Mucaj v The Queen

[2021] NSWCCA 84

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Mucaj v R [2021] NSWCCA 84

Hearing dates:

12 April 2021

Decision date:

03 May 2021

Before:

Basten JA at [1];
Davies J at [57];
Button J at [58]

Decision:

(1)   Grant the applicant leave to appeal from his convictions on counts 1 and 3 on an indictment dated 29 October 2019.

(2)   Dismiss the appeal.

Catchwords:

CRIME – appeal – challenge to unreasonable verdict – not a ground which involves a question of law alone – leave required – Criminal Appeal Act 1912 (NSW), s 5

CRIME – appeal – inconsistent verdicts – whether miscarriage of justice – whether acquittals cast doubt on acceptance of complainant’s evidence – whether reasonable and logical explanation available accounting for acquittals

CRIME – appeal – unreasonable verdicts – whether jury should have entertained a reasonable doubt – complainant’s evidence supporting convictions confirmed by medical evidence of injuries – DNA tests implicated offender – evidence of early complaint – complainant’s evidence plausible

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5, 6

Evidence Act 1995 (NSW), s 38

Cases Cited:

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

R v Kirkman (1987) 44 SASR 591

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Category:

Principal judgment

Parties:

Fatmir Mucaj (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr M Ramage QC (Applicant)
Ms M Millward (Respondent)

Solicitors:
Voros Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2018/144344

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 February 2020

Before:

Arnott SC DCJ

File Number(s):

2018/144344

Judgment

1. BASTEN JA: The appellant, Fatmir (Angelo) Mucaj, was convicted by a jury of two sexual offences involving a female relative. The offences were committed on the applicant’s property near Murrumbateman, a town 30km north of Canberra. He was sentenced to an aggregate term of imprisonment of 2 years 9 months, with a non-parole period of 18 months expiring on 10 July 2021.

2. Pursuant to a notice of application for leave to appeal filed on 19 February 2021 the applicant challenged his convictions on two grounds, namely:

1. the verdicts of guilty on counts 1 and 3 were inconsistent with the verdicts of not guilty with respect to counts 2 and 4; and

2. the guilty verdicts were unreasonable and could not be supported on the evidence.

3. As the grounds do not involve a question of law alone, the applicant needs leave to appeal: Criminal Appeal Act 1912 (NSW), s 5(1). The Director of Public Prosecutions did not oppose a grant of leave and a grant is appropriate in the circumstances. However, for the reasons given below, the appeal must be dismissed.

Background to charges

4. The circumstances of the offending may be briefly stated: the detail will be addressed in relation to the grounds. The events in question occurred around lunchtime on Sunday, 29 April 2018. The applicant had recently separated from his wife and was moving into a new house on what appears to be a large semi-rural block on the outskirts of Murrumbateman.

5. At about 2:00am on Sunday morning, the complainant received a lengthy text message from the applicant explaining his distress at the conduct of his wife, who was the complainant’s cousin. They agreed to meet later that day in Murrumbateman for lunch. She told her mother, her step-sister and a friend of the proposed meeting. She later met the applicant and his friend Mr Marku, at a takeaway shop in Murrumbateman. From there the applicant drove her (in her car) to his property. They took lunch for three workmen who were moving furniture into the house. The house was large, and the complainant was told it had six bedrooms. After being shown the house, the applicant took her to the backyard, where she said he smoked a cigarette in a small gazebo. He then insisted that the complainant should look at his shed, which he said would be his “man-cave”.

6. The shed was at the rear of the property and concealed from the house by a hedge. There was a gap in the hedge with a path leading from the laundry door to the shed. A driveway ran past the house from the front gate to the shed. The driveway also provided access to a large turning circle at the front of the sprawling residence. The shed had two roller doors on the northside facing the driveway, and a side door.

7. The prosecution case was that the complainant and the applicant approached the side door of the shed and she peered in. The applicant, on her account, then pushed her into the shed. She tried to break away and escape through the roller door at the front, which was closed. Her attempts to open it failed. She was sexually assaulted. After a few minutes the applicant let her go and she returned to the house, visited the bathroom and then went to the front of the house and left in her car. She said that she had to wait until the applicant moved his vehicle, allowing her to follow him out of the driveway. She followed him to the Barton Highway and then drove south towards Canberra, where she was then living with her mother.

8. Whilst in the car, she called a male friend and told him that the applicant “tried to rape me, just assaulted me”. He told her to call her mother and go to the police. She then called her mother, made the same complaint, and drove straight home. Phone records set the time of the calls at about 1:40pm. On advice from her father and mother, she then went to Canberra Hospital, arriving at about 3:30pm.

9. The complainant was seen by Dr Van Diemen, a forensic medical officer at Canberra Hospital, who examined her and recorded an irregular area of petechial bruising with underlying swelling and tenderness on the left side of her neck, further bruising on the right side of the neck, a cluster of abrasions over the left side of her chest and on the right breast and an area of bruising with swelling and tenderness on the left forearm adjacent to the wrist. She also had tenderness on the inner right and left thighs. There was a small bruise on the right shin.

10. The four charges laid against the applicant were:

1. Count 1 – detain without consent for advantage (sexual gratification) and occasion actual bodily harm;

2. Count 2 – with intent to have sexual intercourse, intentionally inflict actual bodily harm;

3. Count 3 – assault and commit an act of indecency (licking and sucking breasts);

4. Count 4 – assault and commit an act of indecency (rubbing vagina).

11. The jury convicted on counts 1 and 3, and acquitted the applicant on counts 2 and 4.

Ground 1 – inconsistent verdicts

12. In MacKenzie v The Queen,[1] the High Court noted a submission “that the verdicts are inconsistent, resulting in convictions which are unsafe and unsatisfactory.” [2] This language reflected the first limb of s 6(1) of the Criminal Appeal Act, which requires that a verdict should be set aside if the court is of opinion that “it is unreasonable, or cannot be supported having regard to the evidence”. However, the concept of inconsistent verdicts may better be seen as constituting a miscarriage of justice “on any other ground”, pursuant to the third limb of s 6(1).

    1. (1996) 190 CLR 348; [1996] HCA 35.

    2. MacKenzie at 357 (Gaudron, Gummow and Kirby JJ); see also 351 (Dawson and Toohey JJ).

13. The current reading of the first limb is that it involves a single question, requiring the court to make its own independent assessment of the evidence in order to determine “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”. [3] The applicant in the present case challenged the convictions separately on that ground. The first ground, by contrast, implicitly accepted that there might be sufficient evidence to allow the jury to be so satisfied, but contended that the disparate verdicts demonstrated that the jury had approached the assessment of the evidence on an inadmissible basis.

    3. M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.

14. Applying the principles stated in MacKenzie, the present case was one of factual inconsistency, rather than legal inconsistency. [4] Thus, where it can be said that two charges turn on the credibility and reliability of the complainant, conviction on one count and acquittal on another may suggest that the jury was unsure whether or not to accept the complainant’s evidence and had reached a compromise. A compromise in such circumstances is not the application to each count of the test of satisfaction beyond reasonable doubt and the verdicts cannot stand.

    4. MacKenzie at 366-368.

15. In trials involving multiple charges, juries are routinely instructed to give careful and separate consideration to each charge and not to convict unless satisfied beyond reasonable doubt as to guilt of each particular offence. However, where several offences turn on the credibility of a single witness, it will often be appropriate, as explained by Spigelman CJ in R v Markuleski,[5] “to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.”

    5. (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [188].

16. It is not to be assumed that a jury, properly directed, will have misunderstood its proper function, or misapplied itself to the evidence in convicting on some counts and acquitting on others. There are a number of reasons why apparently inconsistent verdicts may reflect a correct discharge of the jury’s function. First, as explained by King CJ in R v Kirkman,[6] in a passage adopted in MacKenzie,[7] where there have been multiple charges, with convictions on some but not others, it may be proper to infer that the jury has taken a “merciful” view by not convicting on all counts, although the evidence may have supported such convictions. That is not this case: there were four counts involving reasonably discrete incidents, but within a short timeframe.

    6. (1987) 44 SASR 591 at 593.

    7. MacKenzie at 367-368.

17. Secondly, and more importantly in the present context, a careful consideration of the evidence may demonstrate “available explanations for the differentiation in the verdicts which are consistent with the assumption that the jury approached their task in a proper manner and did not simply compromise their function.” [8]

    8. MacKenzie at 369.

18. In order to assess whether this approach is available in the present case, it is necessary to disregard the evidence of the applicant and his witnesses, which the jury must have rejected in order to convict on counts 1 and 3. The proper focus is, accordingly, on the prosecution case. That focus involves two factors, namely the elements of the particular offences and, secondly, the evidence with respect to each.

19. Dealing with the elements of the offences first, the applicant noted that, with respects to counts 1 and 2, the “actual bodily harm” relied upon by the prosecution involved the same injuries. That may be accepted, however, the other elements of the offending varied. That was important because there was objective evidence of the injuries to the complainant’s neck and chest in particular. The other elements were, in relation to count 1, detaining the complainant in the shed and, in relation to count 2, acting with an intent to have sexual intercourse.

20. With respect to count 1, the jury were directed as to four elements, namely (i) the accused detaining the complainant; (ii) that this was done without her consent; (iii) that it was done with the intention of obtaining sexual gratification, and (iv) at the time of committing the offence, actual bodily harm was occasioned to the complainant. There were, in effect, two pairs of elements: detention and lack of consent, and obtaining sexual gratification and kissing and sucking on the complainant’s neck and breasts. Lack of consent turned on the complainant’s evidence of her state of mind and her acts in offering resistance. The element of bodily harm was supported by the medical examination undertaken at the hospital.

21. By contrast, count 2 involved proof that the applicant acted “with intent to have sexual intercourse with [the complainant]”. Although the proof of the intention on the part of the applicant turned on the evidence of the complainant, it also required that an inference be drawn as to the applicant’s state of mind, based on his conduct and words as described by the complainant. It is convenient to set out the relevant parts of her evidence as to the beginning of the assault: [9]

“Q. What did he do?

A. He started to – like, he started to – he, he basically thrusted, like, my legs open, like, he forced them open, and then just started to, like, try to kiss me. He started kissing actually my neck and going, like – yeah, started kissing my neck and my chest and then slowly going down towards my boobs.

Q. Did he say anything to you?

A. He said – he said, ‘I’m going to fuck you.’ At one point I believe he would have said, ‘Fuck, you have good boobs.’ Honestly, yeah, I don’t know.”

There was an appearance of equivocation in the second answer.

9. Tcpt, 29/10/19, p 17(35).

22. The complainant also described his conduct as rubbing her vagina on the outside of her tights, roughly. She stated: [10]

“At that point, I had begged him to let me go because I didn’t want to – I didn’t want to be doing that. So the first time I tried to get away, I remember I just shoved him, like, I pushed him, I shoved him, and then I basically tried to run away. I got, I would say, two steps away before he actually just pulled me back and put me on the same place. It was, like, like, like, ‘You’re not going anywhere,’ and, ‘I’m going to fuck you,’ and was just saying really vile things to me, I guess, yeah.

…

After that, it was quite – you know, quite similar. It was the same thing, where he was, you know, thrusting against me and, you know, he was pushing himself against me and again with my boobs, and I remember he was trying to kiss me and I basically was turning my head, back and forth, just trying to get away, and I had my hand on my mouth. So when I had my hand on my mouth, he was basically just, like, going towards my neck and then down to my boobs. I also remember there was a point in time after I had done that, when he decided to go to that side, I started freaking out because he went down to my tights and went to put his hands around – like, it felt like he was trying to – he was trying to take my tights off. Like, he was trying to take my pants off.

…

I just remember like he was swearing at me, like ‘You’re a fucking bitch, you’re a fucking cunt’ just really abusing me about the fact that I wasn’t going to kiss him, but he was still excited, he still was trying to pursue taking off my pants and I remember – I also remember that there was that constant tug of war with my top, him lifting and me pulling it and, I don't know, I just – it’s hard.”

10. Tcpt, p 19(17).

23. The complainant then described her attempt to slide out from under him when he “put his hands down like the side of my tights and started groping my arse.” The evidence continued: [11]

“Q. And then what happened?

A. Once again, just begging him to stop and he was still saying like, you know, ‘Going to fuck you, you’re going to love it’ and you know, just being disgusting and when his hands went to my arse, I was freaking out that he was going to actually get to my vagina and actually, you know, touch it underneath my clothes and like, I was scared he was going to rape me, like I was petrified, so I basically, when that happened, I remember, I like pushed myself down, just trying to get away and I bolted.”

11. Tcpt, p 22(36).

24. The judge directed the jury in relation to count 2 in the following terms: [12]

“The charge requires intent to have sexual intercourse. …

Intention may be inferred or deduced from the circumstances in which the alleged offence occurred, and from the conduct of the accused before, at the time of, or after he did the specific act or acts – here grappling in the shed. Whatever a person says about intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time.

In some cases a person's acts may themselves provide the most convincing evidence of that person's intention. Where a specific result is an obvious and inevitable consequence of a person's act, and where he or she deliberately does that act, then you may readily conclude that he or she did that act with the intention of achieving that specific result.

…

The Crown submitted that the accused's intentions were clear, not only from his acts but also his words, both the words at the time these events happened in the shed and also after when the complainant said that she was leaving the shed.”

12. Summing up, 8/11/19, p 21.

25. The jury may well have accepted that the applicant said words as recounted by the complainant, although the word “fuck” was clearly being used both to indicate intercourse and as an aggressive form of verbal abuse. The complainant indicated a level of uncertainty as to precisely what words were used and it is clear from descriptions of the events that she was more focused on what he did than what he said. She had a fear of being “raped” but that fear arose not from his words so much as the action of putting his hands down both on her vagina, and inside her tights. No act of penetration of the vagina occurred. It is also possible that the jury distinguished between the physical harm caused to her neck and chest and the intention to have intercourse. In short, the jury might well not have been satisfied beyond reasonable doubt as to the nature and timing of the applicant’s intention, whilst accepting entirely the evidence of his acts and words as recounted by the complainant. Alternatively, they may have doubted whether the complainant had a clear recollection of the words said, as opposed to his acts, on which her attention was focused. The jury were entitled to have a reasonable doubt as to whether the infliction of harm on the complainant’s neck and chest was undertaken with the intent to have sexual intercourse.

26. Count 3 alleged an assault committed by way of an act of indecency, namely licking and sucking her breasts. The four elements explained by the judge to the jury were (i) an assault by the applicant, (ii) an indecent assault, (iii) an assault without the consent of the complainant and (iv) that the applicant knew the complainant was not consenting.

27. By contrast with count 2 (which required an inference to be drawn as to the applicant’s intention), the assault on the complainant not only depended on her account of the acts, but was powerfully supported by the forensic evidence as to her injuries. While it is true that the fourth element involved the actual state of mind of the applicant, if the jury accepted the complainant’s account of what she did, his understanding that his conduct was unwelcome and not consented to would readily have been inferred.

28. The jury was directed that count 4, which involved an indecent assault by rubbing her vagina, involved the same elements as count 3, subject to the different part of the body. Counts 1, 2 and 3 all involved the assault to the upper body. The complainant described those elements in clear and graphic terms: [13]

“He was – would have been pinning me down. I remember there was – when he was pushing himself on me, like, he was – there was points where he had his hand around my throat and was basically down, pulling my bra out roughly, so just yanking it down, and then I would – it was a back and forth tug of him pulling my boob out and putting his saliva just all over me and being really rough, and then, at one point, when I lifted it back up, that’s when he started to, like, rub my – like, rub my vagina from down there and it was really, like, rough and awful and disgusting.”

13. Tcpt, p 18(15).

29. As has been noted, the forensic medical examination supported evidence of bruising, particularly to her neck and chest, consistent with the description of the applicant’s conduct. Further, there was DNA testing undertaken on the basis of swabs from the complainant’s body and clothes. A DNA test of the saliva recovered from the complainant’s right breast indicated that 90% of the DNA component was from a male, matching the applicant, and 10% from a female, matching the complainant. [14] There was, therefore, significant medical evidence to support the complainant’s account of the kissing and sucking of her on the neck and breast and the bruising on the neck. Although DNA testing was undertaken on the front crotch area of the complainant’s tights, the results were inconclusive. There was no other objective evidence to support the rubbing of the vagina. It would have been open to the jury to conclude that what appears, according to her evidence, to have been a passing groping action of the applicant rubbing her vagina on the outside of her tights, might have been easy to confuse with him generally pressing his body against her. In the absence of independent support, the jury would have been entitled to entertain a reasonable doubt as to count 4, without any significant effect on the reliability and truthfulness of the complainant’s description of the applicant’s conduct in other respects.

    14. Tcpt, 31/10/19, p 169(5).

30. It follows that there were reasonable and logical grounds to explain the acquittals of counts 2 and 4 which did not have any necessary effect on the credibility or reliability of the complainant’s evidence with respect to counts 1 and 3. The first ground of appeal must be rejected.

Ground 2 – unreasonable verdict

31. The applicant’s case with respect to the unreasonableness of the verdict contained, in broad terms, two limbs. First, it involved a challenge to the reliability and credibility of the complainant’s evidence; secondly, it relied upon the countervailing evidence given on behalf of the applicant. Whilst the main focus of the submissions on ground 2 related to the affirmative case presented by the defence, it is convenient to deal with the challenges to the complainant’s evidence first.

(a)   challenges to evidence of complainant

32. The difficulty for the applicant in this respect was that the complainant’s evidence, relevant to counts 1 and 3, was strongly supported by the forensic medical evidence.

33. First, the applicant contended that the complainant had a motive to lie. The complainant was cross-examined about her relationship with the applicant (referred to as “Angelo”) and his wife. The complainant was a close friend of the applicant’s wife’s sister (and daughter of his wife’s step-sister [15] ). She agreed that she was closer to his wife than to the applicant and that his wife had confided to her “things about her marriage to Angelo and [its] breakdown”. [16] The cross-examination continued:

“Q. I suggest to you that when you spoke to [his wife’s sister] about the visit to Richardson, you said words to the effect of, ‘I want to go and see Angelo and the boys, I really miss him’?

A. I could have said that. That would have been a normal thing to say. It's not a big deal. I've known Angelo since I was a child, so we had been hanging out, so I could have definitely said let's – ‘I want to go see Angelo and the boys’ and that I, I probably did miss him.

Q. Didn't you arrange to meet [his wife’s sister] at Angelo's place at Richardson that time?

A. I could have, yeah, I could have. It was a normal, a normal thing to do for us to arrange to meet up. And it would mean that I initiated it. I could have.

Q. At that time was it culturally inappropriate for you to visit a male non relative without another female present?

A. Yeah, it can, it can be, it can be. It just depends. So growing up, Angelo would sometimes – he would be the exception, so [his wife’s sister] used to stay at the house with Angelo, shower around Angelo and they would be the only people in the house that would be fine. So I guess it just – it wasn't a strict rule by rulebook to follow, but when we would – there would be times, I guess. I, I couldn't – I wouldn't live my life by it.”

15. Tcpt, pp 44(40), 192(25).

16. Tcpt, p 45(25).

34. In the final questions of the cross-examination of the complainant, it was suggested to her that she had told the applicant of his wife’s unfaithfulness and that she did not want his wife to know that she had seen the applicant at his house. The cross-examiner also asked: [17]

    17. Tcpt, p 112(30).

“Q. … You were also worried that your family would think that you were attracted to Angelo?

A. I was never worried about that because I was never attracted to Angelo. He was like a brother to me.

…

Q. You thought you could get closer to Angelo by telling him secrets about [his wife], didn’t you?

A. They weren’t secrets, because everybody already knew.

Q. That’s the reason why you didn’t want [his wife] to know that you were seeing Angelo that day, as you typed in the text message. Do you agree or not?

A. I don’t agree.

Q. When you thought that Angelo might tell [his wife] what was going on, I suggest to you that you panicked?

A. I did not panic.

Q. Did you injure yourself in any way that day?

A. No, I did not.

Q. Did you inflict any injuries upon yourself in any way that day?

A. No, I did not.

Q. I want to suggest to you that you have fabricated or made up this complaint about being lured to and assaulted at Angelo’s place?

A. That would be a lie what you’re saying.

Q. The reason that you’ve done that is to avoid being cut off by your own family if they found out what you were doing with Angelo?

A. Well what is it exactly that, that I was doing?

…

Q. That is the reason that the first thing you said to [his wife] that day was, ‘If Angelo tries to make shit up, that’s not the truth’, isn’t it?

A. That’s not true.

Q. That’s all?

A. Angelo was talking about [his wife] and that’s what I was saying when I said, ‘If Angelo tries to make shit up I will cover for her and I will always protect her’.”

35. The suggestion that the complainant had self-inflicted injuries might have been thought by the jury to be highly implausible. It is true that Dr Van Diemen agreed that self-inflicted petechial bruising was possible, but that did not explain the DNA evidence, particularly that found in the swabs of saliva. (The applicant’s case was not of consensual sexual activity, but that no activity occurred.) The forensic biologist who undertook the DNA testing agreed that saliva could have been from a kiss on the cheek and then transferred to a breast by washing and that such saliva could contain the DNA of the person who kissed. It was clearly no more than a theoretical possibility. A hair with a DNA profile matching the complainant’s had been found in the shed. Its presence was at least consistent with the complainant’s case.

36. The complainant had given evidence in chief at the beginning of the trial that after she agreed to meet the applicant in Murrumbateman, she told her mother and her stepsister and her cousin, Rita. That evidence, which appears not to have been challenged, was inconsistent with the proposition that her visit to Murrumbateman was intended to be secret and that she needed a cover story to explain it in the event that the applicant told his former wife, or other members of her family, about it.

37. Although it was submitted that “the complainant’s motive to fabricate or make up the allegations was powerful”, and that it was a matter the jury ought to have considered and should have given rise to a reasonable doubt, it is hard to see why the jury would not have rejected it as a pure fantasy. The bold suggestion that she had inflicted multiple injuries on herself, denied by her, is unlikely to have had any influence on the jury.

(b)   the applicant’s case

38. The unreasonableness of the verdicts was said to turn primarily on a question as to whether the roller doors on the shed where the assault was alleged to have taken place were open or closed. In written submissions, the applicant’s counsel stated:

“40.   Acceptance of the complainant’s version of what occurred inside the shed (counts 1 to 4 inclusive) hinged upon accepting the complainant’s evidence that the two roller doors to the shed were closed. If the roller doors were open:

a.   this would raise a real doubt as to the complainant’s version; and

b.   this would make the alleged offending implausible in the circumstances of the proximity of others to the shed.”

The submissions continued:

44.   The complainant’s evidence in regard to the position of the roller doors (being closed) is inconsistent with the other evidence in both the Crown case and the defence case.”

The reference to the evidence in the Crown case was, in part, a reference to the statement by the applicant in the recorded interview with police (ERISP) that “[t]he shed, I was the last person, I shut the shed while she was in the car.” [18] In addition, the applicant’s friend, Mr Marku, and two of his employees present at the house were called by the prosecutor, although Mr Marku was treated as an unfavourable witness under s 38 of the Evidence Act 1995 (NSW).

18. ERISP, Q 107.

39. The evidence of the employees and Mr Marku in fact went to three issues, namely (i) where the complainant and applicant were after they returned with the lunch, (ii) whether the roller doors on the shed were open or closed during the course of the afternoon and (iii) whether the complainant was seen to be distressed after she had returned to the house and visited the bathroom. Although aspects of the evidence have been dealt with in relation to the challenges to the complainant’s account, it is necessary to note the defence case with respect to each point.

1. where people were situated at the house

40. Mr Marku gave evidence that he drove the applicant’s vehicle back from the takeaway shop to the applicant’s house where the three workmen who were employees of the applicant had been moving furniture and were waiting for lunch. The effect of his evidence was that the applicant and the complainant were present “within eyesight” for pretty much the whole time after they returned with lunch until they left the premises. [19]

    19. Tcpt, p 232(30)-(40).

41. Two of the three workmen were also called by the prosecutor. They said they were employed by the applicant, although he had denied in his ERISP that they were employed by him, claiming they were employed by “Mary”. [20] Mr Liu gave evidence that the applicant had set out with Mr Marku to buy food and had returned with the complainant. He said that, at that stage the men were sitting on the front steps having a rest, and stayed there to have lunch. He said that the applicant took the complainant on “a tour of the property.” [21] After they finished lunch, the workers continued to move furniture into the house from a truck or other vehicle parked in front of the house. He did not see the applicant or the complainant whilst they were moving the furniture. [22] Mr Li gave evidence to similar effect. [23] He was sitting on the sofa in the living room when the complainant and the applicant reappeared. [24]

    20. ERISP, Q 26-37.

    21. Tcpt, p 120(43).

    22. Tcpt, p 121(28).

    23. Tcpt, p 131(3)-(30).

    24. Tcpt, p 132(44).

42. However, apart from the evidence of Mr Marku, the evidence of the employees supported the conclusion that the applicant and the complainant were alone for a significant period whilst the workers had their lunch and then continued taking furniture from the front of the house into the house.

1. position of roller doors

43. The complainant stated that after she had returned to the bathroom in the house, she went to her car at the front of the house, and eventually followed the other vehicles onto the road and drove behind them until they reached the Barton Highway and turned towards Canberra. At that stage she overtook the other vehicles. Whilst in the car, she rang a friend and her mother. When she got home she told her mother that the applicant had tried to rape her and had assaulted her. With the encouragement of her mother and father, she went to Canberra Hospital.

44. At Canberra Hospital, about two and a half hours after the events at Murrumbateman, the applicant gave a history to Dr Van Diemen which included the statement that when she first managed to escape from the applicant she “tried to open the door and he laughed because it was locked.” [25] If that were an invention, it occurred at a very early stage in the aftermath of the events.

    25. Tcpt, p 152(4).

45. Given that the shed was out of sight from the house, except from someone in the driveway, it may not have appeared to be a detail of much importance at the time. However, only the applicant and Mr Marku gave unequivocal evidence that both roller doors were open throughout the afternoon. Mr Marku’s evidence may well have been rejected by the jury, as he appears to have overstated his claims that the applicant and the complainant were at all stages in or about the house and “within eyesight”. Of the workers, Mr Li stated that the doors were open when he was “unloading stuff into that storage shed”, [26] but there was no evidence that that happened after lunch. Somewhat ambivalently, he agreed that “as far as he could see” they were open at all times. [27] Mr Liu said only the right door was open, while they were moving stuff in. [28] He also said he did not see either door closed, [29] but qualified that evidence in re-examination: [30]

“Q Did you actually see whether or not the doors were open or closed at the time you were eating your lunch?

A. INTERPRETER: No because we were having our lunch in front of the house. So what happened behind the house was something I really couldn’t see from where we were.”

26. Tcpt, p 135(12).

27. Tcpt, p 135(20).

28. Tcpt, p 125(1)-(10)..

29. Tcpt, p 127(25)-(35)..

30. Tcpt, p 128(1)-(6)..

46. As the shed was not visible from the front of the house, (nor from the back of the house unless one went out onto the path by the laundry which went through a gap in the hedge) that evidence did not take the matter much further. There was no sound basis for the jury to reject the complainant’s evidence that the roller door she sought to open was closed, if the applicant’s evidence was rejected.

1. whether complainant distressed

47. The third element of the applicant’s case was that, although the complainant stated that she was distressed, breathing hard and shaking when she left the shed and headed for the house, no one observed her distress. As noted above, the complainant’s evidence that she was distressed when she returned from the shed was challenged. When cross-examined she gave the following evidence: [31]

“Q. You walked straight from the shed to the house?

A. Yeah, I calmed myself down, told myself I was okay, and – but still shaken up, yes. I still was distressed, but I managed to put on a fake face and go back into the house.

…

Q. You say, do you, that you went into the toilet inside the house to calm yourself down, is that right?

A. Yes.”

31. Tcpt, p 88(30).

48. The applicant’s counsel examined each of the two workers and Mr Marku as to the appearance of the complainant after she left the shed and the house. None noticed that she appeared distressed or was breathing unsteadily; she did not ask any of them for assistance.

49. Whilst driving back to Canberra, the complainant rang Mr Sorentino, who gave the following account of the conversation: [32]

“… and she said, ‘Can you talk’ and I could tell in the tone of her voice straight away that something was up, and I said to her I said, ‘Fire away’, and there was a pause and there was hyperventilation. I said, ‘What was wrong’, and she said, ‘My cousin’s husband just assaulted me’ and I stopped. I didn’t know what to say back to that, there was more pausing, and I said, ‘Did he, did he touch you’ and she didn’t answer me. Hyperventilation again, and I said, ‘Right’, I said, ‘Hang up, call the cops, call your mum’, yeah.”

32. Tcpt, p 187(30).

50. Later that afternoon he messaged her to ask if she was okay and she replied that “she was just at the hospital, getting a check-up.” [33] As noted above, the conversation with Dr Van Diemen occurred at about 3:30-4:00pm that afternoon.

    33. Tcpt, p 187(50).

51. Whilst in the car, the complainant had called her mother and told her, “Angelo tried to rape me”. [34] They had a further conversation when she arrived home. Her mother contacted the applicant by phone and, as the applicant agreed, screamed at him for some time. He said he was unable to discern the basis of her anger and did not ask her.

    34. Tcpt, p 193(18).

52. If the thrust of the submission were to be that, because none of the men at the Murrumbateman property noticed that the complainant was upset when she left the house, she was not, and had constructed a fake appearance of distress in the brief time when she was travelling towards Canberra in her car, it was entirely likely that the jury rejected any such inference. Whether she appeared distressed or not, the injuries witnessed by Dr Van Diemen later that afternoon, which were entirely consistent with her account to Dr Van Diemen, provided powerful corroboration for that account. As noted above, the possibility that they were self-inflicted was highly implausible. Although none of Messrs Marku, Li and Liu noticed any sign of distress, it is unlikely that much weight was placed on the absence of such evidence; they had no reason to take any notice of the complainant, who made no attempt to speak to them, and merely looked at Mr Marku.

Findings with respect to unreasonable verdict.

53. Making every allowance for the difficulties in assessing credibility from a transcript, it is nevertheless significant that the complainant’s evidence appears to be entirely plausible. By contrast, the applicant’s evidence, both in his ERISP and his testimony in court, is hard to follow and unpersuasive in its explanations. No doubt it was difficult for the applicant to obtain persuasive independent evidence to support his case, but the fact is that he did not and the complainant’s case was supported in various respects by the objective evidence of her physical condition and her complaints.

54. In my view there is no substance in the proposition that the verdicts were unreasonable or not supported on the evidence. A reading of the transcript of the trial presents a contrary picture.

Conclusions

55. Although the applicant should have leave to appeal, neither of his grounds being successful, the appeal against his convictions must be rejected.

56. The Court should make the following orders:

1. Grant the applicant leave to appeal from his convictions on counts 1 and 3 on an indictment dated 29 October 2019.

2. Dismiss the appeal.

57. DAVIES J: From my own examination of the evidence, I am satisfied that it was open to the jury to return verdicts of guilty on grounds 1 and 3. I agree with the reasons of Basten JA in that regard. I also agree with his Honour's reasons in relation to the disposition of the ground of appeal asserting inconsistent verdicts.

58. BUTTON J: I agree with Basten JA.

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Endnotes

Decision last updated: 03 May 2021