possibility that the jury acting reasonably would have acquitted the appellant much less warrant a conclusion that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt.

Conclusion on Ground 3(c)

None of the matters raised under this ground undermine the Crown case in any respect.
In RD (a pseudonym) v R [2021] NSWCCA 94 at [7], Macfarlan JA referred to the different formulations of a contention that a version was unsafe as follows:

“The unreasonable verdict ground relied upon by the applicant invokes s 6(1) of the Criminal Appeal Act. As I said in Prasad v R [2020] NSWCCA 349 at [119] with the concurrence of Wilson and N Adams JJ, the question to be addressed by the appellate court in this context is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). In Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.”

In considering this ground, in a case where the principal evidence against an accused is a complainant, this Court’s determination of this ground of appeal “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable” and this court “examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1 at [38] to [39].
We have reviewed the record of the trial. The Crown case was extremely strong. The complainant presented at the McDonald’s restaurant in distress and made a complaint of physical abuse to a passer-by. Shortly afterwards, she made a complaint of sexual abuse. Her narrative was consistent with and to a substantial extent supported by her physical injuries and the timing of her departure from the hotel and arrival at Goulburn, as well as the DNA evidence. The applicant’s version had a number of inconsistencies principally as to the timing of the journey. His concession that he punched the complainant was a weak starting point for his defence. It was well open to the jury to assess the complainant as highly credible. Nothing raised on this application warrants the conclusion that the jury acting rationally ought nonetheless to have entertained a reasonable doubt as to the proof of the applicant’s guilt. On our independent review of the evidence, we do not entertain any doubt as to the applicant’s guilt.
Ground 3 of the application does not involve a question of law and thus leave to raise the ground is required (Criminal Appeal Act 1912, s 5(1)(a) and (b)). Given that the arguments in support of the ground include unwarranted complaints of police misconduct and further attempts to adduce fresh evidence we refuse leave to raise ground 3.

Orders

Accordingly, we make the following orders:

Extend until 1 September 2020 the time within which the applicant may seek leave to appeal against his conviction.

Grant leave to raise ground 2(c) in the notice of appeal and otherwise refuse leave to raise grounds 2 and 3.

Reject the affidavit of Craig Franklin sworn 3 September 2020, including its annexures, other than the report of Professor Young dated 3 September 2020.

Apart from the first two lines on page 4, admit the report of Professor Young dated 3 September 2020 and her oral evidence given on 10 May 2021.

Dismiss the appeal.

**********

Endnote

Decision last updated: 08 November 2021

Medium Neutral Citation:	Franklin v Regina [2021] NSWCCA 260
Hearing dates:	10 May 2021
Decision date:	08 November 2021
Before:	McCallum JA; Beech-Jones J; Hamill J
Decision:	(1) Extend until 1 September 2020 the time within which the applicant may seek leave to appeal against his conviction. (2) Grant leave to raise ground 2(c) in the notice of appeal and otherwise refuse leave to raise grounds 2 and 3. (3) Reject the affidavit of Craig Franklin sworn 3 September 2020, including its annexures, other than the report of Professor Young dated 3 September 2020. (4) Apart from the first two lines on page 4, admit the report of Professor Young dated 3 September 2020 and her oral evidence given on 10 May 2021. (5) Dismiss the appeal.
Catchwords:	CRIME – Appeal – domestic violence and sex offences – whether trial judge erred in admitting DNA evidence – whether trial judge erred in not discharging juror or jury – fresh evidence – reports from experts said to undermine complainant’s credibility – whether “fresh evidence” – whether evidence such as to give rise to doubt about convictions – where applicant received diagnosis of Autistic Spectrum Disorder after trial – report from psychologist as to implications of such a diagnosis – whether miscarriage of justice established – allegations of police misconduct – whether verdicts unreasonable
Legislation Cited:	Criminal Procedure Act 1986 s 293 Crimes Act 1900 (NSW), ss 61, 61J(1), 86(2)(b) Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6(1), 12(1) Evidence Act 1995 (NSW), ss 135, 136, 137 Jury Act 1977 (NSW), s 53B(d)
Cases Cited:	Caleo v R [2021] NSWCCA 179 Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 MRW v R [2011] NSWCCA 260 Norman v R [2012] NSWCCA 230 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Thompson [2014] EWCA 836 Rattenv The Queen (1974) 131 CLR 510 RD (a pseudonym) v R [2021] NSWCCA 94 S v R [2008] EWCA Crim 6 Thompson v R [2014] EWCA 836 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Xie v R [2021] NSWCCA 1
Texts Cited:	Maras, K, Crane, L, Walker, L, & Memon, A (2019) Brief report: Perceived credibility of autistic witnesses and the effect of diagnostic information on credibility ratings. Research in Autism Spectrum Disorders, 68, Article 101442.
Category:	Principal judgment
Parties:	Craig Franklin (Applicant) Regina (Crown)
Representation:	Counsel: In person (Applicant) C Young (Crown) Solicitors: Unrepresented (Applicant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2008/11561
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 September 2009 Before: Nicholson SC DCJ File Number(s): 2008/11561