Jovanovski v Director of Public Prosecutions (NSW) - [2009] NSWCCA 284

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
JOVANOVSKI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 284

FILE NUMBER(S):
2007/10719

HEARING DATE(S):
20 July 2009

JUDGMENT DATE:
27 November 2009

PARTIES:
Tony Jovanovski – Applicant
Director of Public Prosecutions (NSW) - Respondent

JUDGMENT OF:
Basten JA Hulme J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2007/10719

LOWER COURT JUDICIAL OFFICER:
Conlon DCJ

LOWER COURT DATE OF DECISION:
5 June 2008

COUNSEL:
A Haesler SC/M Polden – Applicant
J Girdham - Respondent

SOLICITORS:
S O’Connor (Legal Aid Commission) – Applicant
S Kavanagh (Solicitor for Public Prosecutions) – Respondent

CATCHWORDS:
CRIMINAL LAW – appeal against convictions – verdict unreasonable or unsupportable having regard to evidence – prosecution case based on evidence of complainant – applicant convicted on some counts but acquitted on others – whether verdicts inconsistent – whether rational basis for inconsistency between verdicts – whether convictions unreasonable or unsupportable – [Criminal Appeal Act 1912] (NSW), s 6(1)
WORDS & PHRASES – "inconsistent verdicts" – "miscarriage of justice" – "unsafe or unsatisfactory"

LEGISLATION CITED:
[Criminal Appeal Act 1912] (NSW), ss 5, 6
[Criminal Appeal Act 1968] (UK), s 2

CATEGORY:
Principal judgment

CASES CITED:
[Chidiac v The Queen] [1991] HCA 4; 171 CLR 432
[Fleming v The Queen] [1998] HCA 68; 197 CLR 250
[Gilbert v The Queen] [2000] HCA 15; 201 CLR 414
[Gipp v The Queen] [1998] HCA 21; 194 CLR 106
[Hargan v The Queen] [1919] HCA 45; 27 CLR 13
[Jones v The Queen] [1997] HCA 12; 191 CLR 439
[Lajciak v The Queen] [1999] NTSC 82
[M v The Queen] [1994] HCA 63; 181 CLR 487
[Mackenzie v The Queen] [1996] HCA 35; 190 CLR 348
[MFA v The Queen] [2002] HCA 53; 213 CLR 606
[R v Kirkman] (1987) 44 SASR 591
[R v Markuleski] [2001] NSWCCA 290; 52 NSWLR 82
[Regina v Cooper (Sean)] [1969] 1 QB 267
[TK v R] [2009] NSWCCA 151
[Whitehorn v The Queen] [1983] HCA 42; 152 CLR 657

TEXTS CITED:

DECISION:
(1) With respect to the convictions on counts 1, 4 and 7, grant leave to appeal but dismiss the appeal in each case.
(2) With respect to the application for leave to appeal against sentence, refuse the application.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/10719
BASTEN JA
RS HULME J
JOHNSON J
27 November 2009

Tony JOVANOVSKI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Headnote

In 2003 the applicant formed a relationship with a young woman then about 17 years of age ("the complainant") that lasted for approximately four years. The complainant alleged that during the relationship the applicant became physically and mentally abusive towards her. This conduct gave rise to allegations that the applicant had committed seven offences against the complainant. The applicant was convicted on two of those counts which alleged that he detained the complainant without her consent and with intent to obtain an advantage, namely to intimidate her (counts 1 & 4). He was also convicted on a count of intimidating the complainant with intent to cause her to fear physical harm (count 7). The applicant was acquitted on the four remaining counts, of which two (counts 2 and 3) alleged assaults, one (count 3) occasioning her actual bodily harm, and a third (count 5) alleged a detention with intent to obtain an advantage, namely to interrogate her, and occasioning her actual bodily harm. The final acquittal (count 6) was for the alleged theft of the complainant's motor vehicle.

With the exception of count 7, the prosecution case rested upon the uncorroborated evidence of the complainant. The applicant challenged the verdicts on the basis that the inconsistency between the convictions and the acquittals rendered the convictions unreasonable or incapable of being supported, having regard to the evidence. Particular focus was paid to the inconsistency between the convictions on counts 1 and 4, and the acquittals on counts 2, 3 and 5.

By majority the Court held, granting leave but dismissing the appeal:

(per Basten JA, Johnson J agreeing)

In assessing whether inconsistent verdicts in relation to counts arising out of different factual circumstances, warrant a finding of miscarriage, the test differs from that in relation to the assessment of evidence and a conclusion that a verdict should not stand because it was not supported by the evidence. Where there was evidence to support the verdict, there is a need for great caution in presuming that a jury has acted inappropriately in reaching a conclusion of guilt in some circumstances and a contrary conclusion in others: [23].
R v Kirkman (1987) 44 SASR 591, considered.
Hargan v The Queen [1919] HCA 45, 27 CLR 13; Whitehorn v The Queen [1983] HCA 42, 152 CLR 657; Chidiac v The Queen [1991] HCA 4, 171 CLR 432; Mackenzie v The Queen [1996] HCA 35, 190 CLR 348; Jones v The Queen [1997] HCA 12, 191 CLR 439; Gipp v The Queen [1998] HCA 21, 194 CLR 106; Fleming v The Queen [1998] HCA 68, 197 CLR 250; Gilbert v The Queen [2000] HCA 15, 201 CLR 414; R v Markuleski [2001] NSWCCA 290, 52 NSWLR 82; TK v R [2009] NSWCCA 151; Lajciak v The Queen [1999] NTSC 82; Regina v Cooper (Sean) [1969] 1 QB 267. referred to.

A common element between counts 1 to 5 was that each involved an allegation of physical violence. However, those for which the applicant was convicted did not involve the infliction of visible injury. There was no necessary inconsistency between a failure on the part of the jury to be satisfied that the applicant caused actual bodily harm to the complainant, and satisfaction that he acted towards her in an intimidating fashion, so as to detain her for advantage or cause her to fear actual bodily harm: [65].

M v The Queen [1994] HCA 63, 181 CLR 487; MFA v The Queen [2002] HCA 53, 213 CLR 606, applied.

(per Hulme J, dissenting)

No rational basis has been shown upon which the jury could have acquitted the applicant on counts 2, 3 and 5, yet convicted him on counts 1 and 4. The acquittals indicate that the jury must have had reservations concerning the complainant's credibility, which, in the circumstances of the case, must logically have extended to her evidence on counts 1 and 4: [126].

M v The Queen (1994) 181 CLR 487; R v Markuleski (2001) 52 NSWLR 82; TK v R [2009] NSWCCA 151, referred to.

IN THE COURT OF

CRIMINAL APPEAL

CCA 2007/10719
BASTEN JA
RS HULME J
JOHNSON J
27 November 2009

Tony JOVANOVSKI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Judgment

BASTEN JA: At some stage in 2003 the applicant formed a relationship with a young woman, then about 17 years of age, to whom it is convenient to refer as the complainant, there being a non-publication order in relation to her name. Various events which occurred in the course of the relationship gave rise to the laying of an indictment against the applicant, including seven counts. The applicant was convicted on two counts alleging that he detained the complainant without her consent and with intent to obtain an advantage, namely to intimidate her. These events were said to have taken place in early 2005 (count 1) and the first half of 2006 (count 4). He was also convicted of a count of intimidating the complainant with intent to cause her to fear physical harm, which occurred on 1 January 2007 (count 7).
The applicant was acquitted on the four remaining counts. Two of these (counts 2 and 3) alleged assaults, one (count 3) occasioning her actual bodily harm, a third (count 5) alleged a detention with intent to obtain an advantage, namely to interrogate her, and occasioning her actual bodily harm. The fourth count on which the applicant was acquitted (count 6) concerned the alleged theft of the complainant’s motor vehicle.
The applicant did not allege in this Court that there had been any procedural flaw in the trial, in respect of the admission of evidence, or in respect of the directions given by the trial judge to the jury. Rather, the applicant’s challenge was based upon a degree of alleged inconsistency between the verdicts. With the exception of one particular count, the prosecution case rested upon acceptance of the evidence of the complainant. Because, the applicant submitted, the jury were not satisfied beyond reasonable doubt of the complainant’s evidence in respect of four charges, they should have entertained a reasonable doubt in respect of the three charges on which they found the applicant guilty, there being no rational explanation for accepting her evidence of those events, but not of others.
It will be necessary in due course to identify the evidence relied upon in respect of each count. Before undertaking that exercise, it is necessary to identify the legal principles governing this Court’s power to intervene and set aside a jury verdict, on the basis outlined above.
Because the grounds of appeal were not restricted to a question of law alone, the applicant required leave from this Court to appeal against his convictions: Criminal Appeal Act 1912 (NSW), s 5(1). The concerns raised by the applicant being reasonably arguable, leave should be granted in respect of each conviction. Nevertheless, for reasons which appear below, the appeal in each case should be dismissed.

Legal principles

The obligation of this Court to allow an appeal is engaged “if it is of opinion that the verdict of the jury should be set aside on the ground that it was unreasonable, or cannot be supported, having regard to the evidence, or that the judgment 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 other ground whatsoever there was a miscarriage of justice …”: Criminal Appeal Act, s 6(1). That obligation is qualified by the power contained in the proviso to dismiss the appeal if the Court considers that no substantial miscarriage of justice has actually occurred.
The language set out above has not changed since the enactment of the Criminal Appeal Act, almost a century ago. As noted by Isaacs J in Hargan v The Queen [1919] HCA 45; 27 CLR 13 at 23:
“Now, before the Criminal Appeal Act, doubtless, the question would have been whether there was error in law, that is, strict law, as distinguished from practice. But the essence of the matter here is that sec 6 of the Criminal Appeal Act states three grounds on which an appeal ‘shall’ prima facie be allowed, viz: (1) verdict unreasonable or not supportable on the evidence; (2) error in law; (3) miscarriage of justice on any other ground.”
The first and third categories identified in Hargan involve a number of overlapping concepts: Gipp v The Queen [1998] HCA 21; 194 CLR 106 at [119] (Kirby J). There is no advantage in seeking to place the particular grounds relied on in the present case within any particular classification. Indeed, there are dangers in a process of classification which may tend both to distract the appeal court from a proper focus on underlying principle and may result in cases which appear to fall within a particular category being decided on the basis of precedent, rather than on their own circumstances: see the history of intermediate appellate court decisions outlined in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82, particularly in the judgment of Spigelman CJ, addressing decisions reached following the judgment of the High Court in Jones v The Queen [1997] HCA 12; 191 CLR 439. No doubt on the basis that the powers conferred on this Court were intended to have a broad and flexible application, it has for many years been commonplace (though less so now) to identify the question as whether the verdict was “unsafe or unsatisfactory”, being the language used in s 2(1) of the Criminal Appeal Act 1968 (UK). Use of that language has been deprecated by the High Court. In Fleming v The Queen [1998] HCA 68; 197 CLR 250, after referring to warnings sounded in Gipp at [17] (Gaudron J) and [119]-[127] (Kirby J), the Court stated at [12]:
“The fundamental point is that close attention must be paid to the language of s 6(1) of the Criminal Appeal Act. Use of the potentially confusing phrase ‘unsafe and unsatisfactory’ to cover the several different elements in the sub-section is liable to mislead. There is no substitute for giving attention to the precise terms in which s 6(1) is expressed."
The key underlying legal principles are threefold. First, there is the anxiety to avoid conviction and punishment of the innocent, reflected in the need for the prosecution to prove its case beyond reasonable doubt. Secondly, there is the “constitutional” function of the jury to determine disputed factual matters. Thirdly, there is the importance placed on the principle of orality, and the benefits obtained by the jury in seeing and hearing the witnesses.
The greater difficulty in this area of appellate review is to identify the degree of satisfaction required by s 6(1) before the obligation to allow an appeal is engaged. If great weight is given to the first principle in isolation (the anxiety to avoid conviction of the innocent) a doubt on the part of the appellate court as to the propriety of the conviction may be thought sufficient. In Regina v Cooper (Sean) [1969] 1 QB 267 at 271 the English Court of Appeal (Widgery LJ) expressed the approach to be taken under s 2 of the UK legislation in the following terms:
“That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.”
That approach has not been followed in Australia. In Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 at 689 the High Court stated that an appeal court is not empowered to set aside a verdict “upon any speculative or intuitive basis”. That passage was noted with approval in M v The Queen [1994] HCA 63; 181 CLR 487 at 491-492 (Mason CJ, Deane, Dawson and Toohey JJ). In M, the joint judgment expressly identified the following propositions as designed to provide authoritative guidance to courts of criminal appeal (at 494–495):
“It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
This approach has not been doubted in subsequent cases: see, eg, MFA v The Queen [2002] HCA 53; 213 CLR 606 at [25]-[26] (Gleeson CJ, Hayne and Callinan JJ) and [53]-[59] (McHugh, Gummow and Kirby JJ).
Accepting that the higher test for intervention proposed by Dawson J in Chidiac v The Queen [1991] HCA 4; 171 CLR 432 at 451 and by McHugh J in M, 181 CLR at 524-525 has been rejected, there remain the practical difficulties attending the application of the test in any particular case. In the present case, it was pressed upon this Court that there were discrepancies and inadequacies in the complainant’s evidence, including a significant delay in making her complaints, which cast doubt upon her credibility. Nevertheless, it is necessary to give weight to the position of the jury in seeking and hearing her evidence. Whether, despite inadequacies of expression, she appeared credible was a matter for the jury. Of course, assuming that the jury correctly understood and applied the judge’s directions, the convictions themselves reveal that at least ostensibly, the jury was satisfied beyond reasonable doubt as to her complaints in particular respects. That in turn gives rise to a question as to the basis upon which the jury distinguished some counts from others.
Differing approaches may be found in appellate decisions as to the inferences which may be drawn from the acceptance by a jury of the prosecution case on some counts, and its rejection on other counts. In some circumstances this situation may be said to reveal “inconsistent verdicts”. Depending on precisely what is meant by that language, it may provide a ground for intervention. (It is not presently relevant under which head of s 6(1) intervention occurs.)
There may be rare cases of what has been described as “legal or technical inconsistency”: see Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366, par 1 (Gaudron, Gummow and Kirby JJ). Perhaps ironically, the examples given in the joint judgment are of apparently consistent verdicts, namely guilty on two counts, but in circumstances where the person cannot in law be guilty of both offences. No such issue arises in the present case.
A separate situation arises where, on a trial involving several counts before a single jury, there is said to be “factual inconsistency” arising from conviction largely on the evidence of the complainant on certain counts, but rejection of her evidence on other counts. Often the cases will involve sexual assaults, but in some cases (including the present) the counts may involve a domestic relationship, but without a sexual element.
The most obvious case of factual inconsistency is one where the evidence of the complainant relates to a single event giving rise to two charges. In the absence of some other evidence supporting one charge but not the other, conviction on one charge only is capable of supporting an inference that the trial miscarried: see, eg, Lajciak v The Queen [1999] NTSC 82. However, where the charges involve different incidents, the inference that acceptance of the complainant’s evidence in relation to one incident but not another demonstrates a miscarriage of justice will be less readily drawn. As explained in the joint judgment in Mackenzie at 367:
“Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”
In some cases, of which the present is an example, the appellant may combine an attack on the inadequacy of the evidence with the appearance of factual inconsistency between verdicts.
In Markuleski, Spigelman CJ rejected the view that Jones “established the proposition that in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the Court can detect a relevant difference in the quality of the complainant’s evidence”: at [64] and [65]. Where separate incidents are involved, cases which can be described as “pure word against word” may well be rare. Extraneous circumstances will often provide support in one situation, but not in another. Further, whereas the detail supplied in respect to one incident may differ from that provided in relation to another, being a point of distinction which will be apparent from the transcript, nuances in the manner of describing the events which may readily have been perceptible to the jury will not appear on the transcript. In MFA, Gleeson CJ, Hayne and Callinan JJ noted a number of features which may need to be considered in circumstances where juries discriminate between counts, at [34]:
“First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. … In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. … A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”

Their Honours identified a third matter namely that “it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only”, referring to the reasoning of King CJ in R v Kirkman (1987) 44 SASR 591 at 593. The same passage was referred to by McHugh, Gummow and Kirby JJ in MFA, noting that it had been cited with approval in Mackenzie, 190 CLR at 367-368.
How much weight should be placed upon the power of a jury to adopt an ameliorative or compassionate role by not convicting in circumstances where they were satisfied that a particular charge was proved is difficult to assess. In Kirkman, King CJ identified the possibility as a reason for caution in concluding that there was a miscarriage where a verdict was adequately supported by the evidence: 44 SASR at 593. He said that he mentioned the point “as a matter of general observation” but thought it “unnecessary to look to considerations of that kind in the present case”. Further, it is not clear that there has been a case in which apparent factual inconsistency has been rejected on that basis. That is understandable because such a conclusion would usually be based on pure speculation. Secondly, it would be speculation adverse to the interests of the appellant. In most cases, because juries are not directed that they may acquit on such a basis, that approach would seem to involve an assumption that the jury has not followed its directions. By contrast, there are many circumstances in which a conviction appeal will be dismissed because, despite the weakness of the prosecution case, it is generally to be assumed that the jury applied the directions they were given and were therefore satisfied beyond reasonable doubt: see, eg, Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [13] (Gleeson CJ and Gummow J).
Although this is a case in which it may be possible to infer that a reasonable juror could have thought that the prosecution had been unduly heavy-handed in the number and nature of the charges laid, and despite the apparent latitude granted by the High Court in this regard, I would not uphold the convictions on the basis that the jury may have been satisfied beyond reasonable doubt as to other charges as well, so as to avoid an inference of factual inconsistency.
The remaining question is the degree of satisfaction required in respect of factually inconsistent verdicts, in order to warrant a finding of miscarriage. It is apparent that the test in this respect differs from that in relation to the assessment of evidence and a conclusion that a verdict should not stand because it was not supported by the evidence. Assuming that there was evidence to support the verdict, the factors set out above demonstrate the need for great caution in assuming that a jury has acted inappropriately in reaching a conclusion of guilt in some circumstances and a contrary conclusion in others. Having noted the basis for such caution, Gaudron, Gummow and Kirby JJ in Mackenzie stated at 368, par 5:
“Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.”
In the present case, the applicant sought to rely upon satisfaction of that test on two bases. One, as noted above, involved taking the apparently inconsistent verdicts with the general weakness of the prosecution case, so as to infer that the jury were not satisfied beyond reasonable doubt in the absence of some corroborating circumstance. The second step in the argument was that there was no objective basis for distinguishing between those cases in which the jury convicted and those in which it did not, by reference to extraneous corroborating circumstances.

Application of principles

This was not a “word against word” case because the jury did not have before it any contradicting account from the applicant. With limited exceptions, the prosecution case depended entirely upon the evidence of the complainant. She gave evidence in relation to the offences constituting each of the seven counts on the indictment, but in respect of one her evidence was not critical. That count (6) differed from the others in that it involved no direct confrontation between the applicant and the complainant. Rather, it involved the theft of the complainant’s motor vehicle.
There are different ways of approaching the challenge to the convictions. One would be to deal chronologically with the incidents, including the events which occurred between incidents, being primarily the mobile phone text messages produced by the applicant and used in cross-examination of the complainant. A second course would be to consider first the charges on which the applicant was convicted and then those on which he was acquitted, together with the messages, which tended to suggest an on-going relationship with which the complainant was not unhappy. A third course would be to consider the acquittals, then the convictions and the messages.
The course adopted below is to look first at the acquittals, although that is not to take the events in the order in which they occurred. The reason for adopting that course is that by convicting on the first and last counts and one in the middle chronologically, the jury does not appear to have placed weight upon the order of events. In other words, it accepted that there were incidents of criminal behaviour at various stages of the relationship over the period in question, and not merely at the end when it was clearly breaking up.

Acquittals: Counts 2 and 3

These two counts occurred on one occasion on a date within the period 7 September–31 October 2005. Count 2 involved an assault and count 3 an assault involving actual bodily harm. The incidents occurred in the lounge of the complainant’s home on a day shortly after her birthday on 7 September 2005. The description given by the complainant of the incident in her evidence-in-chief was as follows (Tcpt, p 16):
“At his house he was sitting on the lounge upstairs in the study and he pushed me, so I ended up lying down on the lounge and he had a knife and he was really agitated like he was angry about something I don’t even remember what it was and he started threatening me, then he got the knife then he was basically on top of me and touching the blade of my knife to my eyeball and saying that he was going to stab me and that I will go blind.
He got the knife and he started threatening to cut off my hair and he got the knife and put it towards the back of my head, like kept saying that he was going to cut my hair off. He was just saying horrible things and threatening me and just threatening to kill me and he ended up after a little while sitting up and he just changed, like he started, like he was crying, he started crying and he just had his head down and still had the knife in his hand and I was crying as well because I was scared but my head was really sore because when he was saying that he was going [to] rip my hair out, he was going to cut my hair off so he was ripping out big chunks of my hair and my head was bleeding and he just sat up after that and like I said he was just like weeping, then just saying ‘What have I done’ and ‘I’m sorry’.
And then while I was still sitting there all of a sudden he just changed again then he grabbed me by the wrist and with the knife he started threatening that he was going to kill me saying that he was going to kill himself after that and with the knife he began to cut my wrist with the blade and I was just praying in my head that I didn’t die. I didn’t know what else to do.
He was saying things and then he’d cut my wrist again and then he’d go on and say something else and then he would do it again and then after about 15 minutes he stopped and I was holding my wrist because it was bleeding a lot because the cuts were fairly deep and he ended up cutting my wrist about three or four times. Then I just ended up trying to hold my wrists so I wouldn’t bleed anymore because I was scared that I didn’t know what would happen, I was scared I would die.”
Despite the apparent severity of the injuries described, the complainant did not seek medical treatment. However, she was examined by a specialist pathologist on 14 January 2008, some two and a half years after the incident. He identified “two faint scars about … 30 millimetres in length”: Tcpt, p 239. He also described them as “very thin” and expressed the opinion that they would be “an extremely superficial type of injury”. In cross-examination he said that he could not exclude the possibility that the scarring was occasioned by self-inflicted wounds: p 244. When asked whether the complainant had told him that the wounds “initially bled profusely” he answered, “She did but on further question [sic] she didn’t”: p 240-241.
The complainant was cross-examined as to whether she had made the cuts on her arm herself, but denied it: Tcpt, p 140. She was then asked whether she had told the applicant that she had tried to commit suicide by cutting her wrists. She agreed that she had said that, but denied that she had actually tried to do it.
The jury acquitted on both charges.

Count 5

Count 5 involved a charge of detaining the complainant without her consent and with intent to obtain advantage (to interrogate her) and at the time of the detaining, occasioning actual bodily harm to the complainant. The event in question was said to have taken place on or about 14 November 2006, although that date was later amended to encompass a period from 15 November to 16 December 2006.
The complainant’s description of the incident in her evidence read as follows (Tcpt, p 21):
“A.         …There’s like a pier that goes out and he drove along that, so we were at the very end, and as soon as I got there he started going through my bag and asking me where my phone was, and he’d locked the doors and he started getting really angry because I hadn’t brought my phone with me, because he always used to go through it.
Q.           When you say he always used to go through it, what do you mean?
A.           He’d go through it, he’d put numbers, he’d ring numbers to see if they were other men, he’d read my messages, he’d look at my sent messages, he’d keep my phone so he could see if people were ringing me. He’d just – I don’t know.
Q.           So he found that you didn’t have your phone that day?
A.           Yeah.
Q.           And what happened then?
A.           He got even angrier, he grabbed me by the back of my head, by my hair and started screaming in my face. He started calling me things. He had a knife in the centre bit of the car and he got that out, he was waving it around and he was saying like ‘Watch what’s going to happen, we’re both going to die here tonight.’ He started – he was hitting me and punching me on my face, and then he started just punching me to the rest of my body, mainly to the right hand side.
I was just crying and screaming, didn’t know what else to do, couldn’t get out, he just kept punching me and punching me, and then he was holding – at one stage he was holding my arm so tight that his nails dug in and all my skin began to bleed. Then I just – I just sort of began to – it wasn’t like I was – like I was there but I sort of after a while just lost feeling, and then after that I don’t really – I guess I passed out at that stage.”
The complainant was cross-examined in relation to three text messages between her and the applicant. At about 7.15pm on 14 November 2006 she had arranged with the applicant to be picked up at about 10pm. Shortly after midnight (early on 15 November) there was a further message in loving tones. In cross-examination the complainant in effect accepted that those messages were inconsistent with the incident she described having taken place on 14 November 2006 and said that she must have got the dates confused: Tcpt, p 154-155. The count was amended to identify a period from 15 November until 6 December 2006.
The complainant also gave evidence as to the injuries she suffered on that occasion (Tcpt, p 22-23):
“Q.         As a result of being assaulted on that occasion did you have any injuries?
A.           Yes.
Q.           Tell the jury what they were?
A.           I had a cut inside my mouth, one of my eyes was really badly bruised, I had bruising to my right side and all my nails, I had a [sic] fake nails on they were all ripped off really badly, like they were all bleeding and stuff.
Q.           How did that happen?
A.           That was from when I was trying to fight back.
Q.           Did you have any injuries to your legs?
A.           Yeah I had bruising mainly towards the top part of my legs.
Q.           Do you remember what time you got home on that occasion?
A.           I would say it was around midnight.
Q.           And what did you do when you got home?
A.           Went upstairs to my room.
Q.           What did you do the next day?
A.           The next day I had, I had dancing and so, but I have special spray tan that straightaway is brown so I put that on, I put on heaps of makeup so you couldn’t see the bruising to my eye and I wore two sets of stockings so you couldn’t see the bruises on my leg.
HIS HONOUR
Q.           You said you had dancing the next day?
A.           Yes.
Q.           I think I got most of it, did you say the words you put some spray tan on?
A.           Yes.
Q.           The dancing was where, where did you have to go for that, … what type of dancing was it, was it a special event you had to go to or was it a dancing school, what was it?
A.           It was part of my dance school, it was rehearsals at my dance school in Unanderra.”
The prosecution called a friend of the complaint’s of many years standing who said they were “very close friends”: Tcpt, p 182. She gave the following evidence relevant to count 5 (Tcpt, p 184):
“Q.         Did she say anything about when she went to dancing?
A.           She told me that on one particular dancing concert she had to wear two pairs of stockings because she had bruises all over her legs and you could see them through one pair.
Q.           Did you ask her if her parent’s [sic] knew?
A.           Yes I asked her if she told her mother anything and she told me that nobody else knew and that the reason that nobody else knew is that she was scared of what he could do to her young brother.”
The jury acquitted on that charge.

Count 6

Count 6 involved a charge of a different kind, namely that on or about 27 December 2006 the applicant had stolen the complainant’s car. There was evidence that the applicant had a key to the car, but there was also evidence that another person who had known both the complainant and the applicant also had a key, although she denied having driven the complainant’s car.
Apart from opportunity, the primary evidence against the applicant was a telephone conversation which occurred during the following week. The complainant was by herself at the time the call commenced and having answered the call and identified the caller as the applicant, recounted that “straight away he started saying about you know joking about the theft of my car and saying ‘me stealing your car is the least of your worries’ and admitting to stealing it and laughing about it”: Tcpt, p 31. She said that she then took the phone downstairs and put it on loudspeaker so that her father could hear what the applicant was saying. The complainant’s father also gave evidence as to what he heard the applicant say and stated (Tcpt, p 218):
“Well basically he was calling her a fucking bitch and also he was saying what I done to your car is nothing compared to what I’m going to do to you you fucking bitch and he kept repeating this quite a few times until I’d had enough and I said [name of complainant] hang the phone up please.”
On New Year’s Day the applicant visited the complainant at her parents’ home and was let in by her father, who gave evidence that the applicant came in and handed the car key to the complainant. Although he made a statement to police on 9 March 2007, he apparently did not refer to the return of the key.
The jury acquitted on that charge.

Convictions: Count 1

Count 1 involved a charge of detaining the complainant without her consent and with intent to obtain an advantage, namely to intimidate her. It was said to have occurred during January or February 2005 at Bass Point in Shellharbour. Her evidence was to the following effect (Tcpt, pp 9-10):
“We were driving in my car, I was driving and … he started getting really angry and telling me where to drive, and I said I just wanted to go home ….
I said I wanted to go home and he pulled up the hand brake in the car, so the car sort of went out of control, and by that stage I got really scared ….
Yes, and so I just did what he said because I was scared, and I don’t know where he told me to go and we went to Bass Point and we parked. … [A]s soon as we parked he started hitting me and screaming and yelling. … Just calling me names, saying – and just calling me a bitch and saying I was an idiot, just screaming. … [He was hitting me] … [j]ust around my face, just the majority around my face…. After he stopped yelling he pulled a knife out of his pocket and … told me to give him the keys from the car, and he went in the centre bit of the car, the console and he got a packet of tissues, then he found a lighter … and he – he told me to open the petrol, the petrol flap.”
She agreed that she gave him the keys and opened the petrol flap as directed. The story continued (Tcpt, p 10):
“He went to get out of the car, then as he got out he said ‘Don’t try to get out or I’ll stab you’, and he got out of the car and he opened the petrol, the petrol cap and he started lighting the tissues and trying to put them into the petrol tank while I was in the car.”
The complainant said that nothing happened but he just tried to keep putting them into the petrol tank, that attempt continuing for “about 15 minutes”: Tcpt, p 11. The petrol cap was on the passenger’s side of the car.
In cross-examination, she was pressed on the fact that she had only recounted the incident to the police on 21 November 2007 and that she had not been able to identify the date of the incident.
In cross-examination, she gave a vague explanation as to her belief that it had occurred during the school holidays. She was also cross-examined with respect to a letter (Ex 7) she had written which contained reference to the purchase of tickets for a rock concert. The letter itself was undated, but there was evidence of police inquiries that the concert ran from October 2004 until March 2005: Tcpt, p 246. The letter appears to have been written on the first anniversary of their meeting, which the complainant said was towards the end of 2003. If that were so, the letter was written at the end of 2004. Nevertheless, it clearly expressed the view that the relationship was “falling apart” and that in the complainant’s view, the applicant’s attitude to her was at best ambivalent and acknowledged that he had told her that he did not “care about anything anymore”. The letter also stated:
“I feel like everything I do just annoys you, or makes you upset. I fell like you hate me! I feel like you push me away every time I try & get close to you.”
The complainant was cross-examined at some length about the contents of the letter, but not in a way which directly cast significant doubt on her evidence in relation to count 1. In his address, counsel for the applicant relied upon the improbability of the events occurring as she described on the basis that, had she been hit in the face in the way she described there would likely have been injuries which might have been observed and that, if the applicant had sought to light the petrol tank of her car in the manner described it was “unlikely that the whole thing didn’t go kerboom”: Tcpt, 11/02/08, p 32. The jury convicted on that count.

Count 4

Count 4 occurred at a somewhat indeterminate time during the first half of 2006. She identified it as occurring during the year after she left school, which had been the end of 2005: Tcpt, p 17. She described the applicant picking her up from her house, locking the doors of the car and driving to his brother’s workshop in Auburn Street, Wollongong, identified as “Motortech”. Her account of the incident continued as follows (Tcpt, p 17-18):
“Motortech, we got there and he came over to my side of the car and he dragged me out and I didn’t want to go with him so he dragged me like sort of through the carpark towards the door through a garden and I pulled my hands away and I got free and I started running because I knew there was a pay phone across the road and I was screaming for someone to help me and that someone would hear and come and help and I wouldn’t be stuck there. But he caught me and he covered my mouth so I couldn’t scream any more and he dragged me back, back to the shop and when we got inside he pushed me into the office area and he pushed me onto the lounge and I was crying, I just wanted to go home.
He left the room and while he was gone there’s a phone on the desk in the office and I got up and I tried to call my mum to help me to come and get me and he came back in, he came back in and grabbed the phone and hung up the phone before it had even started to ring and he became really agitated and so he pushed me with both hands to the chest so I was back on the lounge and that’s when I noticed that he had a knife in his hand that he must have got it when he was out of the room.
I ended up, as he pushed me I was sort of sitting up on the lounge but I was holding my knees and he just started yelling and screaming and he started hitting me around the face, like punching me and slapping me.
Then he was threatening me with the knife, holding it up to my neck, saying things like ‘I’m going to kill you’, and it went on for ages, and I was just crying the whole time, and sometimes he’d just – he’d stop for a little while and he’d sort of be upset, not really know what he was doing, and then he’d just start again, like hitting me again and stuff and then probably about four hours, after about four hours he left and he went into another room and I just stayed there and cried, and he told me that I had to stop crying and he didn’t want to look at me any more, and I just stayed there until he came back in about 45 minutes later and said he was going to take me home.”
The cross-examination in relation to that matter focused on two areas. The first, which the complainant readily conceded, was that she had been to the workshop at Motortech on a number of occasions, usually to use the bathroom facilities or to have a glass of water to drink: Tcpt, p 148. Otherwise, the cross-examination merely sought to have her identify a number of text messages sent to the applicant in January, February and April 2006.
In address, counsel for the applicant relied upon the loving relationship revealed by the text messages and the improbability of the complainant having been assaulted in the manner she described, without there being injuries which might have been observed by others.
Apart possibly from the length of the detention, there was nothing inherently implausible in the story itself. The jury convicted on that count.

Count 7

Count 7 involved an incident which occurred on 1 January 2007 at the complainant’s parents' home at Figtree. The charge was of intimidation with intent to cause the complainant to fear physical harm.
There was no dispute that the applicant was at the complainant’s home on the morning in question, nor that he was angry and distressed. The question was whether he made any threat to the complainant with intent to cause her to fear physical harm.
The complainant gave evidence that he had returned to her the key to her car and started recounting conversations he had had with her friends. She said that her mother had suggested that the three of them go to a lounge room upstairs. That happened, her father and young brother staying downstairs. Once upstairs, the applicant continued to call her names in front of her mother and “made threats that he was going to cut my hair off”. Eventually her mother intervened and said “I think that’s enough, I think it’s time for you to go”: Tcpt, p 32. The evidence continued:
“Q.         So did he commence to leave the house?
A.           Yes he – before he did he said ‘At least now I’ll never have to see you again’ and he said ‘I hate you’. And then he began to walk down the stairs the sixteen stairs and when he got towards the bottom I was still sitting at the lounge at the top so I could see him and he put his two fingers to his head and made the shape of a gun and he cocked his thumb and he said ‘I’m going to kill you’. He didn’t say it he mouthed the words, ‘I’m going to kill you’.
…
Q.           How did you fell when that happened?
A.           Scared, intimidated. I just – I just believed that he would carry out what he said he was going to do.”
The complainant’s account of the hand gesture was corroborated by her mother. Although she could not directly corroborate the complainant’s feelings, she described the complainant’s demeanour at that time as “in a very poor state”: Tcpt, p 192.
The cross-examination of the complainant’s mother in relation to the threat was somewhat ambivalent and was in the following terms at Tcpt, pp 210-211:
“Q.         It was at that point in the meeting that Tony decided to leave, do you agree or disagree?
A.           After I had stood up, yes and I had made two previous mentions that it was time to stop, we needed a break.
Q.           Do you agree or disagree that during the course of that meeting Tony had said to [name of complainant] that he never wanted to see her again?
A.           Yes.
Q.           Are you prepared to concede that you made a mistake as to what you say you saw Tony do as he was walking down the stairs in relation to your evidence as to him putting his fingers to the side of his head?
A.           No, I’m sorry, I am 100% sure that happened. That’s something you don’t forget.
Q.           I suggest to you that you in fact followed Tony down the stairs?
A.           No I did not.
Q.           And you walked with him to the door?
A.           No I did not.
Q.           And that you in fact followed him to the door and closed the door behind him when he left?
A.           No, I was not prepared to leave my daughter in the state she was in ….”
The references to Tony were to the applicant. The jury convicted the applicant on count 7.

Focal points of defence

The case for the defence rested on a number of potentially powerful arguments. The first was that, as put to the complainant in cross-examination, she had been committed to the relationship and was angry with the applicant for ending it: Tcpt, p 116. Accordingly, she had “made up all these allegations” in order to “get back at him”. (She denied the suggestions.)
Secondly, reliance was placed on the fact that no complaint had been made about the earlier events until March 2007 and, in relation to some, not until a second statement was taken in November 2007, by the police. The delay was relied upon as casting doubt upon her veracity, but also as a cause of the uncertainty as to when particular events were said to have occurred.
Weight was also placed by the defence on the affectionate content of numerous of the text messages and letters put to the complainant in cross-examination and tendered by the defence. In none was there any complaint of violent behaviour. However, at least one of the letters revealed clear unhappiness as to the course of the relationship (at [46] above) and there was no evidence as to how the messages had been selected. The closest point at which the defence came to a clear inconsistency between the complainant’s evidence and the messages was in relation to count 5, which resulted in an amendment to the charge and an acquittal.
At the heart of the applicant’s case was the proposition that, at least in respect of counts 1-5, the prosecution case before the jury depended on acceptance of the complainant’s evidence, in respect of which there was no independent corroboration. Although it was accepted that a reasonable doubt as to the complainant’s credibility in respect of one charge would not necessarily give rise to the rejection of her evidence in other respects, nevertheless it was contended that, when combined with the improbability inherent in the complainant’s account and the lack of any evidence of contemporaneous complaint, this Court would conclude that the verdicts on counts 1 and 4 should not stand.
The applicant accepted that counts 6 and 7 stood in a different category. In relation to count 6 (the theft of the motor vehicle) the prosecution case was entirely circumstantial, except for the evidence of the complainant and her father as to the admission made by the applicant on the telephone. Although it is possible that the jury did not accept the account of the telephone call given by either the complainant or her father, there may be other reasons for the jury rejecting that evidence. For example, the inference of an admission had to be derived from quite precise wording and there must have been room for doubt as to the precise words used. Secondly, there was no evidence that the applicant could not have known of the theft through entirely innocent sources, including the complainant or members of her family. The remarks made could have been by way of taunt, rather than an admission against interest. In no other respect did the complainant’s case depend upon her recollection of precise words used in an emotional moment. The rejection of count 6 contained no clear implication for the complainant’s credibility.
Count 7 fell within a different category for a number of reasons. One was that the complainant’s story was corroborated by her mother. Another was that it was by no means stale when the complainant went to the police. Thirdly, it was not in dispute that the applicant was present on that occasion and was angry and distressed. There was nothing implausible about the content of the charge.
The significance of count 7 may in part have been to give the jury a basis for a positive view as to the complainant’s credibility in respect of other matters.
It follows that the key element of the applicant’s attack on the convictions was directed to counts 1 and 4 and the argument that the jury had no basis to reject the complainant’s case on counts 2, 3 and 5 and yet accept her evidence on counts 1 and 4. A common element between the five counts was that in each case there was an allegation of physical violence. However, in relation to counts 1 and 4 the physical violence did not necessarily result in visible injury (hitting or slapping about the face) and was not, in any event, an element of the charges. In respect of counts 3 and 5 there was an allegation of occasioning actual bodily harm. Count 2 was a simple assault, but was virtually contemporaneous with count 3 and involved an allegation of bleeding from the head. There was no necessary inconsistency between a failure on the part of the jury to be satisfied that the applicant caused actual bodily harm to the complainant, and satisfaction to the requisite standard that he acted towards her in an intimidating fashion, so as to detain her for advantage or cause her to be in fear of actual bodily harm. Evidence that the applicant was, in effect, jealous, possessive, given to explosive anger, followed by bursts of remorse, was not challenged to any significant extent. Counts 1 and 4 were entirely consistent with acceptance of those characteristics.
There remains the reliance placed on the letters and text messages as demonstrating contemporaneous attitudes inconsistent with the allegations of violence and intimidation.
That complaint involves a degree of speculation as to what the jury made of that material. Further, a number of more specific points arise. First, in relation to count 1, there was no contemporaneous letter or text message which demonstrated such inconsistency. The letter constituting Ex 7, referred to above at [46], was relied upon by the applicant as having been written at any date between October 2004 and March 2005. However, as already indicated, it appears to have been written in late 2004, well before the incident which gave rise to count 1. Further, it is entirely consistent with a relationship falling apart because the applicant no longer loved the complainant and, indeed, had given her cause to feel that he hated her.
A second letter, which also dated from about Christmas 2004, expressed deep depression at the fact that four people, a school friend, a teacher, an aunt and a neighbour, had died during the course of the year. The letter also treats the relationship as having been ended by the applicant, although she still loved him. Subsequent events showed that the relationship would continue for approximately two years. Nevertheless, the letter provided substantial support for the view that the relationship was highly unstable.
There were also text messages from December 2004 involving pleading on the part of the complainant, but also a level of despair about their relationship.
Because it is not in doubt that the complainant and the applicant continued their relationship both during and long after the period during which count 1 arose, there was no inconsistency between this material and the evidence of the complainant, likely to have cast doubt upon her credibility in relation to count 1.
Count 4 fell within a different category, in part because of the imprecision as to the date of the event. Exhibit 4 contained six text messages from the complainant to the applicant between early January and mid-February 2006, together with two further messages from the third week of April. They vary from the playful to the sexually provocative to the passionate. It is true that it would be surprising if any were closely contemporaneous with the events constituting count 4 (the detention at the “Motortech” workshop), but they cover less than two months in a six-month period. The gaps (from mid-February until mid-April and from late April to the end of June) permit no firm inference to be drawn from them. There was no reason for the jury to infer that the relationship was consistent and stable, nor that the complainant did not experience a mixture of conflicting and strong emotions, including love, fear, infatuation, hope and despair. The jury may well have accepted that the complainant was, during 2005 and 2006, clinging desperately and perhaps irrationally to a somewhat destructive relationship which involved aggression and intimidation directed against her.

Conclusions

In my view there is no clear inference that in convicting on some counts but not others the jury acted inconsistently, and without regard to the need to be satisfied beyond reasonable doubt in respect of the counts on which it convicted.
Because a challenge to a conviction, not obviously untenable, requires careful consideration by this Court, it is appropriate to grant leave to appeal against conviction. Leave should be granted, but the appeal should be dismissed in respect of each of the three convictions.
In this event, the applicant did not press his application for leave to appeal against sentence. Accordingly, that application should be refused.
I would propose the following orders:
(1)With respect to the convictions on counts 1, 4 and 7, grant leave to appeal but dismiss the appeal in each case.
(2)With respect to the application for leave to appeal against sentence, refuse the application.
RS HULME J: This Applicant for leave to appeal was arraigned before Conlon DCJ and a jury on 7 charges. To a large degree the Crown case depended on the uncorroborated evidence of a witness who had been his girlfriend for an extended period and was so at the time the offences were said to have occurred. He was convicted on only counts 1, 4 and 7 and acquitted on counts 2, 3, 5 and 6. The principal argument in support of the appeal is that the verdicts of guilty on counts 1 and 4 are inconsistent with his acquittal on four of the remaining counts. In respect of all of the counts upon which the Applicant was convicted, it is submitted that the conviction was unreasonable.
The Applicant has also sought leave to appeal against the sentences imposed, although his counsel indicated that this application was only pressed if the Applicant succeeded in his appeal against some but not all of the convictions. The charges, the results and the sentences imposed were:-
(i)Between 1 January 2005 and 28 February 2005 the Applicant detained [name of complainant] without her consent and with intent to obtain an advantage, namely to intimidate her – Imprisonment for 18 months including a non-parole period of 9 months, both periods commencing on 13 February 2008.
(ii)Between 7 September 2005 and 31 October 2005 the Applicant did assault [name of complainant].
(iii)Between 7 September 2005 and 31 October 2005 the Applicant did assault [name of complainant], thereby occasioning actual bodily harm.
(iv)Between 1 January 2006 and 30 June 2006 the Applicant detained [name of complainant] without her consent and with intent to obtain an advantage, namely to intimidate her - Imprisonment for 18 months including a non-parole period of 9 months, both periods commencing on 13 February 2008.
(v)Between 15 November 2006 and 16 December 2006 the Applicant detained [name of complainant] without her consent and with intent to obtain an advantage, namely to interrogate her, and at the time of the detaining actual bodily harm was occasioned to [name of complainant].
(vi)On or about 27 December 2006 the Applicant stole a motor vehicle (of [name of complainant]) The Applicant did intimidate [name of complainant] with intent to cause [name of complainant] to fear physical harm - Imprisonment for 6 months commencing on 13 February 2008.
Relevant to the Defence case and the arguments of the Applicant in this Court were a large number of communications particularly SMS messages that passed between the complainant and the Applicant during and about the period of the charges. An appreciation of the significance of these and the strength of the evidence relied on by the Crown is best made by referring to events in a little detail and, so far as possible, in chronological order. The communications that were in evidence were only some of those that were sent and the evidence did not reveal the detail of others or indeed whether the selection of those that came into evidence was made only in the context of the proceedings or otherwise.
The Applicant was born in August 1986 and the complainant in September 1987. Early in her evidence the complainant said that her relationship with the Applicant commenced towards the end of 2003 when she was in year 10 and became abusive, physically and mentally, about 2 years later. Later, the complainant said that the incident the subject of the first count probably occurred 3 or 4 months after the abuse started. The complainant identified the mental abuse as the Applicant calling her names, becoming possessive and trying to alienate her from her family and friends. Of course, the time at which the complainant says that the conduct the subject of the first count occurred is much earlier than the 2 years later referred to.
In evidence were 3 messages sent on 21 and 23 December 2004. The flavour of them appears in the following extracts. (In the case of these and others I shall reproduce the shorthand used by the Complainant.):-.

“Im asking you for help ...No one else understands ...Please talk to me ...”

“I guess u didn’t want 2 see me: (everytime i write u a msg i start 2 cry coz i realise that u neva wrote back n i mite not get 2 spend Christmas wit u this year”

Count 1 – 1 January - 28 February 2005 - Convicted

This count alleged that between 1 January and 28 February 2005 the Applicant detained the complainant without her consent and with intent to obtain an advantage, namely to intimidate her. Accordingly to the complainant while driving near Bass Point in Shellharbour the Applicant started to become angry, directed her to drive off the road to a secluded area and as soon as the car stopped started hitting her, mainly about the face and screaming and yelling, calling her a bitch and an idiot. He then pulled a knife out of his pocket and told her to give him the keys to the car and to open the petrol flap. He then obtained a packet of tissues and lighter from the centre console, alighted from the car and started lighting the tissues and trying to put them into the petrol tank for about 15 minutes.
The complainant said that the Applicant then got back into the car, she drove to the Applicant’s house, told the latter to get out which he did and she then drove to her home.
The Applicant first mentioned this incident to police on 21 November 2007 although she would seem to have made other statements on 2 March, 22 June and 15 November 2007. The police officer who took the complainant’s statement of 2 March said that it was the most difficult statement she had taken in her career.

April 2005

Three SMS messages from the complainant during this month were in terms:-
“I love u so much and I have never meant it more… You’re my life tony… Ur my other half and I cant live without u. I will neva love anyone the way I love you”
“I still love u I haven’t stopped. I think about u everyday… It hasn’t even been a week n I have called 2 times n msged 2 times n have dialled ur number about a hundred times… I want u back. I miss u, but I don’t know what 2 do coz u seem 2 hate me… im fukin stuck tony, n all I can do is fukin cry. Gudnyt.”
“I hate seein u n knowin ur not mine… I miss u a lot. I appreciate it very much that u still talk to me. Good nyt sweet dreams.”

May – 4 September 2005

There were other messages from the complainant to similar effect although one on 20 June was in terms:
“answer ur phone… this is stupid… what is the point of want 2 talk 2 someone n not answering their calls. I no u r awake coz u neva go 2 bed this early…”

There was also a letter that became Exhibit 8. It commenced “The three years I’ve known you and the two years we shared were some of the happiest and fulfilled years of my life. It seems impossible that this is the end and I wish it wasn’t.” The complainant agreed that meant the letter would have been written around about October 2005. The letter went on to include the following:-
“I feel stupid now when I think about all the times you tried to break up with me & all the times I cried and begged you to stay. ... I am deeply sorry for all the things that I have done wrong, from the bottom of my heart, I really am. I hope you can forgive me, because I never ever wanted to hurt you.
I will miss you so much Tony, I wish this was all a dream. You are my best friend & I love you so much.”
There was no reference in the letter to any misconduct by the Applicant. Accepting that there may well have been a degree of imprecision in the reference to 2 and 3 years, the letter does not sit happily with the allegations of violence in the first count. The imprecision in date means that it cannot be regarded as necessarily inconsistent with the allegations the subject of the other counts.

Counts 2 & 3 - 7 September – 31 October 2005 - Acquitted

Count 2 alleged that within this period the Applicant assaulted the complainant and count 3 alleged that he assaulted her thereby occasioning actual bodily harm. According to the complainant she was at the Applicant’s house and she and the Applicant were sitting on a lounge. He became angry about something and really agitated, started threatening her, moved so that he was basically on top of her and touched the blade of a knife to her eyeball saying he was going to stab her and that she would go blind. He ripped out big chunks of hair causing her head to bleed, threatened to cut off her hair and kill her, then changed and started crying, saying “what have I done” “I’m sorry”.
The complainant said that the Applicant then changed again, grabbed her by the wrist saying he was going to kill her and then himself and with the knife began to cut her wrist. She said he cut her wrist about 3 or 4 times, the cuts were fairly deep and her wrist was bleeding a lot and she was scared she would die.
Again, the Applicant changed and began weeping. The complainant cleaned up her wrist, went home, covered the cuts with band aides and bangles and told no one. A doctor gave evidence of having examined the complainant on 14 January 2008 and finding two very faint oblique scars on the anterior surface of the Complainant’s forearm. He said that the complainant told him that the wounds initially bled profusely but on further questioning “she didn’t”. The doctor also gave evidence that self inflicted wounds “tend to be more directly across the arm and not obliquely” but he could not exclude that the wounds were self inflicted. He described the wounds as very superficial.
The evidence indicates that there was no specific reference to the events, the subject of counts 2 and 3 in the witness’ statement of 2 March or 22 June 2007 albeit in the first of these there was mention of assaults on occasions other than that or those specifically dealt with in that statement. Specific reference to this incident seems to have occurred first on 15 November 2007 after the Applicant had retrieved a particular SMS message.
There were some 19 SMS messages in evidence which fell within the period during which these offences were alleged to have occurred. The first was sent on 21 September and the last on 14 October 2005. Almost all were very affectionate, containing references to the Applicant such as “the most special person in my life, “I am looking forward to our future together”. One sent on 14 October included the statement “I love you my sexy baby boy”. None indicated dislike of the Applicant or his conduct although two on 5 October were in terms:-
“Look if ur angry or upset at me thats fine. I just need to talk to someone that all so please call me.” And
“Tony im crying i just need to hear ur voice. Please. I don’t no how i can make this sound real n how i feel, because i say it so much but i really love you.”
There were no further messages in evidence until 15 December 2005. Between then and 4 January 2006 there were eight, uniformly affectionate, although one which contained reference to loving the Applicant also said “I’m sorry for whatever I said to upset you”.

Count 4 – 1 January – 30 June 2006 - Convicted

The fourth count alleged that between 1 January and 30 June 2006 the Applicant detained the complainant with intent to intimidate her. The complainant’s account of that incident was that as soon as she entered his car at her home, he locked the doors, drove her to his brother’s workshop where he dragged her out of the car through a car park. She escaped his grip and ran to a pay phone where he caught her, covered her mouth so she couldn’t scream and dragged her into the office area of the workshop. He left the room. She commenced to phone. He returned and prevented the call from continuing. He pushed her back on the lounge, started yelling, screaming, hitting her around the face and punching her. He then threatened her with a knife, holding it to her neck. He would stop for a while apparently upset and then commence hitting her again. After about 4 hours he went into another room, she cried, he told her to stop crying and that he didn’t want to look at her any more. After about 45 minutes more he came back into the room where she was, said he was going to take her home and did so.
The complainant gave evidence that she made reference but not specific reference to these events in her police statement of 2 March 2007.
There were only six SMS messages during this 1 January to 30 June period in evidence. Three on 11 February were affectionate, one on 16 February seems to be joking and one on 24 April was of a factual nature. That of 27 April read:-
“Baby i cant explain the love i have 4 u. Its so strong n every second of the day im wishing i was wit u. Im so glad we are together. I love you so much tony xox.”
The next 2 SMS in evidence, sent respectively at 2.07 and 2.25 am on 9 September 2006, read:-
“I hate my life, I hate myself. I want to end everything. Im dying inside but no one sees. No one bothers to notice my pain. No one wants to care. I want people to remember me for dying on my 19^th birthday just so they can feel hurt the same way I do. My eyes hurt from crying but I don’t want to stop”
“Im going to call one last time. Answer, im begging you. One last time, after this if you don’t answer I made myself a promise.”
The complainant’s next communication in evidence was an email, dated 12 October 2006 and sent from a ship. It was very affectionate and provided an account of activities in a way calculated not to be provocative to any jealous or possessive boyfriend. There was then an SMS of 1 November 2006 that said:-
“Hehe they said they are coming over too. Not long till I see you now baby hehe please have 2 condoms ready. You know why hehe have a fun shower xx”
Two SMS of 14 November, one at 7.15pm and the other at 7.21pm, read:-
“Sure am. Do you want to pick me up about ten? Ill see you then ok x”
“Hehe ok ill see you at ten then x”
The last SMS in evidence, sent by the complainant at 12.09 am on 15 November, read:-
“Its not your fault. Don’t be sorry. Sweet dreams. Thank you for the letter, it meant a lot to me. I love you Tony, and I always will xx”

Count 5 – 15 November – 16 December 2006 - Acquitted

The fifth count, as amended, alleged that between 15 November and 16 December 2006, the Applicant detained the complainant with the intent to interrogate her and at the time of the detaining actual bodily harm was occasioned to her. Originally the count had alleged the time to be “on or about 14 November 2006”. According to the complainant on this occasion the Applicant picked her up pursuant to an arrangement to go to the movies, drove to “Oilys” which is apparently a sort of beach, he was angry and agitated from the outset. He locked the car doors and started becoming really angry because she hadn’t brought her phone with her, depriving him of the opportunity of pursuing a habit of always going through it, reading messages, and ringing numbers to see if they belonged to other men.
He started screaming in her face, was hitting and punching her, at one stage holding her arm so tightly his nails dug into her skin to the extent that she bled and was waving a knife around saying “watch what’s going to happen, we are both going to die here tonight”. The complainant said she must have passed out, her next recollection being of the Applicant reclining her chair saying “what have I done”.
She said that when she regained consciousness, they were a few streets away from the Applicant’s brother’s workshop. He took her there. She attempted to use the phone after he had left the room and when he returned and saw her using the phone, he was angry, started hitting her again, yelling, screaming non-stop and then questioning her about what was written on her entry on “My Space”. He also questioned her about why one morning she had arrived at 2am in the morning and then said “I’ll take you home.”
The complainant said that in consequence of this incident she had a cut inside her mouth, one of her eyes and her right side was badly bruised, fake nails had been ripped off and fingers were bleeding and she had bruising, mainly towards the top part of her legs. Next day the complainant had dancing to go to, put special spray-tan and heaps of make up on so the bruising to her eye was not visible and wore two sets of stockings so that bruises to her leg could not be seen.
The complainant said that she was able to recall the particular date of the 14 November because she and her mother had text messages in their phones. The one in her phone saying something along the lines of “OK just hurry up so we can spend more time together.”
The complainant also gave evidence that she had finished her relationship with the Applicant at the time this incident had occurred. During the course of her evidence she retreated somewhat from the date originally alleged and said that the offence could have occurred between 15 or 16 November and 15 December 2006.
Someone who at the time of the trial in February 2008 acknowledged being a close friend of the complainant gave evidence that in early January 2007 she had had a conversation with the complainant in which the complainant told her that the Applicant had been physically violent towards her in the past and that “on one particular dancing concert she (the complainant) had to wear two pairs of stockings because she had bruises all over her legs and you could see them through one pair.”

Count 6 – On or about 27 December - Acquitted

The sixth count alleged that on or about 27 December 2006 the Applicant stole the complainant’s motor vehicle. Apart from some evidence concerning the Applicant’s possession of a key to the vehicle, the complainant’s evidence implicating the Applicant in the theft was that sometime between 26 December and 1 January he phoned her, made some joking remarks about the theft of her car and said “me stealing your car is the least of your worries” and admitted to stealing it.
Both the complainant and her father gave evidence that she had turned on the loud speaker during the course of this phone call. The complainant’s father’s account of the conversation was to the effect that the Applicant said “what I have done to your car is nothing compared to what I am going to do to you, you fucking bitch” and that the Applicant’s manner on the phone was agitated, aggressive and very nasty.
Relevant during the trial, to the question whether the Applicant had stolen the complainant’s car was a deal of evidence concerning the number and province of keys to the vehicle. Among other evidence on this topic the complainant and her father gave evidence that on 1 January 2007 the Applicant returned a key to the vehicle. However in light of the fact that the jury acquitted on this count, I need not pursue the topic of keys further.

Count 7 – 1 January 2007 - Convicted

The seventh count alleged that on 1 January the Applicant intimidated the complainant with intent to cause her to fear physical harm.
It was common ground that the Applicant had gone to the complainant’s house on 1 January 2007 and that the two of them and the complainant’s mother had gone upstairs to have conversation out of the hearing of the complainant’s younger brother. It is also clear that reference was made to matters that were humiliating and hurtful, probably to both parties and that the conversation went on for some appreciable time. According to the complainant the Applicant threatened to cut off the complainant’s hair, when leaving said words to the effect “at least now I’ll never have to see you again” and “I hate you” and when he reached the bottom of a staircase in the course of leaving put two fingers to his head, making the shape of a gun, mouthing the words “I’m going to kill you”. The complainant’s mother gave similar evidence apart from saying that while she saw the Applicant’s mouth moving she was not able to detect what he said.

Other Evidence

In addition to the communications from the complainant to which I have referred, there were a number of letters written by her also in evidence. The letters all contain indications of strong affection for the Applicant. They do contain indications of disagreements and the possibility of the relationship ending and one, Exhibit 7, contains indications of possessiveness by the Applicant but none of misconduct by him. However, because they are undated they may well have been written before the abuse of which the complainant spoke occurred and with the exception of one it is not possible to regard these letters as inconsistent with the complainant’s evidence.
The complainant was cross-examined on the subject of the communications with the Applicant. Her explanation for her apparent affection for the Applicant notwithstanding the conduct, the subject of the charges, was that she was scared for herself and her family because the Applicant had made threats against them. She said that after the relationship ended in October or November 2006, she had to “keep this up so he wouldn’t do anything”. Asked about her SMS of 1 November, she denied that she was still happy to be a relationship with the Applicant.
Apparently speaking of about November 2006, the complainant said that she had wanted the relationship to end and there were various times when she tried to end it. She initially denied that the Applicant had tried to do so but the correspondence demonstrates that evidence to be wrong (on a topic that does not readily permit of mistake).
It is not clear when, according to the complainant, the threats were first made. She gave evidence that they preceded her cruise that occurred between 5 and 15 October 2006 and indeed explained her messages of 5 October 2005 as just trying to get the Applicant’s attention and “I was so scared at the time of what would happen if he wasn’t speaking to me, if he was angry at me if I, I couldn’t sleep at night if I didn’t know that – If I knew that he was angry at me ...”. Asked why she didn’t allow the Applicant to call off the relationship, a suggestion apparent on the face of a number of the undated letters in evidence, she said:-
“Because at the time I was scared, I was scared of the repercussions of what would happen if we weren’t together. Because I knew if we weren’t together then as I’ve said before many times he was against me.”
She gave as an explanation for telling the Applicant at about the time of the cruise that she loved him, that that was to appease him. She said that he had not wanted her to go on the cruise “because of the repercussions”. She said that by the time of the events the subject of count 5, 15 November to 16 December 2006, their relationship had ended but she was leading the Applicant on.
According to the complainant, the threats included that the Applicant would set her house on fire, that he would take the Applicant’s younger brother from his primary school, that he would take the brother motorbike riding and the latter would have an accident. He threatened her, to her family and her friends.
Other evidence supportive of the Applicant’s evidence of being scared was provided by her mother who said that on one occasion when the complainant returned from work, she learnt that the Applicant had taken the complainant’s brother to a motorbike sale. According to the complainant’s mother the complainant became absolutely hysterical knowing that her little brother was with the Applicant. Perhaps relevant in this connection was that the complainant’s mother also said that the Applicant and she had a very good relationship.
It should be mentioned also that there is no evidence that the complainant made complaint of any of the conduct of the Applicant, the subject of the charges, to the members of her family, at least prior to 1 January 2007. She did give evidence of difficulties between her and her parents but her mother’s evidence was to the effect that she could talk to the complainant about events occurring in her life.
Other matters to which reference should be made include evidence from the complainant to the effect that there was a time in about 2006 when she hated her life, and a suggestion with which she agreed that she used to manipulate the Applicant in trying to pay her more attention by threatening suicide. Indeed she told the Applicant that she had tried to commit suicide by cutting her wrists. She agreed that in 2006 she was having difficulties with her parents and she told the Applicant how much she hated being at home. She then felt that the Applicant was the only meaningful person in her life.

The only other factual matter to which it is necessary to refer is that the jury retired to consider its verdict at 1.15 pm on 12 February 2008, leaving court that day at 3.40pm. They resumed deliberations at 9.30 next morning. There were some short redirections and some time before 12.25 sent a note that read:-
“What verdict do we return if we are undecided on some counts?”
At 2.50 pm the jury returned with the verdicts that I have recounted.
Both the law and the factors that should guide a court faced with grounds of appeal and circumstances such as those here have been the subject of consideration on numerous occasions and it is unnecessary for me to add to the authorities on the topics. It is sufficient for present purposes for me to simply refer to M v The Queen (1994) 181 CLR 487; R v Markuleski (2001) 52 NSWLR 82; and TK v R [2009] NSWCCA 151.
I am unable to ascertain any rational basis upon which the jury could have acquitted the Applicant on counts, 2, 3 and 5 yet convicted him on counts 1 and 4. Each of these counts depended to an equal degree on the evidence of the complainant, evidence that was uncorroborated and unsupported so far as concerned the happening of the events the subject of those counts. Certainly there was some corroboration in the case of count 6 on which the jury acquitted, and count 7 on which they convicted and of the complainant being scared when she heard her young brother was with the Applicant. However, insofar as this material was relevant to counts 1 to 5 - and not all of it was - the material was of equal relevance to all of those counts.
The acquittal of the Applicant on counts 2, 3 and 5 (and 6) indicates that the jury must have had reservations concerning the complainant’s credibility. In the circumstances of this case, those reservations must logically have extended to her evidence on counts 1 and 4.
During the course of his sentencing of the Applicant Conlon DCJ adverted to the difference in verdicts, concluding that the acquittals did not preclude him being satisfied beyond reasonable doubt that the offences the subject of counts 1 and 4 had occurred substantially as the complainant had alleged. His Honour pointed out that counts 2, 3 and 5 involved allegations of actual injuries, in the case of count 2, that chunks of hair had been ripped out and the complainant’s head was bleeding, in the case of count 3 that the complainant’s wrists had been cut with a knife, and in the case of count 5, that the complainant had suffered bruising and other injuries, that in the case of all of these events, the complainant had been driven back to her parent’s home but that there was no evidence that any such injuries had been observed.
His Honour’s remarks in this regard were undoubtedly factually correct and I do not suggest in light of the jury’s verdicts that his Honour erred in his findings so far as counts 1 and 4 are concerned. However if, because of the absence of supporting evidence concerning such injuries, the jury was not disposed to believe the complainant to the requisite standard on counts 2, 3,and 5, the same doubts concerning her credibility should have governed the jury’s approach to counts 1 and 4.
In reaching the conclusion I have, I do not ignore the other possibilities adverted to in the cases mentioned for verdicts not easily reconciled. However, so much did the Crown case depend on the evidence of the complainant in the case of each of counts 1 to 5, that I am satisfied that the only proper conclusion in this case is that the verdicts are inconsistent. Having reached that conclusion I do not need to consider whether they were the product of compromise or, on some other account, unreasonable (to use the imprecise terminology in the Applicant’s Notice of Appeal). Nor do I need to consider the aspects of the complainant’s evidence, in particular the extraordinary difference between the conduct of which she complained and her communications with the Applicant and the inconsistencies in some other parts of her evidence.
The appeal should be allowed. As the appeal does not involve a question of law alone, and not withstanding no leave to appeal was expressly sought, leave to appeal should be granted.
Although the Notice of Appeal sought also to have set aside the verdict on count 7, the Applicant’s counsel acknowledged that it is affected by different considerations, in particular the fact that the complainant’s evidence was substantially corroborated by evidence of her mother. I see no basis for interfering with the verdict on that count.
I turn to the question of sentence on count 7. As I have indicated it was imprisonment for a fixed term of 6 months, concurrent with the longer sentences on counts 1 and 4.
At the time of trial, the Applicant was 21 and had no prior convictions. He grew up in a supportive family, completed year 10 at school and then became a qualified motor mechanic. Tendered to his Honour were references in glowing terms. Reports of a psychologist and psychiatrist did not suggest any underlying mental problems although his Honour found cause for concern in the Applicant’s continued denial of offending. His Honour observed that the evidence on count 7 demonstrated that the Applicant was capable of violent aggressive behaviour against the complainant even in her own home and in front of her parents.
Given that now the Applicant stands to be sentenced for only one offence, his clean record justifies the conclusion that no custodial sentence should be imposed. I would propose that the Applicant be ordered to enter a bond to be of good behaviour for the term of the sentences imposed on counts 1 and 4, viz 18 months. Had I been approaching the matter de novo I would probably have made that bond for 2 years but do not see justification for extending it beyond the full term imposed by Conlon DCJ.
JOHNSON J: I have had the advantage of considering the draft judgments of Basten JA and RS Hulme J.
The Applicant contends that, although properly instructed as to the law, the jury’s verdict of guilty on some counts cannot be accepted because they acquitted on other counts. An appellate court should be cautious before concluding that a jury (as a whole) has acted contrary to its clearly explained duty: TK v R [2009] NSWCCA 151 at [194].
In my view, the ground of appeal has not been made good in this case. I agree with the orders proposed by Basten JA for the reasons expressed by his Honour.
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LAST UPDATED:
1 December 2009