HLP v Tasmania

[2022] TASCCA 13

[2022] TASCCA 13

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	HLP v Tasmania [2022] TASCCA 13
PARTIES:	HLP
v
STATE OF TASMANIA
FILE NO:	CCA 1932/2022
DELIVERED ON:	1 December 2022
DELIVERED AT:	Hobart
HEARING DATE:	14 November 2022
JUDGMENT OF:	Blow CJ, Estcourt J, Jago J
CATCHWORDS:

Criminal Law – Evidence – Credibility – Evidence in contradiction – Evidence of police officers relating solely to credibility of complainant.

Evidence Act 2001 (Tas), ss 102, 106, 135.
Aust Dig Criminal Law [2868]

Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal dismissed – Assault and rape – Evidence of complainant accepted on two of four counts.

Dansie v The Queen [2022] HCA 25, 403 ALR 221, referred to.

Aust Dig Criminal Law [3476]

REPRESENTATION:

Counsel:

Appellant:	C Scott
Respondent:	D G Coates SC, T Barr

Solicitors:

Appellant:	Brooke Winter Solicitors
Respondent:	Director of Public Prosecutions

Judgment Number:	[2022] TASCCA 13
Number of paragraphs:	87

Serial No 13/2022

File No CCA 1932/2022

HLP v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BLOW CJ ESTCOURT J JAGO J 1 December 2022
Order of the Court (14 November 2022):
Appeal dismissed.

Serial No 13/2022

File No CCA 1932/2022

HLP v STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT
BLOW CJ
1 December 2022

1             This was an appeal against convictions for assault and rape. On 14 November 2022 this Court dismissed the appeal and announced that its reasons for doing so would be published at a later date. The Court is now in a position to publish its reasons for the order of dismissal.

2             The appellant was tried before Porter AJ and a jury on four charges relating to events that occurred on the night of 24 April 2018. He was charged with assaulting his former partner "by forcefully pressing his hands against her head over her ears" (count 1), vaginally raping her (count 2), attempting to commit rape by attempting to insert his penis into her mouth (count 3), and a second vaginal rape (count 4). The jury returned majority verdicts of guilty on counts 1 and 4 but were unable to agree upon verdicts in relation to counts 2 and 3. On appeal, the appellant contended that the convictions were unreasonable or could not be supported having regard to the evidence, and that the learned trial judge had erred by refusing to admit evidence relating to the ownership of a cannabis crop and its growing time. Other grounds of appeal were abandoned. Generally speaking, my reasons for joining in the order dismissing the appeal accord with those published today by Estcourt J. However there are some comments that I would like to make.

Unreasonable verdict

3             The jury heard evidence that corroborated the complainant's evidence as to the assault and one act of vaginal rape. She gave evidence that there were two acts of vaginal rape and that, between those two acts, the appellant had unsuccessfully tried to rape her orally, by trying to insert his penis into her mouth. It is clear that ten or eleven jurors were satisfied beyond reasonable doubt that the appellant committed the crime of assault and one crime of rape, but that fewer than ten jurors were satisfied beyond reasonable doubt as to the complainant's uncorroborated evidence to the effect that there were two vaginal rapes and an attempted oral rape.

4   The corroborative evidence at the trial included the following:

• Evidence that the complainant was deaf, and normally wore hearing aids, but had removed them before police officers arrived at her home shortly after 11pm on the night in question.

• Evidence from a nurse who examined the complainant at about 2am or 3am on the night in question, and noticed bruising behind her right ear and bruising in an area of her left wrist that was consistent with her account of the appellant's physical conduct.

• Evidence that that bruising had not developed when the police arrived, and took time to develop.

• Evidence that the complainant was distressed when the police arrived.

• Evidence of a prompt complaint by the complainant when the police arrived to the effect that she had been forcefully made to have sex with the appellant, that she had been grabbed around the head, and that her ears had been smacked.

• An admission by the appellant, when interviewed by police officers, that he had had sexual intercourse with the complainant on the night in question.

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• Evidence of the appellant's semen being found on a sheet that was on the complainant's bed, consistently with her account of him having ejaculated.

• Evidence of the complainant's daughter hearing her mother yell, "Get off me!"

• A recording of a 000 call from the daughter during which she said that she had heard the words, "Get off me."

5            In all the circumstances, but particularly having regard to the corroborative evidence, the test discussed by the High Court in Dansie v The Queen [2022] HCA 25, 403 ALR 221 was not met.

Credibility evidence

6 The learned trial judge concluded that evidence from police officers as to the growing times of hydroponic cannabis crops would amount to credibility evidence that was inadmissible by virtue of s 102 of the Evidence Act 2001. He also concluded that, if he was wrong as to that, he would refuse to admit the evidence on the basis that its probative value was substantially outweighed by the danger that the evidence might be misleading or confusing or cause or result in undue waste of time, relying on s 135(b) and (c) of the Evidence Act. His conclusion as to s 135 is unimpeachable. There was therefore no need for him to receive evidence from police officers about cannabis growing times on a voir dire. It was appropriate to assume that such evidence, if given, might be favourable to the appellant, but to exclude it because of its highly peripheral relevance and likely complexity.

7 The complainant gave evidence to the effect that cannabis found in her home by police officers on 5 September 2018 had been planted by the appellant, and that it took her nearly six months to grow it. It appears that the appellant's trial counsel wished to establish that the growing time for the crop would have been about three months. The appellant had not been to the complainant's home since the night of 24 April 2018, which was three months and twelve days before the police found the cannabis. The complainant was giving evidence in June 2022, some four years after the relevant events. Evidence of cannabis crops taking about three months to grow, rather than nearly six months, might well have been regarded as consistent with the complainant having made an honest mistake as to the growing time of the crop. That would have been a factor weighing against a grant of leave to adduce credibility evidence under s 106(1)(b) of the Evidence Act.

8             Having regard to those matters and the matters referred to by Estcourt J, it is clear that the evidence concerning cannabis was not wrongly excluded, and that its exclusion did not result in a miscarriage of justice.

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File No CCA 1932/2022

HLP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J

1 December 2022

The appeal

9            The appellant HLP was charged on an indictment alleging one count of assault (count 1), two counts of vaginal rape (counts 2 and 4) and one count of attempted oral rape (count 3).

10          Following a trial by judge and jury, the appellant was convicted of count 1 and 4. The jury was unable to reach a verdict in relation to count 2 and 3.

11   The appellant has appealed against his convictions on the following grounds:

• That the convictions upon count 1 and/or count 4 are unreasonable or cannot be supported having regard to the evidence. (ground 1)

• That the learned trial judge erred in law by excluding and/or refusing to admit evidence of/related to the ownership of the cannabis crop and its growing time. (ground 3)

• That the trial miscarried by reason that the Learned Trial Judge refused to allow evidence relating to the ownership of the cannabis crop and its growing time. (ground 5)

12   Grounds 3 and 5 are in reality a single ground. Appeals of this kind are provided for in the

Criminal Code, s 402(1). It provides:

"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."

13          The miscarriage of justice claimed in this case could only arise as a consequence of the refusal to admit the evidence referred to in the notice of appeal.

14           The principles in relation to grounds of appeal of the kind asserted in ground 1 were recently explained by the High Court in a joint judgment of Gageler, Keane, Gordon, Steward and Gleeson JJ in Dansie v The Queen [2022] HCA 25, 403 ALR 221. There the Court said at [15]-[16]:

"[15] Filippou confirmed that the function of a court of criminal appeal determining an appeal on the unreasonable verdict ground is to be performed under the guidance of M in exactly the same way where the trial has been by judge alone as where the trial has been by jury. In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt.

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[16] [T]he question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial."

15   And at [37] the Court said:

"[37] For the Court of Criminal Appeal to be satisfied that the finding of guilt arrived at by Lovell J could be supported having regard to the evidence required more of each of its members than mere satisfaction as to lack of error in each of the findings of fact made by Lovell J in arriving at that finding of guilt. It required more than mere satisfaction as to the existence of a pathway to proof of guilt beyond reasonable doubt." (Emphasis added. Footnotes omitted.)

16          At the conclusion of the hearing of the proceeding on 14 November 2022 the Court dismissed the appeal. These are my reasons for joining in that order.

The evidence

17           The complainant was a single woman aged 37 at the time of the alleged rape. She was and is a deaf person who utilising hearing aids including a cochlear implant. She has three children two daughters who were aged 15 and 11 and a son aged 9. The accused who was aged 36 at the time had an eight year old son of his own.

18           The complainant had been in a marriage like relationship with the appellant for a period of about four and a half to five years until they separated at the beginning of 2018. After that they continued to see each and continued having consensual sex up until 21 April 2018, three days before the alleged rapes shortly before 11.00am on 24 April 2018. The complainant gave evidence, respectively, that she did not or that she did not remember having sex with the appellant on the morning of 21 April 2018, however it seems clear that she did, both from the evidence of the appellant from his videoed record of interview with police and from the evidence of the sexual assault nurse, Catherine Graham, who examined the complainant at 3.08am on 25 April 2018 and noted that the complainant told her that she had.

19           Prior to 21 April 2018 the complainant had arranged to go away with her three children for three days from that date and had given the appellant a keys to the house and shed so that he and his son could stay there while the complainant was away. The appellant told police that he thought that he was lucky to get the key to the shed because the shed contained "about fifty grand worth of stuff", namely his "buggies and motorbikes and everything" and "like she's got nothing in the shed". That last comment by the appellant may be of significance, given, as will be seen, because on 5 September 2018, some four months and eleven days after the complainant had any contact with the appellant police searched her the complainant's house and seized 965 grams of cannabis bud and 1.75 kilograms of cannabis leaf and stalk that had been grown hydroponically in the shed. The complainant told the police and gave evidence at the appellant's trial, that the cannabis was his, that he had shown her how to care for it and that after the alleged rape she had continued to grow the crop and harvest it because she didn't know what to do with them and kept looking after them "just in case he wanted them".

20          When the complainant and her children returned from their trip away in the early evening of 24 April 2018 the appellant had cleaned the house and mowed the lawns and made dinner for everyone. He was proud of his efforts, made it would seem out of an ongoing to desire to effect a reconciliation and he grabbed the complainant by the arm and led her outside to show her what he had done.

21           While the others, including the appellant's son, ate dinner, the appellant watched on drinking Jack Daniel's. At some stage the complainant also had a glass of Jack Daniels which she ultimately took to bed with her and spilt part of the contents on the bed sheets. It is convenient to note here that by the

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time police later arrived at the house at around 11.30 pm, the appellant, according to Senior Constable Nicholas Barnes, was intoxicated and was unable to answer any of the constable's questions "without rambling and going off at a tangent".

22           The complainant's evidence was that after dinner she got the children to bed and "tried" to go to bed herself. It seems apparent that the appellant and his son were intended to stay the night and that the complainant and the appellant would sleep in the same bed.

23           The complainant's evidence was that as she was trying to go to bed the appellant was variously telling her how much he loved her and wanted to be with her and accusing her of cheating and having affairs and another man, saying that she should "go and suck his cock". She said that she was sitting on the side of the bed when the appellant "grabbed my face around the ears, I have hearing aids, and he slammed my head like this. He pushed me forwards and tried to kiss me". She said that she became dizzy and thought that she might have passed out. She realised that her drink had spilt all over her and the bed and she took her hearing aids out as she was really sore behind the ears.

24           The complainant said that they both changed the bed sheets together and that she then spoke with her elder daughter who had come into the bedroom enquiring about some expected postal mail. Her daughter's evidence was that her mother had called out her name. They went out about 9.00 pm or 10 pm and checked the letterbox and then she said they were both reading letters in another room and the appellant was standing around in the background watching and yelling out and calling them whores. She said that her daughter was wondering what was going on.

25           The complainant gave evidence that she told her daughter to be calm and not to worry about the appellant and that she would try and calm him down. She said that she said to her daughter "You go to bed but if you hear anything, just call the police straight away". It was not suggested to the complainant or to her daughter in cross-examination that this was not said.

26           The complainant's evidence was that her daughter then went back to bed and that the complainant also tried to get back into her own bed but the appellant got on top of her and forced himself on her. She said that she still had a t-shirt and underpants on but that he was still trying to find a way. She said that he got on top of her and moved her underpants to the side and held her down by holding her hands above her head so that she couldn't move and raped her. He ejaculated. She said that she screamed and said "get off me, get off me".

27           She said that after that she told the appellant that she needed to go to the toilet. When she came back she said that the appellant was "going on about having a blow job" and that he put his knee on her shoulder holding her down. She said that she struggled but that he still insisted and put his penis into her face, again holding her hands above her head. She said that she refused and he gave up. She said that she just kept saying "Get off me, I don't want you, I want you out". She said that she lost count of how many times she said that. She did not say that she said "get off me" again after that alleged attempted oral rape which it will be recalled was count 3 on the indictment with the second alleged vaginal rape being count 4.

28           The complainant's daughter gave evidence that after she had gone back to bed she heard her mother yell out "get off me" and that as instructed she rang triple zero. She was not challenged in cross- examination as to what she heard. The call was logged at 11.18pm and the recording notes her being asked if she knew what the appellant was yelling to the complainant and her answering "Um no, but I did hear my mum yell at him and say get off me".

29           Returning to the complainant's evidence, she said that after giving up on trying to put his penis in her mouth, the appellant took off her underpants and raped her again. She said that she was lying on her back and that there was more physical restraint on this occasion with the appellant holding her by the hands or wrists, again above her head but becoming so frustrated that he started slamming her hands

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down together on the bed. She said that the appellant told her how much he loved her and that they
should be together.

30           The complainant said that she then used the "toilet excuse" again and that somehow she got into the kitchen where she demanded that the appellant get out of her house and give her keys back or she would call the police. The appellant then "smacked" the keys down, breaking one, and as that happened the "the front door just flew open and the police arrived". The complainant said "I just disappeared into the police…".

31           In cross-examination it was put to the complainant that the complainant and the appellant had each undressed themselves and gone to bed and that there was foreplay by the appellant following which there occurred only one act of consensual intercourse. This was denied by the complainant.

32           In cross-examination it was suggested that she had perjured herself when she said that the cannabis crop was the appellant's and that he taught her how to grow it. The complainant said that the crop had almost died and that it took nearly six months to grow to the point where she harvested it. It was put to her that hydroponically grown cannabis grows from seed to maturity in three months or less and that the appellant had long gone from her home before the plants had ever been put in. She denied that saying that he had planted them and taught her how to look after them.

33           It was put to the complainant that she tried to blame the appellant for the cannabis that she grew and that was "exactly what you've done with the allegations in relation to sexual assault. You're blaming him for something he didn't do". She responded "No… he did rape me".

34           It was accepted by the appellant in cross-examination that she had instructed a lawyer to write to the Director of Public Prosecutions to the effect that she was a witness in an important trial and could he intervene in having a complaint dismissed or in having the police offer no evidence on the complaint.

35           The complainant's last word on the ownership of the cannabis crop was this exchange with the appellant's counsel at the end of his cross-examination:

"You tried to blame [the appellant] for cannabis that you grew…. He helped me set it
up, yes."

36           The next witness called on the trial was the clinical nurse, Catherine Graham, whose evidence has already been mentioned. She gave evidence of the notes she took at the time of her examination. Relevantly, they are as follow:

"Ex-partner staying at house 24/4/18. [The complainant] watching a movie from approximately 18.30 to 21.30 – and then went to bed. Ex-partner grabbed her face, both hands to the sides of her head and forced her to kiss him. [The complainant] states he grabbed her forcefully. She had her hearing aids in and him grabbing her was very painful as he was pushing against her ears and her hearing aids. He forced her down onto the bed, held her by both wrists and tried to take her shirt off. [The complainant] yelled 'no' a number of times.

He gave up on trying to take off her shirt and moved her underwear aside and put his penis in her vagina. She says he ejaculated. Afterwards [The complainant] stated he was asking her to take him back – they had split up a month ago – but she refused. He grabbed her again and put his penis in her vagina. She states that he ejaculated again. She states he grabbed her by the hair and tried to force his penis into her mouth but was unable to do so."

37           Ms Graham gave evidence that she saw a four centimetre by one centimetre pale blue bruise behind the complainant's right ear which was consistent with what she described happening to her. Ms Graham also said that she saw on the inner aspect of the complainant's left wrist, three oval red bruises, that were all one centimetre by half a centimetre in size. On the posterior aspects on the back of her left

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wrist, Ms Graham said that there was a larger bruise, two centimetres by one centimetre, which was green in colour. She said, again from her training and experience it was consistent with the complainant being held by her wrists. In cross-examination she said that the bruise was less than 16 hours old. She accepted that the bruising could have occurred at different times and as a result of a number of other possible causes. In cross-examination she also said that her observations that there was no evidence of injury in the area of the complainant's genitalia is consistent with both consensual and non-consensual sexual intercourse.

38           The police officers who attended the house were called on the trial. The first was Constable Jessica Shaw. Relevantly, Constable Shaw said that when she approached the complainant she was very shaken and appeared visibly upset and "scattered". She was asked in cross-examination what she meant by "scattered" and she said:

"So my observations of [the complainant]when I said that she was scattered, I was trying to speak with her and ascertain what had happened, why we'd been called, and she was quite focused on finding her hearing aid, so she was kind of moving about. She was quite shaky in her voice, her hands looked like they were shaking a little bit as well, she looked very overwhelmed. So that's what I meant by 'scattered'."

39           Constable Shaw said that the complainant told her that she had been forcefully made to have sex with her "husband" on two occasions prior to police arriving. Constable Shaw said that the complainant outlined that she had been assaulted and when asked if she had been hurt, she said that she had been grabbed around the head and her ears had been smacked. Importantly, when regard is had to Ms Graham's evidence as to bruising, the constable looked at the complainant's ears to see if she could see any injuries, but could not see any. She was not cross-examined about that.

40           Constable Dion Menzie was the next of the attending police witnesses called. He said on entering, he noticed that the appellant was wearing only blue board shorts which were on inside out and was not wearing any other clothing. He said that the appellant appeared as being intoxicated, "not to the level of rolling drunk" but he could smell alcohol and the appellant was unsteady on his feet, was not making a great deal of sense whilst he was speaking and was slurring his words.

41           Senior Constable Nicholas Barnes was the last of the attending police officers called, apart from the officer who subsequently conducted the video record of interview, Senior Constable Craig Stockdale. Senior Constable Barnes' evidence as to the appellant's intoxication has already been mentioned.

42           Senior Constable Kirby Direen was the last witness called for the State. He gave evidence that he went to the Hobart charge room at about 4.00am on 25 April 2015 and when you he spoke with the appellant he appeared sober. Constable Direen stayed with the appellant from that point in time until he was interviewed at about 6.00am. He was one of the officers who interviewed him.

The last item of evidence on the State's case was an agreed fact that a bed sheet removed from the complainant's bed was examined by a forensic scientist who detected the presence of semen and concluded that it was consistent with having drained from a female onto the bed sheet after sexual intercourse.

43           The appellant elected not to give or adduce evidence so that apart from matters elicited `by his counsel in cross-examination the only evidence as to the appellant's version of events was that contained in his record of interview.

44           In his record of interview the appellant denied the complainant's version of events and offered alternate possible causes of her bruising. And, as put to the complainant by his counsel, the appellant told police, in essence, that he and the complainant had each undressed themselves and gone to bed and

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that there was foreplay by the appellant following which there occurred only one act of consensual
intercourse.

45           When asked by interviewing police to give as much detail as he could about that act of sexual intercourse, the appellant said "we walked into the bedroom… undress… I got into bed … I knew she had to get up early… I started touching her… she didn't say once 'get off me'… not once. I got on top of her… and I had, we had sex together." He said that the complainant had a top on she had no pants on.

46           It was subsequently put to the appellant by police that the complainant "actually told you to get off". He answered "No she didn't at all". It is off significance of course that the appellant denied having been told by the complainant to "get off me", the words claimed to have been said over and over by the complainant and the very words offered to the triple zero operator, before the interviewing police put the allegation to him.

47           The appellant's apparent explanation for the yelling that resulted in the police attending was that he and the complainant had sex but then "my fuck up was talking about my relationship with her and she's wigged out on me (inaudible). Just like last time when she put the PFVO on me". He told police that he had agitated the complainant by asking about the future of the partnership and obviously "she got really shitty with me".

Appellant's submissions on ground 1

48          Counsel for the appellant submitted that the conviction upon "count 4" is unsafe for five reasons. First, he argues that the agreed fact as to the presence of semen could only relate to count 2, as the complainant only gave evidence of ejaculation occurring in relation to count. When pressed for information about how the sexual act relating to count 4 ended, counsel notes that the complainant did not suggest that it ended with the appellant ejaculating. Thus he submits, there is no independent or corroborative evidence of sexual intercourse taking place a second time.

49  

50           Second he argues that the yelling of the words "get off me" were said in relation to counts 2 and 3 but not counts 1 and 4. Thus the words heard by the complainant's daughter that precipitated the triple zero phone call do not assist in the determination of counts 1 and 4.

51           Third, he argues that aside from the complainant's evidence including the complaint evidence, none of the other evidence in the trial, on its own, was capable of proving guilt beyond reasonable doubt without acceptance of the complaint evidence.

52           Fourth, he argues that "the no verdict results on count 2 and 3 are suggestive of the jury not accepting the whole of the complainant's complaint evidence – inferentially there were doubts about the complainant's credibility despite the corroboration relied upon by the Crown".

53          Fifth, he argues that the evidence of bruising observed to the complainant was explicable by other causes than just force applied by the appellant.

54           Finally, he submits that the guilty verdicts on counts 1 and 4 are "unreasonable and cannot be supported having regard to the evidence" because of a lack of credibility on the part of the complainant arising from three matters.

55           The first is that her answers given in cross-examination as to the cannabis crop found at her house in September 2018 were "self-serving and unbelievable" in that, despite her own efforts made to cultivate and harvest and dry the cannabis, she persisted in telling the police it was the appellant's cannabis despite him having left Tasmania some five months earlier.

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56           The second is that the complainant was cross examined about correspondence sent between her solicitors and the office of the Director of Public Prosecutions to the effect that she was a witness in an important trial and whether the DPP could intervene in having a complaint dismissed or police prosecution tender no evidence on the complaint. Counsel submits that when that is considered alongside the cannabis evidence, it shows the complainant "to be someone who, when faced with her own serious criminal charges, sought to use her position as a witness in a criminal trial to gain a collateral advantage – namely to defeat the course of justice".

57           Finally it is submitted that the complainant could not be believed because in cross examination "she denied" that sexual intercourse had taken place with the appellant on 21 April 2018 and that was contradicted by the medical notes of Ms Graham who recorded that the complainant stated to her that she had had consensual sexual intercourse that day.

Respondent's submissions on ground 1

58          In a pithy summary of the arguments on ground 1 of the notice of appeal, senior counsel for the respondent, Mr Coates SC, concluded his written submissions as follows:

"In conclusion, this case involved a determination of the credibility and reliability of the complainant. It was a classic jury question. Her evidence was supported by her injuries, her daughter's evidence, and the recent complaint. The jury were prepared to accept her evidence when it was supported by other evidence. There is nothing about the evidence that contains such discrepancies or displays such inadequacies that this Court could conclude, after making full allowance for the advantages to the jury in having seen and heard the evidence that there is a significant possibility that an innocent man has been convicted." (Emphasis added.)

59           In respect of the question of ejaculation and to which count it relates, counsel for the respondent submitted that it was open to the jury to conclude that the appellant may have ejaculated on either count of rape.

Discussion

60           I do not accept the appellant's submission that the evidence as to the presence of semen on the complainant's bedsheet could only relate to count 2, because the complainant only gave evidence of ejaculation occurring in relation to count 2 ad that when pressed for information about how the sexual act relating to count 4 ended she did not suggest that it ended with the appellant ejaculating.

61          As to this question, the complainant was simply not asked the specific question by either counsel. The following excerpt from the trial transcript of the complainant's evidence in chief relates:

"What happened next?.. .....He raped me again. He got on – hang on. Took my
underpants off this time and held me down and did it again.

You said he took your underpants off this time. What happened the first time you had sex with him?...... I still had my underpants on. He moved them to the side.

So this time you say he took them off. What did he do then ?.....Raped me again.

And how were you positioned on the bed?..... I was lying on my back with him holding my hands or my wrists and – again, up above my head – and he had his chest in my face as well because he was right on top of me and I couldn't breathe.

Was that at all different to the first time?......It was similar – a little bit different. It was more a physical restraint on me the second time.

How did that second act of sexual intercourse end ?......Mostly it was just him saying, 'We should be together', how much he loved me . He was getting incredibly frustrated

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with me. He got so frustrated that he was still holding my hands and then he started

slamming them down together on the bed.

What made him get off you?......I used the toilet excuse again." (Emphasis added.)

62   The following excerpt from the transcript of the cross-examination of the complainant also

relates:

"I want to suggest to you that he had – he and you had vaginal sexual intercourse, by
consent?......No.

I want to suggest to you – well, I think you've already told us that during the course of whatever intercourse there – during the time of any intercourse, he ejaculated?......Yes.

And I don't mean to be crass, but he – ejaculated within your body?......Yes.

Thank you. Is it the case that after an act of vaginal sexual intercourse, [the appellant] became very emotional?......He was emotional…"

63           As can be seen the complainant's allegation of a second act of sexual intercourse, be it subsequent to or prior to that which was the subject of the cross-examination set out above, was simply never raised with her by counsel for the appellant on the trial.

64           I accept the submission of counsel for the respondent that in respect of the question of ejaculation and the count to which it relates, it was open to the jury to have concluded that the appellant may have ejaculated on either count of rape. Indeed, it was open to the jury, on the state of the evidence set out above, to find that the appellant ejaculated twice. As it transpired while fewer than ten jurors were satisfied beyond reasonable doubt that there were two acts of unlawful sexual intercourse and ten or eleven jurors were satisfied beyond reasonable doubt that there was at least one such act, the evidence of the presence of semen was irrefutable. Even if the jury had found that there were two acts of sexual intercourse but the first was consensual, it remains that there was nothing to prevent a finding that the presence of semen corroborated the complainant's evidence as to count 4.

65           I do not accept the second argument advanced by the appellant's counsel, namely that the words heard by the complainant's daughter that precipitated the triple zero phone call do not assist in the determination of counts 4 because there is no evidence that the words "get off me" were said before the alleged events the subject of count 2 or after those of count 3.

66           The daughter's evidence cannot be dismissed as simply as that. That the triple zero call was made is irrefutable as is the evidence of its contents. Neither her daughter nor the complainant were challenged as to the arrangement between them after the events described in count 1 and the jury was not obliged to accept all or reject all of the complainant's evidence. It follows that the jury was entitled to accept that the arrangement was made and that the words "get off me" were said by the complainant in the context of protesting the act of rape but to reject that they were said in the order of events described by the complainant.

67           I do not accept the validity of the third submission of counsel for the appellant, namely, that aside from the complainant's evidence including the complaint evidence, none of the other evidence in the trial, on its own, was capable of proving guilt beyond reasonable doubt without acceptance of the complaint evidence. One might say "so what". More to the point perhaps, it should be said that the complaint evidence was cogent and compelling and was both evidence of the facts stated and evidence going to the complainant's credibility.

68           I do not accept the validity of the fourth submission of counsel for the appellant, namely that the inability of the jury to reach a verdict results on count 2 and 3 suggests that the jury did not accept the whole of the complaint evidence and that by inference there were doubts about the complainant's

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credibility despite the corroboration relied upon by the State. The inability of the jury to reach verdicts on counts 2 and 3 simply means that at least two members of the jury were not satisfied beyond reasonable doubt that the State had established the elements of the crimes charged in those counts.

69           I do not accept that the fifth submission of counsel for the appellant has any significance. That submission was the evidence of bruising observed to the complainant was explicable by other causes than just force applied by the appellant. That is true, but with the exception of the appellant taking the complainant by the arm to show her the housework and gardening he had done while the complainant had been away, no other possible causes were realistically open within the time frame for the development of the bruises as explained by the clinical nurse Ms Graham.

70           Finally, I reject the appellant's submissions that that the guilty verdicts on counts 1 and 4 are "unreasonable and cannot be supported having regard to the evidence" because of a lack of credibility on the part of the complainant. Matters of credit arise in almost every criminal trial. Their existence do not necessarily render a guilty verdict unsafe.

71           As to the complainant's evidence as to the appellant's involvement with the cannabis crop, the complainant's last position under cross-examination was that the appellant had helped her set up the growing of the crop, something that was not gainsaid by any other evidence. As to the lawyer's letter to the Director of Public Prosecutions, there was no evidence as to the contents of the letter or the advice given as to the wisdom of its transmission. And as to the question of the complainant having sexual intercourse with the appellant on 21 April 2018, the evidence was that the pair had continued to have sex after their separation and the complainant's evidence overall amounted not to a denial as suggested by the appellant's counsel, but an inability to remember. Overwhelmingly however, as to credit, it was something the complainant freely admitted to Ms Graham at 3.00am on 25 April 2018.

Assessment of the evidence

72           In making the observations I have made above as to the lack of merit in the appellants arguments on ground 1, I am conscious that it is not the correct approach to seek in respect of the jury's verdicts, "mere satisfaction as to the existence of a pathway to proof of guilt beyond reasonable doubt".

73           My own independent assessment of the whole of the evidence leaves me with no doubt whatsoever that the appellant was guilty of the rimes of assault and rape charged in counts 1 and 4. The evidence against him was overwhelming in my view, comprising as it did, not just the complainant's objectively realistic account of the circumstances in which the crimes were committed, namely the appellant's desperation to reconcile, his disappointment at a perceived lack of recognition of his efforts, his jealousy and his intoxication, but also the corroboration of the discussion between the complainant and her daughter arising from the triple zero call, the telling contents of that recorded call recounting the complainant's words, the cogent evidence of the recent complaints, made respectively within minutes and hours of the alleged crimes, and finally, the evidence of the manifestation of the complainant's bruising and the lack of any realistic non-sinister explanation for them.

Disposition

74   There is no merit in ground 1.

Appellant's submissions as to grounds 3 and 5

75           As already observed, during the trial, Constable Lewis-Shaw was called to give evidence about her role in the investigation. During cross-examination, counsel for the appellant asked her whether part of her police training related to drugs. Counsel for the State objected on the basis that counsel for the appellant was attempting to adduce evidence of the growing time of hydroponic cannabis in order to demonstrate that it was less than the six months or so that the complainant had said in evidence that it

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took her to grow the crop seized by police. Counsel for the appellant indicated to the learned trial judge that he proposed to put this line of questioning to each police witness, the purpose being to show that the complainant lied to police about who owned the plants and that she also lied as to that when giving her evidence on the trial. Counsel indicated to the learned trial judge that he was pursuing this issue based on his own understanding, as put to him to the complainant in cross-examination, that a hydroponically grown cannabis crop matured in three months or less from planting.

76 No voir dire was held, however, based on the assertions of counsel for the appellant as to the evidence sought to be elicited, the learned trial judge ruled, excluding the evidence on two grounds. His Honour firstly outlined his reasons briefly during the trial in order and then published detailed reasons after the conclusion of the trial. First, he concluded that the evidence was credibility evidence and was not admissible. Secondly, he held that if the evidence was admissible, the probative value was substantially outweighed by the danger that the evidence might cause or result in an undue waste of time pursuant to s 135 and 192 of the Evidence Act 2001 (the Act).

77 Counsel for the appellant, in his written submissions, accepts that the proposed evidence was credibility evidence (and therefore inadmissible by virtue of s 102 of the Act, unless subject to the exception provided by s103 in cases where the evidence could substantially affect the assessment of the credibility of the witness and leave to cross-examine is given pursuant to s 104), however he submits:

"… in a case involving the very issue of the credibility of the Complainant and the veracity of her complaint, evidence that is relevant to credibility is such that "if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: section 55 Evidence Act 2001 (Tas). Evidence that the Complainant was in a pattern of wrongfully attributing criminal acts to [the complainant], could directly or indirectly if it were accepted, rationally affect the assessment of whether the Complainant had given a truthful and reliable account of being assaulted and raped by the Appellant, or whether she was someone biased against him or made false complaints to police about him."

78           Counsel for the appellant submits that "in a case where a Murray direction, and a Liberato direction were required, credibility was the critical determinant for a jury" and evidence that shows the complainant to be prone to lies, especially lies about the accused, is evidence that is highly probative in the assessment of weight to be afforded both to her complaint evidence, and in deciding whether she is both honest and reliable. That is, counsel submits "the evidence", had it been admitted, could have substantially affected the assessment of the credibility of the witness "within the meaning of s 103 of the Act".

Discussion

79           I have italicised the words "the evidence" in the last paragraph because to my mind those words beg the very question that troubles me about the learned trial judge's ruling. What evidence? Counsel for the appellant had only asked one question of Constable Lewis Shaw before objection was taken by counsel for the State. That question was "Is part of the training that you've had in the police force, does that relate to drugs and where they come from, and cannabis".

80           Now the answer to that question may have been "no" and likewise the answer for every other police officer asked the same question. But posit an answer from one or all of them (unlikely as it probably would be), "yes and from my training an experience I can say definitively, that in every case, a hydroponically grown crop withers and dies exactly three months after the seeds or seedlings are planted and cannot then be harvested".

81           If such evidence had been elicited it would have been a proper case, in my view, for a grant of leave under s 104, as the evidence would have tended to established a lie on the part of the complainant when she told police that the crop belonged to the appellant and when she said in Court, at the very

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least, that she was shown by the appellant how to set the crop up. Such lies if accepted as such by the jury would have substantially affected her credit and may also have amounted to evidence of a tendency on her part to falsely accuse the appellant of committing criminal offences.

82           However, no one knows what the evidence of each of the police officers would have been if they had been examined on a voir dire. From comments that he made, such a course seems to have been recognised by the learned trial judge as a preferable, if time consuming, method of determining admissibility.

83           In that state of affairs it might well be argued that his Honour erred in ruling the evidence inadmissible when its nature and extent was not known. It is unnecessary for me to decide however, given that in my view such an error would not have resulted in a miscarriage of justice.

84           Evidence that fell short of establishing a lie, such as would have been evidence that hydroponic crops can mature within three months or less, or even usually do, would not, in my view have warranted a grant of leave pursuant to s 106(1)(b), for the reasons given by the learned trial judge, including that, the probative value of such evidence would have been substantially outweighed by the danger that the evidence might cause or result in an undue waste of time pursuant (see s 135 and 192 of the Act). However, definitive evidence, such as that posited, would have provided the jury with the opportunity to further question whether the complainant was an honest and reliable witness as to her account of the events of 24 April 2018.

85           Being deprived of that opportunity does not result in a miscarriage of justice, given that, for the reasons I have already explained, the case against the appellant was, in my assessment of the evidence, overwhelming.

Disposition

86          As with ground 1, there is no merit in grounds 3 and 5 of the notice of appeal and for the foregoing reasons I joined in the order of the Court of 14 November 2022 dismissing the appeal.

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File No CCA 1932/2022

HLP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
JAGO J
1 December 2022

87           The reasons expressed by Estcourt J with respect to the decision of this Court to dismiss the appeal, accurately reflect my reasons for joining in in the making of that order. I have nothing further to add.