Kurdi v R
[2011] NSWCCA 179
•29 August 2011
Court of Criminal Appeal
New South Wales
Case Title: Sami KURDI v REGINA Medium Neutral Citation: [2011] NSWCCA 179 Hearing Date(s): 4 July 2011 Decision Date: 29 August 2011 Jurisdiction: Before: Bathurst CJ at [1]; Hall J at [130]; Harrison J at [131]
Decision: (1) Grant leave to appeal.
(2) Appeal allowed in part.
(3) The convictions in respect of Counts 23-26 in the indictment of 9 November 2009 be quashed and in lieu thereof direct that judgment and verdicts of acquittal be entered on each of those charges.
(4) In all other respects dismiss the appeal.Catchwords: CRIMINAL LAW - appeal against conviction - whether verdicts are unreasonable and cannot be supported by the evidence - whether verdicts are inconsistent with no logical and reasonable basis for the inconsistency - whether verdicts demonstrate compromise - Criminal Appeal Act 1912 s 6(1)
Legislation Cited: Criminal Appeal Act 1912, ss 5, 6(1), 8
Cases Cited: Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 29
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v Stone [1955] Crim LR 120
R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571Texts Cited: Category: Principal judgment Parties: Sami Kurdi (Appellant)
Regina (Respondent)Representation - Counsel: Counsel
M Thangaraj SC (Appellant)
C Maxwell QC, T Smith (Respondent)- Solicitors: Solicitors
Watsons Solicitors (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)File number(s): CCA 2009/8389 Decision Under Appeal - Court / Tribunal: - Before: Cogswell DCJ - Date of Decision: 27 November 2009 - Citation: - Court File Number(s) 2009/8389/029 Publication Restriction: Non-publication order: name of complainant
Judgment
BATHURST CJ: The appellant was arraigned in relation to 28 offences which, broadly speaking, arose out of his relationship with a Ms AH ("the complainant"). The appellant was found guilty by a jury on 13 of these charges and was acquitted on the balance.
The appellant does not challenge the guilty verdicts in respect of three of these charges, namely, those contained in Counts 4, 5 and 28 of the indictment. It challenges the balance of the guilty verdicts on the basis that the verdicts are unreasonable and cannot be supported by the evidence. As an alternate but related ground, the appellant submits that the verdicts are inconsistent, there being no logical and reasonable basis for the inconsistency. Finally, it suggests that the verdicts demonstrate compromise.
The principles
The appeal is brought under the provisions of s 6(1) of the Criminal Appeal Act 1912 ("the Act"). That section, so far as relevant for present purposes, provides as follows:
"6(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment 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 ..."
Section 5 of the Act gives a right of appeal on any ground which involves a question of law alone, otherwise an appeal only lies by leave of the Court. This appeal does not involve a question of law alone, so leave to appeal should have been sought. The issue was not raised at the hearing and having regard to the questions involved, in my opinion, it is appropriate to grant leave.
Section 8 of the Act empowers the Court to order a new trial if it thinks a miscarriage of justice can be more adequately remedied by a new trial than by any other orders.
In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, the majority of the High Court (Mason CJ, Deane, Dawson and Toohey JJ) set out the approach which should be adopted when a ground of appeal is that the verdict of the jury is unreasonable or cannot be supported by the evidence. Relevantly, their Honours stated at 493:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
And, at 494-495:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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."
These statements have been accepted as authoritative in subsequent decisions of the High Court: Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439 at 452; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25], [59].
It follows that to answer the question which M v The Queen supra requires to be answered, it is necessary for the Court to review the whole of the evidence available to the jury. That is not to say that a court of appeal conducts its own trial. The question which it must answer is whether it was open to the jury to reach the verdict which it in fact reached. Further, as was pointed out in M v The Queen supra, the Court must pay full regard to the primacy of the jury as the fact-finding tribunal and to the fact that the jury has had the benefit of having seen and heard the evidence.
Particular difficulties arise when on a trial on multiple counts the jury returns a verdict of guilty on some counts and not guilty on others. In Jones v The Queen supra, Gaudron, McHugh and Gummow JJ held that on the particular facts of that case an acquittal on one of three counts of sexual assault diminished the complainant's overall credibility to the extent that it was difficult to see how it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on the second and third counts. However, as was made clear in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, that decision does not stand for the proposition that in cases where multiple sexual offences are alleged involving one complainant the jury's acquittal on one of those counts should compel an appellate court to conclude that the jury must necessarily have regarded to the complainant generally as an unsatisfactory witness.
In MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ set out a number of considerations appellate courts should take in account in considering a claim of inconsistent verdicts. They stated (at 366) that a distinction must be drawn between legal or technical inconsistency and suggested factual inconsistency. They pointed out that where the inconsistency arises in the jury verdicts upon different counts of the originating process the test is one of logic and reasonableness. They cited with approval the judgment of Devlin J in R v Stone [1955] Crim LR 120 to the following effect:
"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
In MacKenzie the plurality also pointed out (at 367) that the respect which the law assigns to the function of juries means courts should be reluctant to accept the submission that verdicts are inconsistent. Therefore, if there is a proper way in which the appellate court may reconcile verdicts to enable a conclusion that the jury performed its function, the plurality in MacKenzie suggests that conclusion will generally be accepted. In that context they said (at 367):
"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 a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt."
In R v Markuleski supra, Spigelman CJ (at [31]) emphasised that nothing in Jones cast any doubt on the appropriateness of a jury accepting a witness's evidence in one respect whilst retaining a reasonable doubt about the commission of the events about which the same witness is the only substantive witness. He explained (at [73]) that whilst there may be circumstances in a particular case which would lead to the conclusion that a jury which has found it had a reasonable doubt with respect to the complainant's evidence on one count ought to have had such a doubt with respect to another count, that that does not necessarily follow. He emphasised (at [76]) that there are a number of possibilities for diverse verdicts that do not necessarily give rise to a doubt about the complainant's credibility on all counts.
In the same case, Wood CJ at CL emphasised (at [209]) the need to pay close attention to the evidence in applying the test enunciated in M v The Queen. He gave a series of examples (at [234]-[235]) where it may be concluded that a verdict of acquittal on one count would support the argument that the jury looked with real disfavour upon the credibility of the complainant and also a number of examples where it was possible to identify a possible basis for differentiating between verdicts. I will not set these out, but the variety of the examples indicates the need for the appellate court to focus on the actual evidence before the jury when it delivered its verdict rather than proceeding on the assumption that an acquittal on one count and a finding of guilty on another count involving similar offences necessarily leads to the conclusion that the verdicts were unreasonable within the meaning of s 6 of the Act, even where each of the findings appear to have been based on an assessment of the credibility of the complainant.
In MFA v The Queen supra, the High Court approved the approach adopted in Markuleski (at [32]). In the course of their judgment, Gleeson CJ, Hayne and Callinan JJ dealt with the issue of different verdicts in the following terms (at [34]):
"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie . They include the following. 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 jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. 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. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. 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. Thirdly, there is the consideration stated by King CJ in R v Kirkman , and referred to in later cases: 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. And there may be an interaction between this consideration and the two matters earlier discussed."
McHugh, Gummow and Kirby JJ adopted a similar approach (at [85]-[86]):
"The principles in MacKenzie apply to the present case. This is not an instance of 'legal or technical inconsistency', whereby the jury have returned two or more verdicts which, in law, cannot stand together. Nor is it a case where 'logic and reasonableness' necessarily dictated a common approach to the several verdicts concerned. In judging suggested inconsistency, this Court said in MacKenzie that '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'. The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act 'in accordance with strictly logical considerations' or even 'in accordance with the strict principles of the law which are explained to them'. Juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion.
Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and commonsense' and suggest a compromise in the performance of the jury's duty. Such a conclusion 'depends upon the facts of the case'. There can be no 'hard and fast rules' except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission."
This Court in R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 suggested that where the suggested unreasonableness was based on the existence of inconsistent verdicts, the issue was not just whether the verdict was open upon the whole of the evidence (these words being emphasised by Simpson J at [135]) but whether it was open on the whole of the evidence and having regard to all relevant facts and circumstances, including: where one of the circumstances was that the jury acquitted on one or some counts; whatever can be discerned as the explanation for the acquittals; and whatever insight can be gained into the jury's thinking and reasoning: see [135] per Simpson J, Latham J agreeing at [204].
So far as the last matter raised by her Honour is concerned whatever insight might ultimately be gained from questions asked by the jury of a judge during the course of their deliberations may be questionable. The issue does not arise in the present case. The Court in R v TK supra again emphasised the importance of the role of the jury as the primary finder of fact. In the case of verdicts said to be compromised verdicts, the Court emphasised the caution that a court must show prior to concluding that a jury has acted contrary to its duty and contrary to the instruction it has been given: see [6] per McClelland CJ at CL, [136] per Simpson J.
In SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 the High Court again stated that in considering whether a verdict should be set aside on the grounds that it was unreasonable the approach in M v The Queen should be adopted (at [11]-[14], [78]). The Court emphasised in particular the need to make an independent assessment of the evidence (at [21]-[22]).
I have set out the principles above in some detail not because they are controversial but rather because of the importance of bearing them in mind in considering the issues raised in this case, which involves a diverse number of counts over a period of many years with different verdicts on each type of count.
Background
It is convenient to deal with the evidence and the submissions in relation to each count in the indictment in chronological order.
Counts 1 and 2 were charges of assaulting the complainant in 2000 and 2001. They resulted in directed verdicts in favour of the appellant. Counts 4 and 5 were charges of intimidation of the complainant's mother and father respectively with the intention to cause them to fear mental harm. Guilty verdicts were entered on each of these counts. The parties are agreed that the directed verdicts on Counts 1 and 2 and the guilty verdicts on Counts 4 and 5 do not have any substantial bearing on the issues in the appeal.
Counts 3 and 6 relate to incidents in 2002. Count 3 charged the appellant with intimidation with the intention of causing the complainant to fear physical harm whilst Count 6 charged the appellant with an act intending to pervert the course of justice. It is alleged he threatened to make public sexually explicit photographs of the complainant if an Apprehended Violence Order ("AVO") was not withdrawn.
The complainant's evidence in chief in support of these charges may be summarised as follows: she entered into a relationship with the appellant in 1997 when she was 14 years of age; the relationship became a consensual sexual relationship when she was 16 years of age. She claimed the relationship changed when she was 18 and there was some violence.
The complainant gave evidence that in January 2002 she went on a holiday to Surfers Paradise with the appellant, the complainant's cousin, and some of her cousin's friends. On return she said the appellant continued to control her movements and would hit her. She said that on 24 May 2002 she went to Ashfield Police Station and sought an AVO against the complainant.
The complainant said the appellant called her on the following day and said he knew she had obtained an AVO because he had followed her to Ashfield Police Station. He said she had better drop it or he would show everybody compromising photographs of her. She claimed that he attended her work and showed her a series of negatives of photographs of her in her lingerie in a shed in Perry Park. She said the negatives depicted her wearing a bra and a g-string in one photograph, wearing no bra in another and wearing a bra and short skirt in a third. She said that the complainant stated he would show the photographs to her parents and other people.
The complainant said she did not go ahead with the AVO because the applicant blackmailed her with the negatives and because she was scared. She said she did not attend court on the day specified in the AVO and thereafter she stayed with the appellant out of fear.
In cross-examination she conceded that it was only in a statement given to the prosecutor a week before the trial that she stated that the appellant knew about the AVO because he had followed her. She was unable to say why she did not tell the police in May 2002 about the threat concerning the AVO. She agreed the appellant had never showed compromising photographs of her to anybody.
She was also cross-examined on the first statement she made in connection with Count 6 in which she said she believed the negatives (of the photographs) were of the appellant and her having sex. In that context she stated she could not remember what she was wearing.
The complainant's parents gave evidence. Her father said that he accompanied her to Ashfield Police Station to seek the AVO, that in 2002 his family were receiving what were described as prank calls and that at the time of the AVO he saw marks and bruising on his daughter. He stated he told the appellant he would go to the police if the appellant did not leave his daughter alone. The so-called prank calls were the subject of Counts 4 and 5.
The complainant's mother gave evidence that she accompanied the complainant to Ashfield Police Station to obtain an AVO. She stated that her daughter had said she did not want to proceed because the appellant had promised to leave her alone.
In his address to the jury on Count 3, counsel for the appellant accepted the prank calls were made but said there was no intention to intimidate. He did not draw any distinction between Counts 3, 4 and 5.
In relation to Count 6, counsel for the appellant stated the question for the jury was how the appellant knew about the AVO. He pointed to the fact that the claim by the complainant that the appellant followed her to the police station was first made in her seventh statement. He pointed to inconsistencies in her evidence as to what she was wearing and the fact that contrary to her evidence in her initial statements she did not say that the photographs were of her and the appellant having sex.
Counts 7, 8 and 9 all involve an incident which occurred on 1 January 2005 at the Bankstown Travelodge. The appellant was acquitted on all counts.
The complainant gave evidence that in 2003 she went on a holiday to Greece for a period of three months and that when she returned the relationship resumed. In her words, "I went back to how we left things". She said the appellant was angry she had struck up a friendship with a man called Ross.
She said that on 1 January 2005 the appellant demanded to see her and they met at the Bankstown Sports Club. She said they met there, he gambled a little and then he told her to book a room and pay for it. (It seemed to have been common ground that the Bankstown Sports Club was adjacent to the Bankstown Travelodge.) She said he made her get money from an ATM in the foyer and she paid for the room in cash. She said they went to the room at about 2.00pm and when they got to it the appellant told her to take her clothes off and then he tied her up and tied her arms to a chair while she was in her underwear. She then said he put duct tape around her mouth and that she was crying and panicking because she could not breathe properly. She then said he punched her and she fell onto the ground with the chair. When she got back onto the chair she said he told her to remove the duct tape and forced her to give him oral sex. Afterwards he told her to go to the shower. She said she took off her bra and g-string and went to the shower. She said the appellant followed her and took his clothes off. She said she sat down in the corner of the shower feeling faint and he urinated on her.
She said she left on her own catching the train home from Bankstown.
In cross-examination the complainant acknowledged that this was the first time that the appellant had tied her up and used duct tape. She said that she forgot about the tape when she made her first and second statements to the police. She said that in late 2004 and early 2005, she and the appellant were in a consensual sexual relationship and had frequently gone to hotels and motels. She acknowledged that they had had consensual sex at the Bankstown Sports Club both before and after that day. She agreed she paid for the room on her credit card notwithstanding the fact he told her to pay by cash. She said she made a mistake when she said in the first statement that the appellant drove her home and she said her statement was incorrect where she said they were at the motel for four hours.
In his address to the jury, counsel for the appellant pointed out the inconsistencies to which I have referred, as well as the fact that she paid by credit card, and that the four hour duration of the stay at the motel pointed to consensual sex.
Counts 10, 11 and 12 were counts of demanding money with menaces. The appellant was found not guilty on the first of these charges (Count 10) but guilty on the other two.
The complainant's evidence on Count 10 was brief. She claims that around 6 July 2005 the appellant said "I'm getting a car, I need $10,000". She said she replied "I don't have $10,000", to which he responded, "Well you can put it on your credit card. If you put it on your credit card I'll let you go, I'll leave you alone".
She confirmed the entry on her credit card statement which showed the payment.
The complainant was cross-examined about the absence of complaint concerning this $10,000 in her first two statements. She explained the absence of complaint by saying that she forgot.
In relation to Count 11 the complainant's evidence was that the appellant asked her to obtain a loan for $25,000 and if she did he would leave her alone. She went to St George Bank, obtained the loan, and gave it to the appellant in cash. She identified a personal loan approval for $25,000. She corrected her evidence saying the total amount she gave the appellant was $30,000 of which $5,000 was transferred into the St George Bank from her ING account. She said when she handed the money over she was crying and he forced her to sign a piece of paper stating: "I'm giving $30,000 to Sami Kurdi on my own free will". The piece of paper was not produced.
In relation to Count 12 the complainant's evidence was that a week after payment of the $30,000 the appellant said he needed more money. She claims he said "Just one more amount and I promise I'll leave you alone". She obtained a loan from the ANZ Bank and identified a letter of offer. She acknowledged that the reason she gave the bank for needing the loan, namely that it was for a wedding, was untruthful.
In cross-examination she corrected her evidence that she did not know where the money was spent and said it was spent on a boat. She was cross-examined on the implausibility of her believing the appellant when he said he would leave her alone.
A Mr Stevens and a Mr Izci gave evidence that they did work on a boat for Mr Kurdi at a total cost of $9,500.
In his address to the jury counsel for the appellant pointed to the absence of any threat to expose compromising photos and videos which the appellant had in his possession, the implausibility of the fact that the complainant would accept that if she paid him the money he would leave her alone, the absence of any evidence of whether the appellant spent the money and the fact that a number of cash deposits totalling $84,000 went into the complainant's account over the two years subsequent to the $55,000 withdrawal.
Count 13, on which the appellant was found guilty, charged the appellant with assault occasioning actual bodily harm. The incident was said to have occurred on 29 December 2007. The complainant's evidence was that she was attending a family barbeque when the appellant demanded to see her. She met him at Clemton Park and she got into his car. She said he was very angry and told her to pull her pants down. She said he lit a cigarette lighter, put it on her buttocks and burnt her twice. She was shown a photograph where she identified what she said were burn marks. She said the photograph was taken at Ashfield Police Station in September 2008.
She said that a few days after the incident the appellant bought her a burn patch and then some cream. She said she saw her local general practitioner, a Dr Papadakis in Earlwood, who referred her to a laser clinic at Neutral Bay. She identified the date of the incident by reference to a photograph on the appellant's phone showing her at the beach the following day. She said she remembered because she was in pain at the beach and she could not sit down properly.
In cross-examination she said the appellant forced her to go to the beach and she had bandages on.
In his address to the jury, counsel for the appellant pointed out that there was no evidence that the scars to which the complainant pointed were burn marks, that the allegations were inconsistent with her actions in going to the beach the following day, and that the appellant's actions in supplying her medication were inconsistent with the allegation that he burnt her.
In relation to this assault and the subsequent assaults, counsel for the appellant also pointed to the recording of 22 September 2008 and pointed out that allegations of these assaults were not made.
The next two counts, Counts 14 and 15, related to alleged assaults following the complainant's attendance at 21 st birthday parties on 28 March 2008 and 14 June 2008. The appellant was found not guilty of each of these counts.
The alleged assault on 28 March 2008 occurred after a 21 st birthday party the complainant attended at Forest Inn at Bexley. The appellant had given her permission to go but rang her saying she had lied about the address and demanded she leave. She said she left at about 11.00pm with her girlfriend and the appellant picked her up from her girlfriend's house. She alleged that he punched her in the stomach for lying about the venue.
In cross-examination she admitted that she and the appellant had consensual sex six days after the incident, as well as a massage at Star City.
In his address to the jury counsel for the appellant again pointed to the absence of any complaint in the recording of 22 September 2008.
The alleged assault of 14 June 2008 was said to have taken place following a 21 st birthday party at premises known as the Ivory Room at Five Dock. The complainant said that the appellant indicated that he agreed to her going to the party but became angry when he found out she was having her hair curled prior to doing so. He indicated she should not go but she went in any event.
The complainant's evidence was that she arrived at the party at about 6.45pm. The appellant kept calling her demanding she leave and threatening her if she did not. About an hour later she left. A friend dropped her off at Hurlstone Park RSL Club and she got a cab from there to Lakemba Station. She met the appellant then got in his car and he punched her about four times on her head, stomach and arms. After the assault the complainant said the appellant dropped her off in a street near her house.
She was cross-examined as to the fact that on 9 July 2008 the appellant spent $1,865 buying gifts from Versace and on the fact that on 7 September 2008 she sent him a photograph of herself wearing a wet tshirt.
In his address to the jury counsel for the appellant pointed to the absence of corroboration.
In relation to this charge and in relation to the events which occurred in 2008 generally, reliance was also placed on the contents of a video made in August 2008 at around the time of the Olympics. The complainant said she was scared of the appellant the whole time but she agreed that a video of August 2008 showed her conducting herself in an intimate, friendly way with the appellant. She acknowledged the video showed that she wanted to stay with him and that she performed oral sex on him, laughing when he ejaculated on her face. She acknowledged that it was consensual sexual activity.
Counts 16 and 17 relate to events which occurred in September 2008. Count 16 charged the appellant with assault occasioning actual bodily harm whilst Count 17 charged him with stealing the complainant's SIM card and keeping it. The appellant was found guilty on both counts.
The complainant gave evidence she met the appellant at his townhouse on 10 September 2008 and told him she had formed a relationship with another man. She stated in her evidence that he then slapped her and she fell to the ground, where he kicked her three or four times. She was shown a photograph and she identified the bruises where she says she was hit. She then said she was forced to call the man with whom she had formed a relationship, a Mr Sfetsos, and the appellant told him to keep away from her. She said that after the discussion he took her phone, took the SIM card and put in a new prepaid SIM card. He refused to give the old SIM card back. When she got home she said her parents demanded the appellant come to see them. She said the appellant came to her home and argued with her father.
In cross-examination she was asked why, if she feared him, she went to his townhouse to tell him about the new relationship. She said it was the right thing to do. She acknowledged she did not mention the incident in the recorded conversation of 22 September 2008. She acknowledged that at the meeting with her father on 10 September 2008 (the night of the alleged incident) the appellant denied the incident occurred.
The complainant's father stated that in August or September he had a conversation with the appellant. He said at the time he saw bruising on the complainant's left cheek. He said he told the appellant that if he did not leave the complainant alone he would go to the police. He said that the appellant then swore he would leave her alone. However, the complainant said that she did not believe the appellant and he was lying.
The complainant's mother said that she was present during the conversation between the appellant and the complainant's father. She said the appellant said: "Please do not go to the police, don't take out an AVO because its not good for my business". The complainant's mother claimed to have said: "You are sneaky and I will go to the police if you don't stop". She said the appellant then left.
In his address to the jury counsel for the appellant emphasised that it was inherently unlikely that the complainant would go to the appellant's townhouse to tell him about her new relationship if she feared violence to the extent she claimed.
Counts 18-22 relate to incidents said to have occurred on 11 September 2008. Count 18 charged the appellant with aggravated break and enter, Count 19 with assault on the complainant, Count 20 with theft of the complainant's passport and Count 21 with taking the complainant with intent to obtain an advantage (forcing the complainant into a car), whilst Count 22 charged the appellant with intimidating the complainant with the intention of causing her mental harm. The appellant was acquitted on all counts.
In her evidence in chief the complainant said that on the morning of 11 September 2008 the appellant telephoned her asking whether she thought it was a smart idea to tell her parents (presumably about the assault the day before). She said she denied telling them. He allegedly said he was at Redfern and he would show everybody at her work "what I have on you". The appellant understood this to mean naked photographs and sex footage.
The appellant then said the complainant came to her house and demanded she open the roller doors at the rear of the premises. She said she did not want to, but he said it was for her own good so she opened the roller doors. She said she was scared because he gave the impression he was going to break in. She said that beyond the roller doors there was a shutter and glass door which she also opened because he was angry and screaming. The complainant said the appellant went straight through the doors and went to her bedroom. She said there was a scuffle and he took her passport saying she was not going anywhere. She then said he went to the kitchen, grabbed a steak knife, and put it to her neck. He told her to come to the car. She said when they got to the backyard he had the knife at her throat. He then dropped it. They walked to the car and she got in the back seat. The car was a black Audi and there was another man in it. She was introduced to the other man who was then driven to his house.
The complainant said that the appellant then took her to his townhouse where he showed her sex video footage he had on his computer and said he was going to show it to everybody. The footage showed images of consensual sex.
In cross-examination the complainant admitted that the first police statement she made in relation to these incidents was untruthful. She did not want to say that she voluntarily opened the roller doors because she did not want her parents to find out. She admitted that up to the sixth statement there was no mention of any other male in the car. She agreed that it was only in a statement made in November 2008 that she said the complainant dropped the knife. She acknowledged that she had previously seen some of the videos that he showed her. In relation to the passport she said she had plans to go to Thailand but acknowledged that the first time she said this was in her evidence at the trial.
In his address to the jury, counsel for the appellant emphasised the difficulties with her evidence which emerged in cross-examination and to which I have referred above. He also pointed out that in relation to Count 21, the complainant only contended that the appellant threatened to show the videos if she did not listen to him. He did not say that she had to continue an intimate relationship with him or else he would make public the tapes.
Counts 23-26 all relate to incidents which occurred on 22 September 2008. Count 23 charged the appellant with taking the complainant without her consent with intent to obtain an advantage (namely, to continue the relationship) and that at the time of the taking actual bodily harm was occasioned to the complainant. Count 24 charged the appellant with threatening to use an offensive weapon, namely a taser, with intent to commit an indictable offence, namely intimidation. Count 25 charged the appellant with possession of a prohibited weapon, a taser, without being authorised by a permit whilst Count 26 charged the appellant with having sexual intercourse with the complainant without her consent and knowing that she was not consenting. The appellant was found guilty on all charges.
Count 27 also related to an incident on 22 September. It charged the appellant with demanding a laptop from the complainant with menaces with the intent to steal it from her. The appellant was acquitted on this charge.
The complainant gave evidence that she was too scared to go to work between 12 and 22 September 2008 because the appellant knew her movements. She said she went to work on 22 September 2008, leaving home at 6.55am. She said when she got to the bus stop the appellant grabbed her and took her to his car. She said there was shoving and pushing because she wanted to get out of the car as a result of which she suffered bruises on her arms. She then said he pulled out a taser gun, placed it close to her inner thigh, and said: "If I zap this on your vagina you won't be able to conceive children". She said he turned it on and she saw a blue current and it made a zapping noise.
The complainant said she was taken to a park 20 minutes away. She said they spoke more. He said: "I will always have an alibi, I am always two steps ahead of you". She said he stated he would infect her with AIDS. She then said the appellant demanded she give him oral sex and she did. A CD showing this incident was tendered. She said the appellant took the footage on his mobile phone.
The footage commenced with the complainant saying: "Now I'm going to suck Sam's dick". The complainant said the appellant told her to say this. She said the appellant told her to act normally. She said she did what she was told because she was frightened and did not know what to do. She said she knew the taser was in the car. She said that after the incident she and the appellant went to Westfield Shopping Centre at Miranda. She said the appellant bought her coffee and a muffin. She asked why they were there and he said "I need to be seen with you in public".
The complainant said that she and the appellant then went to the JB Hi-Fi store. She said that the appellant said to her he needed her to buy a laptop because he needed it at work. She said she told him she could not afford it but she bought it because she said: "He just wouldn't stop". She paid for it with an ANZ Visa card. She identified a receipt for the purchase of the computer.
The complainant then drove her home. On the way home she said they parked in her street up from her house and had the conversation which she recorded.
The appellant placed heavy reliance on this recording both at the trial and in this Court. During the course of the conversation the appellant said consistently he needed help. The complainant accused him of saying that he was going to get someone to infect her with AIDS and asked him if he was going to burn the shop. She asked him if he was going to get a hit man. The recording does not record any response by the appellant to the initial questions concerning infection with AIDS but in relation to the burning of the shops it records the appellant saying: " ... will if I needed to. I've already got an alibi". The appellant did not respond to the question: "Are you going to get a hit man?". In the course of the conversation the complainant told him to stop screaming and to continue with his therapy. She said she would not help him. She subsequently stated that she could not get out of her mind that he said he would get someone to infect her with AIDS with a syringe or burn the shop. The appellant responded: "Maybe I was wrong to tell you that, maybe I was wrong".
In the latter part of the conversation, the complainant said she had never seen the appellant so pathetic. He told her to get out of his car and she told him to calm down. He said he would get her money and she said: "Give it to me". When he said she should get in the car (presumably to drive to an ATM) she said: "Don't worry about it". Towards the end of the recording the complainant was recorded as saying: "Oh man enough of your threats please". It records the appellant saying in response: "Well fuckin' make a few ... decision. Save your fuckin' life before I fuckin' destroy you" and the complainant replying: "No you wont".
The appellant submitted that there were two matters of particular significance arising out of this conversation. First, there appeared to be no complaint of the incidents which were said to have occurred earlier in the day. Secondly, it was submitted that the conduct of the complainant was inconsistent with the conduct of someone who was fearful of the appellant. To the contrary she was the person who seemed in control.
The complainant was cross-examined extensively on the contents of the tape. It was put to her she was not scared. She denied that, saying she was confused because she had never seen the appellant act in that way. She denied she was in control and that what she said was inconsistent with someone who was fearful.
In relation to the incident of 22 September she admitted she did not tell the police what the appellant had said about not conceiving children. She also admitted that when she first went to the police she said nothing about the offence of sexual intercourse and only made the complaint when the police discovered the video which showed it. She told the police on 6 October that: "She only remembered it then". In her evidence she said she did not tell the police because of the impact it would have had on her boyfriend.
She admitted she was not detained at Westfield but said that she could not walk away because she was scared. She acknowledged that she did not tell the police about the recorded conversation in her first statement but only in her second.
A search by the police discovered a taser gun at the appellant's premises lying relatively openly in his garage. The officer who attempted to use it was unable to do so but it appears to be common ground that it was in working order.
Count 28 charged the appellant with intimidation of Mr Sfetsos. The appellant was found guilty and the finding is not challenged.
Neither party to the appeal proffered any criticism of the summing-up of the learned trial judge. He pointed out to the jury that because they reject some of the witnesses' evidence they did not have to reject all of it. They were directed that they were required to give separate consideration to the individual charges and that they were entitled to bring in verdicts of guilty on some counts and not guilty on others. They were specifically directed that if they had a doubt about the truthfulness of the complainant or her reliability on one or more of the charges, then they had to consider how that conclusion affected the other charges that depended on her evidence. Consistent with Markuleski they were directed that any doubts they may form about one aspect of the evidence of the complainant ought be considered in assessing her overall credibility with respect to the other charges. They were warned to exercise particular caution in convicting on uncorroborated evidence in terms suggested in R v Murray (1987) 11 NSWLR 12 at 19 and were warned about the forensic disadvantage to the accused which can occur when there are significant delays in making a complaint, consistent with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 29.
Consideration
It is appropriate at the outset to have regard to the evidence available to the jury on the charges on which they acquitted the appellant. In relation to Count 6 there was no issue that an AVO had been obtained by the complainant but not proceeded with. The issue was whether the jury could be satisfied beyond reasonable doubt that she did not proceed because of the threats by the appellant to show sexually explicit photographs of her to her parents. There were three difficulties. First, there was no corroboration. Secondly, the claim that the appellant had followed her to Ashfield Police Station was only made to the prosecutor in her seventh statement immediately before the trial. Thirdly, there were inconsistencies in her evidence as to what she was wearing in, and the nature of, the photographs.
It should be noted that it was not suggested to the jury that although the incident may have occurred the requisite intent to pervert the course of justice had not been established.
It does not seem to me that acquittal on this count would necessarily lead to the conclusion that the jury had doubts about the complainant's honesty or for that matter her reliability generally. Rather, the jury may have acquitted because they were not satisfied beyond reasonable doubt having regard to the lack of corroboration coupled with the particular inconsistencies in her evidence concerning an event which had occurred seven years before.
So far as Counts 7, 8 and 9 are concerned there was evidence independent of the complainant that she and the appellant were at the Bankstown Travelodge together on 1 July 2005. Indeed, that did not seem to be in issue. However, the balance of what she said had occurred on that occasion is uncorroborated. I have set out earlier (at [36]) the matters which were raised in cross-examination in particular the timing of the allegation concerning the duct tape, the fact that she and the appellant had had consensual sex at the same motel previously and the withdrawal from what she said in her statement that she and the complainant were at the motel for four hours and that he had driven her home.
It is difficult to conclude on the evidence in this count other than that the jury failed to convict the appellant because the matters on which she was cross-examined to which I have referred cast doubt on her credibility or the reliability of her evidence at least so far as it related to this count.
Count 10, which was the first of the three demand with menaces counts, was corroborated at least to the extent that a credit card entry showed the withdrawal of $10,000. The incident occurred four years before the trial and was not the subject of a complaint in her first and second statements, unlike the payments the subject of Counts 11 and 12.
The jury plainly was not satisfied beyond reasonable doubt that this payment was made to the appellant pursuant to an unlawful demand. However, this does not mean that the jury necessarily could not accept her evidence on Counts 11 and 12, demands which occurred two years later. The length of time between the payments and the late complaint compared to the complaints with respect to the other two payments meant, in my opinion, that it was open to the jury to find against the appellant in relation to Counts 11 and 12 whilst not being satisfied beyond reasonable doubt in relation to Count 10.
Counts 14 and 15 related to the alleged assaults after 21 st birthday parties. The complainant's account was uncorroborated, nor were the assaults the subject of complaint in the 22 September recording. Further, the evidence showed that at the time surrounding each of these alleged assaults the appellant and complainant continued to engage in what appeared to be an affectionate relationship (see [54], [58], [60] above).
Counts 18-22 relate to the events of 11 September 2008. The appellant was acquitted on all counts. Once again there was no corroboration. Further, there was the admission that her first statement was untruthful in that the complainant did not say that she opened the roller door voluntarily. Other difficulties with her evidence which emerged during cross-examination are summarised in [71].
Count 27 related to events which occurred immediately after the events of 22 December on which the appellant was found guilty. It was clear that the appellant and the complainant were at the JB Hi-Fi shop at Miranda and that the complainant purchased the laptop computer. The jury, however, were not prepared to accept beyond reasonable doubt her uncorroborated evidence that she was forced to do so.
So far as the counts in respect to which a conviction was recorded are concerned, it is necessary to bear in mind that the appeal is not merely based on inconsistent verdicts. The primary ground is that the verdicts were unreasonable and not supported by the evidence. The alternative is that they were inconsistent in the sense that they were neither logical nor reasonable and finally that they demonstrate compromise. However, it was not in contest that the verdicts could stand if the jury was satisfied beyond reasonable doubt as to the evidence of the complainant on each count.
Count 3
The first challenged count is Count 3, which related to intimidation of the complainant. In dealing with this count the complainant's evidence was that in 2002 the appellant hit her. Further, the jury found in relation to Counts 3 and 4 that the prank calls were in fact made and it is not in dispute that the complainant sought an apprehended violence order. Her evidence was to some extent corroborated by her parents. It seems to me that it was open to the jury to find the appellant guilty on this count.
I do not think that the fact the jury found the appellant not guilty on Count 6 means that the verdict in relation to Count 3 was illogical or unreasonable. The fact that the jury were not satisfied beyond reasonable doubt as to the reasons the complainant withdrew the AVO does not mean that it was illogical for them to find that the alleged intimidation the subject of Count 3 occurred. Nor do I think that the credibility issues which arose in respect of some of the more serious charges in later years precluded them from reaching this position particularly having regard to the corroborative material to which I have referred.
In these circumstances it is my opinion that the appeal so far as it relates to Count 3 should be dismissed.
Counts 11 and 12
These counts present more difficulty. However, once again I am of the view that it was open to the jury to enter a verdict of guilty on these counts. There was no doubt that the money was withdrawn. The fact that the piece of paper the complainant claimed to have signed and given to the appellant in relation to the money the subject of Count 11 was not produced does not seem to me to be of particular significance having regard to the fact that the incident in question occurred some two years before the trial. Nor do I think that the absence of complaint prior to September 2008 was a matter which precluded the jury from concluding beyond reasonable doubt that the incident in question occurred. The complaint was raised when the complainant first elected to go to the police in September 2008. Similar considerations apply in relation to Count 12. Further the complainant's evidence that the money was to be spent on a boat obtained some limited support from the evidence of Mr Stevens and Mr Izci, although the $9,500 spent on the boat by no means accounts for the whole of the money the subject of Counts 11 and 12. Nor in my view does the fact that she did not tell the ANZ Bank the true reason for the second loan necessarily cast doubt upon her credibility in relation to this charge. It is quite conceivable that she would not have stated the true reason in the circumstances in which she claimed to have made the advance.
Further, I do not think much assistance is to be derived from the fact that $84,000 went back into her account over the two years subsequent to the withdrawal. Similarly the fact that she did not allege that the appellant threatened to show compromising videos and the suggested implausibility of his statement that he would leave her alone were not factors which required the jury to reject her evidence beyond reasonable doubt. It was open to the jury in my view to accept that she paid the money at least in the hope the appellant would do what he said.
The jury were directed to take into account any doubts they had as to the complainant's credibility on any one charge in their consideration of the other charges. In this regard they were required to take into account the conclusions which they reached particularly on Counts 7-9, 18-22 and 27. There was no reason to consider that they did not do so. Even taking these matters into account it does not seem to me that it was not open to the jury to accept the complainant's evidence on this count.
There are two other matters relevant to these counts. The first is that it was certainly established that the relationship between the appellant and the complainant from time to time was an affectionate one. This, of course, is consistent with voluntary advances. Secondly, there was no complaint in the recording of 22 September of the wrongful demand for these monies. However, once again I do not think these matters lead to the conclusion that the verdict was unreasonable. The fact that the relationship ebbed and flowed is not necessarily contrary to the conclusion that the unlawful demands were made. Also the fact that the demands were not mentioned in the recorded conversation of 22 September 2008 whilst a factor certainly to be taken into account, in my opinion, does not lead to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt particularly when these matters were raised in the first complaint to the police.
Finally, there is the acquittal on Count 10. The event in question occurred some two years prior to the incidents the subject of Counts 11 and 12. It does not seem to me that an acquittal on this count made the verdicts on Counts 11 and 12 illogical and unreasonable. Unlike the other two counts there was no complaint about the demand the subject of Count 10 at the time the complainant first went to the police and this, coupled with the absence of corroboration and a lengthy delay since the incident, may well have caused the jury not to have reached the requisite state of satisfaction on this count.
It follows that the appeal so far as it relates to Counts 11 and 12 should be dismissed.
Count 13
This count related to the assault on 29 December 2007. There was no real corroboration of the incident. However, the complainant was able to identify the day of the assault from the date of the photograph taken the following day and she identified what she said were scars from the burns she claimed were the subject of the assault. She identified a doctor who she saw and a laser clinic to which she was referred.
Against these matters there must be put any doubt as to her credibility or reliability generally which the jury must have had arising out of their finding of not guilty on other counts, the fact that the only evidence that the scars to which she referred came from the burns was her uncorroborated testimony, and the fact there was no reference to the assault in the recording of 22 September 2008.
It seems to me that notwithstanding these matters the jury was entitled to accept her evidence on this count. It was a matter for the jury who heard her evidence to determine whether they could accept her account notwithstanding the limited corroboration. So far as the absence of any specific mention of the assault is concerned, I do not think that it is of particular significance in the context of this count. The assault occurred some eight months before the recording and it does not seem to me that the failure to mention this specific incident in a conversation of the nature of that which occurred was such as to preclude the jury from accepting her evidence beyond reasonable doubt on this count.
It follows, in my opinion, that the appeal so far as it relates to this count should be dismissed.
Counts 16, 17, 23-26 generally
These counts along with Counts 17-22 and Count 27 all took place over a period of 12 days between 10 September 2008 and 22 September 2008. There are, in these circumstances, two things which should be said at the outset. First, it was plain that the jury was not satisfied at least as to the reliability of the complainant in relation to her evidence on Counts 17-22 and Count 27. In relation to the first of these sets of counts the difficulties with her evidence which are set out in [71] of this judgment must be borne in mind. So far as Count 27 is concerned it is implicit in the verdict of acquittal on this count that the jury was not satisfied beyond reasonable doubt as to her evidence that she was forced by menaces of the appellant to acquire the computer.
Further, in relation to the sexual assault charge (Count 26) the jury was required to consider the effect on the general credibility of the complainant implicit in their rejection of Counts 7, 8 and 9 and of the fact that as late as August 2008 the complainant and the appellant were engaged in consensual sexual activity including similar activities to the ones the subject of Count 26.
Counts 16 and 17
I have summarised the evidence surrounding these charges in [61]-[66]. To what I have said there must be added the content of the statement of agreed facts dated 17 November 2009. In that statement of facts it was agreed that on 10 September 2008 the complainant rang Mr Sfetsos and said she did not think they should see each other any more. Mr Sfetsos asked whether she was at home and she said no. The agreed statement of facts says that on the same day Mr Sfetsos rang the complainant's phone which was answered by the appellant. During the course of the call a conversation to the following effect took place:
The appellant: "I told you before don't call A again and walk away. I know where you live."
Sfetsos: "What do you mean, are you trying to threaten me?"
The appellant: "I'd advise you not to go down this road."
Taking this evidence into account coupled with the evidence of the complainant's parents to which I have referred in pars [64]-[66], it seems to me that notwithstanding any doubts the jury may have had as to her credibility and reliability concerning the other incidents which occurred either about the same time or generally, it was open to the jury to be satisfied beyond reasonable doubt as to these counts. In particular, the proposition put to the jury that it was inherently unlikely that the complainant would go to the appellant's townhouse if she was in fear of him is to a large extent contradicted by the contemporaneous statement that she was not at home and the fact that on that day the appellant had her phone.
In these circumstance the appeal should be dismissed so far as it relates to Counts 16 and 17.
Counts 23-26
I have set out at [73]-[86] the facts surrounding these counts and the evidence given in cross-examination. There are a number of matters which should be noted about the evidence. First, having regard to the time the complainant said the respondent collected her they were together for some 31/2 hours before they arrived at Westfield to have coffee and a muffin and to acquire the computer. These facts would tend to cast doubt on any sexual activity being non-consensual. Related to this is the complainant's evidence that she was not detained at Westfield. Her statement she was in fear was to some extent contradicted by the aggressive tone that she adopted in the conversation she subsequently recorded. Secondly, there is the fact that the complaint of sexual assault was only made after the video of the sexual activity was discovered coupled with her initial explanation that she only remembered it at that time. Thirdly, in the recording of 22 September 2008, she made no complaint about the incident which was the subject of the events which had occurred only that morning. Fourthly, and perhaps less importantly, although in her first statement to the police the complainant alleged that appellant threatened "I'll put this on your vagina" while holding the taser, she later recounted that he said "If I zap this on your vagina you won't be able to conceive children".
These matters fall to be considered in the context of doubts which arose as to the complainant's reliability arising out of the jury's acquittal in relation to Counts 7, 8 and 9, the fact that similar sexual activity had taken place consensually one month before and the acquittal on Count 27.
There are three other matters which tend the other way. First, as I have pointed out in [80], one of the matters which was raised in the recording of 22 September 2008 was the statement by the appellant that he would cause her to be infected with AIDS. This is one of the threats she told the police he made at the time of the demand for oral sex. Secondly, there is no doubt that the appellant was in possession of a taser three days after the alleged event occurred. Thirdly, I have considered the video taken on the appellant's phone. Having looked at it, it would seem to me to be open to the jury, at least absent the other facts to which I have referred, to take the view that notwithstanding the complainant's repeated comment "Now I am going to suck Sam's dick" and the so-called smiles, the activities were non-consensual.
However, taking all these matters into account I am of the view that on the whole of the evidence and taking into account the advantages enjoyed by the jury it was not open to them in this case to find beyond reasonable doubt that the appellant was guilty of the charges the subject of Counts 23, 25 and 26. The evidence I have discussed in detail in [73]-[86], and summarised in [118]-[120], coupled with the doubts the jury must have had in respect of her general reliability and credibility arising out of the acquittals on Counts 7-9 and Count 27 in particular, lead to that conclusion. This is so notwithstanding the countervailing factors to which I have referred above, and the jury's advantage in seeing the complainant.
Count 25 falls into a slightly different category. A taser was found in the appellant's garage on 28 September 2008. However, if it is correct that it was not open to the jury to convict on Count 24 (use of the taser with intent to intimidate on 22 September 2008) then on the evidence, in my opinion, it was not open to the jury to find beyond reasonable doubt that the appellant was in possession of the weapon on 22 September 2008 as charged.
In summary, the evidence given by the complainant revealed a number of matters which, when examined individually and together, raise issues concerning the reliability of the complainant. They included:
(1) At about 6.00pm on the day the alleged offences occurred, the complainant attended Ashfield Police Station and provided an account in relation to a number of matters.
(2) However, as noted above, she did not initially report the most serious of the offences later reported, namely, the alleged sexual offence. There was no reference to it in her first statement given to police.
(3) The complainant again failed to report that offence when providing a second statement to police.
(4) The alleged sexual offence was only raised after police found the video recording of sexual activity involving the complainant and the appellant and police put a direct question to her as to whether the appellant forced her to engage in that activity. That was the first time the matter was raised in discussions with police. Her account was subsequently included in her statement signed on 8 October 2008.
(5) The reason given by the complainant in cross-examination for not having raised the alleged sexual offence with police in her first discussion with them about all of the events of 22 September 2008 was said by her to have been that she did not want her boyfriend "Steve" to find out. She said she felt guilty and she felt "bad for him" having regard to what he had been through the previous week.
(6) The recording made of a conversation between the complainant and the appellant on 22 September 2008 was not provided by the complainant to police on that day when she attended Ashfield Police Station even though she said that she listened to the tape before going to police. She said there was no reason why she would not have given the recording to police that day.
(7) The complainant said that she was scared during the period she was with the appellant on 22 September 2008. She would not agree in cross-examination that the recording showed her "standing up for yourself". The recording, however, does indicate that the complainant was at least assertive and speaking in strong and, at times, in quite forthright terms to the appellant. It was put to her that she told the accused to stop screaming and "Don't make a scene. I've never seen you so pathetic". The complainant rejected the proposition that she was asserting control. A number of the complainant's statements are not consistent with her being in a state of fear at least at the time they were made.
Following an examination of the whole of the evidence relating to Counts 23, 24 and 26, I have concluded that the inadequacies in the evidence to which reference is made in par [123] (1)-(7) are such that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences the subject of those counts.
For the reasons given in pars [118]-[124] and in circumstances in which the jury were not prepared to convict the appellant on the complainant's graphic evidence concerning the alleged sexual and other assaults the subject of Counts 7, 8 and 9, a jury properly assessing the evidence would have had a reasonable doubt as to the offences that the complainant alleged had taken place on 22 September 2008.
It follows, in my opinion, that the appeal should be allowed so far as Counts 23-26 are concerned.
Conclusion
The appeal should be allowed in part. The convictions in respect to Counts 23-26 should be quashed and a verdict of acquittal entered on each of these counts. In all other respects the appeal should be dismissed.
The effect of these conclusions is that the only extant sentences are those in respect to Counts 11 and 12 which were fixed term sentences expiring on 24 December 2011 and 24 March 2012 respectively. I note the present appeal is an appeal against conviction only. There were no submissions made on behalf of the appellant as to whether any application might be made in respect of sentences imposed for those offences in respect to which convictions remain. Having noted that matter, I do not consider that it is either appropriate or necessary for this Court to make any other observations or express any other conclusions on that matter.
In the circumstances, I would make the following orders:
(1) Grant leave to appeal.
(2) Appeal allowed in part.
(3) The convictions in respect of Counts 23-26 in the indictment of 9 November 2009 be quashed and in lieu thereof direct that judgment and verdicts of acquittal be entered on each of those charges.
(4) In all other respects dismiss the appeal.
HALL J: I agree with the reasons and orders proposed by Bathurst CJ.
HARRISON J: I agree with Bathurst CJ.
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