Groundstroem v Attorney-General for New South Wales

[2019] NSWSC 58

Supreme Court

New South Wales

Medium Neutral Citation:	Groundstroem v Attorney-General for New South Wales [2019] NSWSC 58
Hearing dates:	On the papers
Date of orders:	12 February 2019
Decision date:	12 February 2019
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Application under s 78 Crimes (Appeal and Review) Act 2001 refused.
Catchwords:	CRIMINAL LAW – application to direct an inquiry or to refer case to the Court of Criminal Appeal pursuant to s 78 Crimes (Appeal and Review) Act 2001 – applicant convicted and sentenced for four counts of sexual assault of his then wife – where the Court of Criminal Appeal had previously dismissed the applicant’s conviction appeal and special leave to the High Court refused – whether there is a doubt or question as to the applicant’s guilt – fresh evidence – where the application fails to adduce or even identify precisely the evidence sought to be relied upon – where the evidence does not amount to fresh evidence or is otherwise inadmissible – application dismissed
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) ss 74, 78, 79 Criminal Procedure Act 1986 (NSW)
Cases Cited:	Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 Groundstroem, Christoffer Andreas v R [2013] NSWCCA 237 Groundstroem v The Queen [2014] HCATrans 114
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Christoffer Groundstroem (Applicant) Attorney-General for New South Wales (Respondent)
Representation:	Counsel: Self-represented (Applicant) D New (Respondent)   Solicitors: Self-represented (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	2018/40839
Publication restriction:	Nil

Judgment

1. Christoffer Groundstroem applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction for four offences of sexual assault. The applicant stood trial charged with four counts of aggravated sexual assault of his then wife, the complainant, between 1 March 1992 and 30 April 2003. The alleged circumstance of aggravation was that, at the time of the assault, the applicant maliciously inflicted actual bodily harm on the complainant. The actual bodily harm for the first assault was bruising, and for the remaining three counts was internal injuries causing bleeding.

2. On 26 September 2011 the jury found him not guilty on the aggravated counts but guilty on the statutory alternative count of sexual assault in respect of the four counts. He was sentenced to an overall term of imprisonment of seven years and six months with a non-parole period of five years commencing 26 September 2011. The non-parole period expired on 25 September 2016 and the overall sentence will expire on 25 February 2019.

3. The applicant appealed to the Court of Criminal Appeal on a single ground only, namely, that the trial judge erred in failing to inform the jury of the significant forensic disadvantage suffered by the applicant as a consequence of delay. On 31 October 2013 the appeal was dismissed: Groundstroem, Chistoffer Andreas v R [2013] NSWCCA 237.

4. An application for special leave was refused by the High Court on 16 May 2014: Groundstroem v The Queen [2014] HCATrans 114.

Background facts

5. The background to the offending and the facts relating to the four counts charged are summarised in the judgment of Adams J in the Court of Criminal Appeal as follows:

[5]   The complainant and the appellant met in 1986 when the former was 16 and the latter 17 and then in high school in Finland. The appellant left Finland and came to Australia, where his parents and sister were living but was unable to find work and returned to Finland in 1987 or 1988. On 5 May 1989 the complainant and the appellant married and their son Nicholas was born in Finland on 31 July 1990. The family moved to Australia in October 1991 when Nicholas was about 18 months old. The complainant's knowledge of English was poor when she arrived, although the appellant's English was fluent as he had been to school in Australia.

[6]   The assault comprising the first count involved forcible, non-consensual vaginal intercourse in the bedroom of their home, shortly after the couple moved into a unit at Collaroy. On the following day the complainant noticed bruising to the inside of her thighs, around her vagina and the pubic bone and on her wrists and upper arms. She told the appellant that he had raped her, to which he replied, "I'm sure it happens in marriages, it's just not talked about". A few days later, the appellant saw the bruises on the inside of the complainant's legs and said that he did not think that he was "that rough". The complainant did not make any complaint about this attack as she knew no one in Australia and had very little knowledge of English.

[7]   The appellant, shortly after obtaining work at a sex shop, started demanding sex when he came home and kept harassing the complainant until she gave in. She said that this resulted in many arguments. Their sexual intimacy changed. The appellant brought home pornographic magazines and videos and began to insist on sexual experimentation with some of which the complainant was not comfortable. After a time, the appellant raised the subject of anal sex with the complainant, attempting to persuade her to try it. The complainant did not wish to but, feeling pressured by the appellant, tried it and hated it, complaining that it was disgusting and hurt. She told him she did not want to try it again.

[8]   The assault giving rise to count 2 occurred a couple of months after the first rape. It commenced as consensual sex but the appellant then withdrew and attempted to insert his penis into the complainant's anus. The complainant ineffectually resisted, asking him to stop because it "hurts so much", but the appellant did not do so until after he had ejaculated. He then left the bedroom. The complainant went to the bathroom and noticed semen and blood coming from her anus. She asked the appellant what could she do, that she needed to go to the doctor as she might need stitches. The appellant simply responded, "It was your own fault because you didn't relax". The bleeding continued for several days, gradually reducing. The complainant did not go to a doctor.

[9]   So far as count 3 is concerned, the assault occurred when Nicholas was about two years of age. The appellant came into their bedroom, where the complainant was making the bed, and demanded sex, which the complainant refused. The appellant pushed her onto the bed and pulled her clothes off, the complainant saying, "No, no, no, don't do it". Whilst anal intercourse was occurring, Nicholas came into the bedroom and asked the appellant what he was doing. The complainant said she stopped resisting and held her son's hand and told him that it would soon be over. She felt a very painful tearing in the anus but intercourse continued until the appellant ejaculated. On subsequent occasions, when Nicholas walked into the room whilst the appellant was having sexual intercourse with the complainant, the appellant stopped. The complainant said after this occasion she tried to be as quiet as possible to avoid disturbing their son. She told the appellant she would never forgive him.

[10]   Whenever the complainant complained to the appellant, he responded that, as she consented to vaginal sex initially, it would not be considered as rape. The complainant thought for some years that this was so.

[11]   Contextual evidence was given that the appellant had penile anal intercourse with the complainant against her will every three weeks or so. The appellant did not ask the complainant if she wanted to have anal sex and she never consented to it. On each occasion she bled for a couple of days and sometimes up to several weeks, the longest period of bleeding lasting three and a half weeks. She said that she was in pain all the time, had trouble sitting and was frightened because she did not know what had happened inside her. After some time she decided, "trying to not resist and just do my duty" which reduced the amount of bruising and enabled her to sit. She resisted during arguments however.

[12]   Eventually, the appellant stopped working at the sex shop and the couple bought a cleaning business with the proceeds from the sale of some land which they had earlier bought. The appellant worked in the business during the day whilst the complainant remained at home with their son. There was an improvement in the relationship, the arguments were fewer, as were the anal rapes, although they were still continuing. The complainant became pregnant but this did not stop the appellant from anally raping her. When she was four months' pregnant, and the complainant bled afterwards, she told the appellant that if he continued she would lose the baby and he stopped. About this time, Nicholas was taken to hospital and diagnosed with a brain tumour, requiring surgery. The complainant lived with him at the hospital until she was about eight months pregnant and they returned home. At about this time, the complainant's mother came over from Finland to stay with them. Shortly afterwards the family moved to a house in Frenchs Forest. The mother stayed for about a month, visiting regularly, and then returned to Finland.

[13]   Whilst the complainant's mother was here, the rapes stopped. However, after their second son was born in July 1993 the appellant resumed anally raping her every week or every couple of weeks. So far as vaginal intercourse was concerned, the complainant said that the appellant raped her several times a week, especially on Wednesdays and Saturdays and sometimes more often. It would occur after work and even when she was having a nap with Nicholas, who was not yet two years old when this began. These rapes always resulted in bruising in between her legs, such that she had trouble sitting down.

[14]   Nicholas continued with chemotherapy and, sometime in 1994, the family moved to another house in Frenchs Forest. The complainant suggested marriage counselling but did not mention the rapes to the marriage counsellor "as I was too scared". They attended three or four sessions. The counsellor pulled the complainant aside towards the end and told her that she suspected domestic violence and that she should leave the appellant. The complainant did not do so, "Because I had no money and I didn't know where would I have gone".

[15]   In 1996 the family moved again. Nicholas was much improved and started school. Their younger son was about three and a half years of age. The appellant was "getting rougher and he was aggressive" and the complainant had begun finding pornographic magazines in the house. She decided to leave and booked tickets to Finland. The appellant had been referred by his general practitioner to a psychiatrist, Dr Cassimatis, for adult ADHD. The appellant begged the complainant to stay and arranged for further marriage counselling in the city, which the complainant reluctantly attended. She had decided to tell the counsellor in the first session about the appellant's first rape of her, but she broke down crying during the session and ran out of time to disclose the incident. The complainant said that she was only going to mention the incidents at Collaroy because of the appellant's comments that if she consented "to vaginal sex initially the anal would not have been considered rape". The couple attended a few more sessions and then had separate appointments. She said that the appellant got numbers from the counsellor to go to some sort of domestic violence support group but she did not know what they did there. She stopped counselling because they could not afford to continue and, as well, Nicholas relapsed, with only six months to live.

[16]   The family then moved to Niagara Park next door to the house occupied by the appellant's sister, Ms Louise Ede. Nicholas died in March 2000, about a year later. When he was really ill, the appellant did not pressure the complainant "to do anything". The couple's daughter was born in July 2001. The complainant described their relationship at this time as good and the appellant as "very supportive". By this time the complainant's English had improved markedly.

[17]   When their daughter was about six or seven months old, the relationship worsened, arguments recommenced and tension returned. Between six months and a year later, the appellant was again forcing the complainant to have anal intercourse, beginning as vaginal sex but then moving to anal sex. The complainant kept telling him that this was causing bleeding for weeks and it was serious: "You cannot keep doing this". At first this occurred about once a month but then two to three times a week.

[18]   The last occasion, which gave rise to count 4, occurred in April 2003. Again, it commenced with vaginal sex and then anal penetration. The complainant felt she had been injured and was in great pain. She tried to push the appellant away but was unable to do so. After the appellant finished she immediately went to the toilet and saw heavy bleeding from her anus, which continued for over three weeks. Two days later the complainant found a pornographic video in the lounge room. The following day she spoke to her sister-in-law, Ms Ede, and told her that the appellant had raped her and she wanted to leave. Ms Ede arranged for a mutual acquaintance, Ms McPherson, to accommodate her. The complainant spoke to an outreach worker and was taken to a women's refuge. She went to a doctor but no rectal examination was undertaken although there was blood in her urine. … Ms Ede had often seen the appellant at the house after this event, apparently overnight, but never saw any "relationship type behaviour" and no-one suggested they were back together.

[19]   In cross-examination the complainant said that, after the separation in May 2003, they were not reconciled, although intercourse occurred twice after that date because "he was breaking into the house...coming to the house, and I was scared..." She was afraid that he would sexually assault her. She denied that, after about nine weeks separation, the appellant moved back into the house and they were reconciled. She denied that she had told her sister that she went to the hospital with the appellant's sister and they had a record of her injuries. She said that she received a phone call from a policewoman after the appellant had spoken to the police but she had not wanted to make a complaint. She could not recall any conversation with Ms Ede about ringing Dr Cassimatis and denied asking Ms Ede to call and question him. She did not complain to the police because she was not strong enough, although she commenced Family Court proceedings (which were delayed pending the outcome of the trial). She said that she did not know what the appellant had said to Dr Cassimatis.

6. In addition to the complainant’s evidence and the evidence of complaint to various relatives, the Crown relied on two significant admissions made by the applicant, one to a psychiatrist whom he had consulted, Dr Cassimatis, and one to a Sergeant Smith at Gosford Police Station. The details of those admissions are set out in the judgment of Adams J as follows:

[28]   Dr Cassimatis deposed that he had been a practising psychiatrist for about 35 years and was first consulted by the appellant in January 2001 who was referred to him to be treated for adult ADHD. He saw the appellant on a number of later occasions, ending in 2005 and on one occasion in 2010, when the appellant approached him regarding the content of his notes, which he seemed to hope or anticipate would be favourable to him. During the consultations, Dr Cassimatis made notes of the appellant's responses to questions. They were paraphrases rather than verbatim. The notes were obtained by police and tendered into evidence. In his first consultation with the appellant on 31 January 2001, which would have taken about 45 minutes, Dr Cassimatis noted, "He is blunt, obnoxious, angry, 1993 maybe he forced himself on his wife and bruised her. He unaware of the force. She threatened police or counseling. It ceased, now he aware it is detrimental."

[29]   In a consultation on 4 June 2003, about 15 to 30 minutes long, Dr Cassimatis recorded –

"In 1991 returned from Finland. Wife returned from overseas, then for about one year he forced wife to have sex many times, including anal sex, not for 6 - 7 years he says. But from time to time he'd push her for digital and penile anal sex. Son died three years ago. [The complainant] found porn videos soon after, he gets drawn to videos of victims of senseless, he agrees he raped wife years ago but knows he bruised her and present one week later. Will attend perpetrators program, don't want to be manic, I want to be steady."

[30]   Dr Cassimatis said that the appellant was aware that the bruising was serious. The appellant volunteered the information that he forced his wife to have sex many times, including anal sex. He was clear about that. The appellant saw it as something to which he was entitled in a marriage situation, in his own words, "He went with the intention to have sex on his terms, that's how I understood it". This was so whether she wanted it or not.

[31]   Dr Cassimatis gave evidence of a telephone conversation with Ms Ede in which she asked whether her brother suffered from Asperger's Syndrome. He said that he told her that he didn't know that and he wasn't sure but would have to see him again. The appellant then made an appointment to come and see him for this purpose, as he understood it. This conversation occurred on 28 May 2003. Dr Cassimatis noted that he was told, "He has split up with wife, rape accusation from wife".

[32]   Sergeant Smith deposed that on 6 October 2008, the appellant attended at Gosford Police Station and asked for some advice. After a brief pause, the appellant said, "Back in the early 90s I sexually assaulted my wife, what are the legal ramifications of this, if she reports it?" He paused again and then added, "you see, the bank is going to repossess our house and I want to sell it before the fire sale. My ex-wife doesn't want to sell the house. She is using the sexual assault against me, she said if I go through with the sale she will report the assault to police". The officer obtained some details from the appellant and recorded them in his police notebook. He conducted some checks and informed the appellant that nothing had been reported to the police. The appellant was allowed to leave the station. Sergeant Smith then made an entry on the police COPS database and contacted the complainant, explaining what had happened. The complainant told him, "Yes its true. It happened several times, I've been getting counselling ever since it occurred" and provided some background information. She indicated that she did not wish to make a statement to the police and was "quite upset". In cross-examination, it was put to him that the appellant said –

"Hi. Look, I don't know exactly how to talk about this - pause - I mean this is something that's been going on for a long time and I want it to stop, I'm sick and tired of it. Is there any way to force someone to put up or shut up if they've been making threats against you. I want to find out if there's a legal way to do it."

Sergeant Smith said he had no recollection of this and was fairly sure that it was not said. It was put to him that the appellant told him, "Look, I'd like to talk about a few legal issues" and then the officer interrupted him to ask, "Now, what's all this about", to which the appellant replied, "The issue is about me sexually assaulting my wife. She has been claiming for years that I raped her and has been using it against me and I'm over it, I just want it to stop." Sergeant Smith said that he did not say words like that. He denied that it was reasonably possible that he had made a mistake and left some words out in recording the appellant's comments, although he agreed that the appellant had said words to the effect, "She's been using it against me for years". He said that he understood the appellant perfectly.

7. The issue at the trial was consent. The applicant’s case was that he and his wife had anal sex to which she consented and liked. He gave evidence at the trial to that effect.

8. In relation to the admission to Dr Cassimatis, the applicant said that it was a lie that he had to tell Dr Cassimatis in order to get his wife and children back. He agreed that he went to Gosford Police Station and spoke to Sergeant Smith because he wanted the allegations that were being made against him by his wife to stop. However, he denied admitting to Sergeant Smith that he had raped his wife.

9. Complaint was first made by the complainant to police on 28 September 2009. As the facts make clear, she alleged that she was anally raped on many occasions. The four counts charged were described as representative of the numerous assaults. As the facts also note, contextual evidence was given concerning a number of the other assaults on her.

Legislation

10. Relevant provisions of the Act are these:

74   Definitions

(1)   …

(2)   In this Part, a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or an inquiry into, any aspect of the proceedings giving rise to the conviction or sentence.

78   Applications to Supreme Court

(1)   An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2)   The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79   Consideration of applications

(1) After considering an application under section 78 or on its own motion:

(a)   the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b)   the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2)   Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3)   The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a)   it appears that the matter:

(i)   has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii)   has previously been dealt with under this Part or under the previous review provisions, or

(iii)   has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv)   has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b)   the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

…

Legal principles

11. In Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 the following is said:

[34]   The legal principles governing these applications are now reasonably well known. The inquiry is not whether there is a doubt or question as to the convicted person’s guilt or, here, as to the sentence (Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [29]-[31]) but whether there appears to be a doubt or question: Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [16]. The requisite “doubt or question” was said to be something which might cause unease: Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 at 48.

[35]   In Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Johnson J said:

[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].

[7]   Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].

[8]   There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9].

Some Other Features of the Jurisdiction

[9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.

The basis of the application

12. It is a little difficult to identify the precise bases on which the applicant relies because of the somewhat discursive narrative of the documents setting out his complaints about the trial. It appears that the grounds are these:

(1)   Reliance on what is said to be fresh evidence concerning the complainant’s medical history.

(2)   What is described by the applicant as “’other’ fresh/new evidence” that existed at the time of trial but the existence or significance of which the defence was not aware:

(a)   A Family Court report concerning the complainant’s physically violent childhood;

(b)   Evidence in relation to the “Turning Point” course;

(c)   Literature and expert on the “Turning Point” course and the relationship between Post-Traumatic Stress Disorder and medication;

(d)   Evidence from a gynaecologist, Dr David Smith;

(e)   What is described as the “48 Hour Rule” said to be contained in one of the Bench Books;

(f)   Matters concerning the complainant’s skills in English.

(1)   Fresh evidence about complainant’s medical history

13. The applicant does not identify what aspect of the complainant’s medical history amounts to fresh evidence. He refers to the fact that the complainant suffered from endometriosis/bleedings in Finland before moving to Australia which led to her conceiving Nicholas in 1989. Other references in his narrative imply, but do not state, that any bleeding about which the complainant complains were not related to sexual assault of any kind but were related to her pre-existing condition, presumably, the endometriosis. For example, he says:

Why did she not reveal history of malnutrition – potential cause of bleeding?

Why did she not reveal regular undiagnosed rectal bleeding spanning years?

Why did she not reveal the occurrence of two invasive procedures to alleviate the bleeding, knowing not doing so would be incredibly prejudicial to me?

Why did she not qualify her past and the bleedings as perhaps something entirely separate and still claim I abused her … unless it was to manipulate the truth?

…

The point of the medical history evidence was to achieve the following:

To give logical and irrefutable proof of actual pre-existing conditions as sources of bleeding which in turn would undermine the credibility of any bleeding being due to actions by me.

14. He went on to submit that the medical history was the cornerstone of the evidence which would encourage jurors to ask hard questions about the complainant’s “believability”.

15. The applicant further submitted that the allegations the complainant made against him,

were almost immediately preceded by her experience of anxiety riddled flashbacks and nightmares, then grossly exacerbated, morphing into and given full voice in vague accusations of assault by me once she’d completed most of the “Turning Point” course (a regression therapy course run by unqualified people).

16. The applicant’s submissions appear, in an indirect way, to criticise the competency of the lawyers who acted for him at the trial although he accepted that both counsel and his instructing solicitor “both gave me a very thorough explanation prior to trial of why the sexual history of an accuser is completely untouchable in court”. The thrust of the criticism appears to be that he found the discussions with his lawyers “contradictory and confusing”, and he did not think of using the medical history evidence as part of the defence.

17. His submissions on this aspect conclude by saying:

In short, there is no doubt that the evidence physically existed at that time in a file somewhere in Finland.

Yet – for all practical purposes I wasn’t aware of it, and neither was my defence. From their perspective, the trial was already running in a particular way and therefore they had no logical reason to try to think of, or, ask me for anything of that type of evidence. In any event, they never asked.

18. There appear to me to be a number of problems in relation to this medical evidence.

19. First, the medical evidence is not even identified by the applicant. If it was the fact that the complainant suffered from endometriosis, that would have been an obvious matter to raise with the complainant in cross-examination to challenge her evidence that the bleeding came from the anal rapes. That is the more so when the complainant herself gave evidence in chief of having been diagnosed with endometriosis which she described as a condition that affects the uterine wall. Her evidence was that she conceived their first child, Nicholas, because that had the potential to obviate the need for treatment for that condition.

20. Secondly, the complainant’s evidence was that the bleeding came from the anus and not from the vagina, and only occurred after she had been subjected to anal intercourse.

21. Finally, the evidence would have no significance because the jury was clearly not satisfied beyond reasonable doubt that the complainant sustained bleeding or other injury from the sexual assault. The applicant was found not guilty of the aggravated form of sexual assault which was dependent upon establishing actual bodily injury. The fact that the complainant may have suffered from a condition which involved bleeding from the uterus would not have had an impact upon her credibility in claiming she had anal intercourse, which was not disputed by the applicant, and that that intercourse resulted in bleeding.

22. In that way even if the other requirements for fresh evidence were satisfied, which they would appear not to have been since the evidence was clearly in existence and referred to in the trial, the evidence would not have made any difference to the outcome.

23. The applicant also refers in his submissions to two occasions where he asserts the complainant was raped at a young age and was molested by her father as a toddler. It is far from clear if this forms part of the medical evidence that he now wishes to adduce, because the reference to this material occurs in the part of the submission where he accepted that his lawyers gave him a thorough explanation as to why the sexual history of a complainant was not able to be led. If those two asserted occasions are put forward as part of the medical history, s 293 of the Criminal Procedure Act 1986 (NSW) would make evidence of them inadmissible. The applicant does not assert, and it is not the case, that any of the exceptions in s 293(4) are applicable.

24. This matter does not cause a doubt or question in my mind concerning the applicant’s guilt.

(2)   The other fresh/new evidence

25. It is not clear from the applicant’s submissions whether these matters are to be regarded singly or in combination to raise a doubt or question about his guilt. I will, however, first consider each of them individually, and thereafter in combination.

(a)   A Family Court report

26. The applicant does not identify this report. It is said to contain an admission on the complainant’s part that she came from a physically violent childhood. The applicant submits that her evidence at the trial “strongly implied that having come from a single parent household she knew nothing of any abuse, especially sexual”.

27. The relevant evidence given by the complainant which the applicant is likely to be relying on (he does not identify it) was in relation to her account of the first time she said that the applicant raped her. The relevant question and answer in the transcript were this:

Q:   Did you have any understanding of whether what had happened to you was common, normal?

A:   No, I didn’t know because I went – I grew up in a single parent family and he grew up with two parents. So I thought well maybe it is something I have no clue about. Maybe he knows. Maybe this is something that he has experience, I don’t know.

28. The context was that the complainant said to the applicant the following day, after finding bruising on her legs and around her vagina and having pain in the pubic bone area, that what he did constituted rape. His reply was:

I’m sure it happens in marriages, it’s just not talked about.

It was in that context that the complainant was asked if she understood that what had happened was common or normal. Her answer, effectively, was that as she had only had a single parent in her household, she had no experience of whether rape within marriage was common or normal. She also gave evidence that she did not understand, until she went to the women’s refuge, that rape within marriage was unacceptable.

29. Even if there was evidence that she had suffered some quite different form of abuse in her childhood, that casts no doubt on her knowledge of whether rape within marriage was common or normal.

30. I do not have a doubt or question in my mind concerning the applicant’s guilt from evidence of the type described but not identified by the applicant.

(b)   The Turning Point course

31. The applicant asserts that the complainant misled the jury and/or committed perjury in relation to her reasons for attending the Turning Point course. The applicant asserts that the complainant was introduced to the course by a Sandi Forbes after she heard about what the applicant says were the complainant’s nightmares and flashbacks. He claims that Ms Forbes has told him that she understood the complainant came from a violent background, something the applicant claims the complainant directly or impliedly denied.

32. Once again, the applicant has not identified the misleading or false evidence. It seems, however, that this matter relates to the applicant’s assertion about the Family Court report and the complainant’s evidence about her childhood. I have already set out what that evidence was. She did not say that she did not come from a violent background, nor did she imply it.

33. There is no statement from Ms Forbes and, even if there was, it would be inadmissible hearsay about a collateral matter going only to the complainant’s credit.

34. More significantly, the applicant does not identify what was misleading or untruthful about what the complainant said were her reasons for attending the course. She was asked in cross-examination if she recalled doing the course in 1993 and she agreed that she did. In answer to the cross-examiner’s question “Did the course have a bit of an effect on you?”, the complainant said:

Yes, I realised that when I started going there I thought I needed help, however, I started realising after that course that actually there were more issues happening at home as in my marriage than I realised.

Apart from the complainant denying that she only started arguing with the applicant after she attended that course, no further questions were directed to it. Her evidence was, therefore, that she went to the course because she thought she needed help.

35. This matter does not cause me to have any doubt or question concerning the applicant’s guilt.

(c)   Literature/experts on “Turning Point” course

36. The applicant submitted that the complainant’s accusations about him and the way her behaviour changed so radically in 1993 and 2003 were due to the combined factors of:

(a)   the terminal diagnosis of their son;

(b)   flashbacks;

(c)   previously undiagnosed PTSD;

(d)   the changing and adding of medications with known side-effects that exacerbate existing PTSD; and

(e)   attending the Turning Point course.

37. There is no evidence relating to flashbacks, PTSD or medications. The complainant was not cross-examined about them.

38. She was cross-examined at some length to suggest that she was making the complaints out of vindictiveness, because she blamed the applicant for Nicholas’s death. She denied that she blamed him for Nicholas’s death. That was a matter the jury, no doubt, considered when deciding that the sexual assault allegations were true.

39. It is not clear what the applicant means when he says that the complainant’s accusations and behaviour changed. As to the accusations, the evidence was clear that the accusations by the complainant to the applicant commenced after the first allegation of rape in 1992, an allegation reported at the time to her sister in Sweden. She continued, thereafter, to make similar accusations as the sexual assaults continued. There is no evidence that the accusations changed. They pre-dated the matters in (a) and (e). As noted above, after the complainant’s denial that she only started arguing with the applicant after attending the Turning Point course, no further questions were asked about the matter.

40. There is no evidence of when the complainant had flashbacks because, as I have said, she was not cross-examined about them. It is not even demonstrated that the complainant suffered from PTSD, let alone when it was diagnosed.

41. To the extent that the complainant’s behaviour changed throughout the relevant period, the evidence and cross-examination dealt with that issue.

42. None of these matters could constitute fresh evidence. None of the matters is shown to have been unknown to the applicant at the time of trial. I do not have any doubt or question concerning the applicant’s guilt by reason of these matters.

(d)   Dr David Smith

43. The applicant submitted that the complainant was examined by the gynaecologist, Dr David Smith, when she was pregnant with Sebastian. The applicant submitted that if she had been injured or suffered bruising as a result of his treatment of her, this would have been ascertained by Dr Smith.

44. This matter is irrelevant because the jury did not accept beyond reasonable doubt that the complainant suffered injury from the sexual assaults. I do not have any doubt or question about the applicant’s guilt from this matter.

(e)   The 48 hour rule

45. The applicant refers to what he calls the “48 hour rule” in the Sexual Assault Bench Book. This is a section of the Bench Book dealing with medical examinations of sexual assault victims. Paragraph [22] of the Bench Book reads as follows:

In anal sexual assault the penetration is usually rapid and is frequently done without the use of lubricant. Anal penetration in the course of a sexual assault is invariably described as painful and is frequently accompanied by some bright bleeding. If an examination is done within the first 24 hours, it may be possible to see linear abrasions in the anal canal. It may also be possible to see blue discolouration caused by bruising of the anal verge or the entrance to the anal canal. However, if the examination is delayed to 48 hours after the sexual assault, it is likely that these findings will have disappeared and the anal canal and verge will appear normal.

46. Once again, this is entirely irrelevant in the light of the jury’s verdict. In any event, paragraph [22] says nothing about the length of time bleeding may last. It is concerned with whether linear abrasions might be seen in the anal canal. This matter could have been dealt with at the trial if admissible. It is not fresh evidence.

47. I do not have any doubt or question about the applicant’s guilt as a result of this matter.

(f)   English skills

48. The applicant submits that the complainant should not have been believed about her English skills, and that her lack of English skills provided no basis for an absence of earlier complaint. The applicant submits that the complainant perjured herself in relation to what she said about her English skills.

49. The complainant gave evidence about her English skills. She also gave evidence of her reasons for not having complained earlier. To some extent the lack of an early complaint was challenged in cross-examination but there was no challenge raised to her evidence concerning her English skills.

50. It is clear also that the failure to make earlier complaint was related to other matters as well. The complainant said that she did not feel strong enough to do it, and she expressed concern to her sister-in-law that if the applicant went to gaol, she and the children would be left with insufficient income to survive.

51. The issue of the complainant’s English skills is an entirely collateral matter that could not have made any difference to the outcome.

52. I do not have any doubt or question about the applicant’s guilt from this issue.

Conclusion

53. Even when considered as a whole, the matters raised in (a) to (f) above do not raise any doubt or question concerning the applicant’s guilt.

54. The application fails to adduce or even identify precisely the evidence now sought to be relied upon. Even assuming the evidence is as the applicant asserts, such evidence is not fresh evidence. There is no reasonable prospect that whatever evidence might be admissible would have made any difference to the outcome.

55. The case ultimately depended on whether the jury accepted the evidence of the applicant. If it did not, the case against him was a strong one, particularly because of the admissions made to Dr Cassimatis and Sergeant Smith. Significantly, the first visit to Dr Cassimatis where the applicant said “1993 maybe he forced himself on his wife and bruised her”, was long before the complainant left him. That put the lie to what the applicant said was a lie he told Dr Cassimatis just to get the complainant and the children back.

56. Sergeant Smith was an independent witness who made a record in the COPS system. The trial judge gave the jury a lengthy warning about Sergeant Smith’s evidence, as his Honour was bound to do, but it was powerful evidence that tended to support what had been said to Dr Cassimatis, as well as the complainant’s evidence.

57. I do not have a doubt or question as the applicant’s guilt. Having considered all submissions and material, I decline to direct an inquiry or to refer the case to the Court of Criminal Appeal under s 79(1) of the Act.

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Decision last updated: 12 February 2019