Lynch v The Queen
[2020] NTCCA 6
•26 June 2020
CITATION:Lynch v The Queen [2020] NTCCA 6
PARTIES:LYNCH, Thomas
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 18 of 2018 (21720262)
DELIVERED: 26 June 2020
HEARING DATES: 28 May 2019
JUDGMENT OF: Grant CJ, Blokland and Hiley JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict
Applicant found guilty of two counts of sexual intercourse without consent following trial by jury – Whether verdicts unreasonable and not supported by evidence at trial – Some inconsistencies in the complainant’s testimony – Some discrepancies between the complainant’s account and other evidence – Despite those inconsistencies and discrepancies it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – Whether trial judge erred in directing the jury about the use of the evidence of the complainant’s distress – Directions contained essential elements – Leave to appeal granted and appeal dismissed.
Criminal Code 1983 (NT) s 192, s 411
Evidence (National Uniform Legislation) Act 2011 (NT) s 164
Azarian v State of Western Australia [2007] WASCA 249, BCM v The Queen (2013) 303 ALR 387, Dupas v The Queen (2010) 241 CLR 237, GAX v The Queen (2017) 344 ALR 489, Gilbert v The Queen (2000) 201 CLR 414, Libke v The Queen (2017) 230 CLR 559, M v The Queen (1994) 181 CLR 487, Pell v The Queen [2020] HCA 12, R v BM [2005] VSCA 260, R v Brdarovski (2006) 166 A Crim R 366, R v Ferguson (2009) 24 VR 531, R v Flannery [1969] VR 586, R v Gulliford [2004] NSWCCA 338, R v M, WJ [2004] SASC 345, R v Mokbel (2009) 26 VR 618, R v Rogers [2008] VSCA 125, R v Schlaefer (1984) 12 A Crim R 345, R v Taylor [2004] VSCA 98, R v Williams [2008] QCA 411, R v Wilson (1973) 58 Cr App R 304, Reza v Summerhill Orchards Ltd (2013) 37 VR 204, SKA v The Queen (2011) 243 CLR 400, The Queen v Sailor [1994] 2 Qd R 342, Tyrell v The Queen [2019] VSCA 52, Weiss v The Queen (2005) 224 CLR 300, Wilde v The Queen (1988) 164 CLR 365, referred to.
CRIME – Appeals – Appeal against sentence – Manifest excess
Applicant sentenced to total effective term of imprisonment of eight years with non-parole period of five years and eight months – Whether sentence manifestly excessive – No error in fact-finding process undertaken by trial judge on sentencing – Sentence not unreasonable or plainly unjust – Leave to appeal against sentence refused.
Sentencing Act 1995 (NT), s 106B
Dinsdale v The Queen (2000) 202 CLR 321, Emitja v The Queen (2016) 39 NTLR 159, Forrest v The Queen (2017) 267 A Crim R 494, Gilligan v The Queen [2007] NTCCA 8, Hili v The Queen (2010) 242 CLR 520, House v The King (1936) 55 CLR 499, Siganto (No 1) (1997) 97 A Crim R 60, The Queen v Kilic (2016) CLR 256, Truong v The Queen (2015) 35 NTLR 186, Whitehurst v The Queen [2011] NTCCA 11, Wong v The Queen (2001) 207 CLR 584, referred to.
REPRESENTATION:
Counsel:
Applicant:P Elliott
Respondent: S Geary
Solicitors:
Applicant:Withnalls Lawyers
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 61
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINLynch v The Queen [2020] NTCCA 6
No. 21720262
BETWEEN:
THOMAS LYNCH
Applicant
AND:
THE QUEEN
Respondent
CORAM: GRANT CJ, BLOKLAND and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 26 June 2020)
THE COURT:
Following a trial by jury the applicant was found guilty of two counts of sexual intercourse without consent contrary to s 192 of the Criminal Code 1983 (NT). The applicant seeks leave to appeal and, if leave is granted, to appeal against the findings of guilt.[1]
In the event that leave to appeal is not granted, or the appeal against the findings of guilt is dismissed, the applicant seeks leave to appeal against the sentence imposed on the ground of manifest excess an error in the fact-finding process at sentencing. The applicant was sentenced to a total effective term of imprisonment of eight years. A non-parole period of five years and eight months was fixed.
The Crown case at trial
In brief, the Crown case was that on 30 April 2017 a commercial arrangement was made between the complainant and the applicant for the provision of sexual services by the complainant. The complainant was a 53 year old Chinese female sex worker who was working in Darwin for a limited period of time. Her usual practice was that she would not engage in sexual intercourse with a client unless the client wore a condom. The applicant did not wish to comply with this requirement, which was clearly communicated to him. He had sexual intercourse with the complainant without her consent, as she did not consent to sexual intercourse without protection. The applicant used threats and physical force to overpower the complainant’s resistance to unprotected penile-vaginal and penile-oral intercourse.
It was an agreed fact the applicant had penile-oral intercourse and then penile-vaginal intercourse with the complainant and did not use a condom.[2] The primary issue at trial was whether that intercourse took place without the complainant’s consent.
The Crown case relied principally on the complainant’s evidence and agreed facts in relation to phone records and largely non-contentious forensic evidence.[3] A recording of the complainant’s phone call to police shortly after the incident was tendered and played to the jury.[4] A police officer who attended the scene in response to the phone call gave evidence of the complainant’s description of events and her distressed demeanour at that time.[5]
The complainant gave evidence that she had arrived in Darwin on or about 27 April 2017 and taken a room at the Alatai Apartments. Early in the morning of 30 April 2017, the applicant twice rang a mobile phone number shown in an online advertisement which had been placed by the complainant. The applicant made the first of those two calls at 5:05 am from the Mindil Beach Casino. He made the second call to the complainant’s phone at 5:22 am after he arrived at the Alatai Apartments, but before he went to the complainant’s room. The purpose of the second call was for the complainant to give the applicant her room number. Shortly after the applicant was admitted to her room, the complainant asked him how long he wanted to stay. Her evidence was that the applicant said one hour. He then paid her $200 for sexual services.
The complainant’s evidence was that she would not engage in oral or vaginal intercourse with a client unless the client wore a condom.[6] After the complainant received the payment of $200 she put the money in a drawer in the kitchen. There was no discussion at the time of payment about whether the complainant required the applicant to wear a condom. The complainant said she first massaged the applicant. At the applicant’s request he then massaged the complainant as she lay on the bed facing him and he was in a position on top of her. Without warning, the applicant put his hand over the complainant’s mouth and pressed his hand on her face. She asked him to stop as she was having difficulty breathing, and asked him to be gentle with her or she would not continue to provide the service.
The complainant then advised the applicant of the need for the use of a condom. The applicant became angry and told the complainant to “shut up”. He once again covered her mouth with his hand. He verbally threatened the complainant and at one stage covered both her nose and mouth with his hand. When the applicant covered the complainant’s mouth with his hand she was not able to breathe. She said he was strong.[7] The complainant told the applicant he could take the money back. She then said her boss was next door, and again that he must be gentle or she would not continue the service.[8] In fact, there was no “boss” next door. The complainant said she told the applicant that to “scare him”.[9] The applicant said words to the effect that he knew she was working on her own and no-one would hear or help her if she screamed.[10]
The complainant said the applicant then forced his penis into her mouth and subsequently her vagina without a condom and without her consent. The applicant told her she would die if she told anyone. Throughout the episode he engaged in further acts of violence and threats of violence. He threatened her by holding a pillow over her, although he did not actually apply it to her face.[11] He said, “If you want to die I will use the pillow to cover you as well”.[12] He punched her in the side of her body.[13] She could not remember if it was her right or left side.[14] He pulled her hair back to make her sit up, and then put his penis into her mouth.[15] She said that in doing so the applicant pulled out some of her hair, which fell onto the bed.[16]
At times she tried to reason with the applicant saying, for example, “I know you are a good man and that you are young and that you would not do anything to hurt me”.[17] The applicant said to her, “Do you want to die, if you continue talking then I will kill you”.[18]
The complainant said she told the applicant she used a condom “for everything”. The reason she told him she used a condom was, “Because, at that time, he was on top of me and from my position, I saw he would force me to have sex with him”.[19] She said she became afraid when the applicant told her to “shut up” and continued to speak to her in a threatening manner.[20] She said the applicant did not want to use a condom and that he forced her to do “everything”.[21] As is discussed further below, the complainant’s evidence was ultimately that the penile-vaginal penetration was alternated with penile-oral penetration, rather than each act forming a single distinct episode.
It was an agreed fact that the applicant made a call on his mobile phone at 6:32 am on 30 April 2017 which was recorded by the Moil Water Tower rather than the Daly Street Tower (which is in close proximity to the Alatai Apartments). It was further agreed that the recording at that location was not determinative of whether the applicant was closer to Moil Water Tower or the Daly Street Tower at the time the call was made.[22]
After the applicant left the complainant’s room, the complainant said she phoned a woman named “Mickey” she knew from the Casino. That call was made at 6:49 am. The complainant told Mickey what had happened. Mickey told her to call the police.[23] The complainant telephoned police on 000. It was an agreed fact that the call to police was made at 7:06 am on 30 April 2017.[24] In that phone call the complainant said she was a sex worker, she had a customer who paid her, she massaged him, he massaged her and then he started to put his hands on her face. He told her not to talk or he would kill her. He told her not to call anyone and not to call police. He forced her to have sex with no condom; he raped her. He said he would kill her and she was very scared.[25]
Senior Constable Marinov attended the Alatai Apartments shortly after 7:00 am and met with the complainant at about 7:30 am. She gave a description of the applicant and the incident in some detail. In terms of her demeanour, Senior Constable Marinov said, “She was crying, she was shaking, she was scared and – yeah. She was terrified, yeah.”[26] The complainant was then medically examined by Dr Gurmeet Singh and formally interviewed by police at 3:24 pm on the same day.
Application for leave to appeal the findings of guilt
The applicant seeks leave to appeal the findings of guilt on the following grounds:
(a)The verdicts are unreasonable and cannot be supported having regard to the evidence at trial.
(b)The learned trial judge erred in declining to give the jury a specific direction as to the use of the evidence of the complainant’s distress.
Ground 1: The verdicts are unreasonable and cannot be supported having regard to the evidence at trial.
The principles governing this ground of appeal have been authoritatively stated in M v The Queen:[27]
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe” or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.
…
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 and 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 regards to those considerations.
The test in M v The Queen has been affirmed in subsequent decisions of the High Court.[28] An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, and to determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant. The task of conducting an independent assessment of the evidence requires an appellate court to weigh any competing evidence that might tend against the verdicts reached by the jury.[29] Evidence which has been assessed by the jury as credible and reliable is still to be examined critically to determine whether the jury ought to have entertained a reasonable doubt. The High Court has explained the process in the following terms:[30]
The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
In terms of resolving any doubt held by an appellate court, the majority in M v The Queen said:[31]
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.
In Libke v The Queen[32], Hayne J expressed the process of reasoning as follows (footnotes omitted):
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.
This passage does not impose a stricter test than was laid down in M v The Queen. In Pell v The Queen, the High Court confirmed that the statement from Libke extracted above was consistent with what was said by the majority in M v The Queen.[33]
The matters which an appeal court may take into account in determining whether it was open on the evidence to be satisfied of guilt beyond reasonable doubt cannot be exhaustively catalogued. Sometimes the question may ultimately resolve to whether the particular dealing described in the evidence was capable in law of constituting the offence charged. In other cases, the question will be whether a lengthy delay in making complaint requires particular caution; whether there are material inconsistencies between the initial complaint and the evidence given at trial; whether the surrounding circumstances suggest some ulterior purpose for a complainant’s account; whether a complainant’s testimony should be considered unreliable due to intoxication or some impairment of memory or suggestibility; whether there is a real possibility that the complainant’s account was a reconstruction; whether collusion between a complainant and some other interested party cannot be excluded beyond reasonable doubt; or, as is asserted in this case, whether there are internal inconsistencies in the complainant’s evidence, or inconsistencies with other evidence, which necessarily give rise to a reasonable doubt.
The three broad categories of evidence the applicant relies on in support of the contention that the verdicts were unreasonable are:[34]
(a)inconsistencies between the complainant’s police interview and her evidence given at trial;
(b)inconsistencies between the complainant’s evidence at trial and the evidence of other witnesses; and
(c)inherent improbabilities in the evidence which formed the Crown case.
We have reviewed the evidence in the light of the authorities discussed above. It may be accepted that there are some inconsistencies in the complainant’s testimony. There are also some discrepancies between the complainant’s account and other evidence. However, when all of the evidence is properly considered in the factual setting in which the events took place, we have concluded for the reasons which follow that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. There is nothing in the complainant’s evidence which causes us to conclude that it was unreliable in any material aspect, or to an extent which would undermine the Crown case. In addition, the agreed facts lend support to various aspects of the complainant’s testimony; the complainant’s presentation in the 000 phone call made to police is in our assessment consistent with the account given at trial[35]; and the complaint made shortly after the incident to the first attending police officer was detailed and largely consistent with the complainant’s subsequent evidence[36]. We do not hold a reasonable doubt as to the applicant’s guilt.
The first area of asserted inconsistency between the complainant’s answers in the police interview and her evidence given at trial concerns the complainant’s frequent references to her usual arrangements or work practices.[37] Before turning to consider those asserted inconsistencies, it should be noted that the police interview with the complainant[38], which comprised the substantial part of her evidence-in-chief, was conducted with the assistance of a Cantonese interpreter. The complainant also had the assistance of an interpreter when she gave evidence at the trial. There are some irregularities in the complainant’s interview with police by reason of the manner of the interpretation. One example involves the use of the male personal pronoun when the context shows the female personal pronoun was meant.[39] Further, it is apparent the interpreter’s style was to refer to the complainant in the third person rather than the first person when translating the complainant’s evidence. These matters do not affect the meaning of the evidence once appropriate adjustments are made for the interpreter’s style.[40] Generally speaking, any apparent ambiguities are able to be clarified by reference to the context in which particular answers are given. The jury would no doubt have been aware of those matters and did not raise any difficulty in that respect.
Counsel for the applicant submitted that the complainant’s evidence which indicated she had established work practices was inconsistent with later evidence in which she said she had been operating as a sex worker for only one to two days. Particular reference was made to the following exchanges between the complainant and the interviewing police officer, Detective Senior Constable David Munro, about how clients generally engaged her services:[41]
MUNRO: Okay you said that you offer services which includes full sex. Was there any conversation about what would occur?
INTERPRETER: She doesn’t specify the service on the phone because every time she show already on the website.
MUNRO: Okay.
INTERPRETER: And then whenever – whoever rings up they just ask, you know, whether you’re free or not.
The complainant referred to the “full service” both with reference to customers generally and to the applicant:[42]
MUNRO: Was – did you discuss what would occur during the one hour?
INTERPRETER: She didn’t he didn’t say anything because most customers when they come in they expect full service like massage and then after that then they have the sexual intercourse, yeah.
On the fee for “full service”:[43]
MUNRO: Okay. So the hour for $200 is that the full service?
INTERPRETER: Yes.
The following exchanges then took place with respect to the complainant’s practice of using a condom during oral sex:[44]
MUNRO: Okay, what’s – what’s French?
COMPLAINANT: Like he put the penis on my mouth.
MUNRO: Okay.
COMPLAINANT: But normally use everything is condom.
INTERPRETER: French that’s – that’s what it means.
MUNRO: Okay. So a French is penis in the mouth?
INTERPRETER: Yes.
MUNRO: Okay, with condom.
COMPLAINANT: Must be everything with condom, yeah.
MUNRO: Okay. Now, you’ve said that during the French a condom is used, um, what about the sex?
COMPLAINANT: Must be with condom. No condom never in here.
INTERPRETER: It’s illegal.
INTERPRETER: So they need to use condom for, yeah for that.
MUNRO: Okay.
INTERPRETER: It’s also she will not do it if there is no condom, it’s too dangerous.
MUNRO: Yes.
INTERPRETER: Too risky.
The complainant was asked whether a condom was used when she had sex with another client the night before the incident with the applicant. She answered that in part by reference to her practice of using condoms generally:[45]
MUNRO: Okay. With the sex that you had last night was there a condom used during that sex?
COMPLAINANT: Every time a condom.
MUNRO: Yep.
COMPLAINANT: I don’t do without condom. Even the people want to kissing me I say “no, I’m working”.
The complainant’s evidence also included descriptions of how the massage with the applicant was conducted, and on how long a massage would generally be expected to take:[46]
MUNRO: Okay, neck and shoulders, okay. Anywhere else?
INTERPRETER: Shoulder only on the back – up to the back – down to the back and then he wanted.
INTERPRETER: Yeah, he wanted to stop and his turn to do massage on her already
MUNRO: Okay
INTERPRETER: Normally it takes half an hour to do the massage, the second part is on the sex job but this time it’s only about 15 minutes and then he wanted to massage her so, yeah, that’s what happened.
The complainant also explained how she told the applicant she had a boss “next door”, and how she generally dealt with customers who were not gentle:[47]
MUNRO: Okay. Okay. You mentioned earlier that you said ‘You must be gentle or you can take your money back’ and he stopped.
COMPLAINANT: Tried to push him off, I can't do that because your service and if you so rude to me I call the boss next door.
INTERPRETER: He pressed even harder.
MUNRO: Sorry, whose boss are you talking about?
INTERPRETER: Just told him that she had a boss next door.
MUNRO: Okay.
INTERPRETER: Just to tell him, you know, she has boss next door so that, you know, he back away from what he was doing to her.
MUNRO: Okay.
INTERPRETER: Because usually if the customers are not gentle then he will – she will the customers, you know, to be gentle otherwise she cannot offer the service to them.
MUNRO: Okay.
INTERPRETER: This is her usual way.
COMPLAINANT: You must be gentle and then I can’t offer service and otherwise you get the money – take the money, I tell the boss. I just let him know I got someone beside me and he said ‘you shut up, I know you’re working by yourself’ and then ‘no-one can help you, if you won’t shut up you’ll die’, just say like that, ‘I’ll kill you, you shut up or you prefer you die’.
In cross-examination the complainant was asked whether her evidence was that she had not previously had problems with clients “not being gentle and being rough”.[48] The complainant answered as follows:[49]
You can say so. If I feel that my client is a bit rough I usually just tell my client, “You need to be gentle. Otherwise I won’t provide my service to you”. Then the client is usually – usually knows and they stop being harsh and they know that they will hurt me and they – then they stop. It’s not like him. He just force – force me to do that.
Asked again whether she had these problems in the past, the complainant answered:[50]
The problem happen in the past is different from this one. In the past the client intentionally being a bit harsh but the situation, it’s different. Totally different.
Against that background of references to past experience or past practice, the complainant was cross-examined on the subject of applying for criminal injuries compensation. She was asked a series of questions about how and when she came to be aware of the compensation scheme, and associated questions about how long she had been working as a prostitute before April 2017.[51] The complainant said she only started “at that time”.[52] She was asked when she first worked as “a prostitute” and replied, “Since I arrive in Darwin”. She agreed with the suggestion that this meant one or two days before the incident with the applicant.[53] She was asked what she meant when she said in her evidence that she “usually” did certain things, given she had only started working in the industry a few days before.[54] Her answer was not entirely responsive, in that it appears to describe how she allocated time to various tasks:
Well, I allocated the time myself and my full-service for one hour includes massage, oral and sex. So, I allocate half an hour for massage. If the customer has special request, I will do that. So, the full-service includes massage, oral and sex.[55]
Asked again why she used the word “usually” the complainant said:
Because I think it’s my way to allocate the time and I don’t know why you just picked the word usually – pick up on the word usually.[56]
Counsel for the Crown attempted to resolve the apparent incongruity between the complainant’s evidence referring to past or usual practices with her evidence that she had only worked as a prostitute for a few days before the incident with the applicant. In re-examination she was asked if she had ever worked as a sex worker before coming to Darwin in April 2017. She said she had not.[57]
On appeal, counsel for the applicant also drew attention to a part of the cross-examination of the complainant in which she was asked about telling police that she did not need to discuss details with the client on the phone because the details were already in the advertisement.[58] She agreed the advertisement said, “Sorry, I don’t do anal. And I don’t answer private numbers”.[59] When asked why she did not put “Condom must be used” in the advertisement she replied, “Because the law says without condom, is illegal to have sexual service”.[60] When asked if she thought all of her customers knew that she said, “I believe people – all people in Darwin know, because my other customers in Darwin all use condoms. No one ask me if they can do it without a condom”.[61]
The complainant’s evidence about her usual practice was of some significance because it lent support to her evidence that she did not agree to have sexual intercourse without a condom with the applicant. We do not, however, consider that this asserted discrepancy between her evidence concerning her usual practice and her evidence that she had only been working in the industry for a few days, either singularly or taken with other evidence, gives rise to a reasonable doubt. The central questions in these circumstances are whether the inconsistencies went to the essential features of the victim’s account of the offences[62]; and whether those inconsistencies "were explicable in a manner that did not provide a basis for them to reflect on [the victim's] credit"[63]. In our assessment, the potential inconsistencies identified did not necessarily cast doubt on the truthfulness and accuracy of the complainant’s evidence on the essential elements of the charges.
First, it is not apparent that the complainant was using the word “usually”, and its other forms, with the connotation of long-standing practice which counsel for the applicant sought to attribute to it. She had arrived in Australia very recently and English was not her first language. Secondly, it is apparent the complainant provided sexual services to other clients in the days she had been in Darwin prior to meeting the applicant[64], hence it was open to the jury to conclude the complainant was referring to her practice with those other clients. Thirdly, the complainant's evidence that she insisted the applicant use a condom is consistent with her evidence that she believed the law required a condom be used and that it was dangerous for her health not to use one. Fourthly, even if it is accepted that the complainant lied about not having worked in the sex industry previously, that did not preclude an acceptance of the essential features of her account of the offences. As juries are invariably reminded, in relation to some matters a witness may be obviously untruthful while in other matters they may be accepted as being entirely truthful and accurate. The assessment of reliability in those circumstances will depend upon whether there is some logical reason for the rejection of certain evidence which does not bear upon the reliability of the witness’s other evidence. The jury were directed in orthodox terms as to the effect of inconsistencies found in the evidence. The jury were directed to ask themselves whether the evidence was unreliable in aspects which caused them “to doubt her evidence … that she was the victim of a non-consensual act or acts of sexual offences”.[65] The jury must have found that the evidence about that important issue was not unreliable.
Insofar as the applicant's case was put to the complainant in cross-examination, it was that he and the complainant had a discussion during which he said he only wanted half an hour and the complainant told him the price was $130. The complainant appeared to reject those propositions in her evidence, although the submission made by defence counsel was that she had not. Her response to those propositions was: “He came in, I ask how long he’ll stay, he said one hour. He never mentioned half an hour”.[66] The complainant clearly rejected a further suggestion that she did not have change when the applicant gave her $200, or that she had said: “Never mind, for $200, you can go natural”.[67] She said when the applicant came into her room, he asked how much it cost for one hour and she told him $200.[68] It should also be noted it was an agreed fact the applicant gave the complainant $200.[69]
As the trial judge observed in the summing up, it was a matter for the jury to determine whether the complainant had or had not clearly rejected those propositions.[70] In circumstances where there was no evidence of a transaction in the terms suggested in cross-examination by counsel for the applicant, and the complainant effectively denied it, the effect of the asserted ambiguities in the form of those denials was marginal at most.
Counsel for the applicant also drew attention to the complainant’s evidence describing the sequence of events. She initially said she massaged the applicant for 10 to 15 minutes[71], followed by the applicant massaging her and then assaulting her by putting his hand over her mouth.[72] He then forced her to perform fellatio for half an hour. She said the applicant put his penis into her mouth[73] and that he, “Keep on doing that for half an hour”.[74] Counsel for the applicant submitted this account was unlikely given the complainant's later evidence that she had been lying down and she thought the applicant was sitting on her.[75]
Attention was also drawn to that part of the complainant’s interview with police in which she said that at one point, after the applicant hit her, she asked to use her asthma puffer and he told her to “just shut up”. She said he pulled her hair back, then pulled her up and put his penis into her mouth.[76] She said the applicant stopped when she felt like vomiting. The complainant also said the applicant continued inserting his penis in her mouth until he changed position by putting his penis into her vagina.[77] The complainant was asked how long the applicant’s penis was in her vagina and she replied, “Can’t remember totally. He see the time and say ‘okay’ and then he come out. I don’t know he come inside and then he just stood up and used the towel to wrap and then I said ‘Are you leaving’ and he said ‘okay, one hour, I go.”[78]
Counsel for the applicant compared and contrasted that account with the complainant’s answers about how the events unfolded given in cross-examination, more than 12 months after her interview with the police. When the complainant was asked whether she agreed she told police that the applicant had his penis in her mouth for half an hour, she said: “I don’t remember for how long. I don’t remember if I told the police that either”.[79] She went on to say that the applicant put his penis into her mouth, then he was pushing her and she did not remember how long it lasted for. She said: “Because he put it into my mouth and put it into my lower part. He alternated…. He kept doing that, putting it up and down, up and down”.[80]
When asked whether this was the first time she had “officially” described the events this way, she said: “Nobody asked me these questions before”.[81] The complainant was then asked, “When you were interviewed by the police, the police at the start asked you to tell them what happened, didn’t they?” The complainant answered, “Yes, I told the police he forced his penis into my mouth and my lower part, but the police did not ask me specifically up and down”.[82] Counsel for the applicant submitted that the two versions given in the evidence amounted to a significant inconsistency, especially as the complainant was permitted to give her account to police in a narrative form.
In our assessment, such inconsistencies as there are in the evidence on this subject do not undermine or give rise to reasonable doubt concerning the essential features of the complainant's account of the offences. Some of the questioning in cross-examination on the subject of timing and the chronology of events was put in a manner apt to create confusion about precisely what was being asked.[83] During the interview with police the complainant described both types of intercourse, with one occurring after the other. The police did not seek to elicit further detail. The conclusion most obviously drawn from a fair reading of the transcript of evidence is that the more particular and elaborate questioning of the complainant in cross-examination encouraged and elicited a more detailed description of the events.
A further matter identified by counsel for the applicant concerning the quality of the complainant’s evidence related to her initial account in the police interview that she was working from the Alatai Apartments where the offending took place, because that was “the only place that let her do that”.[84] However, later during cross-examination she stated she spent a night at Luma Luma before 30 April, and after 30 April she returned to work at the Luma Luma because after the incident the Alatai “kicked [her] out” and “Luma Luma allows me to do that”.[85]
Counsel for the applicant conceded this was not an inconsistency of great significance, but submitted the complainant’s preparedness to work illegally tended to undermine her evidence that she always used a condom, in part because it is illegal not to. The evidence in question does not give rise to any clear or significant inconsistency. The complainant told police that apart from the Alatai Apartments, “Other places they will not allow her [to work]”.[86] The complainant agreed with the proposition put in cross-examination that she did have clients at the Luma Luma, and said that Luma Luma allowed her to have clients and that after the Alatai Apartments “kicked [her] out, [she] returned to Luma Luma to do it”.
When cross-examined on the matter, the complainant said she did not remember if she told police the Alatai Apartments was the only place she could work, and that the Alatai Apartments and Luma Luma were the only two places she knew of at which she could work.[87] On one interpretation of the complainant’s evidence, she was saying only that she worked from Luma Luma after the incident with the applicant, although she had stayed there one night before the incident. It was not clear on the evidence that the complainant had engaged clients at the Luma Luma prior to the incident in question and before she was interviewed by police. Before the incident she had also worked in a massage shop in the city[88], and her reference in cross-examination to having clients before moving to the Alatai Apartments may have been to that activity.
Even if the import of the complainant’s evidence was that she had worked at Luma Luma prior to the incident, any apparent inconsistency between whether she knew of one or two places which would allow her to work on premises is of little moment given the very peripheral nature of the issue, and given the linguistic difficulties and the interpretive intermediary. Nor does the complainant’s evidence in this respect suggest a preparedness to work illegally. Her evidence was that she had permission to work as a prostitute at both the Alatai Apartments and Luma Luma.[89] The complainant was also asked in the police interview who she was working for, and said she was on her own because it was illegal to be working with other people, but it was legal “if you’re on your own”.[90]
The second category of evidence on which the applicant relies in contending the verdicts were unreasonable are asserted inconsistencies between the complainant’s evidence at trial and the evidence of other witnesses. The first matter to which counsel for the applicant made reference in this context was the complainant's evidence of the physical assaults to which she was subjected. This included her evidence that the applicant placed his hand over her nose and mouth to the extent she could not breathe[91]; that the applicant hit her with his right hand on her side; that she did not remember whether it was to the left or the right side[92]; and that she had no wounds but had suffered some scratches[93]. The point sought to be made by counsel for the applicant in that respect is that the complainant’s account of the physical assault was inconsistent with the objective physical evidence.
In particular, Dr Singh did not observe any injuries on the complainant during the course of examination. It does not follow that the complainant’s account was therefore untrue, or that she exaggerated the nature of the physical assault in a manner which undermines the reliability of her account. The complainant was giving a subjective account of sensations she felt in a relatively intense and, on her evidence, aggressive encounter. The force described by the complainant was not at a level which would necessarily cause overt physical injury. Given the applicant’s superior strength and stature, a relatively low level of actual force may have been sufficient to overpower the complainant without being productive of overt physical injury.
That is consistent with Dr Singh’s evidence at trial to the effect that a hand pressed against someone’s face, or a blow to the side of the body, even in a “hard way”, will not necessarily leave a mark or obvious injuries. Whether it does or not will depend upon the tissue or tissues involved, how hard the area has been hit or pressed, and how soon after the event the patient is seen.[94] Bruises do not appear for some time, and the complainant was seen quite soon after the events in question. While accepting that the harder the blow the greater the expectation that injuries will result, Dr Singh made the point that hardness is a perception, and that if a person is frightened they might think that a blow or other application of force feels harder than it actually is.[95]
The complainant told police that some of her hair was pulled out and was “spread on the bed”.[96] It was agreed between the parties during the trial that she had said, “Yes, it was all over the bed and floor”.[97] In cross-examination the complainant was asked if she had told police that her hair was all over the floor. She said, “No it wasn’t on the floor it was on the bed sheet.” She was then asked whether she told the police her hair was on the floor and answered, “I don’t remember, because I saw he pull my hair. I saw a lot of hair was on the bed sheet, but if there is some on the floor, that is also true.” When asked to explain that last answer the complainant said, “because he pull my hair and also he moves. And they are – there is a possibility that some of the hair drop on floor.” She was then pressed to say whether she told the police there was hair on the floor. She said, “I don’t remember.”[98] After a portion of the interview was played to her during her testimony, she agreed she had told police it was all over the bed and floor.[99] The first point made by counsel for the applicant in this respect is that no hair was found on the floor by the crime scene examiner.[100]
It was an agreed fact that 26 hairs were collected from the bed sheet.[101] Twenty of those hairs appeared to be shed hairs, two had no roots and four appeared to be in the growing phase. Of the two hairs from the growing phase selected for testing, one produced a DNA profile consistent with the complainant’s profile. The second hair produced a mixed DNA profile. The major components matched the components attributed to the complainant. The minor components were from a male individual but were insufficient for identification purposes. The forensic analysis could not say how long the hairs found on the bed sheet had been there, or how they got there.[102] The second point made by counsel for the applicant in this respect is that the number of hairs collected, and the fact that most of those were shed, was inconsistent with the complainant’s account that the applicant had forcefully pulled her head around and her hair out in the process.
It may be accepted that the complainant’s account in the police interview as to where the hairs were distributed was incorrect to the extent she said her hair was on the floor. It is also the case that no evidence of hair being pulled out was found on physical examination. On the other hand, the fact that hairs in the growing phase were found on the bed sheets had the capacity to support the complainant’s evidence to some extent. On balance, we do not consider that the discrepancy in the complainant’s evidence as to the distribution of the hair went to the essential features of the victim’s account of the offences. Further, we consider that the forensic and medical evidence does not reflect on the reliability of the complainant’s account that the applicant pulled her by the hair and that at least some of her hair was pulled out.
Counsel for the applicant also drew attention to two other inconsistencies between the complainant’s evidence and the evidence given by other witnesses. The first related to Dr Singh’s evidence that the complainant reported that she had been kissed by the applicant and that he digitally penetrated her.[103] Those two details were not reported by the complainant during her interview with police, and in cross-examination the complainant denied that she told anyone she was kissed by the applicant[104], and said she did not remember if there had been digital penetration[105]. The second inconsistency was that the complainant said that she was told of her right to criminal injuries compensation by the police officer in charge of the case. The officer concerned denied telling the complainant about criminal injuries compensation.[106]
As with other matters of asserted inconsistency, these points were clearly before the jury. Reviewing these matters ourselves, we do not consider these inconsistencies, whether taken individually or together, lead to a conclusion that the complainant’s reliability was undermined to the extent that a reasonable doubt should have been entertained. The complainant was in a vulnerable position as a sex worker, she had recently arrived in Darwin and English was not her first language.[107] It is unsurprising in the circumstances that the complainant might have made mistakes about details which were largely on the periphery of the incident when she was recounting a traumatic event.
The third matter on which the applicant relies in contending the verdicts were unreasonable are “inherent improbabilities” in the evidence which formed the Crown case. Those improbabilities were said to be:[108]
(a)The applicant arranged to meet the complainant by twice telephoning her on his own phone which was registered to him.[109]
(b)The applicant told her that he was a local, and that he had been at the Casino earlier that night.[110]
(c)The applicant paid the complainant for her services, and left the money behind when he left.[111]
(d)The complainant told a friend by the name of Mickey what had happened to her, but refused to reveal the identity of Mickey or how police could contact her.[112]
(e)The complainant did not check to see whether she had been injured before telephoning Mickey.[113]
(f)The complainant resumed work very soon after the event despite what had happened to her and the fear that she said she felt as a result.[114]
(g)The complainant said the applicant finished his time with her by saying “okay one hour up, I go”, when the evidence was that he ejaculated during sexual intercourse and then finished.[115]
On our examination of the record we are unable to conclude that those parts of the evidence raise improbabilities which, when taken together with other evidence, should have led the jury to entertain a reasonable doubt as to the applicant’s guilt. We would make the following particular comments in relation to certain of the matters identified by counsel for the applicant.
First, the nature of the complainant’s employment provides a rational explanation for her refusal to reveal Mickey’s identity to police, particularly if Mickey was engaged in that same field of employment. At trial, the officer-in-charge accepted that she should have followed up to find Mickey notwithstanding the complainant’s resistance, but did not do so.
Secondly, it is not possible to make any assumptions or draw any conclusions based on the fact that the complainant returned to work shortly after the incident. Little is known about her overall circumstances, including what financial pressures and other obligations she was under. There was also no medical or other evidence to suggest that either the plaintiff particularly, or a person generally, would be unable to return to work following an incident of this type.
Thirdly, the applicant told police he had been drinking for 12 hours prior to entering into that arrangement. It is entirely conceivable that he might behave in an unusual or less than rational way consistent with some level of intoxication; and that the alcohol he consumed had some disinhibiting effect.
Fourthly, the context in which this offending took place involved an arrangement by which the applicant paid the complainant for sexual services. It is entirely conceivable that the applicant considered that arrangement afforded him some relaxation of the social and other strictures which would ordinarily apply to a sexual liaison; and that at the time he entered into the arrangement he had not formed any intention to perform an act without the complainant’s consent. It is also conceivable, if not probable having regard to what the applicant said in his interview with police, that at the time he left the hotel room he did not consider that he had engaged in any behaviour that he was not entitled by his payment to engage in; and that his payment was valuable consideration for the exercise of that entitlement.
During the course of the interview, police told the applicant they wanted to speak to him about the sexual assault of a woman between 5:00 am and 7:00 am on 30 April 2017 at Room 209 of the Alatai Apartments.[116] The applicant initially asked whether he had gone into the wrong room “or is that the lady I rang? Have I entered the right room?”[117] He then said that, as far as he knew, he paid a prostitute to have sex and left. He said:[118]
As far as I understand, sexual assault is about consent. When I pay money, I have consent. So whilst it was drunken sex and it was early in the hours of the morning, if I haven’t gone into the wrong room, and I have paid the person who I was supposed to have sex with, I’m pretty confident I haven’t done anything wrong.
The applicant then again asked police “How can I rape someone that I’ve paid?”[119] He said the act performed with the complainant was “standard missionary”. There was “no anal”, and he said he did not remember what the complainant advertised or what deal was struck.[120] He said he remembered paying money and that she had said it was “two hundred bucks or something”. He was sure he “gave her two hundred”, which he thought was too much.[121] After police put the specific allegations to the applicant, he denied punching the complainant, suggesting she would be in “ICU” if he had as he was a “130kg guy”.[122] He again said he did not understand how he could be accused of raping a prostitute that he paid to have sex with.[123]
In light of what was said by the applicant in that interview, there is no necessary inconsistency between his failure to engage in any subterfuge when procuring the complainant’s services and the complainant’s account of what transpired during the engagement. Nor is there any necessary inconsistency between the fact that the applicant made payment and a finding that the sexual intercourse was non-consensual in nature.
The final matter on which the applicant relied in support of the contention that the verdicts were unreasonable relates the following question which was sent to the trial judge by the jury during the course of its deliberations:
Apart from the evidence provided, should I/we be influenced by our/my personal perceptions of the accused?[124]
After hearing submissions from counsel, the trial judge gave lengthy directions to the effect that any assessment made of the accused must be based on the evidence. His Honour told the jury the only evidence of the accused’s conduct on which they were asked to make an assessment was his conduct in Room 209 of the Alatai Apartments, and his conduct when he was interviewed by police. Further, in relation to the police interview his Honour said the jury could take into account what the applicant said to police and how he said it. The jury were told they must not be influenced by any perception they may have formed from observing the applicant in court, and must not be influenced by their perception of the kind of person the applicant was.[125]
No issue was taken with the directions at the time they were given, and counsel for the applicant conceded in the course of this appeal that the directions were unobjectionable. The submission is that, notwithstanding the appropriateness of those directions, there is a real risk that the jury formed a dislike of the applicant on the basis of his presentation during the course of the interview with police, and thereby used that record of interview in an impermissible way. That submission is speculative in nature, and can only operate as an adjunct to the other grounds on which it is asserted that the verdicts were unreasonable. If, as we have found, the inconsistencies and improbabilities asserted by the applicant are not such as to render the verdicts unreasonable, it cannot be concluded that the jury impermissibly used the record of interview.
It is also well-accepted that a risk that the jury may use otherwise admissible evidence improperly can be accommodated by suitable directions.[126] As Gleeson CJ and Gummow J observed in Gilbert v The Queen:[127]
The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
In the absence of some clear and contrary indication, it is to be assumed that the jury in this case understood and followed the directions given by the trial judge, which included that they could not be influenced by any adverse perception concerning the applicant’s character.
Ground 2: That the trial judge erred in declining to give the jury a specific direction as to the use of evidence of the complainant’s distress
The second ground of appeal against the findings of guilt relates to evidence of the complainant’s distress given by Senior Constable Marinov. As described above, he had arrived at the Alatai Apartments after the complainant made a phone call to police.[128] He gave brief but relatively detailed evidence of the complaint she made at that time.[129] When asked to describe the complainant’s demeanour, Senior Constable Marinov said she was crying, shaking, scared and terrified.[130] In cross-examination, he was asked if he had seen people crying and upset on other occasions and subsequently found that the reasons they had stated for crying and being upset were not true. Senior Constable Marinov answered, “Yeah, that – that’s a difficult question”.[131]
At trial, defence counsel sought a direction on how the jury should deal with the evidence of distress.[132] He submitted the terms of any direction should include a warning that distress is easy to feign and therefore the jury should scrutinize the evidence carefully. Further, counsel submitted that the jury should be told that if the evidence about what took place in the apartment was true it would be unsurprising if the complainant was distressed, and that the jury “may wish to compare the evidence of Senior Constable Marinov with the content of the [000] phone call”[133], and “with the way the complainant conducted herself in the interview” with the police later that day[134]. During an intermission in the trial judge's summing up to the jury, defence counsel sought a further direction on distress to the effect that it is easy to feign, that it will rarely amount to corroboration, and that except in exceptional circumstance little weight ought to be given to such evidence. The trial judge did not accept that the direction already given was deficient and declined to give a further direction.[135]
Evidence of distress may have probative value in its capacity, if accepted by the jury, to corroborate the evidence of the complainant. However, before it can have that effect it must implicate the accused and must be reasonably explicable only on the basis of the sexual assault having occurred, not being something that was due to imagination or some other unrelated event.[136] This does not mean that evidence of distress will be inadmissible where there is some other competing theory as to its cause; only that once the evidence is admitted the jury must be satisfied that is attributable to the alleged sexual assault.[137] While the jury should ordinarily be invited to consider other possible causes of the distress, the trial judge does not need to direct the jury that such causes must be excluded beyond reasonable doubt before it can use the evidence.
That question, and the weight to be attributed to the evidence, is for the jury to determine having regard to such matters as the time which elapsed between the alleged assault and the manifestation of distress, anything relevant which may have occurred in the intervening period, and the circumstances in which the observation of distress is made.[138] The probative value of evidence of distress has been held to diminish with time, as the greater the interval there is between the alleged offending and the observed distress the greater the risk that the distress was caused by something other than the alleged offence.[139] The evidence of distress led in this case was of the complainant’s presentation very shortly after the alleged assault, was not “intractably neutral” and was quite clearly capable of amounting to corroboration.[140] The purposes for which the jury may employ evidence of this nature, and the content of the direction required, were described by Pullin JA in Azarian v State of Western Australia in the following terms:[141]
In my opinion, the trial Judge correctly directed in accordance with law that the jury had to be satisfied that the complainant was in a distressed state, that it was genuine and that it was as a result of the sexual assault, in which case the jury could take the evidence into account as 'bolstering' the complainant's credibility. It would have been preferable if his Honour had said that the evidence of distress could, in those circumstances, corroborate the complainant's testimony that there had been sexual penetration without her consent. In other words it was circumstantial evidence which helped prove the charges. However, the word 'bolster' is similar in meaning to 'corroborate' and the Judge added (correctly in my view) that if the complainant's condition could reasonably be attributable to some other cause, such as remorse derived from consensual sexual behaviour which she later regretted, then the complainant's distressed condition would not 'bolster her credibility'. In effect this was a Shepherd direction concerning the circumstantial evidence, ie that the jury had to consider whether the evidence of a distressed condition should only be treated as corroborative evidence if there is no other reasonable explanation consistent with innocence.
While the corroboration requirement has been abolished by operation of s 164 of the Evidence (National Uniform Legislation) Act 2011 (NT), the purpose of this type of evidence and its correlation with circumstantial evidence remain unchanged. The essential elements of the direction to the jury will be that it must be satisfied:
(a)that the complainant was in a distressed state;
(b)that her distress was genuine; and
(c)that her distress was as a result of being sexually assaulted by the accused rather than some other cause.
In some Australian jurisdictions it has been customary for the jury to be directed concerning the inherent limitations of evidence of distress as a form of corroboration, particularly when there is a significant temporal gap between the alleged assault and the display of distress. That matter was addressed by Nettle JA in R v Brdarovski in the following terms:[142]
Although evidence of distress is capable of corroborating a complainant’s testimony, authority suggests that it generally carries little weight and as a matter of prudence juries should ordinarily be warned of its inherent limitations. The need for such a warning is also likely to increase where, as here, the observation of the complainant’s distressed condition is made at some time after the incident, is equivocal and could have been the result of incidents which did not form part of the charge.
His Honour returned to the issue in R v Rogers:[143]
As to the question of admissibility, I take the law to be that, if it were reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant, the evidence of distress was capable of constituting corroboration and thus, subject to the overriding discretion to exclude it on the basis that its prejudicial effect exceeded its probative value, the evidence was properly to be left to the jury as capable of corroborating the complainant's testimony. Here, in my view, there can be no doubt that it was open to infer that the complainant's distress was causally connected to the alleged rape.
The question of what, if any, weight was then to be given to the evidence was a matter for the jury; although, as has been observed, it has been held in this State and in some other States that, except in special circumstances, juries should be warned that evidence of distress will carry little weight.
As has been observed, the judge in this case did not direct the jury in those precise terms, but instead told them that they could not treat the evidence as corroborative of the complainant's testimony unless satisfied that it was the only inference reasonably open on the evidence. If anything, however, that direction was too favourable to the applicant.
Those observations are consistent with the recommended direction in the Queensland Supreme and District Court Benchbook in circumstances where the evidence of distress is led in support of a complainant’s evidence that he or she was raped. The direction includes the following passage:
If you [accept the evidence], then you have to ask yourself: was the distressed condition genuine or was the complainant pretending? Was he or she putting on the condition of distress? Was there any other explanation for the distressed condition at the time? It is customary for judges to warn juries that you ought to attach little weight to distressed condition because it can be easily pretended. If you find that the distress was genuine then it may be used by you as evidence that supports the complainant’s account.
Similarly, the recommended direction in the South Australian Criminal Trials Benchbook provides:
When you are assessing this evidence, you should consider whether the distress was feigned, or whether it arose from some other cause, such as [identify any competing hypotheses consistent with innocence based on the defence case]. These matters may affect the weight you give this evidence.
While that was a form of direction commonly given at common law, it does not necessarily form an essential element of the direction to the jury concerning evidence of distress. Despite the observations made in R v Brdarovski and R v Rogers, it also does not form part of the recommended direction in the Victorian Criminal Charge Book. In explanation of that matter, the Charge Book relevantly provides:
21. While there is no fixed verbal formula for the directions required in relation to distress, many previous directions were influenced by the use of distress evidence as corroboration (see R v Roissetter [1984] 1 Qd R 477).
…
24. At common law, it was commonly appropriate to warn the jury that evidence of distress usually carries little weight. More recently, courts have recognised that the value of distress evidence varies with the circumstances of the case and that jurors may not require a direction that distress can be feigned or related to other considerations. The need for directions on the value of distress will depend on what directions are sought and on the circumstances of the case (Jury Directions Act 2015 ss14, 15; R v Hakeem [2009] VSCA 131; LAL v R [2011] VSCA 111; Luha v Police [2012] SASC 17; Flora v R [2013] VSCA 192; c.f. R v Flannery [1969] VR 586).
25. If the complainant’s distress was observed well after the alleged offending, then it may be appropriate to warn the jury that such evidence generally carries less weight than evidence of distress at the time of the offending (R v Brdarovski [2006] VSCA 231).
26. If the complainant’s distress was observed when s/he was making his/her complaint, it may be appropriate to warn the jury that such evidence generally carries less weight than if the distress was observed in other contexts (R v Flannery [1969] VR 586; R v Redpath (1962) 46 Cr App R 319; c.f. R v PJG [2005] NSWCCA 306).
…
28. A warning on the limited weight of distress evidence may not be necessary where there is evidence suggesting a strong causal connection between the alleged offending and the distress (R v Redpath (1962) 46 Cr App R 319; R v McDougall [1983] 1 Qd R 89; R v Beaver (1979) 1 A Crim R 50; Eades v R [2001] WASCA 329; Browne v R WASCA 15/7/1998).
It falls to determine the adequacy of the direction as to distress given by the trial judge in this case by the application of those principles. The first observation to be made in that respect is that the direction contained the essential elements. The jury was directed that it had to first determine whether it accepted the evidence that the complainant was in a distressed state; that it then had to determine whether the “distress noted by the police officer was genuine or not”; and that it then had to determine whether, if genuine, that distress “was as a result of the events which had recently occurred to [the complainant]”.[144]
The trial judge clearly flagged the possibility that distress evidence may be feigned by drawing express attention to the need to be satisfied that the distress displayed by the complainant was genuine, and to the fact that the time at and manner in which the complaint was made might bear upon the jury’s determination of whether it was “fabricated” or accurate. In particular, the jury was directed that it is “implicit in what I have first told you it is up to you to decide whether distress noted by the police officer was genuine or not”.[145] The trial judge then further directed:
If you decide that the distress was a result of the events which had recently occurred to [name of complainant] then you use the evidence of distress to support her evidence about what happened to her. It is a process you have to go through. You have to satisfy yourself that the distress referred to in her evidence was genuine and then you have to decide whether it was a result of the events which she said just happened. If you answer positively to these then you can take the distress as supporting her overall evidence.
The trial judge also urged the jury to listen to the recording of the call the complainant made to police shortly before the arrival of Senior Constable Marinov and reminded the jury of defence counsel's submissions about the call.[146] The trial judge drew particular attention to those submissions in the following terms:
On the other hand defence counsel … said to you, "Listen to exhibit P2. Does it sound like somebody who is really concerned about having just been subjected to the things that she said she had been [subjected] to as distinct from someone simply communicating information to the police?"
The trial judge came back to that matter later in his charge to the jury to remind them of defence counsel’s submission that the complainant did not manifest any signs of distress in the call to police, and that “distress is something that is not difficult to fake”.[147]
Although the trial judge did not direct the jury that evidence of distress usually carries little weight, it was unnecessary to do so in circumstances where the distress was observed very shortly after the incident in question, and the circumstances suggested a strong causal connection between the alleged offending and the distress. The trial judge also did not expressly invite the jury to consider other possible causes of the distress, but that was implicit in the direction that the jury had to decide whether the distress “was as a result of events which had recently occurred to [the complainant]” and “whether it was as a result of the events which she said had just happened”.[148] It was also the case that no other cause of distress was apparent or suggested, and the defence submission in that respect was limited to a general assertion that the distress was not genuine or referable to the alleged offending.
In the circumstances of this particular trial, the direction given in relation to distress was appropriate and adequate. Even if we are wrong in that conclusion, and there was some technical defect in the direction given, we are satisfied on a consideration of the whole of the record that the jury would have come to the same conclusion even had the direction been given in the terms which counsel for the applicant submits it should have taken.[149] In other words, we are satisfied that no substantial miscarriage of justice has actually occurred even if the point raised by this ground of appeal were to be decided in favour of the appellant.
The appeal against sentence
In the event the appeal against the findings of guilt is unsuccessful, the applicant seeks leave to appeal against the sentence imposed on the following grounds:
(a)That the sentence imposed was manifestly excessive.
(b)That the learned sentencing judge erred in finding the applicant made threats to kill the complainant.
(c)That the learned sentencing judge erred in finding that the explanation given by the applicant that “money buys consent” appeared to explain the offending by way of a misplaced sense of entitlement and controlling urges on the part of the applicant.
(d)That the learned sentencing judge erred in finding that the applicant had used physical force on the complainant, and further erred by placing excessive weight on the physical force found to have been used by the applicant, describing it as “greatly disturbing”.
(e)That the learned sentencing judge erred in finding that the applicant had pulled the complainant’s hair in order to physically manipulate her head.
It is convenient to deal first with grounds (b) to (e) as those grounds assert various errors of fact which, if resolved in favour of the applicant, may require this Court to exercise the sentencing discretion afresh or inform the question whether the sentence imposed was manifestly excessive. At the commencement of the sentencing remarks, the trial judge noted he would make findings of fact consistent with the jury’s verdict and reminded himself he must be satisfied beyond reasonable doubt before making findings adverse to the applicant.[150] A review of the remarks on sentence shows the trial judge applied those principles to the fact finding exercise.
It is unsurprising the trial judge made findings of fact largely consistent with the complainant’s account which has been described earlier in these Reasons. There was no evidence to contradict the material parts of the complainant’s evidence, and it was open to accept the complainant’s account notwithstanding the various discrepancies which have been discussed in the context of the appeal against the convictions.
Consistent with the jury’s verdicts, the trial judge found that both penile-oral and penile-vaginal intercourse took place without a condom, the complainant did not consent to unprotected sexual intercourse, and that was a matter which was clearly communicated to the applicant. Consistent with the state of the evidence, the trial judge could not determine whether each act of sexual intercourse comprised a single distinct episode or whether the applicant alternated between the two forms of sexual intercourse.
For those matters in which the evidence arguably did not establish a fact to the requisite standard, the trial judge gave the benefit of any doubt to the applicant. For example, while his Honour was satisfied beyond reasonable doubt that the applicant pulled the victim’s hair to manipulate her head, his Honour was not satisfied, having regard to the evidence of Dr Singh, that the applicant pulled out a significant amount of the complainant's hair.[151] Apart from the likelihood of the victim suffering a form of vaginal pain as set out in the victim impact statement, the trial judge did not find any injuries had been proven to the requisite standard.[152]
The trial judge gave express consideration to the question of the complainant’s possible unreliability in relation to whether threats to kill had been made by the applicant.[153] As part of those considerations his Honour took into account what he considered to be the complainant’s questionable evidence that she had not worked as a sex worker before coming to Darwin in April 2017.[154] The trial judge considered that it was also relevant to an assessment of the reliability of the complainant’s evidence in relation to the threats that they had formed part of the complainant’s account from the time of her first report, including during her 000 phone call shortly after the incident and her interview with the police that afternoon.
It formed part of the defence case at the trial, both in relation to the question of distress and to the question of threats, that the complainant sounded measured rather than fearful during the 000 phone call to police. As already noted, the recording of the 000 call was played during the hearing of this appeal at the request of counsel. The trial judge found that the complainant was at times very frightened when speaking with the operator.[155] We concur with that assessment and reject the characterization suggested by counsel for the applicant.
The allegation that she was threatened by the applicant remained part of the complainant's evidence throughout the trial. Given the totality of the evidence concerning the threats, the trial judge accepted the complainant’s evidence about the threats beyond reasonable doubt. We can discern no error in the trial judge's finding that the applicant made death threats to the complainant, both to force her to comply and to dissuade her from telling anybody of the offending, including police.[156]
We turn then to consider the contention that the trial judge erred in attributing to the applicant a misplaced sense of entitlement and controlling urges on the basis of his comment during the police interview that “money buys consent”. It is correct to say that the trial judge conducted some analysis of the reasons for the applicant’s offending[157], and considered that the applicant’s reference to money and consent, together with the extended period for which he had been drinking prior to the events in question, operated as a possible explanation or motive for the offending. However, the trial judge's remarks in that respect were not expressed as a concluded view or a finding of fact, and do not appear to have assumed any real significance or influence in the formulation of the final sentence. No error is made out in this respect.
The next ground of appeal against sentence is that the trial judge erred in finding that the applicant had used physical force on the complainant, and further erred by placing excessive weight on the physical force he did find to have been used by the applicant, describing it as “greatly disturbing”. For the reasons already described, it was open to the trial judge to accept the complainant’s general account in relation to the physical force applied to her by the applicant. On that account, the applicant manipulated the complainant’s body in order to force her to have sexual intercourse, pulled her hair to manipulate her head, and placed his hand over her mouth and nose for a short period. When his hand was placed over her mouth and nose at one point, the complainant felt she could not breathe. The applicant also threatened to kill the complainant if she did not submit to sexual intercourse without a condom. It was also open to characterise the applicant's conduct in that respect as “greatly disturbing”. It is not to the point that some other cases involving sexual intercourse without consent are attended by higher levels of gratuitous physical violence which might be considered even more disturbing. No error is made out in this respect.
The final error of fact asserted is that the trial judge erred in finding that the applicant had pulled the complainant’s hair in order to physically manipulate her head. We have already dealt with the evidence in relation to the complainant’s hair in the context of the appeal against the findings of guilt. We have also noted the discriminating finding made by the trial judge concerning the amount of the complainant’s hair which was pulled out during the course of that episode.[158] The findings which the trial judge did make in relation to the manipulation of the complainant’s head were open on the evidence. No error is made out in this respect.
We turn then to consider the contention that the sentence imposed was manifestly excessive. The exercise of the sentencing discretion is not to be disturbed on appeal unless error is shown. However, manifest excess is a conclusion which does not depend upon attribution of specific error in the reasoning of the sentencing judge.[159] Intervention will also be warranted if the appellate court concludes in all the circumstances that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.[160] In the absence of some specific and identifiable error, the relevant test is whether the sentence is unreasonable or plainly unjust, or clearly and not just arguably excessive.[161]
The objective features of the offending to which the trial judge plainly had regard, apart from the acts of intercourse themselves, were the level and nature of the threats, the vulnerabilities of the victim and the degree of force used to overpower her. The trial judge was also obliged to have regard to the impact of the offending on the victim, which was referred to in the sentencing remarks.[162] In her victim impact statement, the victim said that because she was asthmatic she thought she would die when the applicant put his hand over her mouth. She suffered vaginal pain. She lived in a state of fear, and the experience reduced her opportunity to earn an income.[163]
In the course of attempting to analyse the reasons for the applicant’s offending the trial judge noted that there was no obvious explanation for the applicant’s refusal to wear a condom and for engaging in unprotected sexual acts accompanied by physical force and threats of violence. As already described in the context of the ground of appeal asserting specific error in this respect, the trial judge ventured that the explanation for the applicant’s offending was his misplaced sense of entitlement, his controlling urges, and, very likely, the disinhibiting effects of alcohol.[164] The trial judge did not treat the applicant’s consumption of alcohol as either aggravating or mitigating, and the other states of mind attributed to the applicant also do not operate in either aggravation or mitigation. As already stated, those factors were not particularly influential in placing the offending at either the upper or lower end of the range of objective seriousness.
The trial judge had regard to the applicant’s personal circumstances, which were positive in some respects. He grew up and completed his schooling in Darwin. After working briefly as a kitchen hand in Perth, he joined the Australia Army and drove Armoured Personnel Carriers. He left the Army after two and half years’ service. He had participated in boxing in the Army and continued in the sport both as an amateur and professional for 10 years with some success. He also engaged in mixed martial arts fighting. Since leaving the Army he had been in regular employment, mainly in the transport and related industries.[165]
The trial judge noted that the applicant had a history of mental illness and had previously attempted suicide in 1999 or 2000. He was hospitalised as a result of mental illness for a short time. He had a significant psychotic episode in 2013 and after that time he was medicated with antipsychotic drugs. He had been in a de facto relationship for four years at the time of the sentencing proceedings. His partner continued to support him. The applicant’s record of previous offending included assaults in 1999, 2000 and 2004 which were dealt with by way of a bond, a partially suspended prison sentence and a fine respectively. He had no record for previous sexual offending.
There is of course no doubt that the offending in this case was of a high degree of seriousness. The maximum penalty for each offence against s 192 of the Criminal Code is life imprisonment. The applicant stood to be sentenced for two counts of offending in contravention of s 192, rather than a single count. The trial judge imposed sentences of imprisonment for eight years in respect of each count, but ordered that they be served wholly concurrently having regard to their interrelation in time and circumstance.
While all cases of sexual intercourse without consent attract significant terms of imprisonment, the degree or level of force used, the duration of the conduct and the injuries suffered are features that may operate to aggravate the offending. In Forrest v The Queen[166] this Court reviewed a number of sentences imposed for the offence of sexual intercourse without consent. While the Court noted that reference to comparative sentences is of limited utility given the wide variation in circumstances between cases, it can assist to ensure uniformity in the application of relevant legal principles.[167] In The Queen v Kilic[168],the High Court confirmed that the sentences imposed in similar cases may provide a yardstick which assists in achieving consistency, but do not fix the boundaries within which future sentences must be passed. In fixing sentence, a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category.[169]
Subject to those qualifications, the review conducted in Forrest disclosed the following relevant matters. First, so far as the relevant sentencing practices up to 2007 were concerned, a head sentence of nine years’ imprisonment was within the range of sentences imposed by the Supreme Court for offences against s 192(3) of the Criminal Code in circumstances where the accused was convicted after trial by jury, and the assault was accompanied by violence and degradation beyond the minimum which is inherent in the non-consensual nature of the act.[170] Second, after excluding the most serious of cases, the average head sentence imposed by the Supreme Court between 1 January 2012 and 31 January 2015 for an offence against s 192(3) of the Criminal Code involving an adult offender and an adult victim was six years and five months, and the average non-parole period was four years and three months. Of course, that averaging exercise does not take account of the particular facts and circumstances in each case, or the fact that in some of those cases sentence was imposed following a plea of guilty.
As the Court observed in Forrest[171], a marked difference is to be expected between sentences imposed for offending of this kind following pleas of guilty and those imposed after trial. This reflects the discount on sentence given for a plea of guilty entered at an early stage, and recognises the significant utilitarian value of the plea. While the applicant did not stand to be punished for electing to contest the charges, he was not entitled to the benefit of any reduction for a plea of guilty at an early stage.
Many of the cases reviewed in Forrest involved gratuitous violence over and above that which is inherent in the sexual assault itself. One matter referred to in Forrest involved a similar factual element, namely the offender attempting to silence the victim by placing his hand on her mouth.[172] It was summarised in Forrest as follows:[173]
The matter of Lloyd Ashley involved circumstances in which the offender had been drinking with the victim and both had become intoxicated. They met when the victim was looking for a cigarette. The offender gave the victim alcohol and asked her for something in return. The victim believed he was asking for sex and replied that she was married. He forced himself on top of her, removed her shorts and underwear, held her down and had unprotected penile-vaginal intercourse with her. The victim called for help and passers-by called police. The offender placed his hand over her mouth to silence her. The offending did not cease until police pulled the offender from the victim. The offender claimed the victim was his wife, knowing that to be untrue.
The offender was 27 years old at the time of sentencing. The victim was 34 years old. The sentencing judge remarked that the attack occurred in a public place against a vulnerable and intoxicated female, and the offender continued the attack despite being aware that police had been called. He ceased only on physical intervention by police. The offender had no previous conviction for sexual offences. He had two previous convictions for stealing, three for breach of bail and one for carrying a weapon in a public place. The guilty plea was entered at a relatively late stage and there was no apparent remorse. An 18 month discount was given on account of the plea. He was sentenced to imprisonment for five years and six months with a non-parole period of four years.
The starting point adopted by the sentencing judge in Lloyd Ashley was imprisonment for seven years before the application of the discount for the plea of guilty. While the result in that case is not determinative of the applicant’s contention that the penalty imposed in this matter was manifestly excessive, it does demonstrate that similar conduct has in the past attracted a similar sentence.
Many of the cases reviewed in Forrest involved higher levels of violence than was applied by the applicant in this case, and for that reason attracted higher penalties than the sentence imposed on the applicant. While it may be accepted the level of violence was lower in this case than is unfortunately seen in many others, this episode of offending was attended by features which nevertheless increased its objective seriousness. Those factors included: that it involved two separate forms of penetration; that the complainant was in a vulnerable position; that it took place over a relatively extended period; that the acts were accompanied by threats to kill; and that the applicant exercised a substantial degree of force to overpower the complainant, and forcefully manipulated the complainant’s body and head in order to force her to have sexual intercourse. Having regard to those matters, and to general sentencing practices in this jurisdiction, the sentence imposed in this case was well within the acceptable range for offending of this kind.
Orders
We make the following orders:
1.Leave to appeal the findings of guilt is granted and the appeal is dismissed.
2.Leave to appeal the sentence is refused.
_____________________________
[1] Leave to appeal against both conviction and sentence was refused by a single Judge on 13 December 2018. On 19 December 2018, the applicant gave notice pursuant to s 429(2) of the Criminal Code to have the application considered and determined by the Court of Criminal Appeal.
[2]Appeal Book (AB) at 155-156.
[3] AB 138-140; 155-156.
[4] Exhibit P2 is a USB recording of complainant’s phone call to police. The recording is not reproduced in the Appeal Book, however at the request of counsel the recording of the call was played during the course of the appeal.
[5]AB 124-127.
[6] AB 20-21.
[7] AB 37.
[8] AB 35-37.
[9] AB 36.
[10] AB 11.
[11] AB 37.
[12]AB 11.
[13]AB 36-37, 39.
[14]AB 12.
[15]AB 39-40.
[16]AB 40.
[17] AB 9.
[18]AB 12.
[19] AB 67.
[20] AB 8-9, 33.
[21] AB 43.
[22] AB 139, Agreed Fact 6; AB 156, Agreed Fact 6.
[23] AB 47.
[24] AB 139, Agreed Fact 8.
[25]Exhibit P2.
[26]AB 125.
[27] M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ.
[28] SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]; GAX v The Queen [2017] HCA 25; 344 ALR 489 at [25]; Pell v The Queen [2020] HCA 12.
[29] SKA v The Queen (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ.
[30] Pell v The Queen [2020] HCA 12 at [39].
[31] M v The Queen (1994) 181 CLR 487 at 494.
[32] Libke v The Queen [2007] HCA 30; 230 CLR 559 at 596-597 [113].
[33]Pell v The Queen [2020] HCA 12 at [44]-[45]; see also Tyrell v The Queen [2019] VSCA 52 at [70].
[34] See Outline of Submissions on behalf of the Applicant filed 14 May 2019 at [11]-[17].
[35]Exhibit P2.
[36]AB 95; AB 120-121.
[37] AB 17, 18, 20, 21, 32, 35, 51.
[38] AB 3-53.
[39] For example, at AB 10, “He, he was-she was not sure what he said was true or not, he was telling her that his boss was in the next room and then he will ask him to come over to their room”. The context and other references to this part of the episode leads necessarily to the conclusion that “he” and “her” should be “she” and “him” and “his” should be “her”.
[40] At a number of points in the transcript of the interview, where there are discussions between the complainant and the interpreter, the transcript simply states “Language”, which we take to mean part of the process of interpreting between the complaint and the interpreter, including summarising. Those references are not reproduced in the extracts from the transcript which are set out in these Reasons.
[41] AB 17.
[42] AB 17.
[43] AB 20.
[44]AB 21, 22.
[45] AB 51.
[46] AB 30.
[47] AB 35.
[48] AB 98.
[49] AB 99.
[50] AB 99.
[51] AB 103.
[52] AB 103.
[53] AB 103.
[54] AB 120.
[55] AB 120.
[56] AB 120.
[57] AB 123.
[58] AB 72.
[59] AB 72.
[60] AB 73.
[61] AB 73.
[62] BCM v The Queen [2013] HCA 48; 303 ALR 387.
[63] R v M, WJ [2004] SASC 345.
[64] AB 51, 105.
[65]AB 269.
[66] AB 105.
[67] AB 106.
[68] AB 106.
[69]AB 138, 155. Agreed Fact 2.
[70] AB 246.
[71] AB 9, 23, 32.
[72] AB 10.
[73] AB 13, 39.
[74] AB 13.
[75] AB 77.
[76] AB 39.
[77] AB 42.
[78] AB 43.
[79] AB 95.
[80] AB 95.
[81] AB 96.
[82]AB 96.
[83] For example, at AB 95 the question was: “Now, for however long it was, did you mean that his - assuming it’s half an hour. I know you’ve told us you’re not sure if you told the police that but we can look at the transcript. But just for the minute, assume it was half an hour, do you mean the penis was in your mouth for half an hour or the oral sex went for half an hour. In other words, from the time he began oral sex with you to the end of the half an hour, all the penis was in your mouth for half an hour without coming out?” The answer given to that question was “I don’t remember if I told the police if it lasted for half an hour. He put his penis into my mouth and then pushing me like this. I don’t remember how long it lasted for.” She was then asked, “All right. Sorry?” It was in the next answer that the complainant introduced the phrase “he alternated”.
[84] AB 49-50.
[85] AB 105.
[86]AB 50.
[87]AB 105.
[88]AB 51
[89] AB 105.
[90] AB 50.
[91] AB 10.
[92] AB 12.
[93] AB 50.
[94] AB 129-130.
[95]AB 130.
[96]AB 40.
[97]AB 79. That the complainant said her hair was on the floor is not apparent from the transcript at AB 3-53; however during the trial it was accepted by both parties that the complainant said it and an audio recording of the comment was played.
[98]AB 78-79.
[99]AB 95.
[100]AB 128A.
[101]AB 156; Agreed Fact 5.
[102]AB 156; Agreed Fact 5.
[103]AB 131.
[104]AB 101.
[105]AB 99.
[106]AB 103, 137.
[107]In her evidence, Dr Singh said she had some communication difficulties with the complainant because she did not have an interpreter and she was not sure the complainant’s English had all the nuances: see AB 131.
[108]See Outline of Submissions on behalf of the Applicant filed 14 May 2019 at [16].
[109]AB 7, 18, 136.
[110]AB 19, 28.
[111]AB 22, 128, 143.
[112]AB 46, 47, 136.
[113]AB 67.
[114]AB 105.
[115]AB 43, 155.
[116]AB 147.
[117]AB 148.
[118]AB 148.
[119]AB 149.
[120]AB 150.
[121]AB 151-152.
[122]AB 152.
[123]AB 153.
[124]AB 182.
[125]AB 192.
[126] See, for example, Gilbert v The Queen (2000) 201 CLR 414 at 425; Reza v Summerhill Orchards Ltd (2013) 37 VR 204 at [50]; R v Mokbel (2009) 26 VR 618 at [90]; Dupas v The Queen (2010) 241 CLR 237 at [22], [26], [29], [38].
[127] Gilbert v The Queen (2000) 201 CLR 414 at 420.
[128]Exhibit P2.
[129]AB 124-127.
[130] AB 125.
[131]AB 127.
[132]AB 230-232.
[133]Exhibit P2.
[134]AB 231.
[135]AB 254-256.
[136]R v Gulliford [2004] NSWCCA 338 at [151]; R v Wilson (1973) 58 Cr App R 304; R v Schlaefer (1984) 12 A Crim R 345.
[137]R v Rogers [2008] VSCA 125 at [11]; R v Williams [2008] QCA 411
[138]R v Flannery [1969] VR 586.
[139]The Queen v Sailor [1994] 2 Qd R 342; R v BM [2005] VSCA 260.
[140]R v Taylor [2004] VSCA 98 at [13]; R v Ferguson (2009) 24 VR 531 at 559-60.
[141]Azarian v State of Western Australia [2007] WASCA 249 at [50].
[142]R v Brdarovski (2006) 166 A Crim R 366 at 379.
[143]R v Rogers [2008] VSCA 125 at [18]-[20].
[144]AB 253.
[145]AB 253.
[146]AB 252.
[147]AB 266.
[148]AB 253.
[149] Wilde v The Queen (1988) 164 CLR 365; Weiss v The Queen (2005) 224 CLR 300. See the proviso in Criminal Code 1983 (NT), s 411(2).
[150] AB 307.
[151] AB 310.
[152] AB 311.
[153] AB 310.
[154] AB 310.
[155]AB 310.
[156] AB 310.
[157] AB 311.
[158] AB 310.
[159] Dinsdale v The Queen [2000] HCA 54; 202 CLR 321.
[160] Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] per Gaudron, Gummow and Hayne JJ.
[161] House v The King [1936] HCA 40; 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321 at [6]; Whitehurst v The Queen [2011] NTCCA 11 at [12] Emitja v The Queen (2016) 39 NTLR 159 at [39].
[162] AB 310; Sentencing Act 1995 (NT), s 106B(8).
[163] AB 310.
[164] AB 311
[165] AB 312.
[166] Forrest v The Queen [2017] NTCCA 4; 267 A Crim R 494.
[167] Hili v The Queen [2010] HCA 45; 242 CLR 520 at [47]-[56]; Truong v The Queen [2015] NTCCA 5; 35 NTLR 186 at [37].
[168] [2016] HCA 48; CLR 256.
[169] The Queen v Kilic [2016] HCA 48; CLR 256 at [19].
[170] Referring to Gilligan v The Queen [2007] NTCCA 8 at [39]-[41]; Siganto (No 1) [1997] NTCCA 163; (1997) 97 A Crim R 60 at 68.
[171] [2017] NTCCA 4; 267 A Crim R 494 at [71].
[172] Lloyd Ashley SCC 21432870, Sentencing Remarks, 13 January 2015.
[173] Forrest v The Queen [2017] NTCCA 4; 267 A Crim R 494 at [90]-[91].
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