Giovanni Romano v R (a pseudonym) - [2019] NSWCCA 49

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Giovanni Romano v R (a pseudonym) [2019] NSWCCA 49
Hearing dates: 31 August 2018
Decision date: 18 March 2019
Before: Simpson AJA at [1]
Walton J at [34]
Button J at [38]
Decision:
(1) Leave to appeal against conviction granted.
(2) Appeal against conviction dismissed.
(3) Leave to appeal against sentence granted.
(4) Appeal against sentence dismissed.

Catchwords:
CRIMINAL LAW – appeal against conviction – trial for sexual assaults of adult complainant – whether complainant answered question in cross-examination about other sexual contact with applicant non-responsively – whether defence counsel subsequently addressed jury inappropriately – whether trial judge misdirected jury about final address of defence counsel – appeal against conviction dismissed
CRIMINAL LAW – appeal against sentence – aggregate sentence – whether trial judge adopted inappropriate implicit cumulation between indicative sentences – whether trial judge failed to consider question of implicit concurrence adequately – appeal against sentence dismissed
Legislation Cited: Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), ss 141(1)(b), 143 and 293
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases Cited: Browne v Dunn (1894) The Reports 67
Jeffree v R [2017] NSWCCA 72
Category: Principal judgment
Parties: Giovanni Romano (a pseudonym) (Appellant)
Regina (Respondent)
Representation:
Counsel:
D Barrow (Appellant)
T Smith (Respondent)
Solicitors:
Lawyers Corp Pty Ltd (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/166134
Publication restriction: Pseudonym adopted for the appellant
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 March 2017

Before:

Bennett SC DCJ

File Number(s):

2014/166134

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Button J in which the relevant facts and circumstances, and the relevant passages of transcript, have been fully set out. I agree with the orders his Honour proposes. In order to explain my reasons, some repetition of what appears in the judgment of Button J will be necessary.
The relevant facts are these. The complainant and the appellant were in a relationship for 9 years, and were married for two and a half years. They have two children. The complainant has a daughter by a previous relationship. The family lived in a country town in NSW (to which I will refer as country town A).
The marriage came to an end in August 2013. However, by reason of their shared parenting of their children, they maintained contact. The complainant moved to a different, distant, country town (to which I will refer as country town B). The appellant visited her from time to time.
The events the subject of the indictment took place on 2 June 2014. The complainant alleged that the appellant sexually assaulted her in her motor vehicle after picking her up from the airport on her return from an overseas holiday. She made immediate complaint, first to her sister, then her mother, and finally reported the matter to police. Investigations produced DNA evidence that revealed that semen on the complainant’s back, left and right buttocks, and on the rear seat of the vehicle, was consistent with the DNA profile of the appellant.
The appellant was charged with the offences on the following day. A trial was fixed to commence on 21 November 2016. On or about 8 November 2016 a solicitor in the employ of the Office of the Director of Public Prosecutions, pursuant to ss 141(1)(b) and 143 of the Criminal Procedure Act 1986, served on the appellant’s solicitors a Notice of Prosecution Case. Attached to the notice were, inter alia, copies of witness statements, among which were a number of statements made by the complainant. One of these was a statement made to police by her on 17 September 2013 (pre-dating the allegations of sexual assault) which appears to have been made for the purpose of an application for an apprehended domestic violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). In this, and in a later statement dated 20 April 2016, the complainant graphically detailed violent and controlling behaviour on the part of the appellant towards her during the marriage. (It was not, at least by the time of the trial, the intention of the Crown to adduce this evidence).

The trial

The trial commenced as scheduled on 21 November 2016. The appellant was represented by counsel. Prior to the Crown opening to the jury, and the commencement of evidence, discussion took place between the trial judge, the Crown Prosecutor and defence counsel. Both the Crown Prosecutor and defence counsel indicated their intention to seek to adduce evidence that would disclose or imply that the complainant had taken part in sexual activity with the appellant on occasions other than the occasion in question. By s 293(3)(b) of the Criminal Procedure Act such evidence is inadmissible unless it comes within one of the exceptions stated in subs (4). One such exception arises where the evidence relates to a relationship between the accused person and the complainant that was existing or recent at the time of the commission of the alleged offence (subs 4(b)). Counsel for the appellant stated that he had some “general propositions that there was an ongoing sexual relationship” between the appellant and the complainant. He said that the evidence would be that, between August 2013, when the complainant left country town A, the appellant visited from time to time and he and the complainant continued to have “intimate relations”.
The Crown Prosecutor then drew attention to the complainant’s statement of 17 September 2013, containing allegations of a history of sexual assault and domestic violence. He said that the Crown did not intend to lead that evidence, but pointed out that venturing into the complainant’s sexual history carried with it a “manifest risk” that the complainant might give answers that disclosed those allegations. Counsel for the appellant made it clear that the evidence he proposed to adduce was confined to the period between separation (August 2013) and the complainant’s overseas holiday, which began in May 2014.
The Crown Prosecutor explained the basis on which the Crown would seek to adduce evidence that would otherwise have been inadmissible by reason of s 293(3). These were electronic exchanges between the complainant and the appellant while she was overseas, a suggestion that the complainant might have engaged in sexual relations while overseas, provoking a degree of anger and jealousy on the part of the appellant, and a statement made by the complainant that the appellant had said to her “I want to have sex with you one more time”, implying previous sexual activity – something which would, given the long term relationship and marriage, not be surprising.
Those passages from the transcript extracted by Button J make it clear that the trial judge, the Crown Prosecutor and defence counsel were all fully alive to the risk that the complainant might answer questions in such a way as to disclose her allegations of prior sexual misconduct by the appellant.
The Crown Prosecutor then opened to the jury, in a manner that does not call for present comment. Defence counsel also opened to the jury. Relevantly, he said:

“But ladies and gentlemen this was a relationship that did run hot and cold. It wasn’t all one way in the sense of being a constantly unhappy relationship if I can put it that way. He in fact came up to [country town B] after she had moved up there in September I think it was. He came up to see her from time to time to see the kids. He stayed with her at her house and it is his case that he came up there for Christmas and that they spent Christmas Day together. They then went on a Christmas holiday together with the kids. They went to Fraser Island. Then they went up to the Gold Coast and to some degree at least, there was, to his mind or at least it will be his evidence that there was some degree of reconciliation at that point in time. They were getting on fine and they were in fact continuing sexual relations with each other.”

The complainant was the first witness called. She gave an account of the events of 2 June and thereafter. She was then cross-examined by defence counsel. The following is the critical part of her evidence:

“Q:   It’s correct at some short period after you did have your own house that [the appellant] came up to [country town B] in 2013?
A:   Yes.
Q:   He stayed at your house on that occasion?
A:   Sometimes he did.
Q:   I suggest that during whatever the dates were but during those, whether it was one occasion or more than one occasion that during those occasions when he came up and stayed with you, you and he continued to have consensual sex?
A:   No, absolutely not. It was never consensual.”

This last answer caused significant consternation, as can be seen from the lengthy passages of transcript extracted in the judgment of Button J. The Crown Prosecutor immediately asked to raise a matter in the absence of the jury. He expressly accepted that the answer given by the complainant was not responsive to the question, and said that she appeared to have “transgressed some limits that I invited her to observe, and that my friend’s question was framed in terms that we had hoped would circumscribe the answer.”
Defence counsel sought discharge of the jury and there followed the lengthy discussion set out in the judgment of Button J. The trial judge refused the application for discharge. The accord then reached was put into effect by defence counsel asking the complainant:

“I want to put to you that what you said then was completely untrue? Do you understand? Your answer was completely untrue?”

to which the complainant replied:

“No, it’s not.”

There was, in the evidence of the complainant, no further mention of sexual relations with the appellant other than the events the subject of the indictment.
The appellant gave evidence. I set out some passages of the transcript of his evidence in chief:

“Q:   Ultimately [the complainant] left you in March 2013?
A:   Correct, yes.
Q:   With the children?
A:   Yes, correct.
Q:   I understand she was only gone for about a week?
A:   Yes, that’s true.
Q:   Then she came back?
A:   Yes, correct.
Q:   She stayed again until about August?
A:   Correct, yes.
…
Q:   Back in March when [the complainant] initially left you, some sort of AVO, apprehended violence order was taken out against you, is that correct?
A:   Correct, yes.
Q:   Then is it the case that in August after she left you the second time that order had some more conditions attached to it which says that you weren’t to contact her and you weren’t to enter the home at which she may reside at?
A:   Correct.
Q:   She moved up to [country town B] with the kids?
A;   Yes.
Q:   It’s fair to say that notwithstanding the orders which said that you weren’t to contact or go to her house, that you continued to contact her?
A:   Yes, that’s true.
Q:   Did she continue to contact you?
A:   Yes, she did. On a regular basis yes, she did.
…
Q:   [the complainant], to your knowledge, at some point got her own house?
A:   Yes. Yes.
Q:   That was a couple of months after she left; is that right?
A:   Yeah, I think it was a couple of months. Yep.
Q:   After she got her own place, did you commence going up to [country town B]?
A:   Yes, I did. Yes.
Q:   Was that more than once?
A:   Yes, it was. It was a number of times, yep.
Q:   Would you just turn up uninvited?
A:   No. Absolutely not. She would – we would be in contact, and then she would ask me to go up to [country town B].
Q:   You would want to go up as well?
A:   Yes. Yes.
Q:   It was a two way street.
A:   Yep. It was mutual, yep.
Q:   Those times, at least late 2013 when you started going up there, where would you stay?
A:   I stayed at her house.
Q:   Where would you sleep?
A:   In her bed.
Q:   During those visits would you be sexually intimate with her?
A:   Yes.
…
Q:   You’ve heard her give some brief evidence in answer to a question of mine about the fact that there was ongoing consensual sex and she gave an answer to the effect that it wasn’t consensual. What do you say about that?
A:   Absolutely not. It was always consensual. Always.
…
Q:   Moving up to the very end of 2013, did you see [the complainant] at Christmas time?
A:   Yes, I did. Yes.
Q:   Where was that?
A:   At her house. She invited me up to have Christmas at her house.
Q:   Did you go anywhere after Christmas Day?
A:   Yes. We organised a trip to Fraser Island and the Gold Coast.
Q:   Do you remember roughly how long that holiday lasts?
A:   That was about a week and a half.
Q:   Did you continue to be intimate with each other during that period?
A:   Yes.”

The appellant was cross-examined about the nature of the relationship. The Crown Prosecutor, however, steered clear of any challenge to his claims of consensual sexual activity after the separation.
The Crown Prosecutor addressed. He said nothing about the contentious answer given by the complainant. Defence counsel then addressed. He referred to evidence of sexual relations between the complainant and the appellant on the occasions the appellant visited the family at country town B, and noted that the appellant claimed it to have been consensual, while the complainant said that it was never consensual. He referred to evidence that the complainant had sent to the appellant “a saucy picture” of herself, acknowledging that she said that she did that because that was the only way the appellant would give her money that she needed. He confronted the complainant’s denials of consensual sexual activity in the post-separation period, and put two specific arguments to the jury: the first, that those denials were inconsistent with evidence that, during a holiday on the Gold Coast, the appellant and the complainant had made enquiries about rental properties with a view to reconciliation; second, that the complainant still had the benefit of an apprehended domestic violence order which prohibited the appellant from contacting her. He asked, rhetorically, why, if there had been non-consensual sex during that period, in circumstances where she had the benefit of an apprehended domestic violence order, the complainant had not simply called police?
This address, too, caused consternation. The trial judge was plainly concerned that the reference to non-consensual sexual activity disclosed allegations of criminal sexual misconduct on the part of the appellant other than that the subject of the proceedings.
It was in this context that the trial judge “corrected” the impression given by the defence address. He directed the jury:

“Also, there was evidence given by the complainant, and it was I might say in the course of the evidence a rather innocuous response, that is to say a not important response, suppose I could put it that way. She was asked a question by [defence counsel] with regard to the accused’s staying at her house and continuing to have consensual sex, and she said, ‘absolutely not. It was never consensual.’
…
[Defence counsel] then brought to the complainant’s attention that question and answer to which I just referred. He said, ‘I want to put it to you that what you said was completely untrue’, without adding any further qualification, and she said, ‘no, it’s not.’ That was the evidence upon that topic. Rather scant, limited in its extent. But it prompted [defence counsel] to make submissions to you about ongoing sexual relationship, none of which was ever non-consensual, and he added a qualification, why would she not have taken non-consensual sexual activity to the authorities in light of the AVO proceedings?
Ladies and gentlemen, I might add that having been a barrister for a long time before I took up this job, in any trial when you are addressing the jury there is always the opportunity that sometimes impacts upon an address that might cause us to mis-state or overstate a proposition. I confess that as a barrister I have done it myself from time to time. [Defence counsel] went a little beyond what was the evidence, and it carries the connotation that the complainant might have asserted there was non-consensual sexual activity in addition to that which is charged. If you have taken that as a proposition, I must say to you please put it from your mind and disregard it. There is absolutely no evidence before you of non-consensual sexual activity other than that with which the accused is presently charged. Please do not embark upon any speculation about what all that might have been, because there is just simply no evidence upon that point. It was a question that was framed, perhaps a little inappropriately. The answers did not add to the question, and this is important because it goes back to what I said to you before about questions do not provide evidence.”

It was this direction that gave rise to the sole ground of appeal against conviction – that the direction occasioned a miscarriage of justice because it undermined the submissions made by defence counsel.

Discussion

It is not without significance that no appeal ground asserts error in the refusal of the trial judge to discharge the jury after the complainant’s response to the question concerning consensual sexual activity.
The direction that gives rise to the appeal against conviction can be traced back to the complainant’s answer to defence counsel’s question in cross-examination, concerning what the appellant asserted was consensual sexual activity after the appellant and the complainant separated. All participants (that is the trial judge, the Crown Prosecutor and defence counsel) proceeded on the basis that the answer was unresponsive, and that it was inadmissible, and caused significant damage to the appellant by asserting criminal conduct other than that with which he was charged.
For my part, I do not accept that the complainant’s answer was unresponsive. There were two distinct parts to the question asked. The first part concerned whether the complainant and the appellant had engaged in sexual relations while the complainant was living in country town B. By implication, the complainant answered that affirmatively. The second part of the question concerned whether that sexual activity had been consensual. The complainant expressly answered that part of the question negatively. Put another way, it was put to her, directly, that she had, since the separation, engaged in consensual sexual activity with the appellant. She replied, emphatically, that she had not. The answer also carried with it the clear implication that there had been sexual activity, but an express rejection of the proposition that it had been consensual. That was the product of the manner in which the question was formulated. A simple “no” by way of answer might have meant “no, there was no sex”, or “no, it was not consensual”. The former would have been an incomplete answer to a double question. A simple “no” would have been an ambiguous response.
There was nothing unresponsive about the answer.
It is also necessary to recall the context of the trial. The complainant made immediate complaint to her sister, her mother and the police. There was clear objective evidence (semen on the complainant’s body and in the car) that there had been sexual activity. In those circumstances, the appellant was left with little room to move to defend himself against the charges. He could have denied any sexual activity. But the DNA evidence established, convincingly, that semen on the complainant’s body and in the car was his. Denial of sexual activity with the complainant in the car was not a realistic forensic option open to him. That left the possibility of a defence of consent. There was evidence, admitted in the Crown case, of the apprehended violence order. A defence of consent presented problems, unless the appellant could persuade the jury of the reasonable possibility that the complainant had consented to sexual relations with him on other occasions, after the separation, and before 2 June 2014, notwithstanding the apprehended domestic violence order. He sought to do this in general terms in the evidence I have set out above.

Why it was perceived, as it plainly was, that the appellant could be free to assert consensual sexual activity, but the complainant was not free to deny that it was consensual, is a mystery. But it was that perception that was the foundation for the direction of which complaint is now made.
The intention of the appellant to claim that consensual sexual activity had taken place imposed practical obligations on defence counsel. He was obliged to put to the complainant the factual matters of which the appellant proposed to give evidence: Browne v Dunn (1894) The Reports 67. The question he asked did that and potentially laid the foundation for more detailed questions. It would have been appropriate for counsel to have put, more specifically, the occasions on which the appellant claimed to have had sexual relations with the complainant in the relevant period. But that carried the obvious risk that the complainant would answer as she did, and assert that it was not consensual. And it was foreclosed by the common perception that the complainant could not respond to a direct assertion of consensual sexual activity by denying that it had been consensual. Why it was considered that the complainant could not give a complete answer to the question asked is part of the mystery. But the effect of that common perception was to shut down any further cross-examination on that subject. That did not prevent the appellant from freely making his assertions in his evidence in chief, assertions that were never tested in cross-examination.
The real problem lies in what happened after the complainant gave her answer. Herculean efforts were made to resolve what was perceived as a problem. Defence counsel limited himself to putting to the complainant that her answer was incorrect, a proposition she rejected. No more was put to her on the question of consensual sexual activity with the appellant post separation. But that did not stop the appellant from giving explicit evidence of what he alleged to have been consensual sexual relations with the complainant post-dating their separation – assertions she was not given the opportunity of denying.
Defence counsel was entitled, in my opinion, to put to the jury the arguments that he did. It was inappropriate, in my opinion, for the trial judge to undermine those arguments by telling the jury that defence counsel “went a little beyond what was the evidence …” and that his submission carried “the connotation that the complainant might have asserted that there was non-consensual sexual activity in addition to that which was charged” and that this “connotation” was not founded in the evidence. That direction was factually incorrect.
The trial judge then went on, wrongly (but favourably to the appellant) to say that:

“There is absolutely no evidence before you of non-consensual sexual activity other than that with which the accused is presently charged.”

That also was factually incorrect. There was such evidence, narrow as it was by reason of the reaction to the complainant’s answer. The effect was to leave untouched the appellant’s evidence of consensual sexual activity, none of which had been put in any detail to the complainant; her contradiction, such as it was, was down played.

Although, in my opinion, the direction concerning the defence counsel’s address ought not to have been given, the overall result of that part of the summing-up was unduly favourable to the appellant.
I would therefore dismiss the appeal against conviction.
With respect to the proposed appeal against sentence, I agree with Button J.
WALTON J: I have had the advantage of reading the draft judgments of Simpson AJA and Button J.
I consider that ground 1, the conviction appeal, should be dismissed upon the basis that, irrespective of the appropriateness of the impugned direction given by the trial judge, the overall result of that part of the summing-up was unduly favourable to the appellant. This view is consistent to the respective judgments of their Honours and I adopt, with respect, their reasons for that conclusion.
As to ground 2, the sentencing appeal, I agree with the conclusion reached in the judgment of Button J and the reasons given therein.
I agree with the orders proposed by Button J.
BUTTON J:

Introduction

On 21 November 2016, Giovanni Romano (a pseudonym for the appellant necessary to protect the identity of the complainant) was arraigned before Judge Bennett SC and a jury of twelve in the District Court sitting at Grafton.
The appellant pleaded not guilty to the following four counts on the indictment: count 1 alleged common assault committed upon the adult complainant (with a maximum penalty of imprisonment for 2 years); count 2 alleged an act of indecency committed upon the same woman (with a maximum penalty of imprisonment for 5 years); count 3 alleged attempted sexual intercourse with the complainant, without her consent and knowing that she did not consent (with a maximum penalty of imprisonment for 14 years and no standard non-parole period); and count 4 further alleged sexual intercourse with the same woman, without her consent and knowing that she did not consent (with an identical maximum penalty, and a standard non-parole period of 7 years).
On 29 November 2016, at the conclusion of the trial, the jury returned verdicts of guilty on counts 1, 2, and 4, and a verdict of not guilty on count 3 (no ground of appeal is based on inconsistency in that outcome).
On 24 March 2017, his Honour imposed an aggregate head sentence of imprisonment for 7 years, with an aggregate non-parole period of 3 years 6 months, each to commence on 25 September 2016.

Grounds of appeal

The following two grounds of appeal, the first against conviction and the second against sentence, were notified and pressed at the hearing:

1. The trial judge’s directions at SU 14-16 occasioned a miscarriage of justice; and

2. His Honour erred by failing to consider whether the indicative sentences could be served concurrently.

Overview of the evidence and the course of the trial

In order to assess both grounds, it is necessary to recount the evidence in a little detail. In order to assess the single ground of appeal against conviction, it is necessary also to set out the course of the trial, including exchanges between the trial judge and both counsel, in great detail. That is because, in order to understand why the trial judge said what he did in the summing-up, it is necessary to understand not only its context, but also how that context developed forensically. Rather than seeking to paraphrase exchanges between his Honour, the Crown prosecutor and defence counsel (who did not appear for the appellant before this Court), I think it better to provide the exact words from the trial transcript and the summing-up, whilst emphasising aspects that were, in the submissions of counsel before us, said to be important, along with any other portions that in my opinion are important to the determination of the matter.

Overview of evidence

The appellant and the complainant were married and had two sons. They lived together for a time in a town in the South West Slopes of New South Wales (the first town). Their relationship was a disrupted one. They separated in March 2013, when the complainant moved from the first town to a town in the Northern Rivers of New South Wales (the second town). For a time thereafter, they reconciled, but the complainant moved to the second town again in August 2013 with the children. It was not disputed between the parties that the appellant would visit her in the second town after that time.
All counts arose from an incident that occurred on 2 June 2014, during a car journey from Coffs Harbour airport to the complainant’s home in the second town, in which the appellant was the driver and the complainant was the single passenger. The complainant had just returned from a holiday in Bali, and the appellant had been caring for their children in her absence.
The Crown case was that, after a discussion in which the appellant heatedly accused the complainant of having had sex with one or more men whilst on holiday, the appellant committed a common assault against the complainant by pushing her head against one of the fixtures within the car with sufficient force to break her hairclip (count 1). After that, he committed an indecent assault by sucking her breast without her consent (count 2). He allegedly attempted to insert his fingers into her anus without her consent (count 3; verdict of not guilty). He inserted his fingers into her vagina without her consent (count 4).
The defence case was that there had indeed been sexual contact between the two of them at the location and time in question, but that it had been with the consent of the complainant.
Apart from the evidence of the complainant, the Crown case included oral evidence from a number of complaint witnesses; at least one police officer with regard to scientific findings, including the finding of the broken hairclip; a DNA expert with regard to human semen found on the clothing of the complainant, and extremely likely to be that of the appellant; a doctor who gave evidence of complaint, and injuries observed to the complainant; and a number of documents, including records of text messages that passed between the appellant and the complainant whilst she was in Bali. They were said by the Crown to show his controlling, dominating, and threatening behaviour towards the complainant in the period leading up to the car journey at the conclusion of the holiday.
The defence case consisted of the oral evidence of the appellant. As I have said, his position was that, although he regretted some of the text messages that he had sent to the complainant, the sexual contact that took place in the car was with her consent. It was only after that had concluded that things soured between the two of them that day.

The course of the trial

The following is a synthesis, in chronological order, of all of the events in the trial to which the attention of this Court was invited by both parties relevant to ground one. All discussions between the trial judge and counsel about legal and procedural matters were conducted in the absence of the jury.
At trial transcript page 1 (TT 1), it was foreshadowed that, after arraignment, there would be an application by both parties for the admission of evidence pursuant to one of the exceptions in s 293 of the Criminal Procedure Act 1986 (NSW) (the so-called rape shield provision that has existed in New South Wales since 1981).
Later, at TT 4 and 5, defence counsel explained that he would seek to tender an explicit photograph of the complainant that she had allegedly sent to the appellant on 21 January 2014; that is, well before the indictment date, and after the second separation of August 2013.
At TT 22 and 23, after the appellant had been arraigned and the jury empanelled, the question of the two applications pursuant to s 293 was returned to.

At TT 22.18 to 22.28, the following exchange occurred:

[DEFENCE COUNSEL]: I can show you those photographs I was talking about. I do have some just general propositions that there was an ongoing sexual relationship, but that's about as far as I can take it.
HIS HONOUR: Well, that's got to be within the exception. I'll have to have a look at the provisions.
[DEFENCE COUNSEL]: It is.

Turning to the application by the prosecution pursuant to the section, commencing at TT 22.36, the Crown prosecutor explained that it was based upon the suggestion in the text messages from the appellant to the complainant that she may have engaged in sexual activities with other men whilst on holidays; that, during the car trip, the complainant said that she had indeed had sex with another man in Bali; and that, before the sexual assaults, the appellant said words to the effect of “I want to have sex with you one more time”, thereby implying the existence of earlier sexual contact between the two of them. Defence counsel did not oppose the Crown application pursuant to the section on those various bases.
Thereafter, returning to the application of the appellant, the following exchange took place, commencing at TT 23.20:

HIS HONOUR: Do you oppose the Crown's application at all [defence counsel]?
[DEFENCE COUNSEL]: No, because it's ultimately part of our case that there was an argument, but we say it happened after the event rather than before the event. In terms of matters that I was going to put, I don't have them set out in a document, but it's our case that as much as yes, we were separated by distance, we did spend time together and we did have continuing intimate relations. I'm not going to go through any detail on that.
HIS HONOUR: Your application under 293 is in respect of cross-examination or further evidence or both?
[DEFENCE COUNSEL]: Cross-examination and also him giving evidence.
HIS HONOUR: Have you told the Crown what the areas are? Do you know what they are?
[DEFENCE COUNSEL]: It's generally what I just said, that between August and September, August when she left [the first town], and then thereafter resided in [the second town], that he would go up from time to time and they would still continue having intimate relations.
HIS HONOUR: That seems to me, Mr Crown, to be material that falls within the exception in 293, or one of the exceptions within 293.
CROWN PROSECUTOR: It would probably come within the same notion of a relationship, or alternatively a connected set of circumstances, I concede that.
HIS HONOUR: Yes.
CROWN PROSECUTOR: The other point, it might be therefore that there be a cacophony of agreement from the bar table and we could pass over it reasonably quickly. But if your Honour just notes some of the areas the Crown is not proposing to read.
HIS HONOUR: I'll go and read that now and I'll come back and we'll touch upon it again.
CROWN PROSECUTOR: Your Honour doesn't have it, but she made another statement more recently, I think in April of this year, in which she attaches a statement made in an AVO application from 2013. There's quite the history here and there are prior allegations that amount to allegations of sexual assault and domestic violence. The Crown doesn't propose to lead those, but your Honour should be aware that to the extent my friend tries to go into any of the prior sexual history, there will be a manifest risk that answers that come from [the complainant] might go into that.
HIS HONOUR: Have you got a copy of that statement, that additional material [defence counsel]?
[DEFENCE COUNSEL]: Yes, but I'm not going anywhere near—
HIS HONOUR: The Crown is not relying upon it, so care must be required.
[DEFENCE COUNSEL]: I agree.
HIS HONOUR: She will no doubt be told, Mr Crown, not to volunteer any of that information.
CROWN PROSECUTOR: We have had that discussion and I told her that, with your Honour's leave, after these applications I would revisit that and tell her what the boundaries were, but it may be that the nature of the material is such it will become very difficult to navigate.
HIS HONOUR: I can understand that.
CROWN PROSECUTOR: That's a risk.
HIS HONOUR: Care will be required.
[DEFENCE COUNSEL]: But I'm certainly not trying to open it up, save for the period after they separated.
SHORT ADJOURNMENT
HIS HONOUR: I don't need to hear from you further, Mr Crown, in your application. [Defence counsel], I didn't get a note down of your summary. Can you just repeat what you were going to ask about in the cross-examination?
[DEFENCE COUNSEL]: Essentially that between August 2013 to her departure for Bali in, I think, 20 May 2014, that there were times when the accused was up in [the second town] and that they continued to have sexual relations during that period. I can't give you chapter and verse of dates because -
HIS HONOUR: Did you want to be heard about that, Mr Crown?
CROWN PROSECUTOR: Yes, briefly. Not to oppose it. I maintain the position I adopted earlier, which is that in the same way that some part of their history is relevant in the Crown's application, it is in my friend's. But I just reiterate the concern that the Crown has which is that against a backdrop of alleged other occasions of non-consensual activity there is a risk that questions of this kind will go that way.
I have taken the time this morning to have a very brief conference with the complainant, the point of which was really to do what your Honour suggested earlier and tell her what she might be expected to be asked, and what the limits of that would be, and I would anticipate that with some further instruction she could be advised that if she was asked in simple terms if there had been other sexual contact in that timeframe that my friend nominates, that she could say, "Well no, there hadn't been any consensual sexual contact with him that time". But if she's pressed about any more detail, I anticipate there is evidence of contact in that period, but not consensual.
We can leave it at that. It would be difficult I think to have a further statement taken, but if it was to be pressed anymore, another way of getting some evidence of what she might say, as much as I don't like to be suggesting it, but it might be a Basha Inquiry this afternoon. Perhaps if your Honour would leave it to the parties to discuss further until about 2pm or so, subject to how long your Honour is going to need to deal with the sentence matter, and we could see if we could move it any further. But there is going to be that risk I think.

I interpolate to summarise the two statements of the complainant referred to in the above extract, they having been placed before us without objection on the basis that both counsel had them at that point of the trial.
In a statement of August 2013, the complainant spoke of the background of her marriage to the appellant, and the birth of their two children.
She asserted that, from three months after their relationship began, the appellant commenced to have sex with her without her consent.
She spoke of the appellant having slapped her on one occasion when she had slapped him, but not otherwise having “hit or punched” her.
She spoke of the appellant providing her with money if she would have sexual contact with him.
She spoke of being financially dependent upon the appellant.
She gave details of many occasions in which she asserted the appellant had forced her to have sex with him.
She spoke of the family having moved to the township of the first town in February 2012. There she lived a very isolated and circumscribed life, as a result of the controlling behaviour of the appellant.
In early March 2013, she had sought help from a domestic violence support agency. That was after the appellant had restricted her breathing with his hands and said “if you ever cheat on me, I’ll slit your throat”. She was in fear of death.
Eventually, she informed police that the appellant “had been abusing me, forcing me to have sex, controlling the finances and isolating me for seven years”. She moved to the home of her mother in the second town, but her location was soon discovered by the appellant. Eventually, the appellant persuaded her to return to the first town.
The first statement goes on to describe the complainant having left the appellant again “a couple of weeks ago”, that is in early September 2013.
The statement concludes with the complainant asserting that she did not wish to return to the appellant; that she regarded the marriage as over; that she was frightened of the appellant; and that she “hated what he has been doing to me and our children”. Having said that, she stated that she did not want the appellant charged with any “offences at this time, but due to my fears and the harassment, I really want an apprehended violence order.”
In a second statement of April 2016, the complainant said the following.
She described having provided a statement to police in June 2014 about being sexually assaulted by the appellant, presumably with regard to the counts on the indictment.

She described living with the appellant in the first town in August 2013. At that time, she found a document in the handwriting of the appellant in the home which listed different sexual acts to be performed between the complainant and the appellant over a specified period for a specified sum of money. She separately described how, over time, the appellant had been paying her for sexual acts.
She referred to the statement of late 2013 that I have already summarised.
Returning now to the way the trial unfolded, the Crown prosecutor opened to the jury; he said nothing about alleged sexual wrongdoing on the part of the appellant other than that averred in the indictment.
In the course of his opening to the jury at the commencement of the trial, defence counsel said at TT 12.16-12.26:

But ladies and gentlemen this was a relationship that did run hot and cold. it wasn’t all one way in the sense of being a constantly unhappy relationship if I can put it that way. He in fact came up to [the second town] after she had moved up there in September I think it was. He came up to see her from time to time, to see the kids. He stayed with her at her house and it is his case that he came up there for Christmas and that they spent Christmas Day together. They then went on a Christmas Holiday together with the kids. They went to Fraser Island. Then they went up the Gold Coast and to some degree at least there was, to his mind or at least it will be his evidence that there was some degree of reconciliation at that point in time. They were getting on fine and they were in fact continuing sexual relations with each other.

In the examination-in-chief of the complainant, no evidence was led of alleged wrongdoing on the part of the appellant, whether sexual or not, other than the allegations that underpinned the indictment. The exception to that was evidence that an apprehended violence order had been taken out by the complainant against the appellant, and that it existed in August 2013, in the early part of 2014, and as at May 2014. At TT 26.36-26.49:

Q. Without going into any detail [the complainant] did there come a time when [the appellant] was subject to an apprehended violence order which placed some limits on his contact with you?
A. Yes.
Q. And was that AVO in existence in August 2013?
A. Yes.
Q. Was it in existence in the early part of 2014?
A. Yes.
Q. And we’re jumping ahead a little bit but was it in existence when you went on holidays to Bali in May 2014?
A. Yes.

After the examination-in-chief of the complainant, but before her cross-examination, the following exchange occurred in the absence of the jury at TT 61.38-62.05:

[DEFENCE COUNSEL]: Your Honour, I'm sorry it's not in a more appropriate format perhaps but I just have some documentation as to the 293.
HIS HONOUR: This is the 293 point. I'll take that document after the Crown's had an opportunity to consider it. Is it very lengthy, I'll get it photocopied?
[DEFENCE COUNSEL]: No, look, the gist of it is that there are a number of occasions when he goes up to [the second town] and I just want to put that during those periods he continued to have consensual sex. I'm not going to‑‑
HIS HONOUR: What I'm going to do is once the Crown's read it I'll have it photocopied so that we've all got a copy of it.
[DEFENCE COUNSEL]: I, effected [sic; effectively?] this is just a general proposition I'm putting.
HIS HONOUR: Yes, but I'll have it marked for identification.
[DEFENCE COUNSEL]: I'm not going into any detail about any occasion at all.

After a discussion about the admissibility of the intimate photograph proposed to be tendered by defence counsel in accordance with s 293 of the Criminal Procedure Act, the following exchange occurred at TT 64.24-64.44:

CROWN PROSECUTOR: Your Honour, can I just add as well that in discussions with her she's been advised of the goal posts, and it has been suggested to her by me that anything which voluntarily discloses disreputable behaviour of any sort in the past in connection with the AVO, be it violence, or otherwise, and certainly anything that were to disclose prior sexual impropriety on the part of the accused, would be significantly problematic. I've also tried to give her a lifeline, and suggested that if she's asked a question and believes that the only way she can truthfully answer it would be to go into those areas, then she should give some indication when answering like, "I don't think I can answer that". If that occurs hopefully that will stop us transgressing and I'll then raise an objection and we can deal with it in the absence of the jury.
HIS HONOUR: Yes, I think that's probably sensible.
[DEFENCE COUNSEL]: Can I just say apropos of that, that all I was going to ask her about the occasions when my client says that they did have consensual sex, is to say to her, "During this trip", and then "During that occasion", you did continue to have consensual sex. My friend says that in answer to a question like that the answer should just be "No", we would expect, rather than a know [sic; no] in fact it was non‑consensual, or something like that.

During cross-examination of the complainant, the following exchange, crucial to the ground of appeal against conviction, occurred at TT 75.26-75.41:

Q. Once you got your own accommodation, I think you said about six weeks after you went up to [the second town] with the kids?
A. Yes.
Q. It's correct at some short period after you did have your own house that [the appellant] came up to [the second town] in 2013?
A. Yes.
Q. He stayed at your house on that occasion?
A. Sometimes he did.
Q. I suggest that during whatever the dates were but during those, whether it was one occasion or more than one occasion that during those occasions when he came up and stayed with you, you and he continued to have consensual sex?
A. No, absolutely not. It was never consensual.

To interrupt my chronological conspectus of the trial for a moment, in short, the contention of defence counsel at trial, and counsel for the appellant in this Court, was that that answer was not only non-responsive, but also significantly prejudicial to the appellant. And it is that answer, and the responses of both counsel and the trial judge to it, that ultimately lead to the ground of appeal against conviction.
Immediately after that answer was given, the Crown prosecutor asked that the jury leave the courtroom. In their absence, the following exchanges occurred, commencing at TT 77.1:

CROWN PROSECUTOR: Your Honour, my application is really, as you would image, a vehicle to see if we can't get the jury out, we've come across something that was foreshadowed. I would accept that was not responsive and indeed that the witness would appear to have transgressed some limits that I invited her to observe, and that my friend's question was framed in terms that we had hoped would circumscribe the answer.
HIS HONOUR: Narrow the question, yes.
CROWN PROSECUTOR: It's probably, really, more a matter for my friend whether or not he now makes any application, and he'll need, I would suppose, some time to take instructions. Just thinking generally, it maybe that it would be worthwhile continuing, to some extent, to see whether or not it's going to isolated, I take it my friend would need to ask some further questions, and if the witness avails herself of the opportunity to volunteer further unhelpful evidence, that will certainly tip things in one direction but it maybe that if she doesn't, or even if your Honour would talk to her, I can't at this stage.
HIS HONOUR: I know, I was thinking of saying something to her in terms of, "Listen carefully to the question; answer the question without volunteering additional information" and then allow, if it's necessary, the Crown to clarify any matters that might require revisiting in the re‑examination. [Defence counsel], do you have any difficulty with that?
[DEFENCE COUNSEL]: No, not at all.
HIS HONOUR: I didn't get a note down of precisely what she said.
CROWN PROSECUTOR: "It was never consensual."
HIS HONOUR: Can you assist me with what you have there?
[DEFENCE COUNSEL]: "No, absolutely not."
SPEAKER: "No, absolutely not. It was never consensual".
HIS HONOUR: Yes. I got down, "Absolutely not" and that was as much as I got. In some respects it is a responsive question, but it certainly does go outside the perimeters of the occasion, well, I'll go back. It was within the context of the period of time after she had arranged accommodation that he came to visit from time to time in which it was said to her they had consensual sex. She said, "No, it was never consensual", the question and that answer taken together would carry the proposition that they never had consensual sex on those occasions when he came to visit in the premises at [the second town], so to that extent it is confined. Except that it carries an implication, unsaid, that there was sex that was non‑consensual.
CROWN PROSECUTOR: On more than one occasion within that timeframe,
your Honour.
HIS HONOUR: Yes. [Defence counsel], what do you want me to do about it?
[DEFENCE COUNSEL]: I'll have to speak to my client, your Honour, as to whether or not there is any application.

Thereafter, a discussion ensued about an aspect of the “293 application” that does not require extraction.
At TT 79.13-79.42:

[DEFENCE COUNSEL]: More than, yes. Can I just flag, if we do press on, the next thing was the photo, I know you can't tell the witness what to say, but I'm going to be very specific in saying that this was a photo you sent in December, or perhaps in January, or certainly, more likely in December, to the accused.
HIS HONOUR: You will have to establish it's a photograph of her in the course of the questioning.
[DEFENCE COUNSEL]: Sure, but I'm just alluding to what she might want to blurt out.
HIS HONOUR: When we resume I'll say to her, "Please be careful; only answer questions; don't go beyond the question; don't volunteer information that could put the trial at risk".
[DEFENCE COUNSEL]: I was going to say perhaps, I'm not obviously asking you to threaten her, but perhaps you could just warn her that this trial might abort‑‑
HIS HONOUR: I'll make it clear that if she says anything in addition to what the question required, the trial may be put at risk. And all that means is that we'd have to start all over again, and all of the implications that arise as a result of that course.
[DEFENCE COUNSEL]: Yes, your Honour, I'll tell you in 15 minutes or so what our position is.
HIS HONOUR: You let me know when you're ready.
SHORT ADJOURNMENT
[DEFENCE COUNSEL]: Your Honour, I've been instructed to seek a discharge of the jury.

During the subsequent discussion about discharge of the jury, the following exchanges occurred from TT 79.42-80.40:

HIS HONOUR: I've been thinking about it outside and upon analysis I don't know that it causes him a problem, indeed I'd tender [sic; tend to] the view that it might impact significantly against the credibility of the complainant.
[DEFENCE COUNSEL]: My concern, apart from what she said is that to present my case I have to put propositions of further occasions of consensual sex and even if she's now just—
HIS HONOUR: She comes out with a proposition and bearing in mind it might have simply been a misstatement within the context of the question. Had the question been there were occasions during the course of those visits when you and the accused had sex, had she then said sex occurred but it was never consensual, that's outside the parameters of the question. The question as asked as I recall it was there were occasions when you had consensual sex and she said absolutely not, it was never consensual, the implication I've already identified. There is the possibility that she is referring back to the events at hand but let's assume the worst and that she was not.
There were multiple occasions when he attended the house and stayed with her. On those occasions if one extrapolates there was non‑consensual sexual activity, this notwithstanding she continues to allow him to visit the house and stay with her in the house. She invites him to convey her to the airport in Coffs Harbour using her car and she takes the opportunity to have him drive her, as tired as she was, from Coffs Harbour to [the second town]. He, according to her, gets out of the car, pushes the seat forward, gets into the back, reaches over and forces her or drags her into the back seat of a very small car. She has given evidence that his conduct, both in the terms of, "I want to fuck you for the last time", and then what occurred, "What are you doing? Stop it please, what are you doing?", almost carrying an element of surprise against a background that included non‑consensual sex in her home when there was a visitor with her consent.
[DEFENCE COUNSEL]: I appreciate that in some ways it may assist but my concern I guess is that she might, given what she's said and given that even if she now answers no in respect of other occasions that it would now carries obviously the bracket that well it was non‑consensual, even if she doesn't say so, the jury may, I don't know but the jury may well believe that this was as it were the final straw, I don't know.
HIS HONOUR: I'm anticipating that your argument might be at the end of the trial that there were questions over her assertions in the particular circumstances as she describes them against the background that you have including the text messages. I would have thought that your argument has at least some measure of enhancement from the proposition that he engaged upon such misconduct beforehand and then she found herself in these circumstances. I don't know I'm looking at it as a person has who's hearing this material for the very first time and only hearing part of the material at this stage.
[DEFENCE COUNSEL]: I do agree that it may work in our favour, I just don't know what impact it's hand [sic; had] on the jury, that's my concern that's all. And in discussions with my client I'm instructed to take the conservative approach but if your Honour's against me then you're against me but—
HIS HONOUR: I haven't indicated one way or another yet but I'm simply teasing the need for discharge of the jury if your client wants to speak to his solicitor, if that's an argument you would develop, I mean you've had your instructions, I don't know what they are, if that's not an argument that's available to you upon your instructions‑‑
[DEFENCE COUNSEL]: Which argument sorry?
HIS HONOUR: If what I've advanced is not an argument that is available to you upon the instructions you have, it's another question of course. But I'm looking at the matter as it's been presented to this point in the trial and to terminate a trial is an important decision because of avoiding consequences of that decision sending the jury away, having to start again, there's no panel available here before Monday I should tell you. To that extent do you or both have the advantage of me with regard to what is there and what's available and what arguments you might be intending to present but it just seems to me that some care ought to be given to the decision to seek a discharge. If you are instructed to make the application, your position is certainly protected for the purposes of four, that's another consideration you must not overlook.
[TT 81.17] Mr Crown, I've not heard from you in relation to the matter but would you care to challenge anything I've said and the position I've suggested might be available. I don't intend to announce and included [sic; a concluded?] view on any of these matters. They just seem to me to be positions that are available on the material that has been as they are, I tell her to be careful in answering the questions is left hanging in the air. I suppose I can analyse it this way, if matters are left as they are and the trial continues, there is left in the air the proposition that the sexual intercourse or sexual activity that did occur was never consensual. That carries with it the implication that there was non‑consensual sexual activity preceding the material events and if [defence counsel] was not to make use of those aspects for credit purposes as I've outlined in the course of these outlines, the accused would be significantly prejudiced I think and a discharge is inevitable, otherwise it's a matter for the accused to give instructions as to what caused the tag [sic;?] I suppose.
Do you want to amplify anything I've said or qualify anything I've said or destroy anything I've said?

I interpolate at this stage for the convenience of the reader that the remarks immediately above of his Honour (at TT 81.17 and following) were significantly relied upon by counsel for the appellant before us. I shall explain that reliance when I come to summarise the submissions of counsel.
Thereafter:

CROWN PROSECUTOR: There are a number of things I could say in response your Honour but I'm just conscious that your Honour's effectively posed a question which is whether or not the application is pressed. It might be better, I don't know if my friend has any fresh applications or‑‑
HIS HONOUR: I should say, are you opposing the application?
CROWN PROSECUTOR: Yes, your Honour.
HIS HONOUR: Leaving aside what I've said so far and just taking the point, the matter from the point when the application was made, why do you say I should refuse the application?
CROWN PROSECUTOR: Your Honour, there's, can I make submissions to you under three headings? First of all, as I understand the case that my friend is presenting based on a fairly extensive opening in this case in which he said he'd call his client and advance some of the history, I would understand that the defence case is that the relationship was hot and cold. That there was consensual sexual activity on a number of different occasions following the final separation in August 2013 and the relevance of that is to show that it needn't be surprising that their relationship was left in the state apparently reflected by those of either messages on particular 1 and 2 June and yet notwithstanding that given the hot and cold nature of it, they might engage in consensual sexual activity in the car as described.
With that as the defence case, then an attack on the credibility of [the complainant] on the basis that there were all these rapes and yet you continue to let him come is perhaps very unattractive. [Defence counsel] might try and have his cake and eat it to and run that as an attack on her credit notwithstanding but that's a difficult position to take. So it maybe that your Honour outlines that as a possible use of the evidence.
HIS HONOUR: In response to that, his case is that there was consensual sexual activity including on the occasion that the charges are raised upon and that what she's saying about these matters is a lie. It has to be the argument and it is a lie because the, reflected in the fact that she is asserting that there were or has asserted so far in terms other non‑consensual sexual activity that's a lie so the argument would run because it was an ongoing relationship, there's ongoing contact. There was a measure of acrimony, a measure of jealousy but in the circumstances it was presented were entirely inconsistent with a woman who's been the subject of repeated sexual assault.
CROWN PROSECUTOR: Perhaps I shouldn't so quickly assert that [Defence counsel] wouldn't embrace that and attempt to do so at parallel, this is my case but if you look at what she's saying it makes no sense because a person the subject of that treatment wouldn't have put herself in a position where she was at to be treated that way again effectively. Those are the first two points, the third head under which I wanted to make submissions to your Honour is something I've hinted at previously within the trial which is depending on the way that the cross‑examination is conducted and the answers are given, the Crown would still preserve a position where application might be made to your Honour prior to re‑examination to go to evidence available to the Crown as to the history of the relationship. That hasn't been pressed previously as either tendency evidence, there's no application.

The Crown's view is that the earlier information suggesting prior rapes comes only out of the mouth of the complainant and particularly having regard to what the High Court majority and his Honour Gageler J had to say in IMN v R [sic; IMM v R], although the bootstraps argument made by Mr Rogers was rejected, essentially that's the same notion, so the Crown doesn't go there. Nor does the Crown attempt to introduce this evidence of a relationship as non‑tendency relationship evidence having regard particularly to the Court of Criminal Appeal's decision in Norman because [the complainant] says that her conduct in the car involved her avidly resisting and annunciating [sic; enunciating] her non‑consent so that there's no need to look to a history of domestic violence or prior sexual assaults to explain her conduct.
However, if we get to a point at the end of cross‑examination where there has been introduced a certain amount of evidence of the prior relationship and essentially the tenor of the defence case is there were all these contacts, you let her come to the house. You went on holiday with him, not once but twice and no doubt there was consensual sexual activity, the Crown's application would essentially be as I foreshadow it, a question has arisen which is, why would she, if she says the relationship is over and she wants nothing to do with him, have him in the house, why would she go on holiday with him and I would seek to ask those questions and anticipate that the answers will be the history of domestic violence and other difficulties in our relationship made it difficult for me to say no.
He threatened to ruin Christmas, he threatened to publish to the internet films taken of us in congress or photos taken. He'd been violent, he'd been controlling, I found it really hard to say no to him.
HIS HONOUR: You're going to pursue that application regardless of what one does with the answer volunteered.
CROWN PROSECUTOR: I suspect I would pursue that.
HIS HONOUR: Because those questions must be asked of her because that's as the defence case was outlined in terms.
CROWN PROSECUTOR: I would concede that there would be a live question at this stage as to whether or not your Honour would permit that. If the Crown could establish relevance that would be one thing but depending on how far my learned friend takes his cross‑examination, I think the more pertinent question would be a 137 question. It might be relevant but of such limited probative value on the margins of a collateral issue that the very damaging other implications would outweigh it and I take it that my friend is quite consciously attempting to do this in a limited way so as not to open that door but I guess the Crown's point is at this stage it's hard to see whether or not that door will come open. If it does particularly as regards sexual impropriety, then the answer given may in fact not appear as prejudicial at all and we won't know.
HIS HONOUR: It's a difficult case because [defence counsel] because summarising this case is there was an acrimonious relationship because of the breakup of the marriage with aspects of it involving both accusing the other of infidelity, notwithstanding which they had periods of affection extending to consensual sexual activity which places a question over the allegation that this was non‑consensual on 2 June 2014. To answer that she is bound to say knowing now what her answer was to that last question, yes, there was sexual activity but it was never consensual.
CROWN PROSECUTOR: I guess to be fair your Honour, I had effectively adopted a concession in the earlier arguments about these matters that if the question were simply, "Was there consensual sex in this juncture?" and the answer is, "No", that could be left there without further opening it and I would anticipate that my friend would say, that's precisely what he was attempting to do, relying upon an assertion from me that the witness had been spoken to and understood that and that the evidence which has now emerged was a direct transgression of the request that was made of her.
HIS HONOUR: But if [defence counsel] then takes the opportunity to qualify the answer that she's given or amplify I suppose the answer that she's given, you have it put on the record that there were other non‑consensual sexual episodes of non‑consensual sexual contact to support an argument that why would she be in this position, were that be her experience of the accused in the past then that opens up the other question of course with regard to the reasons why she would comply against the risk that he might carry out threats that he'd made in other contexts.
[DEFENCE COUNSEL]: Could you just go off the bench for a couple of minutes, would you mind, I don't want to keep losing too much time if we are going to‑‑
HIS HONOUR: No, I'll tell, I'll tell the jury that‑‑
[DEFENCE COUNSEL]: Can I just have five minutes?
HIS HONOUR: Yes, whatever you need [defence counsel].
[DEFENCE COUNSEL]: Your Honour, can I just say that I can understand that it's unfortunate because she gave the answer but I would submit obviously that in itself wouldn't allow the Crown to now in re‑examination explore‑‑
HIS HONOUR: Not at this point, no.
[DEFENCE COUNSEL]: Not at this point so if we did press on, as much‑‑
HIS HONOUR: That would depend of course what further questions you will ask of her regarding that point.
[DEFENCE COUNSEL]: What I was going to say, all I'd be saying to her that is that it's just untrue rather than well why would you let him et cetera, et cetera. I'm not going to go there because I know what she will say. I'm just going to say that's not true. Obviously I still have to say and he stayed with you on this occasion and if she says it was against my will I'll say that's just not true. I don't want to, because I am conscious that I don't want all this relationship evidence be getting‑‑
HIS HONOUR: It could go back. I'll have to say something, if we do continue I'll have to say something to her about being careful to answer questions with a yes or no answer where that is the appropriate answer without volunteering information and the simple answer to that question would have been no in her evidence, bearing in mind what she is saying occurred or didn't occur. Whether there's a need to revisit the evidence that she volunteered which might be explicable in terms of well for the purposes of instruction at least an assertion that she was speaking of the encounter in the car.
[DEFENCE COUNSEL]: I don't think the jury would take that to be what she meant.
HIS HONOUR: No, I mean that would be writing a fiction I suppose when one considers the answer. Anyway, you want five minutes?
[DEFENCE COUNSEL]: I'll just see what his final position is your Honour.
SHORT ADJOURNMENT
[DEFENCE COUNSEL]: We have discussed the pro's and con's and the likely advantage, perhaps, or disadvantage, and my client's ultimate position is that he would still seek a discharge I regret to advise.
HIS HONOUR: That's for the reason that if the trial proceeds you will be compelled to ask her questions to undo the import of the answer she volunteered in response to your last question?
[DEFENCE COUNSEL]: As I said I could just put to her, "What you just said was untrue".
HIS HONOUR: Just coming back to it for a moment, one way or the other you will want to deal with it, and your submission must be that I could not, if that's where the matter stands, with a simple question, "That's untrue" and a response that might be elicited in either "Yes" or "No". Unless she acknowledges that it is untrue nothing I say to the jury could undo the mischief that the information volunteered is likely to cause to distract the jury from the task that they have of assessing her credibility with regard to the allegations that she makes about 2 June 2014.
[DEFENCE COUNSEL]: Yes, your Honour, and additionally that the subsequent questions I'd have to put about further time together, and further consensual sex, even if she now just say, "No", given what she's said, "It was never consensual". Those answers all carry that undercurrent that there was ongoing non‑consensual sex.
CROWN PROSECUTOR: I don't know that your Honour needs to hear from me any further than what I said before. The Crown's position is probably reasonable clear. At this stage my submission to your Honour is that it's perhaps early, we don't know what will happen but I take it from my friend's submissions that, effectively, he wouldn't seek to rely on the credit point your Honour has raised in argument, and that just leaves him trying to broadly state there was occasion for consensual sex and hopefully get the answer, "No, there wasn't" but we've gone now well beyond that in such a way that his case is prejudiced.

Eventually, his Honour declined to discharge the jury, and said that would reasons would be given later, though apparently his Honour never did so.
His Honour spoke to the witness in the absence of the jury, and asked her to ensure that from then on all answers were directly responsive to the question asked: at TT 86.
When the complainant returned to the witness box to conclude her cross-examination, the following exchange occurred from TT 88.9-88.19:

Q. Ma'am, I know it was about maybe an hour or so ago but the last answer you gave when I put to you that during that period when he came up in 2013 to [the second town], that you and he had consensual sex, and your answer was, "No, absolutely not" and then you added, "It was never consensual", do you recall that answer?
A. Yes.
Q. I want to put to you that what you said then was completely untrue? Do you understand? Your answer was completely untrue?
A. No, it's not.

Other than that, defence counsel did not explore in any way the assertion that there had been alleged non-consensual sex between the complainant and the appellant on occasions other than the date in the indictment, including by way of cross-examination designed to cast doubt on the proposition.
In the defence case, the appellant was the first witness. Relevant to the ground, in his examination-in-chief the following exchange occurred at TT 229.25:

Q. Where would you sleep?
A. In her bed.
Q. During those visits, would you be sexually intimate with her?
A. Yes
Q. You've heard evidence from [the complainant] that after your second son was born I think she said that she went on the contraceptive pill; is that correct?
A. Yes. Yes.
Q. After you separated, to your knowledge, was she still on the pill?
A. Yes. To my knowledge, yes.
Q. You've heard her give some brief evidence in answer to a question of mine about the fact that there was ongoing consensual sex and she gave an answer to the effect that it wasn't consensual. What do you say about that?
A. Absolutely not. It was always consensual. Always.

In cross-examination of the appellant by the Crown prosecutor, the following exchange occurred at TT 257.23:

Q. In the weeks and months between August of 2013 and when she went to Bali in May of 2014, you and [the complainant] had not been engaging in consensual sex at all, had you?
A. No. That's totally untrue.
Q. Your visits to her house were unwelcome and uninvited?
A. No. That's totally untrue.

In his final address to the jury, the Crown prosecutor said nothing about consensual or non-consensual sex on occasions other than the date in the indictment.
In his final address to the jury, however, defence counsel said the following at TT 301.6-301.11:

We know that they continued to have sex on occasion when he came up to [the second town]. [The appellant] said it was an ongoing consensual relationship, whereas [the complainant] said that it was never consensual. We know that she sent, for want of a better term, a saucy picture of herself; although, again, she would say it was only done so that he would give her the money that she needed.

Defence counsel further stated at TT 304.19-304.39:

When [the complainant] claims that any sex that they had during the period between October 2013 to May 2014 was not consented to you know really, don't you, that that's not true either. If it were true would she be making inquiries in April with the accused whilst they're up on the Gold Coast about rental properties up on the Gold Coast and would she have agreed, as she did in cross‑examination, that they had both discussed the possibility of a future and a fresh start together on the Gold Coast together at that time and in fact that albeit it briefly, she said, that they had reconciled during that holiday.
Moreover in relation to this assertion that any sex that was had after their separation was non‑consensual as a matter of commonsense, ladies and gentlemen, she still has an AVO throughout that period which banned him from contacting her and going to her house, so do you really think if [the appellant] was engaging in non‑consensual sex with her during that period she wouldn't have rung up the police or at least be capable of ringing up the police, making a phone call and having him arrested. Surely that would be so. It's a matter for you but I'd suggest, ladies and gentlemen, that the reality is that [the complainant] is not as particularly reliable in her account of the background of their relationship prior to going to Bali and has engaged in somewhat revision of history.

At the next adjournment, and in the absence of the jury, the following exchange immediately occurred at TT 316-317:

HIS HONOUR: I'm just troubled by the reference to the evidence concerning the non‑consensual sex on other occasions.
CROWN PROSECUTOR: And the lack of the complaint about it your Honour.
HIS HONOUR: Yes and the fact that she could have gone to the, to enforce the AVO, bearing in mind that great care was taken to confine that evidence and there was no cross‑examination of the complainant beyond the questions as I recall it anyway, at p 88 at line 9 of the transcript after the debate that took place about whether to discharge the jury. It was simply put to her that it was untrue in global terms, which she rejected. The particularity of the submission raises a problem doesn't it.
CROWN PROSECUTOR: Your Honour I had made a note of it as well, I don't say that my thinking had advanced so far as to conclusively how to deal with it.
HIS HONOUR: I don't know how to deal with it either Mr Crown because if I go and talk about it to them it raises questions about the fact that she has effectively been conceded to have said or has been conceded that she has effectively said, that there was sexual encounters in the past which were non consensual and if that was so, why didn't certain other things occur.
CROWN PROSECUTOR: Your Honour had canvassed as I understood it with [defence counsel] last week, a live question as to whether or not it would be best to go to that issue at all in your Honour's summing‑up but one of the thoughts that had occurred to me is that perhaps in this circumstance your Honour would have to go there and say something about it and one possibility is that your Honour would extend what you might otherwise have said along the lines that that's not the focus of the trial and you shouldn't be too concerned about it to also observe to the jury that questions about that were very circumscribed and there's really no evidence about exactly what if anything happened when it happened, why it happened and that it would be speculative for them to try and deal with that submission made in the closing address and enter into some discussion in the jury room about why she didn't and tell them not to do so in that as I say, I'm thinking out loud, but that was the only way.
HIS HONOUR: Because it carries the implication that there was non‑consensual sex, it could have been in two contexts on the evidence as we know it, either non consensual in a more violent context or non‑consensual in the sense that she surrendered to him as a means of having [to] meet his obligations with regard to their financial circumstances, either way it involves traversing areas which were not the subject of evidence and anyway, I think we'll hear what [defence counsel] had to say now for the balance of the address and then I'll send the jury out for a moment while I gather my thoughts and just to deal with any need there might be to revisit the question, I'll think about it over lunch anyway. I adjourn the trial until 2 o'clock.
MATTER INTERPOSED
Before I rise [defence counsel], do you want to add anything or say anything about that aspect of the address.
[DEFENCE COUNSEL]: No.
HIS HONOUR: I can't just leave it there because you've effectively raised misconduct on earlier occasions for whatever, in whatever context of the suggestion that might have carried. I've got to say something to them about character within the context of the AVO proceedings and to tell them to put character out of their mind, it's an irrelevant consideration but this challenges that to some extent too doesn't it.
[DEFENCE COUNSEL]: In terms of the accused's character.
HIS HONOUR: Yes, I mean the fact is there are AVO proceedings out.
[DEFENCE COUNSEL]: Yes certainly.
HIS HONOUR: Each way and to the extent that they're AVO proceedings against him, I've got to say something to them about the fact that the AVO proceedings are not strictly criminal proceedings and all sorts of considerations apply that don't apply in criminal trials and I need to tell them that they shouldn't take the view that he might be a person of poor character as a consequence of that, it should be simply put to one side that character hasn't been raised, it's an irrelevant consideration. I'll adjournment [sic; adjourn?] until 2 o'clock.

After that discussion, defence counsel said nothing more about the issue before he concluded his final address.
In similar vein, the issue that had arisen as a result of the final address of defence counsel was not returned to between the conclusion of his address and the commencement of the summing-up.
In the summing-up, his Honour said the following to the jury at pages 14-16:

Also, there was evidence given by the complainant, and it was I might say in the course of the evidence a rather innocuous response, that is to say a not important response, I suppose I could put it that way. She was asked a question by [defence counsel] with regard to the accused staying at her house and continuing to have consensual sex, and she said, "Absolutely not. It was never consensual."
There was a pause in the proceedings at that point, and some clarification required of what the question might have been looking to examine. When the complainant returned the cross-examination continued, and after I apologised for the longer delay than I thought might be required, [defence counsel] then brought to the complainant's attention that question and answer to which I just referred. He said, "I want to put it to you that what you said was completely untrue", without adding any further qualification, and she said, "No, it's not". That was the evidence upon that topic. Rather scant, limited in its extent. But it prompted [defence counsel] to make submissions to you about ongoing sexual relationship, none of which was ever non-consensual, and he added a qualification, why would she not have taken non-consensual sexual activity to the authorities in light of the AVO proceedings?
Ladies and gentlemen, I might add that having been a barrister for a long time before I took up this job, in any trial when you are addressing the jury there is always the opportunity that sometimes impacts upon an address that might cause us to mis-state or overstate a proposition. I must confess that as a barrister I have done it myself from time to time. [defence counsel] went a little beyond what was the evidence, and it carries the connotation that the complainant might have asserted there was non-consensual sexual activity in addition to that which is charged. If you have taken that as a proposition,
I must say to you please put it from your mind and disregard it. There is absolutely no evidence before you of non-consensual sexual activity other than that with which the accused is presently charged. Please do not embark upon any speculation about what all of that might have been, because there is just simply no evidence upon that point. It was a question that was framed, perhaps a little inappropriately. The answers did not add to the question, and this is important because it goes back to what I said to you before about questions do not provide evidence.

The complainant has not ever, in terms, said that there was a range of non-consensual sexual activity preceding the events with which the accused is charged. There was marital discord, acrimony, whatever way you want to describe it, but it did not extend to conduct of that type. I must urge upon you the need to be vigilant, not to allow that proposition to come before you as part of your deliberations, because it is irrelevant and not part of the Crown case.
I tell you about these things, plus the AVO proceedings, because it is important not to allow the fact of any such proposition to cause you to view either the accused or the complainant to be of poor character. The relevance of this evidence, with regard to the AVO specifically I should say, is in the nature of background material only to explain perhaps some aspect of the acrimony that had evolved between them and continued over time. It should not allow you to view either of them adversely. Ultimately the fact of those proceedings, the AVO proceedings, is of little moment.
Importantly, you must not allow any of this material to which I have taken you in the course of this direction, you must not allow any of this material to cause you to view the accused as a person of bad character. He has not raised character as an issue in this trial at all. The question of character is entirely irrelevant to your determination, whether the Crown has proved his guilty for these offences, or any one of them. So keep the AVO material in its proper context and do not allow it to assume more importance than it has, and put entirely to one side the questions and what was said to you with regard to non-consensual sexual activity beyond the evidence that speaks to the charges in the trial. It is irrelevant, and it will not assist you in your determination of these important questions that you have to decide.

Finally, at the next adjournment, the following exchanges occurred at pages 19-21 of the summing-up:

IN THE ABSENCE OF THE JURY
HIS HONOUR: Mr Crown, do you want to raise anything in respect of what I said about that submission regarding the sexual activity?
CROWN PROSECUTOR: The way I understood your Honour's direction was that effectively the wording of the question originally from [defence counsel] was a two part question that left open the possibility that the answer was denying that he stayed or some such. I am just having a look at p 75 line 37:
"I suggest that during whatever the dates were, but during those, whether it was one occasion or more one occasion, that during those occasions when he came up and stayed with you, you and he continued to have consensual sex."
It's a longish question, but it does seem to emerge on one view that it clearly puts that one proposition. That is the submission I would make to your Honour. It may be that your Honour has already said enough and inviting—
HIS HONOUR: I don't want to labour the point. I was a bit concerned that I might have spent too much time on it anyway, but applied it with some force I think. The implication is that effectively [defence counsel] has made a concession that she has given evidence that there was other non-consensual sexual activity in the past in addition to—
CROWN PROSECUTOR: In the follow-up question after the break that's so. He puts it to her, and it's on p 88 at the top I think:
"Q. Ma'am, about an hour ago, the last answer you gave when I put to you that during that period when he came up in 2013 to [the second town] and you and he had consensual sex and your answer was, 'No, absolutely not', then you added, 'It was never consensual', do you recall that?
A. Yes.
Q. I want to put to you that what you said there was completely untrue, do you understand? The answer is completely untrue."
HIS HONOUR: The question probably went too far as well in the circumstances.
CROWN PROSECUTOR: The way that I had come up with, for what it's worth, inviting your Honour to consider dealing with it is that there was also an unstated premise in the effective argument put within the closing address, which is that there's never been any complaint about that, and because there hasn't been any complaint about that, that would cause you to draw an adverse inference about her reliability. I guess there's another silent premise - you would expect her to comply.
HIS HONOUR: That would be by way of implication. I don't think it was said that there was - I think it was put in these terms, "Why would one not complain when there was"--
CROWN PROSECUTOR: Particularly in the context of the AVO.
HIS HONOUR: --and AVO. That was how it was put.
CROWN PROSECUTOR: There hasn't been any evidence for the jury that there was a lack of complaint, but the fact is that there hasn't been any evidence one way or the other.
HIS HONOUR: There's been nothing.
CROWN PROSECUTOR: Effectively what happened is the shutters came down as a deliberate consequence of argument in the absence of the jury and we didn't go there. There was a body of material that may have become relevant.
HIS HONOUR: It could have. As I said in the context of monetary [sic; momentary?] consideration, which is what you told us about on the voir dire.
CROWN PROSECUTOR: What I have in mind to ask your Honour to consider was saying something to them about the fact that there is also no evidence about a lack of complaint. Even if there had been a lack of complaint there is a standard direction in such a case which would say there might be all sorts of reasons why there is no complaint. But to go back to all of that now, your Honour having dealt with it in the way that you have, and effectively said put it to one side, would probably draw undue further attention to the matter.
HIS HONOUR: I think so, and they might embark upon some analysis that well there might have been complaint. There's no evidence that there was no complaint but we've just not heard about it. I think what I've said to them, Mr Crown, really should cover the field.
CROWN PROSECUTOR: As your Honour please.
HIS HONOUR: Unless you wanted me to put anything in qualification, I would not be minded to. [Defence counsel] did you want me to say anything more or anything different?
[DEFENCE COUNSEL]: No.
HIS HONOUR: I'll just take a minute and then come back on and we'll hopefully get through this by 4 o'clock.

Ground 1

The trial judge’s directions at SU 14-16 occasioned a miscarriage of justice.

Submissions of the appellant

In written submissions, counsel for the appellant invited attention to what had been said by the trial judge after the central exchange, in particular at TT 81.17, extracted above at paragraph 83. This Court was asked to compare what his Honour had said during the course of that discussion with what defence counsel had said in his final address to the jury. The submission was that all defence counsel had done was to make the submission that the trial judge had indicated defence counsel could and should make.
It was also submitted that one of the reasons why the trial judge had not discharged the jury was because there was at least one “forensic advantage” to the appellant in what the complainant had said, and that that forensic advantage was similar to the one that defence counsel had sought to obtain in his final address.
It was said that the direction complained of “completely undermined the submissions made by the appellant’s counsel”, and that the jury was directed to disregard what had been a powerful argument and an important aspect of the submission of defence counsel.
The thesis was put forward that what may have motivated the direction was a concern that the jury not engage in “unfair propensity reasoning” and it was said that, if that ameliorative purpose did indeed exist, what his Honour actually said, far from protecting the position of the appellant, significantly undermined it.
It was said that, in the circumstances of this case, and bearing in mind that the credibility of the complainant was central to the prosecution case, the direction, if erroneous, must be characterised as a miscarriage of justice.
As for rule 4 of the Criminal Appeal Rules, it was accepted that it applied. But it was said that there could have been no “forensic reason” for defence counsel not impugning the direction after it was given; that the direction complained of was to do with a fundamental aspect of the trial; and that the direction unfairly undermined the submission of defence counsel about the credibility of the complainant, and must be characterised as a miscarriage of justice. For all of those reasons, it was said that rule 4 should not stand in the way of success of the ground.
In oral submissions, counsel for the appellant took this Court through the developments in the trial that I have extracted at length above.
He submitted that the crucial answer to the crucial question was indeed non-responsive, and emphasised that the Crown prosecutor at trial had conceded the characterisation.
Counsel submitted that defence counsel at trial had been “bound to put his instructions” to the complainant with regard to the question of other assertedly consensual sexual contact between the complainant and the appellant.
Counsel emphasised the things said by his Honour after the crucial question and answer, and submitted that all defence counsel had done in his final address was to do precisely what the trial judge had said would be available to defence counsel in all the circumstances.
He submitted that the question of sexual contact between the complainant and the appellant on other occasions had not been “simply airbrushed out of the trial”, for the simple reason that it was impossible to do so once it had been raised.
He submitted that, read fairly and as a whole, the direction was a disparagement of what had been said by defence counsel in final address, and that some aspects of the direction were quite unfair.
He maintained the position that perhaps the direction was designed to guard against tendency reasoning on the part of the jury adverse to the appellant, but in the result the direction called upon the jury to disregard an important submission of defence counsel.

Determination of ground 1

Turning to my determination of this ground, I respectfully believe that I can be concise, bearing in mind the extensive chronological extract that I have provided of the course of the trial, and my belief that how and why things developed as they did is clear as a result. My analysis of the extensive extracts that I have provided is as follows.
At an early stage of the trial, defence counsel made the considered tactical decision to cross-examine the complainant to the effect that she and the appellant had consensual sexual contact in the second town; that is, on occasions other than the incident upon which the indictment was founded and after the second separation of August 2013. Presumably, that decision was made because of the tactical advantage afforded by the intimate photo of the complainant. Defence counsel decided to do so even though the statements to police of the complainant, and the reports of the Crown prosecutor of his conferences with the complainant, made the following clear. If asked, the complainant could very well assert that she had been sexually assaulted by the appellant on many occasions other than the incident in the car.
Furthermore, contrary to the submission of counsel for the appellant before us, in my opinion that approach was indeed a tactical decision: it would have been open to defence counsel to avoid the whole question of sexual contact between the appellant and the complainant other than on the date in the indictment, by asking no question about the topic in cross-examination, and by leading no evidence about it in examination-in-chief of his client. In my experience, it is not uncommon for defence counsel in a criminal trial to avoid certain topics that could potentially be helpful to the accused, on the basis that the risks of engaging with them outweigh the benefits.
Defence counsel duly cross-examined the complainant in the way he had foreshadowed. Whatever had been agreed between the two barristers as being desirable, she not unexpectedly answered in a way that was problematic, in that it raised the question of other alleged sexual offences that had not been relied upon by the Crown in support of the counts on the indictment. (In characterising her answer in that way, I accept for the sake of argument only, and in accordance with the concession of the Crown at trial, that her answer was indeed non-responsive to the question that she had been asked; in truth, the proposition is contestable.)
The issue then was: what to do about that problematic answer? After the discharge application was refused (a decision that does not found a ground of appeal in itself), the solution that was eventually lit upon was that the question of other alleged non-consensual sex was to be “shut down”, whereby there would only be the briefest further cross-examination of the complainant about the topic, and the briefest further examination-in-chief and cross-examination of the appellant about it. So much is clear from the reactions of defence counsel when the Crown prosecutor spoke of the possibility of further and extensive cross-examination about the topic opening up the possibility of extensive re-examination about the topic.
As can be seen from the extracts above, that is precisely what occurred: the topic was returned to thereafter in the questioning of the complainant and the appellant in only the briefest and most formal terms.
In my opinion, it was soundly within the interests of the appellant for the topic to be shut down in that way. That was for the simple reason that the Crown prosecutor had warned more than once that, if cross-examination of the complainant about the topic were expansive, that could lead to an application for expansive re-examination about the topic of other non-consensual sexual contact between the appellant and the complainant, quite apart from the allegations in the indictment.
The evidence about the topic having been curtailed by agreement, and the Crown prosecutor having said nothing about the topic in his final address, it was inappropriate, in my opinion, for defence counsel thereafter to address the jury on the basis that the Crown evidence in support of the proposition that there had been other non-consensual sexual contact was sparse or lacking. (In providing that characterisation, I accept that there may have been some sort of crossed wire, especially not having heard in any sense from defence counsel at trial about what was in his mind at the time.)
Furthermore, it was well open to the trial judge to correct the situation that had thereby developed in the summing-up; in fact, no judicial intervention would have been surprising, and would have accrued to the appellant an unearned forensic advantage, whereby the jury would have been left to consider the absence of evidence supporting the other non-consensual sexual contact as a criticism of the Crown case.
The solution adopted by the trial judge, by way of the direction now complained of, included, it is true, a direction adverse to what had been said by defence counsel about the topic in final address. But in the entirety of the context that I have set out, that did not constitute a miscarriage of justice; in my opinion, it was appropriate. And to the extent the direction said more than once that there was no evidence whatsoever before the jury of non-consensual sexual contact other than the evidence in support of the indictment, it was not quite correct, and thereby favoured the appellant.
Furthermore, the central force of the direction, taken as a whole, was that the jurors should put from their minds entirely any question of other non-consensual sexual contact, and simply focus on what had been proven of the events in the motor car. That direction was and always had been, in my opinion, the true solution to the problem that had developed over a number of days.
In short, to the extent that that portion of the final address of defence counsel went behind the shutting down of the issue that had been agreed in, I do not believe that the appellant can now complain about the corrective direction in the summing-up.
As well as that, I do not believe that what the trial judge had to say during the discharge application at TT 81.17 can now be relied upon by the appellant in the way contended for, for the following reasons.
First, the remarks were made in the context of it not being clear that the discharge application would be pressed; in my opinion, they were a contingent discussion of the “pluses and minuses” of such a course.
Secondly, in my opinion it is correct, as the Crown submitted before us, to characterise them as no more than reflections by the trial judge about the potential advantages to the appellant of not discharging the jury, and not as some guarantee that defence counsel would be able to say certain things in his final address.
Thirdly, even if I be wrong in that characterisation, in my opinion they were thoroughly overtaken by events in the form of the shutting down of the evidence about the topic that occurred with the consent of both parties, and in which process both counsel engaged by their examination-in-chief and cross-examination.
Finally, in my opinion rule 4 of the Criminal Appeal Rules 1952 has two important roles to play here. First, it is a formal hurdle that the appellant must now overcome. But secondly, the silence of defence counsel at trial with regard to the direction – both when it was foreshadowed by way of the concern of the trial judge and of the Crown prosecutor, and after it was given – supports the proposition that, in his opinion, it could not be resisted, in light of the whole history of the problem.
In summary, at first blush the proposition of the appellant is attractive that, for some unclear reason, the trial judge in the summing-up had “ruled out” an available argument of defence counsel about the paucity of evidence in the Crown case about other asserted non-consensual sexual contact. Once the whole developing context is understood, however, the reason for the direction becomes clear, and in my opinion it is a valid one.
I would not uphold the ground of appeal against conviction.

Ground 2

His Honour erred by failing to consider whether the indicative sentences could be served concurrently.

Relevant aspects of sentence

Due to the confined nature of the ground of appeal against sentence, and its focus on the sentence structure, I shall not pause to summarise the objective and subjective features of the matter beyond what I have already written.
As can be seen from the diagram annexed to this judgment, an indicative head sentence of eight months was provided for the common assault, an indicative head sentence of two years for the indecent assault, and an indicative head sentence of five years six months (with an indicated non-parole period of three years) was provided for the digital/vaginal sexual intercourse without consent (as for the latter, although the diagram may suggest that it was a conventional sentence actually imposed, there is no doubt that it was indeed an indicative sentence). As I have said, an aggregate head sentence of imprisonment for seven years was imposed, along with an aggregate non-parole period of three years six months.

Submissions of the appellant

The main point made by counsel for the appellant in written submissions was that the aggregate sentence imposed failed to reflect appropriately the overall criminality reflected by the convictions.
Counsel for the appellant noted that the indicative sentences for counts 1 and 2 had increased the aggregate non-parole period by 6 months, and the aggregate head sentence by 18 months.
Counsel for the appellant relied on Jeffree v R [2017] NSWCCA 72 for the orthodox proposition that an aggregate sentence must reflect the total criminality of the offending captured by the underlying indicative sentences, and that implicit partial accumulation may sometimes be necessary to achieve that.

It was then submitted that the offending underpinning counts 1 and 2 was much less serious than that underpinning count 4, and that the former counts were closely connected in a number of ways to the conduct in the latter count. Therefore, it was said, the sentence imposed for count 4 could have reflected the overall criminality of the appellant’s offending; in other words, there could have been complete implicit concurrency between all counts, duly reflected in a shorter aggregate head sentence.
Particular focus was placed upon the length of the aggregate head sentence, rather than that of the aggregate non-parole period.
Finally, counsel for the appellant submitted that the sentencing judge did not provide any reasons for the fact that the aggregate head sentence is longer than the indicative head sentence for the most serious count, and that his Honour failed to consider properly the question of concurrency and accumulation. In short, it was said that there was no proper exercise of sentencing discretion with regard to the questions of implicit cumulation in the context of an aggregate sentence.
In oral submissions, it was simply emphasised that “the issue is really one of a lack of transparency”.

Determination of ground 2

Turning to my determination of this ground, it is certainly true that there is a degree of implicit cumulation underpinning the aggregate sentence, in that the aggregate head sentence extends beyond the longest indicative head sentence by a period of 18 months. But that cannot be impugned: although all matters arose from the one incident, sucking the breast of the complainant without her consent carried with it a measure of humiliation and invasion of sexual autonomy additional to the digital/vaginal penetration. In similar vein, the act of forcefully pulling the complainant back so that she fell and hit her head with sufficient force to break her hairclip encompassed a degree of further criminality beyond the penetrative offence.
In my opinion, the degree of implicit cumulation underpinning the aggregate sentence imposed here was well open to the wide discretion of his Honour.
Separately, there is nothing to suggest that his Honour failed to consider the question of concurrence; in fact, strictly speaking, if there had been no implicit partial concurrence between the three indicative head sentences, the aggregate head sentence would have been 8 years 2 months (that is, 5 years 6 months, plus 2 years, plus 8 months), not 7 years. That of itself shows that questions of implicit partial concurrence and partial accumulation were indeed the subject of consideration by his Honour.
I would not uphold the proposed ground of appeal against sentence.

Conclusion

In my opinion, neither the ground of appeal against conviction nor the ground of appeal against sentence should be upheld.

Proposed orders

I propose the following orders:

(1) Leave to appeal against conviction granted.

(2) Appeal against conviction dismissed.

(3) Leave to appeal against sentence granted.

(4) Appeal against sentence dismissed.

Romano v R sentence diagram (9.84 KB, pdf)

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Decision last updated: 18 March 2019

Medium Neutral Citation:	Giovanni Romano v R (a pseudonym) [2019] NSWCCA 49
Hearing dates:	31 August 2018
Decision date:	18 March 2019
Before:	Simpson AJA at [1] Walton J at [34] Button J at [38]
Decision:	(1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – trial for sexual assaults of adult complainant – whether complainant answered question in cross-examination about other sexual contact with applicant non-responsively – whether defence counsel subsequently addressed jury inappropriately – whether trial judge misdirected jury about final address of defence counsel – appeal against conviction dismissed CRIMINAL LAW – appeal against sentence – aggregate sentence – whether trial judge adopted inappropriate implicit cumulation between indicative sentences – whether trial judge failed to consider question of implicit concurrence adequately – appeal against sentence dismissed
Legislation Cited:	Criminal Appeal Rules, r 4 Criminal Procedure Act 1986 (NSW), ss 141(1)(b), 143 and 293 Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases Cited:	Browne v Dunn (1894) The Reports 67 Jeffree v R [2017] NSWCCA 72
Category:	Principal judgment
Parties:	Giovanni Romano (a pseudonym) (Appellant) Regina (Respondent)
Representation:	Counsel: D Barrow (Appellant) T Smith (Respondent) Solicitors: Lawyers Corp Pty Ltd (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/166134
Publication restriction:	Pseudonym adopted for the appellant
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 24 March 2017 Before: Bennett SC DCJ File Number(s): 2014/166134