Kaifoto aka Teaupa v R

[2006] NSWCCA 186

CITATION:	Kaifoto aka Teaupa v Regina [2006] NSWCCA 186
HEARING DATE(S):	13 December 2005
JUDGMENT DATE:	19 June 2006
JUDGMENT OF:	Grove J at 1; James J at 112; Simpson J at 114
DECISION:	Appeal against conviction dismissed; Appeal against sentence allowed in part
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SEPARATE TRIAL ON TWO INDICTMENTS RELATING TO DIFFERENT VICTIMS - RELATIONSHIP EVIDENCE ADMITTED - NO BREACH OF REQUIREMENTS CONCERNING TENDENCY OR COINCIDENCE EVIDENCE - DELAY IN PROSECUTION - COMPLAINT OF MATTERS IN ADDRESS BY CROWN PROSECUTOR - REMEDY AVAILABLE AT TRIAL - ADEQUACY OF DIRECTIONS - SENTENCE - APPEAL ALLOWED TO VARY SENTENCING ORDERS TO ACHIEVE INTENTION STATED BY SENTENCING JUDGE
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Longman v The Queen 1989 168 CLR 79 R v Atroushi [2001] NSWCCA 406 R v Beserick 1993 30 NSWLR 510 R v Garner 1963 81 WN (NSW) 120 R v Hookey [2004] NSWCCA 223 R v Murray 1987 11 NSWLR 12 R v Preston, unrep NSWCCA 9 April 1997 R v Simpson 2001 53 NSWLR 704
PARTIES:	Paea Teaupu Kaifoto aka John Teaupa v Regina
FILE NUMBER(S):	CCA 2005/1341
COUNSEL:	A. Francis (Applicant) N. Noman (Crown/Respondent)
SOLICITORS:	S. O'Connor (Applicant) S. Kavanagh (DPP)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1072
LOWER COURT JUDICIAL OFFICER:	Dodd DCJ
LOWER COURT DATE OF DECISION:	2 July 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	N/A

2005/1341

GROVE J
JAMES J
SIMPSON J

19 June 2006

PAEA TEAUPU KAIFOTO aka JOHN TEAUPA v REGINA

Judgment

1 GROVE J: Following a ruling by the presiding judge Dodd DCJ concerning intended use of evidence on the basis of tendency or coincidence, the appellant was tried successively before his Honour and juries on two indictments involving female victims.

2 The first indictment charged offences committed on a woman whom I will refer to as RA. It contained seven counts. Counts 1 and 2 charged assault occasioning actual bodily harm, to each of which the appellant pleaded guilty. Count 3 charged common assault and each of counts 4 to 7 inclusive charged aggravated sexual assault contrary to s 61J(1) of the Crimes Act1900. The latter offences carried a prescribed available maximum penalty of twenty years imprisonment.

3 The appellant pleaded not guilty to counts 3 to 7. He was found not guilty on count 3 but convicted on counts 4 to 7.

4 The second indictment charged offences committed on a woman whom I will refer to as TM. It contained three counts. Count 1 charged sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 which stipulates a prescribed maximum penalty of fourteen years imprisonment. To this count he pleaded not guilty but was convicted. Count 2 charged assault occasioning actual bodily harm to which the appellant pleaded guilty. Count 3 charged detaining the victim for advantage of the offender contrary to s 90A of the Crimes Act for which a maximum penalty of twenty years imprisonment is available. The appellant pleaded not guilty to this count but was convicted.

5 In due course Dodd DCJ passed sentence in respect of the counts in both indictments upon which the appellant had been convicted either following his plea of guilty or jury verdict.

6 The appellant challenges in this appeal the convictions on counts 1 and 3 of the second indictment. There is no appeal in respect of the convictions on the relevant counts of the first indictment. Alternatively, the appellant seeks leave to appeal against the severity of overall sentence.

7 It is obviously necessary to deal first with the appeal against conviction on counts 1 and 3 of the second indictment.

8 The appellant was aged about thirty six years in 1998 when he met TM, then aged nineteen, at a nightclub in Fairfield. A relationship between them was formed shortly after their meeting in November 1998 and they initially resided at TM’s father’s house. She became pregnant and thereafter moved to her mother’s home at Tahmoor. The pregnancy later miscarried. The relationship had ended by 28 April 1999 which date has relevance to the circumstances concerning count 3.

9 TM testified that at about the end of March 1999, while she was residing at Tahmoor, the appellant told her that he “wanted to try anal sex”. After expressing her reluctance and an anticipation that such would hurt, she agreed on the basis that he would desist if she told him that it was hurting. The activity commenced, she told him that it hurt and thereafter the appellant went to shower himself and, while he was doing this, he told TM to go to the bedroom. She complied with this and lay on the bed where he joined her and then said to her that she was either going “to have it the hard way or the easy way”. He tore off boxer shorts that she was wearing and penetrated her anus with his penis. She asked him to stop and screamed and cried but he continued until the activity was finished and he finally left the room. It might be noted that cross examination of TM did not include an assertion that the appellant had not preceded the action described with an expression to TM that she was “to have it the hard way or the easy way”. The Crown relied on this incident as constituting count 1.

10 TM slept and the next morning went to the nearby home of her sister. From there she moved later to her mother’s house and still later to her father’s house. In mid April the appellant contacted her and she met him at a railway station after which they went to a flat occupied by a cousin of the appellant. Her evidence described being assaulted by the appellant while at this flat, which I will refer to as “the Liverpool premises”.

11 After this incident TM moved to Picton. Again the appellant contacted her by telephone and she agreed to accompany him in a car. This was on 27 April 1999 and they ultimately went to the Liverpool premises. Whilst they were there an argument developed and the appellant slapped her and punched her on the nose causing it to bleed. She went to the bathroom to clean herself and when she returned the appellant was cleaning her blood from where it had splashed onto the walls of the flat.

12 There was then an apparent period of relative calm during which there came a knock on the door. The appellant told TM to remain in one of the rooms. The callers at the door were in fact police officers conducting enquiries about disputes concerning car parking spaces in the residential complex. After making some enquiries of the appellant they left.

13 The appellant then thanked TM for not leaving the room as he had instructed. She remained overnight and the next day (28 April) her face had swollen and she had two black eyes. The appellant told TM that, if anyone came, she had to go to the room so that her face would not be seen. In cross examination TM said that she did not leave because the appellant had beforehand, as she had said in her evidence in chief, made threats concerning her family.

14 It was this detention that the Crown relied upon in support of the third count. The assault on the previous day which I have described constituted the second count to which, as already noted, the appellant pleaded guilty.

15 In fact, TM did see a visitor on that day, whom she asked not to tell the appellant of the visit because she, TM, was scared. That visitor (Jody R) gave evidence of the appearance of TM and that, in response to her suggestion that she accompany her away from the premises, TM had said “I can’t go, I’m too scared”.

16 It transpired that TM needed to fulfil a requirement to lodge some form in order to secure a social security payment and the appellant left the flat for the purpose of acquiring sunglasses so that TM could attend the relevant office and appear in public without attracting unwanted attention. She took the opportunity of his absence to flee the flat and she went to a police station where, unfortunately, she was offered no assistance. Following this denial of help, her sister and a friend came to her aid and then took her to a medical centre.

17 Later she went to another police station at Picton where she made detailed complaints of her treatment by the appellant. The content of her complaints were, on 1 May 1999, entered into a police data system (COPS).

18 The appellant had lodged four grounds of appeal. The grounds were couched in general terms without particulars, and submissions on behalf of the appellant, both written and oral, conveyed a wide range of complaints some of which it was difficult to comprehend within the grounds as expressed. These submissions should be dealt with in due course.

19 It is convenient to begin by dealing with grounds 1 and 2 together. They were expressed as follows:

“1. The trial judge erred by giving inadequate and incorrect directions to the jury in respect of the admitted ‘relationship evidence’.
2. The trial judge erred to the extent that he admitted the ‘relationship evidence’.”

20 Logically, ground 2 must be addressed first. At trial counsel (who did not appear in the appeal) objected to what was described as “a whole history of alleged incidents of violence” by reference to paragraphs in a statement of the complainant dated 11 January 2003. The evidence which was actually tendered and admitted, demonstrative of the relationship between the appellant and TM, focussed upon five incidents. They should be identified. They constituted the “relationship evidence”.

21 In about February 1999 whilst TM was pregnant, she and the appellant were sharing a bath. He said that, if the baby was not his, he would kill both TM and the baby. They got out of the bath and he grasped her and pushed her against a wall and slapped her face. Her face was stinging and he obtained some frozen peas so that she could use it as a cold compress. TM said that he was good to her after this, expressing sorrow for what he had done.

22 The second incident took place after they had been at the Fairfield Hotel. They were at a table with friends of the appellant who were becoming rowdy as they were drinking. TM moved to a nearby table where she spoke to an older man about her pregnancy and he spoke to her about his grandchildren. The appellant then took TM to Skelsey’s nightclub which is also at Fairfield. In the car park the appellant remonstrated with TM for moving to the other table and speaking to the older man and he slapped her and called her a slut. She commenced to cry but nevertheless followed him into the club.

23 Still in early February 1999 they were on another occasion at the Tahmoor Inn. The appellant was playing pool and TM was seated nearby. A male acquaintance of TM stopped and spoke to her. The appellant apparently saw this, and after the man left, he asked her why she was being a slut. She denied she was so behaving and he placed his arm around her neck. She asked to be taken home. They went to a car and there he slapped her on the face. When they arrived home she told him that she no longer wished to be with him. He pushed her onto a lounge and sat on her. Thereafter he directed her to come to the car where the boot was opened and he pulled her by the hair and said he was going to show her a gun, which he was “not afraid to use”. She said that she believed this, however they went back inside without inspecting the content of the boot.

24 I interpolate that TM at about this time, ascertained that she had miscarried. In an explicit correction to something he had earlier said, Dodd DCJ directed the jury that there was no evidence that the incident described (sitting on TM) caused the miscarriage.

25 In March 1999 they were again at Skelsey’s nightclub. The appellant asked TM to get him a cigarette. When she returned he hit her in the face and enquired why she had been gone for so long. He flourished some metal knuckledusters and told her that he should use them on her because she had been “a slut”.

26 The fifth occurrence happened when TM was at the Liverpool premises on the occasion in mid April which I have mentioned. TM said she was going to get some water and the appellant said that she could not and thereupon he dragged her by the hair causing her head to strike part of an audio system. As a result she sustained a cut to her head. The appellant’s cousin, in whose premises they were, obtained a tea towel to use as a bandage.

27 There is ample authority that evidence of a prior course of conduct is admissible, not to prove uncharged offences, but to show the background of a relationship between an accused and an alleged victim, and to prevent unreality in inviting a jury to consider a charged offence in deceptive isolation: see R v Garner 1963 81 WN (NSW) 120 and cases referred to therein.

28 The five incidents above described fit comfortably into that category of admissible material. His Honour did not err in law in ruling the relationship evidence was admissible.

29 The thrust of objection at trial sought that his Honour rule that this evidence was unfairly prejudicial and that, as its prejudicial potential outweighed any probative value, his Honour ought reject the evidence for that reason.

30 As counsel for the appellant in the appeal has pointed out, there was no formal judgment on the objection but his Honour’s remarks clearly demonstrated that the objection had been overruled and this was understood by those present at the trial.

31 An extract from the transcript shows reference to the paragraphs of the statement eventually taken by police from TM in January 2003. The content elaborates the matters which I have sketched including the circumstances of what became count 2, to which the appellant pleaded guilty. It is significant to note that TM gave evidence about the “relationship” incidents which I have described and there was no cross examination challenging that testimony.

32 The argument on appeal was presented in a lengthy written submission supplemented by oral address. As I have said, it is not easy to attach all the argument to the grounds as articulated but I understand the essential complaints to be these:

(a) His Honour had ruled that the relationship evidence was admissible only on count 3; the Crown Prosecutor finally addressed on the basis that it was germane to both counts 1 and 3. Specifically the Crown Prosecutor contended that the relationship evidence could be used in proof of the lack of consent of TM which was a necessary element in the proof of count 1.
(b) In relation to count 3 his Honour invited the jury to use the relationship evidence as tendency evidence despite his earlier ruling to the contrary which led to the presentation of separate indictments in respect of offences committed against RA and TM.
(c) His Honour failed to correct the misuse of the relationship evidence in the Crown Prosecutor’s address.
(d) By the time of final direction his Honour had expanded his ruling from limiting the relationship evidence to count 3 to including its availability for consideration by the jury in respect of count 1 for the purpose of offering an available explanation as to why TM did not terminate the relationship at some earlier point than that at which she did, and,
(e) In any event, his Honour did not adequately direct the jury as to the limited use that could be made of the relationship evidence.

33 I will deal with the elements of contention in the context of those complaints.

34 The transcript of his Honour’s informal ruling on the objection includes these remarks to counsel (the references to paragraphs are, of course, to the statement which was used for reference in order to found the objection):

“I can see that it is extremely prejudicial, well I don’t know about extremely, it’s highly prejudicial but provided the evidence is led in an admissible form, I am of the view that what’s contained in paragraphs 4-33 as to violence inflicted on the complainant by the accused has significant and indeed possibly crucial probative value as to the third count in the indictment, such that the probative value is not outweighed by the danger of unfair prejudice to the accused.
And indeed it seems to me that the Crown case could not be properly presented on the third count in terms of what the accused meant the complainant to understand by saying to her when the police came to the door ‘stay there, don’t come out’. By saying to her after the police have left and the next morning ‘you can come into the lounge room, if anyone comes you have to go back to the bedroom’.
And what in fact the complainant understood him to mean by saying those things to her. And it seems to me that the inferences that the Crown will be asking the jury to draw, in order to the appropriate conclusion on the Crown case, will only be possible if the evidence of previous violence from the accused towards the complainant is put into evidence.
Now in relation to paragraphs 47-55 which are objected to, it seems to me first of all that what is contained in paragraphs 47-50 is in the same category 4-33.
In relation to paragraphs 51-55 I am of the view that that is admissible on two bases, first of all the same basis as the basis I have referred to in relation to paragraphs 4-33. And also on the basis that it explains how and why the complainant had resumed an association with the accused leading up to the events, the subject of the third count in the indictment.”

35 Although the final passage referred to matters “subject of the third count”, it was acknowledged in the written submissions that it might be “divined” that the relationship evidence was allowed in respect of count 1 to the extent that it explained TM’s failure to leave the relationship.

36 That was the way that it was ultimately left to the jury in a final direction which followed a specific exception taken on behalf of the appellant by his counsel. His Honour charged the jury:

“The second thing that I should say to you and correct to a partial extent, make clear, is this: I referred to all that background material of violence to TM by the accused and threats of violence towards her as to being relevant to both counts. In relation to the first count however, it is relevant only in this sense that it explains on the Crown account, and it is the Crown account that I am talking about in terms of the asserted relevance, it explains on the Crown account why she didn’t leave the accused when perhaps we might think she should have left him.
It is an explanation in some ways I might say, that as the Crown had indicated is at odds with what you might think is a rational approach. Most of us would say if someone starts hitting us around the head, threatening us with violence and that kind of thing you’d leave straight away and would not tolerate it any longer. But as the Crown has pointed out things in real life are a bit more complicated than that unfortunately, especially for women in certain circumstances. There are women, I think as we all know who are vulnerable.
I say these things not to draw any conclusions about any aspect of the trial now before you but only to indicate that there can be women who unfortunately find themselves subjected to violence and nevertheless seemingly put up with it. Sometimes for long periods of time. That is what the Crown says is an element of this case in terms of the relationship between the two of them, in terms of T staying with him for some time. She was looking as she put it, for love and despite the violence and sometimes because of it she stayed with him and returned to him.
Is that fairly put Madam Crown?
CROWN PROSECUTOR: Yes, thank you, your Honour.
HIS HONOUR: (addresses counsel for the accused at trial).
COUNSEL FOR ACCUSED: Yes your Honour”.

37 Whilst examination of the transcript, it must be acknowledged, is capable of demonstrating some inconsistency in expression or, accepting counsel’s contention, a shifting of ground, whether intervention is called for is dependent upon demonstration of error in the way the evidence was left available to the jury for deliberation.

38 In summary, on count 3 the exposed facets of the relationship were germane to consideration of the issue of TM’s being detained by reason of her fear of what the appellant would do and on count 1 to explain why she did not leave the relationship.

39 The use of the relationship evidence in those fashions on those issues would not taint the jury’s deliberations. The ground asserts error “to the extent” that his Honour admitted the relationship evidence and the first complaint does not sustain that ground.

40 The second complaint focussed upon part of his Honour’s charge to the jury concerning the offence of detaining TM. He said:

“…..the Crown says he did not lock her in but he nevertheless detained her by getting her to understand, firstly, that if she did not stay there, and in particular, stay in the room when he wanted her to, that he would force her to by inflicting physical violence upon her, or by restraining her. The Crown says that you would draw that inference that that was his intention from the words he used to her at the time, and it was his intention to convey that to her, that she was not free to leave by the words he used at the time, by the violence that he had inflicted upon her on the 27th by blackening her face, hitting her in the face repeatedly, breaking her nose, bloodying her face to the extent of requiring her to clean herself up, needing to clean himself up because there was blood on his clothes as well, and on his hands, and clean the blood off the walls, or wall. And the Crown says also that he had that intention and he conveyed that intention to her by that behaviour, in the context of previous behaviour that he had exhibited towards her, so that this incident, and these words were not in isolation, but against a background of his preparedness to use violence towards her, and to force her to do what he wanted to do, and against the background of threats. I will come to all of that evidence, shortly, as I say.
If you accept that those events, as background events, occurred and if you draw the inferences that the Crown asks you to draw, then I tell you that it is open to you to draw the conclusion that the accused did detain TM in the sense to which I have referred, as the Crown contends – that is, that it is not necessary, in order to find this element made out, that there be a locking in by lock and key necessarily and that a detaining in this sense can be effected by the behaviour or the actions and the words contended for by the Crown, provided you draw the inferences sought by the Crown as to the accused’s intention, and his intention to convey that to the complainant TM.
To make that clear again, the Crown contends that he, by his words and by his actions on that occasion, in the context of previous actions and words directed to TM intended that she stay in the unit unless he let her go, and he intended her to understand that”.

41 The appellant’s contention is that those directions convey a clear invitation, by the repeated references to previous behaviour, to use the evidence of the previous behaviour manifest in the relationship evidence to establish a tendency on the part of the appellant in proof of the issue of TM being detained by reason of her fear of him.

42 The submission treats the passage which I have extracted from his Honour’s summing up somewhat in isolation. Whether it conveyed the vice now complained of needs to be determined in a wider context.

43 Early in his charge to the jury he gave an emphatic direction forbidding tendency reasoning namely:

“You have heard the accused plead guilty to a charge earlier on of assault upon TM. You have heard evidence given of various incidents of assault and what most of us would regard as bad if not unlawful behaviour on various occasions towards TM by the accused and you have heard a certain amount of what I had described as bad language also used by the accused. Using a lot of bad language is still regarded by some people as very bad behaviour. You must not reason from that evidence of other incidents of either bad or unlawful behaviour, if you regard it in that way, to a conclusion that the accused is the kind of person likely to commit crime and then to the conclusion that he did commit these two crimes that you must consider. That would be quite wrong.
Any prejudice you have on those matters, you must put aside for the purposes of your consideration of these two charges. None of those matters which we might regard as very bad or unlawful behaviour can support a conclusion that the accused committed the crime with which he stands charged, just because it is very bad or unlawful behaviour. Insofar as it is relevant, I will come to explain how it is relevant when I consider the evidence in relation to the charges later. It would be totally unfair, however, to use any of those matters as indicators of guilt by the process of reasoning that I have just identified”.

44 Count 3 was charged in terms that the appellant detained TM:

“…..with intent to hold her in order to obtain an advantage, namely to conceal injuries which he had inflicted on her”.

45 The evidence of previous conduct of the appellant was available to the Crown, and for consideration by the jury, in proof of the necessary intention pleaded: see R v Atroushi [2001] NSWCCA 406.

46 That the invitation to the jury was, if they saw fit, to use the relationship evidence in that way and not in a way which would contradict the explicit warning which he had given against tendency reasoning is manifest in his Honour’s directions as to the proof of count 3.

47 Virtually the last direction before the jury was asked to retire and consider their verdict was in these terms:

“In respect of the third count, the detain for advantage count, you will not find the accused guilty unless you are satisfied beyond reasonable doubt that the complainant, TM, is telling the truth and accurately telling the truth when she says that she did not leave the premises because she feared that if she attempted to do so, the accused would seek to inflict physical violence upon her and in fact that it was the intention of the accused to have TM understand that, whether or not he would have actually inflicted physical violence upon her, but to have her believe that he would do so or that he possibly would do so if she attempted to leave.”

48 This is entirely consistent with the paragraph now sought to be impugned by the appellant, within which his Honour made reference to the appellant’s intention, explaining that it was not necessary that it be achieved by use of lock or key. It was in respect of that intention that the “context of previous actions” was left to the jury as being potentially relevant.

49 That what was said was understood in this way has implicit confirmation in the absence of complaint being raised at trial.

50 His Honour did not err by inviting the jury, in his references to previous behaviour to engage in tendency reasoning and the appellant’s contention in this regard should be rejected.

51 The third issue for examination relates to matters raised in the address of the Crown Prosecutor. It should be pointed out that, as the expression of grounds 1 and 2 impliedly recognize, the intervention of this Court may be attracted as a result of erroneous direction, ruling or failure to direct by the presiding judge. The remedy for complaint about the content of an opponent’s address is to make application to the presiding judge for an express correction or, if it is irreparable, for discharge of the jury. An inappropriate response to such application by a judge may give rise to a ground of appeal but there was no response by the judge to examine in this case because no application was made.

52 The remedies which I have mentioned do not exist to the exclusion of a capacity in any event of counsel to put contradictory contention to the jury. In this case it was counsel for the appellant who had the final address.

53 In any event, as the Crown submissions to this Court contend, the complaints advanced now are to an extent misconceived.

54 The first element of complaint inferred that, in observing that there was no challenge to the incidents of assault having occurred, the jury may have found consistency between TM’s evidence and the report on the COPS system recorded in May 1999. It was said that the prosecutor was, in effect, inviting a form of coincidence reasoning.

55 The separate trials (involving the different complainants) had followed his Honour’s ruling against the use of evidence in that way. In fact the Prosecutor’s address was not defying that ruling but drawing attention to circumstances which the jury might find useful when weighing the credibility of TM’s testimony. That was no inhibition upon the Prosecutor making such a submission.

56 The second element adverted to an expression in address that the appellant had been “using the complainant as a punching bag”. There is no legal impediment to the use by counsel of hyperbole, if the phrase may be so categorized. The submission to this Court that it “unnecessarily inflamed an otherwise highly toxic issue” might well fit within the same category of language. There was no call, as contended, for his Honour to “neutralize” counsel’s expression.

57 The appellant’s written submissions referred to a comment by the trial judge, in the absence of the jury, concerning the miscarried pregnancy which had occurred, at least as a matter of chronology, after the appellant had sat on TM. The jury were expressly directed that there was no evidence of causal link between those events. The exchange with counsel in the absence of the jury, now sought to be interpreted critically, is not a matter which would attract intervention by this Court.

58 In the final analysis, the judge responded to trial counsel’s request for explicit direction concerning the matter of relationship in respect of which both counsel acknowledged that his Honour had fairly put the issue. This acknowledgement was in the presence of the jury. It is now put by different counsel that what was put did not “cure” the earlier directions in that it did not make it clear that the jury could not use the evidence of violence in order to prove the sexual assault charged nor to negative the availability of tendency reasoning.

59 This submission ignores the context of the trial which, as I have mentioned, essentially involved the disproof of consent or, alternatively, the appellant’s belief in consent. The absence of complaint by trial counsel and, more emphatically express acknowledgment of the fairness of what was put by those who were in a position to gauge the atmosphere of the trial, is, in my view, of more convincing significance than ex post facto toothcombing of the transcript of the trial and the directions to the jury.

60 The fourth issue above described in effect complained of his Honour’s adoption of what had been addressed by the Crown Prosecutor and I have dealt with it in discussing the first issue canvassed on behalf of the appellant in support of these grounds.

61 As earlier mentioned, there was evidence that TM expressed fear about leaving the Liverpool premises. An issue was whether she was in fact detained. Her fear, and the reason for it, were relevant to this issue.

62 An analogy may be drawn from R v Preston unreported NSWCCA 9 April 1997 where there was an issue of consent to alleged forced sexual intercourse, and it was held that previous violent conduct of the offender was available to explain the state of the mind of the victim and why she did not, on the occasion, resist or call for help. The evidence of the previous conduct of the appellant was similarly germane to TM’s state of mind which led her not to leave the Liverpool premises until eventually the circumstances altered and she could avail herself of the opportunity.

63 The fifth identified issue is raised in the context of complaint that his Honour did not adequately warn the jury that they could not substitute evidence of the “relationship” activity for evidence of the specific offence charged nor could they reason that, because the appellant may have done something wrong on other occasions, he must have done so on the occasion relevant to the charge: cf R v Beserick 1993 30 NSWLR 510.

64 The question is whether directions were adequate. What he had said early in his charge to the jury is set out above. The terms were an explicit embargo upon the jury entertaining a course of reasoning such as is now suggested may have tainted the trial. I am unpersuaded that his Honour’s directions were inadequate. No doubt it would have been desirable to give such warning as the evidence was being adduced but the final direction was emphatic and unequivocal and the trial did not miscarry.

65 I would reject grounds 1 and 2.

66 Ground 3 contends that the trial judge erred in failing to give a direction to the jury in accordance with R v Murray 1987 11 NSWLR 12 concerning the uncorroborated evidence of the complainant.

67 It is apt to recall just what Lee J said in that case. It was:

“In all cases of serious crime it is customary for judges to stress where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinized with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’s evidence is unreliable. There will be cases where failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside. It is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case”.

68 The complaint of the appellant concerns the absence of a direction by Dodd DCJ in terms that the jury should scrutinize the evidence of TM with great care.

69 In relation to the first count, he directed:

“You must be satisfied beyond reasonable doubt that her account of that, in terms of her lack of consent is accurate and true beyond reasonable doubt before you can convict the accused”.

70 In relation to the third count and both counts he said:

“You will not find the accused guilty unless you are satisfied beyond reasonable doubt that the complainant TM is telling the truth, and accurately telling the truth when she says that she did not leave the premises because she feared that if she attempted to do so the accused would seek to inflict physical violence on her and that in fact it was the intention of the accused to have TM understand that. Whether or not he would actually have inflicted physical violence upon her, but to have her believe that he would do so, and that he possibly could do so if she attempted to leave.
It is therefore essential, members of the jury, that you examine the evidence of the complainant, TM, carefully in respect of both counts”.

71 I would not draw any distinction between the words “examine carefully” and “carefully scrutinize”. They convey the same precaution. The submissions on behalf of the appellant overlook that the incantation “scrutinize with great care” was not used at trial in Murray and the appeal in that case was in fact dismissed.

72 There is no mandate to give a Murray direction, as Lee J’s expression that it was customary, shows. Nor is there, if following the custom, an obligation to use any formula of particular words or in particular to use the verb scrutinize.

73 The cautions given by his Honour were entirely adequate to the issues of the trial and ground 3 is not made out.

74 Ground 4 complains that the trial judge erred in not giving adequate directions in respect of the disadvantages faced by the appellant by reason of the delay in formal complaint and prosecution.

75 The events giving rise to the allegations occurred in March to April 1999. TM’s complaint to police was prompt as evidenced by the detailed entry on the COPS computer system on 1 May 1999. This, as I have related, follows her first attempt to seek help at a police station which was ignored.

76 It does appear that a formal statement was not taken by police until January 2003. The circumstances which led to this lapse of time were not explored.

77 Argument in support of the ground is sought to be derived from Longman v The Queen 1989 168 CLR 79 and the oft quoted passage in the joint judgment specifying the requirements of warning to a jury of the disadvantage to an accused which perhaps may not be apparent in possibly losing the means of testing the complainant’s allegations when there has been delay in prosecution.

78 It should be mentioned that in Longman the complainant was aged six and ten at the times of the alleged offences and aged thirty two when the allegations came to trial. The contrast in terms of bare effluxion of time is between nearly four years in the present case and at least twenty two years in Longman.

79 There was no issue raised at trial in the present case of an explicit disadvantage by reason of the effluxion of time. The occurrence of the act of anal penetration in count 1 was not disputed. The issue was consent.

80 The submissions by the appellant refer to a number of authorities where the need, or the absence of need, for a Longman direction has been discussed culminating in a contention that “it was incumbent on the trial judge to give the warning and explain how it could be relevant in the context of this case and at the very least to explain that the appellant was unable adequately to test and meet the evidence of the complainant”.

81 The context of the case was epitomized by the judge in the extracts I have referred to, namely the absence of consent on count 1 and the intention to instil and the apprehension of fear of physical violence on count 3. It is not surprising that neither counsel at trial nor in the appeal have been able to articulate how specifically the appellant was disadvantaged.

82 The appellant does not identify any precise mischief which ought to have been addressed. It does not establish this ground to incant the hypothetical disadvantages which may accrue to any accused when there is any delay. Obviously, the longer the delay, the greater the risk of an accused being actually affected. There is always an implicit consideration of degree of risk to which extent of delay is germane. Such consideration must be made in the context of the disputed issues in a particular case.

83 Rule 4 applies. It is stated that it cannot be said that there has been no miscarriage of justice. I disagree. The kernel of the submission is that the appellant was denied “the forensic weapons that reasonable contemporaneity provides” but that expression avoids coming to grips with the need to demonstrate something other than general hypothesis. His Honour’s task was to guide the jury in relation to the current case and not to lecture them on general legal propositions.

84 I would dismiss the appeal against conviction.

85 I turn to the applications for leave to appeal against sentence. As observed, the appellant stood for sentence for two groups of offences in which TM and RA, respectively, were the victims.

86 The facts concerning sexual intercourse without consent and detaining for advantage in which TM was the victim have been sketched above. The offence to which the appellant pleaded guilty arose out of the assault on 27 April at the Liverpool premises which preceded the arrival of the police investigating the car parking problem.

87 In his remarks on sentence the judge indicated the sentences that he would have imposed if the groups of offences against TM and RA were dealt with independently of each other. It is significant to observe the ancillary orders for concurrence, cumulation and commencement.

88 His Honour stated that he would have sentenced the appellant for the sexual intercourse without consent constituted by the anal penetration of TM to imprisonment for four years with a non parole period of three years and for each of the counts of assault occasioning actual bodily harm and detain for advantage to imprisonment for three years with a non parole period of one year six months, these two sentences to be concurrent with each other but cumulative upon the non parole element of the sentence for the firstmentioned offence. The effective sentence would therefore amount, as a matter of overall assessment, to imprisonment for six years with a non parole period of four years six months.

89 In imposing actual sentences his Honour specified fixed terms of three years imprisonment for each offence, the sentence on count 1 commencing on 18 December 2002 and the sentences on counts 2 and 3 both commencing on 18 December 2005. The result therefore was an overall fixed term of six years imprisonment which, whilst it is recognized that grant of parole is a matter for decision, offers a contrast between that six years of actual custody and the four years and six months of minimum custody which would have been the case if his Honour had applied his provisional sentence indication. It is to be borne in mind that the dates of commencement for the sentences imposed in respect of the offences committed on RA were in each case set at 18 December 2008, that is to say at the expiry of the full six years of the cumulated fixed terms imposed in respect of the offences against TM.

90 The first count of assault occasioning actual bodily harm committed against RA arose out of events on 10 August 2002 when the appellant was at her flat. A relationship between them had existed for about two months, she apparently believing that the appellant was a single man. An argument developed about a girlfriend of hers and the appellant pushed her face to the floor following which she went to a bathroom and saw her lip starting to swell. The appellant said that perhaps he should leave but on receiving her assent to this, he slapped her and she fell against a towel rail. He then dragged her by the hair into a bedroom, picked her up by the ears and threw her to a bed. During these events RA was crying and screaming.

91 All of the other offences committed upon RA occurred on 29 November 2002. On the previous evening RA and the appellant had been out together for dinner, but following events which are detailed in the remarks on sentence, the appellant left the flat and returned at about 4.30 am. Upon gaining entry to the flat and seeing indications that RA wanted him to leave, the appellant struck her on the side of the face causing some injury from which blood commenced to flow from her nose.

92 RA testified that she felt that she had blacked out near this point but when she became conscious that she was on the floor, in conduct somewhat similar to part of the conduct in August, the appellant picked her up by the hair and dragged her into a bedroom. The appellant commenced manually to throttle her. Her resistance became exhausted and she curled into a foetal position. She tried to access a mobile phone but the appellant stamped on it.

93 Later, a period of comparative calm existed and the appellant obtained a tea towel and ice which he applied about her face and head where RA said she was suffering pain. The foregoing relates to the offence of assault occasioning actual bodily harm to which the appellant pleaded guilty.

94 The calm did not last and the appellant commenced to molest RA sexually. Without detailing all the incidents, the appellant forcibly and successively penetrated RA’s vagina with his fingers, pushed her head into a position so as to have her fellate him and then penetrated her vagina and her anus successively with his penis. These four acts led to the charges of aggravated sexual assault without consent to which the appellant pleaded not guilty but was convicted by jury verdict.

95 As with the offences against TM, the judge indicated the sentences which he would have imposed if the offences against RA were dealt with independently. His actual impositions were the same as his provisional indications with the exception of that on the seventh count which related to the act of anal penetration. For the two offences of assault occasioning actual bodily harm he set fixed terms of three years imprisonment; for the digital penetration offence a fixed term of one year imprisonment; for the act of fellatio to imprisonment of four years with a non parole period of three years and for the vaginal intercourse to four years imprisonment with a non parole period of three years.

96 For the seventh count he indicated a term of six years imprisonment with a non parole period of four years six months but in fact he imposed a sentence of six years imprisonment with a lesser non parole period of three years.

97 All six sentences, and non parole periods where fixed, were directed to commence, as I have said on 18 December 2008.

98 For both groups of offences the overall effective sentence amounted to twelve years imprisonment with a non parole period of nine years commencing on 18 December 2002.

99 It is submitted that this effective sentence was manifestly excessive. Attention was directed on behalf of the appellant to some specific factors.

100 In a somewhat oblique fashion it was said that the failure to have regard to the pleas of guilty (to three of the offences as detailed above) did not recognize the prospects of rehabilitation or strike a balance between objective seriousness of offences and the appellant’s subjective case.

101 The late pleas of guilty to limited counts in the indictments were held by his Honour to be neither of utilitarian value nor indicators of remorse. In my view those findings were well open upon the facts. It is not demonstrated that his Honour overlooked relevant subjective factors not all of which, it must be observed favour the appellant. His findings on subjective matters can be adopted and there is no need to pause to recite them.

102 The principal thrust of complaint is in two parts. First, that the head sentence of twelve years does not give proper reflection to the favourable subjective factors, and second, that there should be an adjustment of the proportion of the non parole period to that head sentence by reason of special circumstances.

103 There was an express finding by his Honour in the negative with reference to special circumstances. Despite that, if the setting of non parole periods is examined and it was limited to counts 5, 6 and 7 in the indictment concerning RA, the proportion does favour the appellant when gauged against the proportion mentioned in the statute.

104 Of course, overall, a minimum period of nine years before eligibility for parole against a head sentence of twelve years does exactly equate to the statutory proportion.

105 As his Honour recognized, there were matters capable of amounting to special circumstances, the extent of accumulation being one such circumstance.

106 However, there was no obligation to give reasons for not varying the statutory proportion.

107 Whilst respect should be paid to the views expressed in R v Hookey [2004] NSWCCA 223, the express authority of R v Simpson 2001 53 NSWLR 704 (where the Bench was constituted by five judges) represents binding authority that a judge is not obliged to give reasons for not departing from the statutory formula. His Honour is not shown to have fallen into error.

108 I do not need to dwell upon this matter as, for a reason to which I now turn, the appellant should receive some amelioration by a different route, of what I do not consider he should achieve otherwise.

109 I return to my observation that the actual impositions in respect of the offences against TM, in the sense of non parole period specification, exceeded his Honour’s provisional assessment. Had the latter been implemented, the sentences in respect of the offences against RA would commence at the end of the non parole period hypothesized for counts 2 and 3 in the TM matters, that is, from 7 June 2007 rather than 18 December 2008. Whilst in terms of proportion the adjustment may seem slight, the consequence for the appellant is a reduction of one year six months both in total term and minimum non parole period to be served.

110 Save adjustment, which I consider should take place, to reduce the term actually imposed to that which his Honour provisionally formulated, I consider the sentences imposed as well within the bounds of the sound exercise of discretion. It will be convenient in order to ensure clarity to restate the sentences.

111 I propose the following orders:

1. The appeal against conviction dismissed.
2. In each appeal, application for leave to appeal against sentence granted and appeal allowed in part.
3. Sentences imposed in the District Court quashed and in lieu therefore the appellant sentenced as follows:
(a) Upon the indictment in respect of which offences TM was the victim:
On count 1 (sexual intercourse without consent) – to imprisonment for a fixed term of three years commencing on 18 December 2002 and expiring on 17 December 2005;
On count 2 (assault occasioning actual bodily harm) – to imprisonment for three years commencing on 18 December 2005 and expiring on 17 December 2008 with a non parole period of one year six months commencing on 18 December 2005 and expiring on 17 June 2007 and,
On count 3 (detaining for advantage) – to imprisonment for three years commencing on 18 December 2005 and expiring on 17 December 2008 with a non parole period of one year six months commencing on 18 December 2005 and expiring on 17 June 2007.
(b) Upon the indictment in respect of which offences RA was the victim:
On count 1 (assault occasioning actual bodily harm) – to imprisonment for a fixed term of three years commencing on 18 June 2007 and expiring on 17 June 2010.
On count 2 (assault occasioning actual bodily harm) – to imprisonment for a fixed term of three years commencing on 18 June 2007 and expiring on 17 June 2010.
On count 4 (aggravated sexual intercourse without consent – digital penetration) to imprisonment for a fixed term of one year commencing on 18 June 2007 and expiring on 17 June 2008.
On count 5 (aggravated sexual intercourse without consent – fellatio) to imprisonment for four years commencing on 18 June 2007 and expiring on 17 June 2011 with a non parole period of three years commencing on 18 June 2007 and expiring on 17 June 2010.
On count 6 (aggravated sexual intercourse without consent – penile/vaginal penetration) – to imprisonment for four years commencing on 18 June 2007 and expiring on 17 June 2011 with a non parole period of three years commencing on 18 June 2007 and expiring on 17 June 2010.
On count 7 (aggravated sexual intercourse without consent – penile/anal penetration) – to imprisonment for six years commencing on 18 June 2007 and expiring on 17 June 2013 with a non parole period of three years commencing on 18 June 2007 and expiring on 17 June 2010.
4. Where non parole periods have not been set, the reason is stated that the sentences will be subsumed within or followed by other sentences. The extent of concurrency is reflected in the orders for sentence commencement.
5. The earliest date of eligibility for parole is specified as 17 June 2010.

112 JAMES J: I agree that for the reasons given by Grove J in his judgment the orders proposed by his Honour should be made.

113 As regards the first ground of appeal against conviction, that the trial judge erred in the directions he gave the jury about the evidence of previous acts of violence by the appellant against the complainant, I agree with Grove J that the trial judge did not err in directing the jury about the use to which the evidence of previous acts of violence could be put. The trial judge did not direct the jury that the evidence of previous acts of violence could be used, as evidence of a tendency on the part of the appellant, for the purpose of proving that on the occasion in question the appellant had, in accordance with that tendency, inflicted physical violence on the complainant. The use to which the trial judge directed the jury that the evidence of previous acts of violence could be put, was that the evidence of previous acts of violence could be used to prove relevant states of mind of the appellant and of the complainant on the occasion in question, namely that the appellant, in telling the complainant to remain in the premises, intended to convey to the complainant that, if she did not comply with his demand, he might inflict physical violence on her and that the complainant understood that that was what the appellant intended to convey and feared that, if she attempted to leave the premises, the appellant might inflict physical violence on her. If those states of mind were established, it would be open to the jury to find that the appellant had detained the complainant even though he had not physically restrained her.

114 SIMPSON J: I have read in draft the judgment of Grove J, with which I agree, and the additional remarks of James J, with which I also agree.

115 Prior to the commencement of the trials, there was lengthy debate about the admissibility of evidence of prior assaults upon the complainant that the then Crown Prosecutor sought to have admitted (compendiously) as “tendency and coincidence evidence”. In a judgment delivered on 11 May 2004, Dodd DCJ ruled that none of the evidence would be admitted on either basis. As a result of that ruling the Crown Prosecutor opted to present two separate indictments, and the trial concerning the allegations made by RA proceeded first, followed immediately by the trial in respect of the allegations made by TM.

116 Although the evidence presented as “relationship evidence” largely covered the same ground as the evidence previously sought to be relied upon as tendency and coincidence evidence, it was tendered, and admitted, on a different basis. The logic of, and the explanation for, that is covered in the judgment of Grove J. It was fully explained to the jury by the trial judge. The summing up cannot reasonably be read as traversing the earlier ruling.

117 I agree that the appeal against conviction ought to be dismissed. I agree with the orders proposed by Grove J in respect of the application for leave to appeal against sentence.

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