Glenn (a pseudonym) v R - [2020] NSWCCA 308

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Glenn (a pseudonym) v R [2020] NSWCCA 308
Hearing dates: 2 September 2020
Date of orders: 25 November 2020
Decision date: 25 November 2020
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [7]
Decision:
(1) To the extent necessary, leave is granted.
(2) The appeal is allowed.
(3) A new trial is ordered.
(4) The matter is listed for arraignment in the District Court in Parramatta on 4 December 2020 at 9:30am.

Catchwords:
CRIMINAL LAW – appeal against conviction – aggravated break and enter of a dwelling house and commit serious indictable offence – sexual intercourse without consent – pre-trial ruling – additional context evidence – reasons for lack of complainant – cross-examination of applicant – prosecutorial conduct – post-offence conduct – consciousness of guilt direction

Legislation Cited:
Crimes Act 1900 (NSW), s 61I, s 112(2)
Criminal Appeal Act, s 6(3)
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986, s 130A
Evidence Act 1995 (NSW), s 41, s 137

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27
Causevic v R [2008] NSWCCA 238
Curran v R [2020] NSWCCA 171
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321
House v The King ((1936) 55 CLR 499; [1936] HCA 40
Hughes v R (2015) NSWLR 474; [2015] NSWCCA 330
KNP v R [2006] NSWCCA 213
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
Patterson v R (Cth) [2001] NSWCCA 316
Pell v The Queen [2020] HCA 12
R v Fordham (1997) 98 A Crim R 359
R v Liristis [2004] NSWCCA 287
R v Obeid (No. 4) [2015] NSWSC 1442
R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1
Roos v R [2019] NSWCCA 67
Roulston [1976] 2 NZLR 644
Vickers v R [2006] NSWCCA 60
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Texts Cited:
Judicial Commission of NSW, Equality Before the Law

Category: Principal judgment
Parties: Glen Barry (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr D Carroll with P Swaine (Applicant)
Mr G Newton (Respondent)
Solicitors:
AA Criminal Lawyer (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/00127224
Publication restriction: Pseudonym adopted.
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

17 August 2017

Before:

Culver DCJ

File Number(s):

2015/00127224

Judgment

HOEBEN CJ at CL: I agree with the judgment of N Adams J and the orders which her Honour proposes. In particular I note that in relation to Ground 3, I have listened to the audio of the cross-examination of the applicant and I agree completely with the conclusions of N Adams J in regard to the conduct of the Crown Prosecutor.
BUTTON J: I agree with N Adams J, subject to the following. With regard to ground 2 the evidence adduced from the complainant in her "evidence- in -chief" about why she did not complain about the previous five incidents was not the subject of objection. I would apply rule 4 to that ground.
As part of my agreement with her Honour, I simply wish to emphasise the following matters.
The logistical burden of other listed matters placed upon the trial judge rendered a coherent trial by jury difficult, if not impossible.
The 1998 offences and the five other incidents had been held to be admissible. They were relevant to the state of mind of the complainant and of the applicant on the date in the indictment, and it had been found that that s 137 of the Evidence Act 1995 (NSW) was not engaged. However, unless presented in a very circumscribed and controlled manner, they had an obvious potential to "swamp” the trial. In the event, they did so.
Finally, I completely reject the proposition that a Minister of Justice (or indeed defence counsel) can use a term such as "not give a rat’s arse” in a criminal trial, unless quoting directly from evidence. Such language as part of an address to a jury or question of a witness has an obvious tendency to detract from the solemnity and gravity of the proceedings, and to lead the jury not to respect their own role within them. If used to describe the evidence of an opposing witness, it also has an obvious tendency to belittle. Its use in this trial is a very good example of all that has gone wrong here.
N ADAMS J: On 21 August 2017, the applicant was found guilty by a jury of two offences arising out of the sexual assault of his former partner. The Crown case was that he unlawfully entered the complainant’s home at 5am on 2 April 2015 whereupon he attempted to sexually assault her and then ultimately did so. The two counts upon which he was convicted were:

Aggravated break and enter of a dwelling house and commit serious indictable offence (attempted sexual intercourse), contrary to s 112(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years and a standard non-parole period (“SNPP”) of 5 years.

Sexual intercourse without consent, contrary to s 61I of the Crimes Act. This offence carries a maximum penalty of 14 years and a SNPP of 7 years.

The applicant was sentenced by Judge Culver to an aggregate sentence of 11 years imprisonment to date from 29 April 2015. A non-parole period of 7 years imprisonment was imposed and will expire on 28 April 2022. As at the hearing of this appeal he had served over five years of that seven-year non-parole period. There is no application for leave to appeal against the severity of the sentence imposed.
The applicant appeals against his conviction on the following four grounds:

Ground 1: Her Honour erred in admitting additional context evidence of historical acts of maltreatment by the applicant which was contrary to a pre-trial ruling of Her Honour Norton SC DCJ and without regard to s 130A of the Criminal Procedure Act 1986 (NSW);

Ground 2: Her Honour erred in admitting as context evidence the reasons why the complainant did not complain about the matters contained within the context evidence;

Ground 3: There was a miscarriage of justice occasioned by the cross-examination of the applicant and the Crown Prosecutor's closing address; and

Ground 4: Her Honour erred in dealing with the post-offence conduct of the applicant by failing to give a consciousness of guilt direction in relation to the applicant's "pre-emptory" telephoning the police after the incident.

The issues at trial

The evidence was that the complainant and the applicant had been in a relationship that had ended in 2013, although the complainant’s initial evidence was that it had ended in 2008. In the weeks leading up to the offences, the complainant had posted photos of a new relationship on Facebook. The applicant had contacted her and told her to pull them down. At that stage, he lived in Wellington and she lived in Whalan, a four-hour drive away. After a series of texts, he arrived at her home at 5am intoxicated and attempted to sexually assault her and then later did so.
It was common ground that the complainant did not offer physical resistance or protest to the sexual activity. On the contrary, with respect to the second count, her evidence was that she feigned enjoyment so that the act would end more quickly. After the assaults, she left to go shopping and called police on a recorded triple-0 call. The complainant’s position was that she did not consent to the sexual activity and only submitted to the applicant because she was in fear of serious violence. That fear was based on the fact that 17 years earlier the applicant had kidnapped her at gunpoint, involved her in a police chase, and crashed his car causing her injury. I propose to refer to this as “the 1998 incident”.
The defence case at trial, was that the complainant had invited him over to collect some tools in her shed, that the sexual intercourse was consensual and that he had been “set up” by the complainant.

Pre-trial application before Norton SC DCJ

The trial was first listed to commence before Judge Norton SC on 4 November 2018.
Before the trial commenced, the Crown made application to adduce evidence of the 1998 incident at the trial to explain why the complainant did not resist the applicant on 2 April 2015. The 1998 incident had occurred after the applicant and the complainant had been in a relationship for about 9 months. He became jealous of her and believed that she was having affairs with other men. She became concerned after an argument and telephoned police. When the police arrived, the applicant left. Later that day, he followed the complainant and her friend to her house. After a confrontation he dragged the complainant into his car at gunpoint and drove away. His vehicle eventually collided with a police vehicle which resulted in a car chase which only ended when the applicant’s car crashed causing the complainant to receive fractured vertebrae.
The applicant pleaded guilty to the offences and in 1999 was sentenced to a term of imprisonment of 5 years with a minimum term of 2 years and 6 months. The complainant visited the applicant in custody “numerous” times and the relationship resumed upon his release from custody on 11 January 2001. The complainant’s evidence was that the relationship lasted until 2008 and was "on and off again". From 2013, she had irregular contact with the applicant. There was a factual dispute at the trial about when the relationship ended.
I pause here to note that what was known to counsel and the trial Judge, but was not in evidence, was that the applicant had spent a significant time in custody from his release in 2001 until his arrest for the present offences in April 2015. The Corrective Services print-out, which formed part of the Appeal Book, reveals that he was in custody from 5 December 2005 until 3 June 2007 and again from 7 February 2009 until 6 February 2013. Throughout the trial, the date “2008” was raised as a time the applicant was not living with the complainant. That is in fact a reference to early 2009.
At the pre-trial application before Judge Norton the Crown tendered two statements from the complainant dated 4 April 2015 and 16 July 1998 as well as the transcript of the triple-0 call of 2 April 2015. The significance of the triple-0 phone call was that the complainant explained her conduct on 2 April 2015 by reference to the 1998 incident. A relevant extract of this is as follows:

"THE COMPLAINANT: Someone's following me, someone's following me and he has got a background with me, he has nearly killed me before, he's threatened me with a gun in his hand and he is back here, and I'm at McDonalds at Mt Druitt, I need to talk to a policeman really urgently please.

POLICE OPERATOR: ...whose the person following you?

THE COMPLAINANT: [The applicant]...I need to speak to a policeman...

...

POLICE OPERATOR: What’s your relationship with him?

THE COMPLAINANT: Ah my he is my ex. But I told you he has kidnapped me before and wrapped me around a tree and it’s all on record and I woke up this morning and he was in my bedroom and I just tried to get out of the house, tell him I was going shopping and…

...

POLICE OPERATOR: Has he got any weapons on him?

THE COMPLAINANT: I don’t know, last time he had a gun, I don’t know.

...

POLICE OPERATOR: ....He is not in the car park?

THE COMPLAINANT: No he is not in McDonalds car park but he is up behind the Aldi’s car park, like I said, I just thought he was going to kill me. I just made excuses up to get out of the house. I just tried to be nice and whatever. I sucked him in and said I was going to Aldi's to get a few things and when I pulled into Aldi's car park I know was behind me, I know he was behind me, so I just walked across to the McDonalds, maybe he's thinking I'm just getting some breakfast or something, but I need the police, I need the police badly, because I know what he is capable of. I know the last time he nearly did something to me he was on drugs but I know he has been drinking. As I said I woke up this morning and my bedroom light switched on and he's standing above my bed. We have been separated for years and years and he won't let up, he just won't leave me alone. He rang me last one time [sic] and said he was going to put a knife through my head.”

(Emphasis added.)

Police also obtained an additional statement from the complainant to clarify what she meant at [14] of her original statement when she said, “[o]ver the next couple of years [from 2001] [the applicant] would continue to be verbally and physically abusive towards me.” She provided details of this alleged violence in a statement dated 14 November 2016. I shall refer to this evidence as “the interim events".
The Crown submitted to Judge Norton that the 1998 incident was relevant on two bases. Firstly, it was relevant to the element of consent: R v Fordham (1997) 98 A Crim R 359; that is, the complainant only submitted to the applicant because she was in fear for her life. It was submitted that the text of the triple-0 call in 2015 demonstrated that the 1998 incident “was very much at the forefront of her mind and very much informed her decision-making on the occasion.”
The second basis upon which it was submitted that the 1998 incident was relevant was as to the applicant’s state of mind in 2015. It was submitted that it was necessary for the jury to place the alleged sexual assault in the context of the previous kidnapping and violence. The Crown submitted that any potential prejudice in the form of the jury engaging in tendency reasoning could be mitigated by directions.
The application was opposed. On behalf of the applicant it was submitted that the evidence should be rejected under s 137 Evidence Act 1995 (NSW). This was because the probative value of the evidence had been lessened by the passage of time, especially as the relationship between the applicant and the complainant had resumed after the 1998 incident. It was also submitted that there was significant prejudice occasioned by the use of a firearm in the 1998 incident when there were no weapons used in 2015. As to the interim acts contained in the 14 November 2016 statement, the following submission was made by the defence counsel:

“I appreciate that the Crown’s entitled to lead evidence that is relevant. I concede that but my concern is on the basis that an assertion - other assertions that there has been violence which obviously, there’s no independent evidence of. We’re not going to hear any evidence from any other civilian witness in support of there being other violence during the course of the relationship as they observed.

My concern is that the need to put some context to her behaviour on 2 April does not necessarily entitle the Crown to lead any suggestion of any past violence whatsoever. You haven’t seen it yet but she, today, made a supplementary statement just touching on other incidents she can remember. There aren’t many but they include things like ‘he once threw a can at my head, he once punched me in the leg and he once spat in my face’.

Now, for instance, I’m not saying the Crown’s necessarily trying to lead that but that’s just by way of example, I don’t think the jury would better understand her behaviour on 2 April 2015 on the basis that he once threw a can at her head but also--“

When her Honour then enquired whether the Crown would seek to lead this additional material, the (then) Crown Prosecutor responded as follows:

“….I will not seek to lead that evidence in chief because it's not as germane to the context on 2 April as the 1998 incident is.

I will say this though, I can see that that evidence may be relevant in re-examination, depending on the nature of the cross-examination. But certainly in chief, I would not seek to lead details of other isolated and, in the scheme of things, relatively less serious accounts of violence.

What I would seek to lead is, in paragraph 12 she describes why after the 1998 incident, she got back with him and I say that that is relevant to why she did resume a relationship after 1998 and I would submit that it is also relevant on a context basis as well, he has, in fact, made threats against her life and the life of her family but other than that, the Crown would simply seek to lead that, following the July 1998 incident, after they resumed a relationship but continued in an on and off sense until the end of 2008, and whether or not incidents within that broad timeframe of other physical or verbal violence become relevant will depend upon the cross-examination, I suspect.”

(Emphasis added.)

In a judgment dated 15 November 2016, Judge Norton ruled that the evidence of the 1998 incident was highly relevant as to the complainant’s state of mind and why she did not resist the applicant. As for the relevance of the same evidence to explain the applicant’s state of mind she observed:

“It was further submitted that it is relevant to the state of mind of the accused as he would have no doubt recalled the events and it is necessary for the jury to have that evidence to place the events of 2015 in the context of the relationship.”

Her Honour addressed the question of admissibility in this way:

“As outlined in Fordham, there are three questions to be asked when considering admissibility: (1) is the evidence relevant? Mr Johnson has conceded that the evidence is potentially relevant. (2) What is the purpose for which the evidence is being led? Firstly, it is being led to show the nature of the relationship between the two parties and, secondly, to establish possible intimidation of the complainant and explain why she submitted to the acts. It is therefore relevant to her state of mind. The third purpose is it is said to be direct evidence of the accused’s state of mind. I note the Crown indicated they will not be relying on the evidence as tendency evidence. (3) The question therefore becomes whether it would be unfairly prejudicial to the accused to admit this evidence, and this involves weighing the probative value against the danger of unfair prejudice to the defendant.”

(The reference by her Honour to “Mr Johnson” should have been a reference to Mr Williams who appeared for the applicant at that time).

Her Honour was satisfied that the evidence was “highly probative”, despite having occurred 17 years earlier and the fact that the applicant pleaded guilty to them, and, thus, the events are accepted. After noting that the relevant question is the danger that the jury may use the evidence to make the decision on an improper basis logically not connected with the issues in the case, her Honour went on to state the following:

“I accept that references to a gun may invoke an emotional response in jurors. It is necessary, however, to consider the evidence in the light of other evidence which is to be led. That other evidence includes the continuation of the relationship after the events of 1998.”

After this judgment, the applicant withdrew his instructions from his lawyers and the matter had to be adjourned.
A new trial was listed to commence on 31 July 2017 before Judge Culver. It was not reached until Thursday 3 August 2017 due to a delay in her Honour’s then trial in which the same Crown Prosecutor was briefed. The applicant was still represented by Mr Williams, but different counsel had been briefed for the Crown.

Trial before Culver DCJ

The trial before Judge Culver began late on Thursday 3 August. As is the usual practice, it commenced as soon as the jury in the previous trial conducted by her Honour had retired to deliver its verdict. After a brief discussion with counsel about timing and the pre-trial ruling concerning the 1998 incident, her Honour interposed another matter. When the trial resumed, the jury was empanelled and her Honour commenced her opening remarks to the jury before adjourning the trial for the day.

Her Honour continued her opening remarks the following day, 4 August 2017, and then the Crown Prosecutor opened to the jury. In doing so, he averted to the 1998 incident and stated the following in relation to it:

“...She will give evidence that not only touches on events of 2 April - and you'll see that's the essential date - but going back quite some years, she knew [the applicant] since they were approximately 13 or 14 years of age. So there's a fair bit of history there. Part of that history, ladies and gentlemen, will centre on 1998 and events in that year and events going up until around about 2008 because, from 1997 to 2008, so around about 11 years, [the complainant] will say there was an on-and-off relationship/partnership with [the applicant]. Ordinarily, not relevant. There will be specific reference made to events on 8 July 1998.

Those events, in rough essence, was [the applicant] being armed with a pistol, detaining [the complainant] firstly at her house and then taking her in a motor vehicle, being pursued by the police, a motor vehicle crash then occurring, holding [the complainant] in the vehicle using the gun to prevent the police from coming and arresting him. He was charged with a number of serious offences, including detain for advantage, kidnapping, use weapon to avoid apprehension, that's using the gun on [the complainant]. Other matters were taken into account, possessing an unauthorised pistol and an assault occasioning actual bodily harm on [the complainant]. [The complainant] received significant injuries in that motor vehicle crash that hospitalised her for a number of weeks.

That evidence is not led - and I'll make it so plain now - to suggest, ‘Well, [the applicant] is a bad man. He's done bad things. Therefore, he has done what's in that indictment’. That is not the purpose of that evidence. That would be highly improper and is not the purpose for which the Crown is leading that evidence.

That evidence - and particularly 8 July 1998 - is led on this basis: it goes to the state of mind of [the complainant] on 2 April 2015 when she is confronted by [the applicant] in her house. It goes to what was going through her head and why she didn't do certain things that you might expect someone would do, being confronted by a person uninvited in your house at 5am in the morning.

The issue is, quite simply: she tried to placate [the applicant], even though she didn't want him there, and she will say that she certainly didn't want the attempted sexual intercourse nor the eventual sexual intercourse. She was not consenting, yet she will tell you of things that she did that might give the opposite impression. Why would she do that? She says because foremost in her mind was this matter going back to 98 and what happened to her on that occasion, and subsequent episodes which she will give evidence of, of bad physical behaviour by [the complainant] (as said) against her, which, in essence, made her very scared of him in certain situations where she perceived that he had lost control.

It's very important for that defined and limited basis. It's not just to throw mud at this accused person. That is not the purpose of this evidence at all. I just want to say that again, reinforce. So there will be that evidence, but as I said it is of very, very limited and defined purpose because the Crown will say not only was [the complainant] scared; the Crown will play you a triple-0 call that she got to make at McDonald's when she got out of her house on somebody else's phone, where she is asking - begging - for the police to attend McDonald's to pick her up because she thinks at that stage that [the complainant] is still in the vicinity of Mount Druitt and she wants the police to come and, in essence, rescue her. She's put herself at the counter of McDonald's, where there's lot of people around, so that she's in a very, very public situation and you will hear, ladies and gentlemen, what the Crown says is the palatable fear in her words.

Foremost in her mind - and you will hear her speaking to the triple-0 operator ‑ is the events of 1998, being threatened with a gun, being kidnapped. Listen to her then and, ladies and gentlemen, the Crown would say, relate what you hear in the triple-0 call back to how she must have felt in the house. Ladies and gentlemen, I'll give a concise run down of the history that I envisage that she'll give. [The complainant] met the accused when they were respectively around 13 or 14. They both lived in the same area. They had a teenage boyfriend and girlfriend relationship for about a year. They didn't see each other then for quite some years until 1997. She met up with [the applicant] again. They formed a relationship.

As I said, that relationship was interrupted with the events of 8 July 1998. I've already told you about them. I won't repeat it. The result of those events is that, obviously - well, not obviously, but I can tell you - [the applicant] was arrested. He participated in what's called a record of interview. He told his side of the story and, in essence, admitted the core matters that had happened on that day. He pleaded guilty in the District Court at Penrith on 29 March 1999 and he received a non-parole, that's an in-gaol, period of two and a half years. So he was absent from society until about 8 January 2001.

You will hear evidence, and it's not in dispute, on a number of occasions whilst he was in prison [the complainant] went to visit him and she will provide you with an explanation for that. You will hear upon his release there was again and on‑again, off-again relationship between the two. You will hear that on occasion, which is not saying 24/7, sporadically, there was episodes of him being physically and verbally aggressive to her.

She will say the relationship proper ended in 2008 and there was very, very little sporadic contact between the two of them after that date. There was contact, there were meetings, but not very many, and she will say certainly by 2014 he had moved away and she had considered that there was no relationship between them and, indeed, she commenced a relationship with another man.”

After the Crown opening address, the jury was sent out of court for morning tea. After morning tea, the trial stood in the list so that her Honour could deal with her previous trial. The complainant commenced her evidence just after midday.

The complainant’s evidence

The complainant’s evidence was that she met the applicant in 1980 and they dated for around a year. The relationship ended when the complainant met another person, whom she eventually married in 1990. The complainant’s marriage ended in 1997 and the complainant became involved with the applicant later that same year. The complainant gave evidence of her relationship with the applicant up until the 1998 incident. She was then asked to describe the 1998 incident. When she got to the stage about him coming to her house and pulling out a pistol, she stated:

“WITNESS: Just a little pistol. Yeah. And yeah things just - he - he had - I don't really know where to start because I - he had a drug problem. Everywhere he, everywhere he looked in the house, even got to a stage where I think they said he was drugged something - like he—“

Defence counsel then asked to raise a matter in the absence of the jury. Complaint was made about the complainant’s references to the applicant’s drug problem. There had been no reference to that in any of her police statements so a short voir dire was conducted with the complainant. The complainant gave evidence on the voir dire that the applicant did not have a problem with drugs after he was released from custody in 2001. It was impressed upon her the need to make no mention of the fact that the applicant had been in gaol or took drugs.
Defence counsel pressed his application to discharge the jury which was refused.
The jury were then returned to court and her Honour directed the jury that the trial was not about illegal drug use and it could not be used by them to inform whether the Crown had proved the elements on the indictment. The complainant’s evidence then continued. She was asked to describe the 1998 incident in some detail, which she did. The transcript records that she became tearful whilst recounting the details of the ordeal. The Crown Prosecutor adduced from her that the applicant had pleaded guilty to the offences and been imprisoned.
The complainant gave evidence that she had visited the applicant in prison on “numerous times”. Her explanation for this was as follows:

"Q. Why did you see him?

A. Because I just - he just - I just did what I - I was scared. He was always - I was with him and that was the way he is and if I was to leave him, that he would cause harm to myself and my family and I just - it was just somewhere I just - I had to, I had to be with him, I had no way out. I was scared, I've just been through hell with him and he told me I'd never leave him.

Q. When did he say the words, ‘You will never leave me.’

A. From the day I first visited him after the accident he just told me that, ‘I knew you'd come and see me’ and, yeah, if he - if I ever left him, he'd hurt me in a way that - through my family to hurt - get to me, yeah, and that was pretty much from the beginning of the, yeah, visiting and stuff, yep.”

The Crown Prosecutor then returned to the 1998 incident and the following exchange took place:

“Q. On the actual day, I think you've told us but by the time you were in the car, how did you feel?

A. From 98 you're talking about? Yes?

Q. Yes, I am.

A. Yes. Scared, scared for my life. I thought this was - I, I thought this was the end, I thought I'd never see my parents, my - that was - I was finished.

Q. How did you feel when you saw him whilst he was in custody?

A. Still - still - he, he just - he used to scare me. Like, it was just the way it was. He had me up where he wanted me and that's - there was no way I was - I got out of something so close in all the years of my life and I just - I don't know, he - I was just under his - I don't know, I was just too - whatever he said, whatever he wanted, he got, it's as simple as that.

Q. Whether you wanted to do it or not?

A. Yep. When you're in fear for your life, you do what you have to do.

Q. Upon his release in, I think it was 8 January 2001, did he come and live with you again?

A. Yes.

Q. Now, you would say, would you not, that as far as you were aware, there were no further problems with him and drugs, is that a fair statement?

A. Yes.

Q. What about his alcohol use?

A. He liked, he liked his drink.

Q. Were there problems with his alcohol use following his release in 2001?

A. I wasn't - probably, he just - like, he'd, he'd have a drink every day, it wasn't - yeah.”

The Crown Prosecutor then asked the complainant whether she remembered any "unpleasant events" after the applicant's release from gaol in 2001. Mr Williams objected to the "generality of the question". The trial was then adjourned for the weekend to resume on Monday 7 August 2017. The Crown Prosecutor indicated that he would "talk to my friend, we can work this out”. Before the jury left court her Honour gave them a direction about the 1998 incident and the limited use it was admitted for.

The context evidence

On Monday, 7 August 2017, the Crown made application to lead the evidence of the interim acts of violence said to have been committed between 2001 and 2008 when the applicant and the complainant were in a relationship as context evidence. Mr Williams objected to the evidence on the basis that the previous Crown Prosecutor had indicated that he would not lead the evidence. The jury were given an extended morning tea break whilst this argument took place. The matter was again interposed after the lunch adjournment. During the argument the following exchange took place:

“HER HONOUR: Will you be cross-examining in a way which will draw out the significance of those details?

WILLIAMS: I could say that I won't be cross-examining much about the kidnapping for obvious reasons. I will be putting to her that the relationship was ongoing between 2001 and 2013 with gaps. as it were, but not spelling out what they were, and that there were arguments but just normal, everyday argument, nothing specific.

HER HONOUR: Insofar as para 14 of MFI 2, the first statement of the complainant, refers to there being physical abuse towards her, and assault, and that your client continued to tell her that he would kill her and her family, would you be challenging her?

WILLIAMS: Yes. If she were to say that, yes.

HER HONOUR: Does that not then draw out the likelihood that, in accordance with the previous Crown's indication, re-examination would refer to the detail of those incidents, in which case would you rather that detail come out in chief?

WILLIAMS: I certainly would, if that were to be the case. If the Crown were - I object to the Crown leading that evidence whatsoever, anything about verbal and as in para 14.

HER HONOUR: I see. So there was no ruling by her Honour or arrangement between the parties regarding the para 14 and MFI 2. Is that right?

CROWN PROSECUTOR: It was raised, as my friend said, and then it took a subsidiary position because the principal argument was whether the events of 1998 would be admissible, and that's what her Honour focused her judgment on. So it sort of fell by the way.

HER HONOUR: If it's going to be a principal issue in this trial, that the complainant offered no physical resistance at the time of the alleged offences on the indictment, then in order for the jury to understand her evidence doesn't there arise a significant probative value in these interim events? l understand you dispute that they occurred. But they appear to bear a significant probative value. Because if the jury, for example, were to only hear evidence that the 1998 incident occurred, your client went to gaol for that, upon release - or after release at some stage - the relationship continued on and off, and then suddenly in 2000 and - is it 15--

WILLIAMS: 15, yes.

HER HONOUR: --the alleged offences occurred. Isn't there an artificiality that would arise?

WILLIAMS: That might be the case if these other instances of aggressive behaviour, if I could put it like that, were something that were continual, but she's asked to nominate four times that she could remember when something happened. One of them is calling her a name; another one was spitting - which I concede is, at the very least, aggressive - and these two other isolates instances in a span between 2001 and 2013. She's not able to say when they occurred. All she does is just nominate them.

If she were to say ‘It was an ongoing thing where he was forever assaulting me,’ or things like that, it might be different, but she is just asked by the police on that day ‘Can you nominate any domestic violence-type offences,’ and that's the answer. She doesn't say there that they are weighed on her mind in 2015. She makes no mention of that. In fact, when she makes the 2000 - the triple 0 call, which the jury will hear, she refers to the kidnapping in 1998.

HER HONOUR: But isn't para 14 of MFl2 salient insofar as the capacity of that evidence is it could provide a context to the complainant not offering physical resistance at the time of the alleged offences. But then if you challenge her generalisation under para 14, doesn't it then fall naturally that the Crown ought be committed to extract from her what she is saying occurred, to flesh out of that generalisation? Now, it may be that those incidents referred to in MFI 3 are good for the defence, because it may be your submission to the jury would be ‘Well, is that really enough to sustain a level of fear?’

WILLIAMS: Yes.

HER HONOUR: I don't know, and that could be a forensic decision.

WILLIAMS: No. I understand what your Honour is saying, yes.

HER HONOUR: Can I just check with you, though, one of the points you made was you're not clear as to whether or not the complainant's evidence would be the that incidents referred to in MFI 3 - the smaller incidents, if I could call them that; those isolated incidents - you're not sure if she would give evidence that they were isolated and the only incidents, or whether there was a continuing abuse of which they are merely examples. Is that your concern in part?

WILLIAMS: In part. I have discussed this with my friend, and we spoke about it on Friday. Before I looked at it more over the weekend we came to a, as I understand it, an agreement that my friend would lead from her those four instances.

HER HONOUR: But you could be caught by surprise if she says there was a lot more. Do either of you want a very limited voir dire to just check the extent of her position in that regard so that the defence is not caught by surprise and I can finally rule on the admissibility?

CROWN PROSECUTOR: I think that would be an excellent idea.

HER HONOUR: Mr Williams, you would like that course?

WILLIAMS: I'm happy with the course that if it were to go in that the Crown just lead these instances that she nominated."

A voir dire was then conducted in relation to the proposed context evidence. After further argument her Honour ruled that the Crown was permitted to adduce five discrete incidents of violence that occurred in the relationship between 2002 and 2007 as context evidence. Her Honour was satisfied that the events had probative value because the defence had properly advised the court that it was intended to challenge her evidence as to why, after receiving a threatening phone call from the accused on the night of the offences, she nonetheless went to bed without calling the police. Her Honour was satisfied that the interim events had the capacity to put in context the complainant’s evidence in this regard and further they explained her state of mind. Her Honour went on to state the following:

“It is a matter for the jury, but it has got the capacity to explain a state of mind, in so far as we are all aware that she is likely to say she offered no resistance to the alleged offences as outlined on the indictment, and that will be a material issue for the jury’s resolution.”

Her Honour later observed that:

“...I must bear in mind that prior to my involvement in the proceedings, a judge has given a ruling…..of which I am so far bound to allow the Crown to adduce evidence of the very serious matters in 1998, the same sort of warnings to apply. I am of the view that these interim matters not bear any additional impact of the accused and suppose prejudice might arise.

In terms of any prejudice to the defence in being caught by surprise, I am told that there was no forensic decision which was acted upon on the earlier presentation by the Crown, that those matters would not be relied upon. I am of the view that the cure is available to allow the defence time to get complete instructions, which I will certainly allow, and if I’m told any further enquiries need to be made for the accused, either with the Crown with anyone else, that I can afford that time.”

The complainant on resumption continued her evidence. She agreed that for the first 12 months after the applicant’s release from custody in 2001 “things” were “all right” but that things went downhill from 2002. She then gave the context evidence the subject of her Honour’s ruling.
The first incident was when she was sitting on the lounge and the applicant walked past her, spat in her face and said something “in the line of” "[y]ou putrid dog”. She stated that when the applicant was in a cranky mood "everything was her fault" and he used to always take his temper out on her.
The second incident was in 2003. The applicant had been drinking and became angry. It was late in the afternoon, early evening and the complainant took her seven year old son outside. The applicant locked them outside for an hour or two until he was ready to let them back in.
The third incident occurred when the complainant was standing in the lounge room and the applicant turned around and "out of the blue" punched her in the thigh. She gave evidence that it was so hard, her legs nearly went from under her.

The fourth incident occurred when the applicant became angry about something and threw a full can of Black Douglas scotch across the other side of the lounge room, where the complainant was standing. He threw it so hard that it went past her head and smashed the mirror behind her.
The complainant agreed that those were the four incidents she had told police about in her statement but indicated that she had recalled a fifth incident that day. She gave evidence that once when she was having a shower, the applicant came into the shower, pulled the shower curtain across and punched her a couple of times. She recalled she slipped when he hit her. He also verbally abused her.
After she gave evidence of these five instances, the Crown Prosecutor asked her the following questions:

"Q. Just yes or no, you're not saying these are the only instances of violence and abuse?

A. No.

Q. But they're the ones that come clearly to your mind?

A. Yes

Q. Did you tell the police about any of these events?

A. No.

Q. Why didn't you tell the police?

A. I never, ever got the police involved because it will just - no. Made the situation a whole lot worse.

Q. Why do you say that?

A. Because [the applicant] has no respect for the law and I don't know - but always used to say, ‘What's the police going to do to me?’

Q. Did you tell any member of your family about this?

A. No.

Q. Why didn't you?

A. Because he always told me to not to get the family involved. It was one way he was going to get - anything was ever to go wrong, he would hurt me by hurting my family first. So, I just never - I never got my family involved. I was too scared to, of consequences.”

(Emphasis added.)

The complainant went on to agree that the relationship was on and off to about 2008 and there was no regular contact with the applicant from 2008 until 2012 although she saw him on two occasions during that time. She learned in 2012 that he intended to move to the same country town as his family and bought him a ticket to move there. She saw him once in 2013 when he stayed at her house for a couple of days. On occasions he would telephone her to say he wanted to pick up some of his tools from her house but she told him there were none to collect. She agreed that from questions he had asked her as to where she had been, that she believed that he had been tracing her on his phone.
In 2014, the complainant formed a new relationship. She gave evidence that in March 2015 she placed a photo of herself and this new partner on Facebook. Shortly after this, she received a telephone call from the applicant “abusing” her and telling her to remove the photo from Facebook, which she did after a few days. She received a number of calls from him at this time. During these calls, he told her that she still loved him and that he wanted to attend her property to get his tools.
The complainant was shown a document which became Exhibit A including calls and texts between her and the applicant from 1 April 2015 to 2 April 2015.
The complainant gave evidence that on 1 April 2015 she received a call from the applicant relating to the Facebook picture, with the applicant threatening to put “a knife through her head”. On the same day, at 21:01:24, the applicant sent her a text message that said

“[i]f u keep playing the victim in all of this. I am going 2 out u. Let it go. U say u have moved on fine. Don’t dwell on the past. U fuked up not me. All i wanted 2 do was sit on the verender & watch the sun set with you.”

The applicant called the complainant at 23:49:44 and the call lasted for 2:44 minutes. Following his four attempts to call the complainant at 23:52:33, 23:55:32, 23:56:13 and 23:57:54, the applicant made a call at 23:58:28 that lasted 5:34 minutes. That call was followed by his message to the complainant at 23:59:55 that said, “[a]nswer me so we can fin here & now.” His call to the complainant at 00:04:09 went answered.
At 00:10:04 on 2 April 2015, the complainant sent a message to the applicant that said, “[i]t’s fixed We are finished”. At 00:11:15, the applicant responded, “I’m sorry” and then sent another message at 00:12:01 that said, “I said I’m sorry” and another at 00:16:08 that said, “[o]k. I’m sorry.” At 00:36:11, the applicant sent a message that said, “[c]an i get rod or ray 2 pick some stuff from there on Thursday before they come up. Yes or no” and at 00:37:37 a message saying, “[s]ome tools I want. Can they?” The applicant sent another message at 00:41:37 that said, “[y]es” and followed it by another message sent at 00:46:45 that said, “[y]es or no there my tools.”
After the luncheon adjournment some other matters were interposed and the trial then resumed. The complainant gave evidence that at around 5am the following morning, the complainant woke up to her bedroom light being turned on. The applicant would appear to have entered her house by using a spare key that she had placed in the back yard for her sons. She said that he was holding her keys in his hand. He said to her "[a]re you going to be fucking nice to me now, are you? I'm not a fucking dog no more."
The complainant gave evidence that he asked her for the pin number for her phone and that she was afraid of him reading her messages because this would provoke violence. In the absence of the jury, Mr Williams complained about the complainant’s evidence that she thought, as her Honour put it, “if the accused saw the text messages from her new partner, she would kill her partner”. Whilst this discussion took place a jury note was received (MFI 4) in these terms:

“Question 1, Since 2 April 2015, has the accused been in gaol or otherwise in detention, house arrest etc out on bail?”

Question 2, confirmation on 22.50.03 call and what was discussed?

Question 3, confirmation on 22.58.28 call and what was discussed?

Question 4, confirmation that 23.59.55 text was sent whilst on call?”

After discussion of these questions, her Honour directed the jury that there was no evidence as to the first question and as for the remaining three questions, there would be further evidence about those matters. The complainant then continued her evidence.
The complainant stated that she told the applicant not to worry about the phone and either put it under a pillow or threw it down the side of a bed. According to her evidence, the applicant told her that he had been on Google and that he was entitled to “break up sex” and said that “he had been waiting two years for this”. He then got on the bed next to her and took her pants off.
She said to him "[l]isten I haven't had a, I haven't had a shower since I got home from work last night, just let me get up and have a shower." The complainant said that the smell of his breath indicated to her that he had been drinking.
She described how the applicant then lay on top of her but could not achieve an erection, rubbing his penis around her vagina. She gave evidence that she told him that she wanted a shower, “just anything to try and get out, out of there to stop this”. She then suggested that she and the applicant go and get cigarettes. She noticed on the way out that he had locked the back screen door.
When the applicant and the complainant travelled to the petrol station, the applicant stated that he would buy the cigarettes and took the keys from the complainant’s car. The complainant acknowledged that she could have fled at this point but stated that the thought in her mind was “[h]e will catch me, he will catch me.”
The complainant’s evidence was that they both then returned to the house and the applicant guided her to the bedroom, pulling her pants off. She said that he started to fondle her breasts and touch her vagina and he had an erection. He then had penile-vaginal intercourse with her and she submitted “because I know if I didn’t do it I didn’t want the whole situation to get abusive or out of control because I was scared of that’s when he’d get very violent.” She pretended to climax and then went to the toilet.
She was asked by the Crown Prosecutor why she did not tell the applicant that she did not want to have sex with him and she replied:

“A. Because, as I said, I know [the applicant], and if I had - if I had tried to prevent anything that happened - all I ever kept thinking was ‘He's going to get me again. He's going to take me’ - just terrible thoughts, just being violent to me, either killing me, taking again my car, going through all that drama again. There's no way in the world that I was going to do anything to start anything like that. ‘Just do what you have to do, [the complainant], to survive, and do what he wants, and go along with it’.”

(Emphasis added.)

The complainant told the accused she needed to buy food and went to ALDI, which was not open, and then went to McDonalds. The manager was a girl she knew from school and the complainant asked her for her phone and called police. She then made the triple-0 call I have referred to above which was marked Exhibit B and played to the jury.
Exhibit A shows that the applicant made five attempts to call the complainant after she left: at 08:16:01, 08:20:43, 08:25:24, 08:28:57 and 08:42:23, and then sent the following message to the complainant at 08:42:50, “[h]ow long u going 2 be” followed by another one at 08:46:37, “[h]ow long u gunna be.” At 08:48:41, the applicant sent a message saying, “[i] don’t sitting here someone mite come around. Gunna head back home.” Then at 08:51:11 he wrote, “[m]ate i know your scared i am gunna say something 2 the boyfriend but i swear i won’t.” Following two attempts to call the complainant, at 09:35:28 and 10:13:48, the applicant sent a message at 10:18:23, saying, “[r]ing u wen i get home.”
When the complainant was examined at Westmead Hospital on 2 April 2015 a swab was taken from her vagina in which semen was detected with a DNA profile matching that of the applicant. On 4 April, she made a statement to police at Mt Druitt Police Station.
After giving this evidence the jury retired for the day. Her Honour then called them back to give them a direction that although the complainant overheard a police officer upon approach say something to the effect of, "[h]e has had a gun", there was no gun used in the charged offence, only in the 1998 offence.
On 8 August 2017, the complainant finished her evidence. In her cross-examination it was put to her that she had been in an on-off relationship with the applicant until around 2013. She agreed with this statement. It was also put to her that the applicant had not taken the key to get into her house. It was also put to her that the alleged conversation on 1 April 2015 and the threat by the applicant that he would “put a knife through [her] head” did not happen because at that time she was having a smoke with her neighbour, Sonya. She disagreed.
It was further suggested to the complainant that the applicant had come down on the night of the offending because they were having a “blue” and she had threatened to throw out his tools. Furthermore, when he did so she invited him to “jump into bed and get a couple of hours sleep”. It was put to her that after going to the service station, she “jumped on top of him”. This was all denied.
The jury was sent home early because of other matters that her Honour had to deal with in the afternoon. On that day, Mr Williams indicated that due to a family tragedy he would be unable to attend court for two days, on 10 and 11 August. The jury was informed that it would not be sitting for those two days.
The following day, 9 August 2017, Mr Williams withdrew from the matter. New counsel had to be found to appear for the applicant. Her Honour directed the jury as to the use of the context evidence. The matter came before her Honour the following day for mention and the jury returned on the following Monday. The matter was again delayed because of other matters that her Honour was hearing earlier in the day. She later indicated to counsel that the matter might be further delayed due to a lengthy list she had the following day.
On 14 August 2017, Mr Niven of counsel came into the matter to appear for the applicant for the remainder of the trial. Her Honour later stated the following to the jury:

“HER HONOUR: Good morning ladies and gentlemen. I know you've been kept waiting and I'm sorry for that, as you can probably see from files and whatever on my desk, I have a lot of matters in the courtroom today that are not related to the accused in any way. The intention was to continue with the trial today. The circumstances are that Mr Niven and his instructing solicitor now represent [the applicant]. Mr Niven, could I just invite you to stand for the jury? So, ladies and gentlemen - thank you - do not speculate about that, it's something that occurs from time to time in trials, so you can't in any way, use that adversely against the accused, it would be illogical to do so.

It's a change in circumstance, and as a matter of fairness I have to give Mr Niven, his instructing solicitor and [the applicant] the chance today to get on top of the matters, but the trial will continue. Now, tomorrow - that is the trial will continue tomorrow. Tomorrow, I'm going to ask you to come in at 11am, I'm the list judge at this Court for this week, which means I am juggling all these unrelated matters, it's just part of the busy nature of the courts, I know it keeps you waiting, I'm sorry for that. It is unavoidable, but I'm doing everything I can to be mindful of your convenience.”

On 15 August 2017, a delay was caused by technical difficulties. Mr Niven then cross-examined the complainant. Once again, it was put to the complainant that the applicant had come to her property to collect her tools. It was also put to her that, even though the applicant had made serious threats to her in calls on 1 April 2015, she had not taken the opportunity to call police. It was put to her that she must not have taken the threats seriously if she did not respond in that way. She denied that the relationship had resumed in 2013. The cross-examination then finished in the following way:

“Q. It’s true to say, isn't it, that so far as it goes, on the occasions that you had intimate relations with [the applicant] in the morning of 2 April that certainly, so far as you were concerned, you were doing your very best to give [the applicant] the impression that the sex that he was having with you was consensual. Isn’t that right?

A. I just did what I - he asked me to do.

Q. You did everything in your power to give [the applicant] the impression that you were having consensual sex with him on the morning of 2 April. Isn’t that right?

A. It was only a thing to make me feel safe and be able to get out of that house safe.”

Detective Senior Constable Ari Barr then gave evidence. Through her the CCTV footage of the applicant at a service station was tendered (where it was asserted that the applicant could be seen holding the complainant’s car keys). So too was the CCTV footage of the complainant at Mt Druitt McDonald’s where she made the triple-0 call. Evidence was also adduced that a mixed DNA profile of the complainant and the applicant was extracted from a vaginal swab taken by Ms Ashton.
There was material in the prosecution brief which showed that the applicant had telephoned police and given his account of what occurred on 2 April 2017. Counsel for the applicant indicated to the Crown Prosecutor that he wanted that evidence before the jury as it was conduct consistent with innocence. The evidence was that the applicant’s mobile phone called the Mount Druitt Police Station on four occasions, three in the morning and one in the early afternoon of 2 April 2015. He spoke to Detective Sergeant Kylie Evans.
When the Officer in Charge (“OIC”) gave this evidence the Crown Prosecutor asked this:

“Q: My friend may ask you some questions of some of the things that [the applicant] said in the course of that telephone call, but that’s the only one of duration that will be consistent with the conversation with Detective Sergeant Evans.

A: That’s correct.

Q: From that can we conclude that [the applicant] rang back two further times, he rang back the police station after that?

A: Yes.”

In cross-examination, Mr Niven asked the following:

“Q. So far as you are able to ascertain, the defendant did make contact with police?

A. Yes.

Q. And I think you understand that at some point when, I think it was Officer Kylie Evans--

A. That’s correct.

Q. --was talking on the telephone to the defendant the telephone dropped out?

A. At the end of – yes, at the end of the conversation, yes.

Q. As far as you can ascertain, at least from the records that Mr Crown has showed you, that there were what appears to be attempts to contact or ring back to the police station?

A. Yes.

Q. Unsuccessfully as it transpires?

A. Yeah. Yes.

Q. And so far as it goes, at that point that Constable Evans was discussing a matter with the accused the precise details of the complaint as it transpires were not known to Constable Evans, is that right?

A. That’s correct.”

Following the next adjournment, the jury wrote a note that included the following two questions:

“(5) Was [the applicant] aware that [the complainant] had contacted police prior to him calling them?

(6) Is the jury going to be provided with an audio of the phone calls [the applicant] made to Mount Druitt Police Station?”

In relation to (5) and other questions in the note, her Honour informed the jury that it was anticipated that the applicant would be giving evidence and that they would hear his account. In relation to (6), Detective Senior Constable Barr was recalled and informed the jury that phone calls to police stations are not recorded.
Mary Ashton also gave evidence that day. She is a specialist forensic nurse who worked at Westmead Hospital and examined the complainant. She made detailed notes of what she was told by the complainant and this evidence was adduced as evidence of fresh complaint. That account was generally consistent with what she told police.
On the following day, 16 August 2017, the matter began after noon because her Honour was required to deal with other matters in the same courtroom. That occurred again after the luncheon adjournment. The complainant was recalled on the application by the Crown and the Crown case then closed.

The defence case

The applicant’s evidence in chief

The applicant’s evidence commenced on 16 August 2015. He gave evidence that in the weeks leading up to the incident he was in contact with the complainant. She rang him and "told me to come down and get my tools". When he told her he would come on a weekend she told him that he could not come then because she would not be there. His evidence was that she swore at him and told him that if he came to her house when she was not there she would call the police.
His reason for attending her home was because she had told him to. She also told him that if the shed was locked, he was to get the key from the pot plant and get the keys to the shed from the hook in the kitchen.
He explained that when he arrived at her home at 5am in the morning he parked around the corner because "she didn't want me to park at the front of the house" because "she didn't want the neighbours to see. She was a bit of a prude. She don't like people thinking she's having an affair."
His evidence was that when she first saw him in the house she swore at him and then told him to make a coffee. After a brief discussion she suggested to him to "jump in" her bed and get a few hours’ sleep. The applicant gave evidence that:

“...I thought about it and I didn't want to do it. I could feel something in the back of my head saying, ‘No, don't do it,’ but I was a tired I just went and did it."

The applicant said that the complainant led him to the bedroom because it was dark and he did not have his glasses. He said that she got into bed and then he got into bed. He started fondling her and she started fondling him. He said he got between her legs, she put his penis in her and they had sexual intercourse but he lost his erection. He said that the complainant then swore at him and said, “[g]et the fuck off. You can’t even keep an erection or hard on.” He said that they then got dressed and went into the kitchen. It was then that they discussed about getting cigarettes and whether he knew her boyfriend and whether she had seen a picture on Facebook. He said that he told the complainant that he did not know the new boyfriend.

The applicant suggested that they share a can of Jim Beam that was in the fridge. His evidence was that the complainant said, referring to the can, "[g]et the fucking thing out” and then told him they were going to the shops for cigarettes and that he had to come with her. They went to the service station (this corresponds with the CCTV footage where he can be seen entering with car keys in his hand).
When they arrived back at the complainant’s home the applicant went back to bed and the complainant came in and told him to move over. His evidence was that she put her head on his chest, started talking about her bills, all the problems she had. She was "telling me what an arsehole I was again". The applicant then gave evidence that the complainant initiated sexual intercourse again. She got on top of him and they had penile-vaginal intercourse until he ejaculated. He described how after this she went to the bathroom and told him to get her a towel. He did so and she wiped herself. She told him to put the towel in the basket, which he did. He then went to sleep.
The next thing the applicant recalled was being awoken by the complainant calling to him from the laundry. His evidence was that she was "telling me I'm a fucking idiot” because he put the towel in the wrong basket. She then told him to bring his car down and park it outside under the awning. He agreed. They walked to his car. He had a cigarette, moved his car and returned to the house. When he did he saw that the complainant was getting dressed. He described what happened next as follows:

“I might add, while she was getting dressed that just because she's got a boyfriend doesn't mean me and her can't see each other once a month and I laughed and said, ‘You're a fucking idiot. Why would - why would I want to come down all this way to see you?’ and then she got the shits and walked out.

...

...she left with the shits and when she dropped me off at the car, she done a burnout, which she never does, so I knew she had the shits and I sent her a text message, thinking she had the shits, thinking I'm going to say something to the boyfriend.”

He said that he never got the tools from the shed. Earlier, at the house, the complainant had told him to wait until her son came home and she would cook them a meal. He said, "[i] knew she was being too nice to me, that something is wrong." At this point in his evidence, the applicant was developing the theme that he had been the victim of a "set up". Although he did not use that expression (but later adopted it when it was put to him in cross-examination), that was the effect of his evidence in chief.
The applicant was shown the summary of calls (Exhibit A) from the evening to the morning. He said that in one of the calls the evening before they were arguing and he called her, “[a]n old drag queen”. That was why he later sent her a text saying he was “sorry”.
He was also shown Exhibit D (stills from the service station) and stated that the keys shown in his hand were his. He explained that, as he was leaving the house, the complainant had asked him to move his car so he collected his keys. He stated that the complainant changed her mind and instead they went to the service station in her car.
The applicant was asked whether at some time during the morning of 2 April he become aware that the police were interested in talking to him. The following exchange then took place:

“Q. At some time during the course of the morning of 2 April, after [the complainant] had left, did you become aware that the police were interested in talking to you?

A. Yeah, I think a couple hours later, or, three or four hours later. Someone had told one of my friends that the police car were there, or four police cars.

Q. Where were you at this time?

A. I was at a friend's house.

Q. Did you make some attempts to contact police regarding that?

A. I rang the police, I asked what was going on at [complainant's address], they asked me what and I said tell them your name, and he said, ‘Police want to speak to you about domestic innocent at [complainant's address] with [the complainant], we'll put you through to

detectives.’ The put me - they rang a couple of times, and then the phone

went dead. Then I rang back and I spoke to some detective.”

The cross-examination of the applicant at trial

The cross-examination of the applicant is the subject of ground 3. It is necessary to extract parts of it in order to understand the complaints made about it. I propose to summarise it under the same relevant headings as they were addressed in the applicant’s written submissions. Under ground 3 the applicant relied not only on the transcript of the cross-examination but also the “tone and manner'' of it and audible "laughter'' and "sighs" at various points in the cross-examination.
It was the joint position of both the Crown and Mr Carroll that this was one of those appeals where it was appropriate for the court to listen to the audio recording of the Crown Prosecutor’s cross-examination. The Crown noted the following passage in Pell v The Queen [2020] HCA 12 at [36], (footnotes omitted):

"...In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court".

(Emphasis added.)

In accordance with the joint application to do so, I have listened to the full cross-examination of the applicant by the Crown Prosecutor. I propose to insert additional sounds on it that I could detect where relevant.
I note at the outset that the cross-examination only went for one hour and 10 minutes, including two breaks, and no objection was made to any of it by the second counsel for the accused.
It commenced with this exchange:

“Q. Let's talk about tools.

A. Let's talk.”

The first topic of cross-examination was to challenge the applicant’s evidence that he had gone to the complainant’s home that morning to collect his tools. After the applicant described the tools he had stored there and described the size of the shed, the Crown Prosecutor asked him:

“Q. Must've been packed to the rafters with your items?

A. Yeah, it was.”

The Crown Prosecutor then sought to cross-examine the applicant to suggest that he had had plenty of time to collect those tools since he had moved out. The following exchange then took place:

“Q. Now, you haven't lived at that house full time for about seven years, when you came down on 2 April 2015, am I correct?

A. How, how long did you say?

Q. Seven years?

A. I hadn't lived there for seven years?

Q. You hadn't lived there full time. You had gone there and spent a couple of nights, about two nights [sic years] before you came down, but for the five years before that--

A. No, no, no, no.

Q. --you hadn't lived there, had you?

A. Well, our relationship didn't end till the end of 2015. [Crown cut in quickly]

Q. Not interested in relationships, I'm asking you a question.

A. I come down just every fortnight and stayed there.

Q. Talking about two years, right, takes you back to 2013, 2012.

A. 2013, it would have been, yeah.

Q. She put you on the train to Wellington, do you agree with that?

A. No, I got on the train to Wellington [interruption by Crown], she slept in the car park, I had a smoke and she drove off. “

(Emphasis added.)

I pause here to note that the Crown Prosecutor was aware that the applicant was in custody from early 2009 until 2013. It is clear that the applicant was trying to explain that he was not physically at the house from 2008 until 2013 because he was in prison but he considered it to still be his home and the relationship to be ongoing during that period. The complainant had conceded in cross-examination that they were still in an on and off relationship until 2013. The cross-examination about when the applicant resided with the complainant continued as follows:

“Q. I take you back to about 2008, 2007? [when he went into custody]

A. Yeah.

Q. You did not live at that house, am I correct? (This was asked very slowly

and in a tone to suggest that the witness was being evasive)

A. Technically, I probably, no. You're probably right. Technically, I probably didn't.

Q. Technically, or?

A. I think I was away somewhere.

Q. Yes, you were.

A. I work on a railway, and I go away a lot.

Q. Sure, doesn't matter where you were, I'm not asking where you were, right? Let's make that clear.

A. Okay.

Q. I'm just putting to you, that you weren't living at that house in that five years? Do you agree?

A. I still lived at that house, I just wasn't there, is that what you're trying to say? So, if you go away somewhere, you didn't live in the house, you went away from, is that what you're saying?

Q. Well, you don't go to bed there, every night there, do you? You, in that five years, did not go to bed there every night? Not one night.

A. Nothing when I didn't live there. [the audio of this reveals that the answer should be “Doesn’t mean I didn’t live there]

Q. Look, we're at odds

A. I know we're at an odds.

Q. You physically were not present in that house for those five years, do you agree with that? (slightly raised voice)

A. I agree I wasn't there every night, yes.

Q. You weren't there any night in that five years, do you agree with that proposition?

A. No, but that wasn't you, you said I didn't live there.

HER HONOUR

Q. Now, hold on a minute. Don't get caught up on whether you want to put a label on it--

A. I can see where he's going.

Q. No, no, no, no, let me speak. Don’t get caught up on whether you want to put a label on it, or not. Listen to the Crown's question, because I think the Crown's question is very clear. If you have any difficulty understanding it, let me know.

HER HONOUR: Thank you, Mr Crown, could you repeat your question please?

CROWN PROSECUTOR

Q. For that five year period, you did not physically attend that house at any time, do you agree?

A. Yes, I agree.”

I pause here again to note that the Crown had repeatedly put to the applicant that he didn’t live at the house from 2008 until 2013 whereas the applicant considered that he did still live there but was in prison. As I will explain further below, the suggestion by the trial judge that the Crown’s question was “clear” does not mean that it was fair in the circumstances.
The cross-examination then returned to the topic of tools and her Honour adjourned for lunch. During this time the audio reveals that there was some muttering by the Crown and the tone used was as if speaking to a child. When her Honour adjourned for lunch, she indicated that she would be hearing some unrelated matters from 1:45pm before they returned. After the jury left the court room, it would appear from the transcript that the applicant was distressed about being cross-examined about the time he was in gaol. The transcript reflected the following:

“WITNESS: Sneaky - you're very sneaky, I can't bring up me - I'm in gaol, and you're going to let him--

HER HONOUR

Q. No, no, no, no, wait a minute. No, no, no, wait a minute. I'm going to let your lawyer have an opportunity - it's cross-examination, what's going to happen is this--

NIVEN: If my friend lets me just have a word with him about administrative matters, not to do with the trial, as it were.

HER HONOUR: I don't think that's what your client wants to talk about, I think he wants to talk about the evidence.

Q. I want to be very clear with you, okay, just one moment.

A. How do I answer something like this, that's put to me?

Q. No, no, no, no, hold on. Hold on, my turn, and then you'll have a turn. There is a reason Mr Crown has not turned to your other periods in gaol, because Mr Crown is trying to be fair, so that this jury is not at risk of thinking, ‘Well, hang on, [the applicant’s] been in gaol time and time again, we're a bit shaky about [the respondent].’ Hold on. Now, you're raising the issue of how can you answer that question, without referring to the fact that you weren't living there, or staying there, because you were in gaol, is that what you're asking me?

A. He's trying to imply that we weren't in a relationship.

Q. No, no. What I'm--

A. No, that's what he's trying to imply, that I didn't live there, we--

Q. No, no, no, no, hold on. Let me tell you two things. First of all, Mr Crown said, 'I'm not talking about relationships, I'm talking about whether you were there.' You need to keep close to the microphone for the moment. The second thing is, when Mr Crown has finished his cross‑examination of you, I'm going to give Mr Niven and his solicitor a chance to chat to you, to see if you want to clarify anything in your re‑examination. But let me assure you, I do not see anything sneaky going on. I can assure you that Mr Crown and Mr Niven and Mr Williams before Mr Niven were communicating with each other and me in order to try and ensure you have the fairest possible trial. So, you'll have a chance to speak to Mr Niven when Mr Crown has finished his questions.

(Emphasis added.)

With respect to her Honour, it was not to the point that the Crown was using the word “live” rather than the word ‘relationship” in circumstances where the applicant was trying to explain that he still lived there because he considered himself to still be in a relationship with the complainant; the only reason he was not physically there was because he was in custody. In these circumstances, I am unable to agree with her Honour’s classification of this questioning as being done to ensure “the fairest possible trial”.
When court resumed after lunch, the applicant was cross-examined about arriving at the complainant’s home so early in the morning to collect his tools. He agreed he got off the telephone at about 1:00am and drove for four hours from Wellington to Whalan. The applicant repeated his evidence in chief that the complainant had asked him to park around the corner because she did not want the neighbours (the applicant’s nephew and his girlfriend) to know “she was having an affair”. During this questioning, there are a number of occasions where the Crown expresses surprise and makes some noises of either agreement or disagreement not apparent on the transcript.
Her Honour asked the applicant to keep his voice up and the cross-examination continued:

“Q. Well, parking the car 20 metres up the street isn't really going to solve that problem, is it?

A. Dave's my nephew. He knows what the car looks like, so does Sonia.

Q. Yes [Yeah, laughter], 20 metres up the street isn't going to help that situation, is it? It's still in the street?

A. No, it wasn't in the street; it was around the car.

Q. [Sigh, hopeless] So it wasn't 20 metres up the street; it was up the street and around the corner. Is that right?

A. 20 metres away from the house.

...

Q. [unintelligible whispering Ooh?] There was nowhere to park, that was the reason, was it? [surpised tone] [pause] [Was it?]

A. Right.”

After suggesting to the witness that the reason he went to the house pre-dawn and parked his car around the corner was because he did not have permission to enter the house, the following exchange then took place:

“Q. You've come to this court to make up a litany of lies to explain circumstances that you cannot get out of. Isn't that the case?

A. No.

Q. You know for a fact that the Crown can prove that you had sexual intercourse with [the complainant] on 2 April. You know that, don't you?

A. Yes.

Q. DNA doesn't lie, does it?

A. No.

Q. So you have come to court with a pre-rehearsed sequence of events to try and explain matters that surround matters that you cannot challenge. Would that be fair to say?

A. No.

Q. Even the events of the - I just want to get this right. The events of the night before, what did you call her, you called her an 'old drag queen'?

A. A drag queen, yeah, an old drag queen.

Q. (laughter OK) That's not particularly nice, is it?

A. No.

Q. [No. pause] You say that, what, less than five hours later she wants to jump on your penis. Is that right?

A. Yes.

Q. A sudden change of mind?

A. Yes.”

After some further cross-examination suggesting it would be difficult to pick up tools if he was parked around the corner, the applicant explained that that is what the complainant had asked him to do. The following exchange then took place:

“Q. Did you say to her, ‘Well, that's the silliest thing that you've said tonight?’

A. No, I told her I wasn't walking up the street, carrying tools. She said, ‘No, dick head, bring the car - bring the car down once you get the tools out of the shed and then you can pack them in the car and go.’

Q. So is that the way she addresses you, ‘dick head’?

A. She - pretty much, yeah.

Q. Pretty much? What else does she call you?

A. A whole - a whole list of names.

Q. A whole? Well, come on, give us the list?

A. She swears a lot. Nothing like the person you see on the screen.

Q. She's a consummate actress, is she?

A. She definitely is.

Q. Tell us some of the other derogatory names that she would call you in and around April of 2015?

A. Of the top of my head, dick head, fuck face, stupid cunt. I could go - there's probably a few more there.

Q. No, that's enough.

A. But they're the one she stays with.

Q. Highly offensive phrases?

A. Yes. You know, I'm used to them, so--

Q. You're used to it?

A. Yeah.

Q. Water off a duck's back?

A. Water off a duck's back.”

The applicant then repeated his evidence about losing his erection when he and the complainant first had unsuccessful sexual intercourse and the following exchange took place:

“Q. Got it. You lose the erection?

A. I lose the erection and she tells me to get the fuck off, 'Can't keep a hard on.'

Q. (laughter) That's what I was coming to.

A. ‘Get the fuck off.’

Q. That's what I was coming to. Her response, she told you to fuck off because you couldn't keep a hard on?

A. That's right.

Q. So she's the last of the true romantics, is she?

A. I suppose you could say that.

Q. Well, she's pretty earthy when it comes to sexual discussion. She says it how it is?

A. I suppose, I suppose she's upset I can't keep an erection. You know, I did drive 450 ks(as said). I can't even keep an erection. I suppose women get like that, I don't know.

Q. So she's certainly quite prepared to abuse you in the most personal way and did so in that bedroom on 2 April 2015. Is that correct?

A. Yes.

Q. What did you do?

A. Nothing.

Q. Nothing?

A. Just let it go.

Q. You see, she's given - we'll come to 1998, but she's given six other examples of your bad treatment of her.

A. Yeah, I know.

Q. They're all fairy tales, are they?

A. Yes.

Q. Absolute utter lies?

A. Yes.

Q: What about 1998? Was that a fantasy, or was that real?

A: 1998, I'd taken methamphetamine--

Q: I'm just asking, did it happen?

A: I'm just telling you the story. I'm sure the jury want to know.

Q: We’ll get to your drugs.”

(Emphasis added.)

The Crown Prosecutor then commenced lengthy cross-examination in relation to the 1998 incident. The applicant gave an overview of that incident as follows:

“Q. We'll get to your drugs.

A. And I'd taken methamphetamine and ended up with psychosis, and which I thought she got - she was having an affair, I got jealous, I got out of control, I got a gun, I kidnapped her, I pistol whipped her, I put her in a car, I got into a car chase, I hit a tree, she got hurt.

Q. [Oh!] She got more than hurt, didn't she? (sligtly menacing tone)

A. She did.

Q. She broke her back?

A. She didn't break her back.

I am satisfied that the cross-examination in relation to the 1998 incident went far beyond the limited purpose for which it was admitted. A more measured approach should have been taken to the 1998 incident in cross-examination.

Cross-examination invited tendency reasoning

I am satisfied that the applicant was cross-examined about the complainant’s state of mind in a manner that invited tendency or coincidence reasoning. It was repeatedly put to the applicant that in the same way that the complainant was nice to him when he kidnapped her 17 years earlier, she was also nice to him at the time of the alleged offences. That is, it was put to the applicant that because he had scared her in the 1998 incident so too had he scared her at the time of the alleged offences.
To rely upon the 1998 incident in this way (at the same time as disavowing any reliance upon the evidence for tendency or coincidence reasoning), would have made it difficult for a lay jury to understand how it was not tendency evidence. It was imperative that the cross-examination did not invoke the impermissible lines of reasoning which a jury would be susceptible to falling into when confronted with prior extremely serious offending.
As for the interim acts, the cross-examination about the applicant having had a “bad day” on the day of the 1998 incident, the interim acts and the charged offences that I have extracted above at [106] also had the effect of using the context evidence as tendency evidence. Other questions inviting tendency reasoning included when the applicant was asked, “[y]ou knew that … when you are in a certain mood, she became very very scared of you. You knew that, didn’t you? …” and, “[y]ou cause her, every time you get in a bad mood, to fear for her life and you know it don’t you?”
It is to be accepted that the trial judge gave detailed directions about the context evidence and the limited way that it could be used but the evidence of prior bad character played such a disproportionately significant part of the Crown case that I am not satisfied any directions could have cured the risk that the evidence would be used as tendency or coincidence evidence.

Inviting the applicant to comment on the complainant’s evidence.

I am satisfied that it was improper for the Crown to keep referring to the evidence of the complainant and her voice and demeanour and inviting the applicant to comment on it. This occurred on a number of occasions. The applicant was asked to comment on the tone of the complainant’s voice on the triple-0 call and agree that she sounded scared. He was also asked by the Crown to comment on how the complainant gave her evidence in court when she recounted the details of the 1998 incident. The effect of this questioning was to require the applicant to explain why the complainant’s claims should not be accepted. This had the effect of reversing the onus of proof on this issue.

Questioning about his absence from the complainant’s home from 2008 until 2013

Unusually for a criminal trial, the jury was aware that the applicant was in custody from 1998 until 2001. The transcript records that the jury sent a jury note to her Honour inquiring as to whether he had been in custody from his arrest in 2015. They were informed that there was no evidence about that.
It was known to the Crown Prosecutor, defence counsel and the trial judge that the applicant had spent long periods in custody since he commenced the relationship with the complaint in late 1997. It would also have been apparent from the complainant’s evidence that the relationship between the complainant and the applicant continued when he was in custody from 1998 until 2001, when he was in custody from 2005 and 2007 and when he was in custody from 2009 until 2013. It is clear from the applicant’s evidence that he considered the relationship to be ongoing for this period as well. I have already considered the cross-examination on this issue above at [114]. Although, the complainant’s evidence in chief was that the relationship finished in 2008, she conceded in cross-examination that it concluded in 2013.
In the context of there already being evidence that the applicant had been to gaol, I am satisfied that the cross-examination of the applicant where it was repeatedly put to him that he didn’t “live” at the house from 2008 until 2013 was unfair. From the applicant’s perspective he did live there, he was just prevented from physically being there because he was in custody. The unfairness is not that the Crown was trying to elicit an answer that suggested that he was in custody. Rather, the unfairness is that the questioning led the applicant to answer that he wasn’t there during that time because he worked “on the railways”. The jury would have realised that was an improbable answer, it is difficult to think of a railway job which would have precluded him from coming home for one single night during that five year period if he did in fact still live there.
The applicant was clearly agitated by this questioning but when he raised it in the absence of the jury he was told by the trial judge that the Crown Prosecutor was trying to be fair. But concealing from the jury that the applicant had been in custody did not mean that it was possible for the applicant to answer the questions in the form asked by the Crown Prosecutor.
The answer that the applicant was cornered into giving had the potential to lead the jury to realise that the applicant must have been in custody during that time. Despite this, the only discussion of this aspect of the applicant’s evidence at trial was as follows:

“NIVEN: All right. It's in relation to your Honour's context evidence direction. Your Honour referred to an intermittent relationship and I think it was the accused's case that that was not a correct reflection of the position, and also that--

HER HONOUR: He was in custody for long periods of time. I thought that was

the most—

NIVEN: It may be a matter of semantics but I raise it anyway.

CROWN PROSECUTOR: He was away working for five years between 2008 and 2012. I thought that was delightful the way he answered that because—“

The answer was not “delightful”; it suggested that the applicant had been in custody for a significant time. Although it is to be accepted that the unfairness about this issue of where the accused was “living” was most likely the result of misunderstanding on the part of the Crown, as opposed to any intentionally unfair cross-examination, the end result was the same nonetheless.

Improperly raising recent invention in breach of the applicant’s right to silence;

The failure of the trial judge to give a direction about this aspect of the cross-examination and closing is the subject of ground 4.
I have extracted the cross-examination on this issue at [73] and the closing at [133] above.
The jury were told that the applicant had maintained his right to silence when offered an interview following his arrest on 29 April 2015. Despite this, the Crown submitted to the jury that the applicant had invented the version he gave in court after being served with the prosecution brief. On this appeal the Crown conceded that it was not appropriate for the Crown Prosecutor to suggest that the applicant’s evidence was "pre-rehearsed”. I accept this concession.

Cross-examining in a tone and manner which was offensive, humiliating and insulting

As stated above at [218], the Crown has conceded on this appeal that many of the words used by the Crown Prosecutor at trial were inappropriate.
The concession was properly made. I am satisfied that the language at times was intemperate and inappropriate and went beyond what is appropriate language for a Crown Prosecutor to use. He injected his personal opinion into the questioning. The result was that the cross-examination and closing submissions amounted to a personal attack on the applicant and barracking for the complainant. The Crown Prosecutor engaged in questioning which was argumentative and then closed to the jury that the applicant was belligerent and arrogant.
I have had regard to the Crown submission that the language used by the Crown Prosecutor was coarse because he had adopted the same style of language as the applicant did in his evidence in chief. I am not satisfied that this is a satisfactory explanation.
As for the tone of the cross-examination, I have carefully listened to the audio of the cross-examination twice. The tone changes throughout the cross-examination. At times it is uncontroversial. At other times it is sarcastic and condescending. At other times the Prosecutor expresses mock surprise at some answers. He laughs at others.
Although the Crown Prosecutor and the trial judge both reminded the jury of the burden and standard of proof on a number of occasions, this was a trial in which the jury was invited to consider two versions of events. As was submitted on behalf of the applicant on this appeal, this meant that there had to be consistency in the treatment of the complainant and the applicant as a witness. The complainant had been cross-examined with respect by defence counsel. But the applicant, regrettably, was not.
Complaint was also made that some of the questions should have been excluded under s 41 of the Evidence Act which is in these terms:

(1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question")--

(a) is misleading or confusing, or
(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or
(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or
(d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

(2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account—

(a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and
(b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and
(c) the context in which the question is put, including—
(i) the nature of the proceeding, and
(ii) in a criminal proceeding--the nature of the offence to which the proceeding relates, and
(iii) the relationship (if any) between the witness and any other party to the proceeding.

The applicant relied upon the fact that he is an Aboriginal man of limited education and a “Bugmy” upbringing who has spent a significant amount of time in custody. This was said to be relevant to s 41(2) of the Evidence Act. To the extent that it was relevant, Mr Carroll noted at the hearing of this appeal that the complainant is a blond Caucasian woman.
There is no doubt that the approach a Crown Prosecutor might take to cross-examination of a highly educated accused will be different to that taken with an accused who has had limited education. I am satisfied that all persons of limited education should be treated with respect by a Crown Prosecutor, whether they are Aboriginal or not. The High Court took a similar approach in Bugmy.
Some of the questions were asked by the Crown Prosecutor in a mock slow voice pausing between questions as if speaking to a child. I am not satisfied from the tone of this questioning that this approach was taken out of respect for the applicant’s limited education.
It is the experience of those who have practiced in the criminal law for many years that Aboriginal witnesses and accused persons are generally reluctant to give evidence and can often feel excluded from the criminal justice process (Judicial Commission of NSW, Equality Before the Law at 2.2.4). Although I am not satisfied that the fact that the applicant is Aboriginal has any direct bearing on the resolution of this ground of appeal per se, I am satisfied that the submission made by Mr Carroll on this issue was one appropriately made in the circumstances.
I have had regard to the Crown submission that, unlike in Libke, the applicant was able to directly and confidently answer questions put to him (as acknowledged by his counsel in the defence closing address). Although, on the whole, the applicant was able to answer the questions, I am not satisfied that that is an answer to this ground in the circumstances of this case.

No intervention by Trial Judge

Complaint was made on behalf of the applicant under this ground that although her Honour controlled the nature and content of questioning of the complainant, she did not do so when the applicant gave evidence. Her Honour did remind the applicant to keep his voice up and at one stage pulled the applicant up for speaking over counsel (see above at [114]).
Having listened to the audio of this exchange I am satisfied that the Crown had finished his question when he asked “[d]o you remember”. After the interjection by the trial judge, the Crown Prosecutor moved on to another topic. The applicant never completed his answer. The question of what he meant by “missus” was never finished and then became a focal point of the Crown closing address.
It is always a difficult question for a trial judge to know when to intervene, as defence counsel may not be objecting for tactical reasons. I have also had regard to the fact that the trial judge was working under very onerous conditions given the significant workload she was required to meet at the same time as presiding over this trial. Despite this, I am satisfied that the failure by the judge to intervene to censure the Crown does not mean that the conduct of the Crown did not cause any unfairness.

Conclusion re ground 3

I have had regard to the following observations of Carruthers J (with whom Spigelman CJ and Sperling J agreed) in Rugari v R at [62]:

“As has been pointed out by counsel for the Crown before this Court (and it is a valid point) as it is now the responsibility of the Crown Prosecutor to address immediately after the conclusion of the evidence, which in most cases is the case for the defence, it is often difficult for Prosecutors to collect their thoughts sufficiently to present a Crown case in as concise and appropriate a fashion as they would wish. That is a point which I have taken into consideration in evaluating the matters that have been raised in this appeal."

I am not satisfied that the conduct of the Crown Prosecutor in this matter could be adequately explained by insufficient time to collect his thoughts.
I am satisfied that there was a “miscarriage of justice” within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). As the High Court observed in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] “any departure from trial according to law, regardless of the nature or importance of that departure” is a “miscarriage of justice” for the purpose of provisions like s 6(1) of the Criminal Appeal Act.
The Crown did not suggest that if error was found under this ground it would be applicable to apply the proviso in this matter and I do not find otherwise.
The resolution of this ground means I would propose that a new trial be ordered. Despite this, I propose to go on to consider ground 4 for completeness.

Applicant’s submissions

The applicant submitted that the Crown in his closing address sought to use the fact that the applicant had telephoned Mount Druitt police on the morning of 2 April 2015 as post-offence conduct evidencing a consciousness of guilt. Although there was no evidence about what the applicant had said to police that day, the Crown addressed the jury by suggesting that the reason he had called police that day was to give a false exculpatory account of events earlier that day.
It was submitted that the jury should have been directed that, before they could infer that the applicant acted because he was conscious of his guilt of the offence, they were required to exclude any alternate inference that was inconsistent with guilt.

Crown submissions

It was submitted that having adduced this evidence at the request of the applicant, the Crown Prosecutor was entitled to refer to it in his closing address. The effect of the Crown Prosecutor's submission in his closing address was that the version given by the applicant was untrue and should be rejected. Consistently, no such direction was sought by trial counsel for the applicant and rule 4 of the Criminal Appeal Rules is engaged in relation to this ground.
Reliance was placed by the Crown on the decision in Patterson v R (Cth) [2001] NSWCCA 316.

Consideration ground 4

I have extracted the evidence pertaining to this ground at [73] above and how the Crown used it above at [133]. In addition, Exhibit A showed that the applicant had been attempting to contact the complainant before he called the police that day.
It is common ground that defence counsel wanted the Crown Prosecutor to lead evidence from the OIC that the applicant had telephoned police that morning. The applicant telephoning police to see what they wanted to speak with him about could be considered to be either neutral evidence or possibly evidence consistent with innocence, depending upon the facts of the case. In this trial the Crown relied upon it in his closing address as the conduct of a guilty man. The difficulty with this, as I have observed above under ground 3, is that there was no evidentiary basis to do so.
The actual details of the call were never adduced from the OIC by either the Crown Prosecutor or defence counsel. The applicant gave some brief evidence about it, as extracted at [89] above, but the Crown Prosecutor did not ask any questions in cross-examination of the applicant in relation to his telephone calls to police. Thus, it was never suggested to the applicant in cross-examination that the reason he telephoned the police that day was because he knew he had sexually assaulted the complainant and wanted to get his story in first. Despite not ever suggesting this to the applicant, that is the case theory the Crown Prosecutor presented to the jury in his closing.
Defence counsel made no mention of this evidence in his closing address. Nor did he make any complaint about it. Nor did he request an Edwards direction (Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63).
I have already found under Ground 3 that the Crown should not have invited the jury to rely upon this evidence as a pre-emptive attempt to exculpate himself. Although rule 4 is not engaged in relation to the Crown closing, it is engaged in relation to the failure to request an Edwards direction in relation to it.
As this Court (Gleeson JA with whom Harrison and Davies JJ agreed) observed in Roos v R [2019] NSWCCA 67 at [72]-[74]:

“Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. The criterion for the exercise of r 4 has been the subject of discussion in this Court. In Picken v R [2007] NSWCCA 319, Mason P (Hidden and Harrison JJ agreeing) noted at [20] that there have been varying formulations of the test for identifying a miscarriage of justice in this context, referring to Tripodinaand Morabito v R(1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; and R v Wilson (2005) 62 NSWLR 346 at 352 [20]. The test proposed by McHugh J in Papakosmas v The Queen, which is a negative constraint, was doubted in Greenhalgh v R [2017] NSWCCA 94 at [8] (Basten JA, Button J agreeing), where the view was expressed at [16] that this Court should be cautious in laying down principles to be applied when exercising a broad discretionary power under r 4.

Nonetheless, it is generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R at [20] – [21]; ARS v R [2011] NSWCCA 266 at [147] (Bathurst CJ, James and Johnson JJ agreeing); Greenhalgh v R at [47]-[48] (N Adams J) cf [7]-[21] (Basten JA, Button J agreeing).

It is also to be kept in mind, as Mason P said in Picken v R at [22], that:

‘The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge’.”

I am not satisfied that the failure to give an Edwards direction in this matter on its own resulted in the applicant losing a real chance (or a chance fairly open) of being acquitted. Despite this, as Mason P observed in Picken v R at [22], I am satisfied that when taken in conjunction with the matters identified under ground 3 its impact contributed to the applicant’s trial miscarrying.

Conclusion

The orders I would propose are as follows:

To the extent necessary, leave is granted.

The appeal is allowed.

A new trial is ordered.

The matter is listed for arraignment in the District Court in Parramatta on 4 December 2020 at 9:30am.

**********

Amendments

22 November 2021 - Publication restriction removed - judgment published

24 November 2021 - [92] and [141] the name and the address of the complainant anonymised

24 November 2021 - [92] and [141] address anonymised

Decision last updated: 24 November 2021

Medium Neutral Citation:	Glenn (a pseudonym) v R [2020] NSWCCA 308
Hearing dates:	2 September 2020
Date of orders:	25 November 2020
Decision date:	25 November 2020
Before:	Hoeben CJ at CL at [1] Button J at [2] N Adams J at [7]
Decision:	(1) To the extent necessary, leave is granted. (2) The appeal is allowed. (3) A new trial is ordered. (4) The matter is listed for arraignment in the District Court in Parramatta on 4 December 2020 at 9:30am.
Catchwords:	CRIMINAL LAW – appeal against conviction – aggravated break and enter of a dwelling house and commit serious indictable offence – sexual intercourse without consent – pre-trial ruling – additional context evidence – reasons for lack of complainant – cross-examination of applicant – prosecutorial conduct – post-offence conduct – consciousness of guilt direction
Legislation Cited:	Crimes Act 1900 (NSW), s 61I, s 112(2) Criminal Appeal Act, s 6(3) Criminal Appeal Rules, r 4 Criminal Procedure Act 1986, s 130A Evidence Act 1995 (NSW), s 41, s 137
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 Causevic v R [2008] NSWCCA 238 Curran v R [2020] NSWCCA 171 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321 House v The King ((1936) 55 CLR 499; [1936] HCA 40 Hughes v R (2015) NSWLR 474; [2015] NSWCCA 330 KNP v R [2006] NSWCCA 213 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 Patterson v R (Cth) [2001] NSWCCA 316 Pell v The Queen [2020] HCA 12 R v Fordham (1997) 98 A Crim R 359 R v Liristis [2004] NSWCCA 287 R v Obeid (No. 4) [2015] NSWSC 1442 R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 Roos v R [2019] NSWCCA 67 Roulston [1976] 2 NZLR 644 Vickers v R [2006] NSWCCA 60 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Texts Cited:	Judicial Commission of NSW, Equality Before the Law
Category:	Principal judgment
Parties:	Glen Barry (Applicant) Crown (Respondent)
Representation:	Counsel: Mr D Carroll with P Swaine (Applicant) Mr G Newton (Respondent) Solicitors: AA Criminal Lawyer (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/00127224
Publication restriction:	Pseudonym adopted.
Decision under appeal	Court or tribunal: District Court Date of Decision: 17 August 2017 Before: Culver DCJ File Number(s): 2015/00127224