Papadopoulos v R Topcu v R - [2007] NSWCCA 274

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: PAPADOPOULOS v R TOPCU v R [2007] NSWCCA 274
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 March 2007

JUDGMENT DATE:
12 September 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 4; Hoeben J at 198

DECISION: See paragraph 199

PARTIES: Regina
Christovalantis PAPADOPOULOS
Bulent TOPCU

FILE NUMBER(S): CCA 2006/5461; 2006/4824

COUNSEL: Crown: Mr D Arnott SC
Applicant Papadopoulos: Mr H Dhanji
Applicant Topcu: Mr B Walker SC with Ms G Bashir

SOLICITORS: Crown: S Kavanagh
Applicants: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0577

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

- 62 -

2006/5461
2006/4824

McCLELLAN CJ AT CL
HULME J
HOEBEN J

PAPADOPOULOS, Christovalantis v R

TOPCU, Bulent v R

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Hulme J in these appeals. But for one matter I agree with the orders which his Honour proposes and with his Honour’s reasons.

2 In relation to the sentence which his Honour proposes for the offence involving vaginal intercourse committed by Papadopoulos I would have imposed a non-parole period of three years commencing on 17 December 2006 with a balance of term of 18 months. In my opinion, notwithstanding the fact that both Topcu and Papadopoulos became caught up in events for which they were not initially responsible, the circumstances of this offence require a sentence which adequately marks its seriousness. Although Papadopoulos, no doubt, reacted to the violent and destructive actions of Eken the act of intercourse took place in the bedroom in circumstances where I am satisfied he had a real choice as to whether or not to penetrate the complainant. Hulme J discusses the available Judicial Commission statistics in relation to the relevant offence in [191] of his judgment. The statistics do not reveal the factual circumstances of each case and whether or not vaginal intercourse occurred. However, the sentence which I propose would not be out of line with the range of sentences revealed by the Commission’s statistics.

3 The primary judge sentenced Papadopoulos to a term of 7 years and 4 months with a non-parole period of 5½ years for this offence. His Honour had the benefit of hearing the evidence and observing the relevant witnesses. This gave his Honour the advantage of being able to appreciate the atmosphere in which the offence occurred which no doubt influenced his Honour’s sentence.

4 HULME J: On 16 January 2006 Bulent Topcu was arraigned on charges that:-

1A. While in company with CD (he) did have sexual intercourse with AB, without the consent of AB, knowing that she was not consenting and at the time of the sexual intercourse did maliciously inflict actual bodily harm on her.

1B. In the alternative… while in company with CD did have sexual intercourse with AB, without the consent of AB, knowing that she was not consenting.

5 On the same occasion Chris Ovalantis Papadopoulos was arraigned on charges:-

2A. While in company with CD (he) did have sexual intercourse with AB, without the consent of the said AB, knowing that she was not consenting and at the time of the sexual intercourse did maliciously inflict actual bodily harm on her.

2B. In the alternative… while in company with CD did have sexual intercourse with AB, without the consent of the said CD (sic), knowing that she was not consenting.

3A. While in company with CD (he) did have sexual intercourse with AB, without the consent of the said AB, knowing that she was not consenting and immediately before the time of the sexual intercourse did maliciously inflict actual bodily harm on her.

3B. In the alternative… while in company with CD did have sexual intercourse with AB, without the consent of the said AB, knowing that she was not consenting.

6 On 6 February 2006 the jury returned with the following verdicts:

1. Guilty to the first charge against Topcu. (Count 1A)

2. Not guilty to the second charge in the indictment against Papadopoulos. (Count 2A)

3. Guilty to the alternative charge against Papadopoulos. (Count 2B)

4. Not guilty to the third charge against Papadopoulos. (Count 3A)

5. Guilty to the alternative charge against Papadopoulos. (Count 3B)

7 In the indictment only the first of each pair of charges was numbered and the addition of the “A’s” and “B’s” is mine in order to facilitate reference later in these reasons. The information in parenthesis in the immediately preceding paragraph is my understanding of the charges to which the jury verdicts relate.

8 On 27 April 2006 Judge Puckeridge sentenced Topcu to imprisonment for 10 years, including a non-parole period of 7 years, commencing on 6 February 2006. His Honour sentenced Papadopoulos on count 2B to imprisonment for 6 years, including a non-parole period of 4½ years, commencing on 30 March 2006 and on count 3B, to imprisonment for 7 years and 4 months, including a non-parole period of 5½ years, commencing on 30 June 2006. (In so stating the sentences, I have ignored, in the case of Topcu 14 days, and in the case of Papadopoulos 13 days, pre-sentence custody which led his Honour to vary the end dates of the sentences and which do not affect the substance of the sentences stated.)

9 Topcu has appealed against his conviction upon the following grounds:-

1. As the case relied on by the prosecutor to prove the s.61JA count could never satisfy the elements of that offence, the trial judge erred in failing to direct a verdict of acquittal on the s.61JA count.

2. The trial miscarried as a result of the element of malicious infliction of actual bodily harm being left to the jury on a basis not run at trial.

3. The trial judge erred in not directing the jury that duress on the appellant could be based on his fear of AB being at risk of being injured as well as his fears for himself.

4. The trial judge erred in failing to direct the jury that “the third question” was one of whether the appellant could have withdrawn without risk of harm to himself and/or AB either remaining or being increased.

5. The trial miscarried as a result of the jury being told by the prosecutor that all of the elements of the offence had been proved and the trial judge not correcting this.

6. The verdict is unreasonable.

10 During the hearing of the appeal, Topcu sought leave to add a further ground of appeal against conviction and 2 further grounds of appeal against sentence and the Court heard argument on these although, it would seem without formally giving leave or an extension of time. The further ground of appeal against conviction was:-

11 Eken is the person referred to as CD in the counts upon which the Appellants were arraigned and that designation was maintained during the Appellant’s trial. It is convenient to refer to him hereafter by his name.

12 Papadopoulos’ grounds of appeal against his conviction are:-

1. A miscarriage of justice was occasioned by the failure of the trial judge to direct the jury that in considering duress, the appellant’s fear of death or serious injury to the complainant must be taken into account when considering whether the appellant could have avoided the effect of the duress.

2. A miscarriage of justice was occasioned by the failure to direct the jury as to the time at which it was necessary to consider the question of whether the appellant could have avoided the effect of the duress.

13 The grounds upon which the Appellants have sought leave to appeal against sentence can be deferred for the moment.

14 The events which led to the charges against the Appellants occurred on the night of 29 - 30 July 2004 at a flat of which Eken was the owner or tenant. Topcu gave evidence that he had a slight acquaintanceship with Eken up to about February of 2004 during which month Topcu was set upon by a group of males while stopped at a traffic light, bashed with a crowbar and stabbed through a lung. He spent some 17 days in hospital and was visited there by Eken. He observed that following the incident at the traffic lights he was left an emotional wreck and had not worked since.

15 Sometime after his release from hospital he called on Eken, he said, to thank Eken for visiting. Eken invited Topcu to stay and Topcu did so up until 30 July. Topcu’s evidence indicated that life during this period included a deal of partying, visits to a bikie club house, dealing drugs for Eken, consuming drugs for days at a time, sleeping for 14 hours or so then waking, eating and consuming more drugs. He said that during this period Eken or others showed off a number of weapons including a machine gun, sniper rifle and Glock pistol at the flat. Eken was supporting Topcu financially and Topcu in turn attended to any chores that Eken needed doing. He described Eken as someone “very strong, strong minded, gets what he wants, doesn’t accept no for an answer, doesn’t do things for himself, gets other people to do things for him”. He believed Eken to be capable of violence.

16 Topcu also said in evidence that Eken took ecstasy, ice and cocaine and was smoking marijuana every day. Other evidence in the trial, including evidence from AB tended to support the view that drug taking in the unit was commonplace.

17 During this period Eken occupied one bedroom and Topcu and a third person, Moustapha Dagdanasar, referred to as “Mace” or “Musti”, shared a second bedroom.

18 Some short time before 30 July these two had struck up friendship with three girls, one of whom was AB. Following a phone call in which AB asked if she could come around and Topcu replying in the affirmative, at about lunch time during 29 July, AB called at the premises and Topcu let her in. During the afternoon AB had consensual vaginal intercourse with Mace. After some arriving and leaving the situation arose that Topcu, Moustapha and AB were the only ones in the premises. At something of the order of 11 pm or later Topcu participated in a telephone call with Eken as a result of which he remarked to AB that Eken seemed to be drunk. Topcu also told AB that Eken was coming home, not to sit on the lounge and suggested AB go into the bedroom where AB would seem to have been at some stage prior to the phone call. AB then went into the room which Topcu and Moustapha occupied and lay down.

19 According to AB, Topcu seemed calm at that stage. She went on to say that when Eken arrived home she heard him yelling outside, and he then came and jumped on the bed where she was lying on her side. She said he tried to pull her head towards his crotch and when she would not cooperate and told him to stop, he started pulling her hair, punching her in the face and eye hard enough to bruise her straight away, slapping and hitting her hard and yelling at her “with so much anger”. She cried, fell to the ground and Eken kicked her – T61. He then left the room returning with Topcu and both of the males sat on the bed. Eken punched her again hard in the head and, pointing at Topcu, told AB to suck Topcu’s penis. The latter just sat there and then pulled down his pants. AB’s evidence continued, “and I had to suck his penis and he (Eken) just hit me in the back of the head”. Later AB was asked, “You told us that when you were being made to give Billy oral sex Eken was hitting you, whereabouts to your body was he hitting you?” and replied, “Around my head and my shoulders”. She described this hitting as “hard” with Eken using his fist. At the time fellatio started Topcu’s penis was flaccid but commenced to become erect. Eken walked out of the room and AB immediately stopped her activity. At that stage Topcu seemed a “bit (but not a lot more than a bit) jumpy” and said “I’m sorry”.

20 AB said that she told Topcu she was scared and asked Topcu to get her out. Topcu also said he was scared, did not know what to do and advised her to pretend he had ejaculated and then spat into some tissues to assist in deceiving Eken. He also said he was sorry and just to go along with it so she didn’t get hurt any more. In this, he sounded like he was giving advice, not demanding. AB agreed that she knew Topcu was scared but not “Scared shitless”. She agreed that Topcu had had difficulty in spitting into a tissue because his mouth was dry. Topcu then left the room.

21 The complainant’s evidence involving Papadopoulos was to the following effect:-

Eken came back into the bedroom where she had been with Topcu, kicked her in the head and dragged her into the lounge room. There Eken told her to “shut the fuck up and get over and suck him now” pointing to Papadopoulos. She approached Papadopoulos, Eken kicked her in the back of the head and told her to undo Papadopoulos’ pants. Papadopoulos in fact undid his own belt and pants and pulled them down and AB commenced fellatio.

During this activity Eken went to the kitchen. AB looked up to see what he was doing. Eken obtained a butter knife, returned and hit her in the back of the head breaking her skin.

Topcu or Mace stood up and said words to the effect that that was enough. Eken told them to shut up and told AB to go into the room and fuck Papadopoulos. She went into the bedroom, Eken followed and behind him was Papadopoulos. In the course of moving to the room AB said “no” in a voice loud enough for everyone to hear. When they arrived in the bedroom, Eken walked out and Papadopoulos told her to take off all her clothes.

She took off her pants, laid down on the bed, Papadopoulos took his pants off, laid on top of her and had intercourse. AB was crying, telling him she didn’t want to participate and after a short time pushed him off. Papadopoulos, apparently calm, said he was sorry and hugged her. Papadopoulos then left the room. Mace then came in. AB gathered some of her possessions, bolted out the front door of the unit and then of the building, telephoned 000 and was found by the police.

22 (There is some evidence that suggests Moustapha came into the room before Papadopoulos but it seems to me that the evidence favours the order in which I have referred to events.)

23 Photographs were tendered which showed bruising to AB’s face in the vicinity of her left eye and ear. Her evidence of her injuries was that “My head was cut at the back and my eye was all purple. The right side in the corner of my eye was black, the back of my ear was cut and it was purple up the top and I just had bruises all over my body.” She went on to say that she also had pain in her head, couldn’t sleep and had constant headaches for about 6 weeks afterwards and inside her left ear was purple. AB 460-1 Her evidence as to injuries was largely corroborated by medical reports.

24 AB agreed that Eken seemed to be the one who controlled the household.

25 It should also be mentioned that AB agreed that after Eken left the room following the commencement of fellatio on Topcu, she heard crashing and banging and later, while in the bedroom with Papadopoulos, and for about a minute, the sound of glass breaking. She agreed that there had been further violence occurring in the living area, with Eken picking up furniture and throwing it around the unit but she denied hearing shouting.

26 Papadopoulos said that when Eken came out of the bedroom (leaving Topcu inside) he was going “crazy”, grabbing everything in sight, breaking them and screaming “Where’s your God?”. Topcu came out of the bedroom with his pants partly off and Eken started screaming at Topcu and smashing a chair against a TV unit.

27 Topcu gave similar evidence of his observations after returning to the living room - of Eken yelling and smashing furniture - and saying that many of the actions referred to were repeated. Photographs tendered showed parts of the lounge-room and dining area in a state of complete chaos with a chair, television set and shelving or a wall unit upended and items that were previously on it scattered.

28 Topcu’s evidence was to the following effect. During the course of the phone call with Eken the latter surprised him by saying, “Your time has come” and when asked “What’s wrong?” replied, “You know what I’m talking about”. Topcu also said that Eken asked where the girls were and when told that AB was sleeping, said “Wake her up, I want to fuck her.”

29 After his phone conversation with Eken, Topcu rang a person Steve (also referred to as “Stephen”) who was with Eken, enquired what was wrong with Eken and was assured that nothing was wrong but they would be home soon. Topcu said that when Eken said “Your time has come now”, he (Topcu) was frightened or worried about what Eken might do but didn’t think to leave the apartment. When he told AB to go into the bedroom he was already worried what Eken might do when he got home. He did not tell AB what Eken’s intentions towards her were. He was frightened when Eken came into the unit.

30 Not long after the call, Eken arrived in the vicinity and yelling and screaming could be heard as Eken approached. Eken came into the flat with a mean look on his face and accompanied by Steve and another male named Jamie. Eken proceeded straight into the bedroom where AB was.

31 Loud noises were then heard emanating from that bedroom. Jamie and Steve looked shaken. Jamie said, “ We got to go”, and Jamie and Steve then stormed out of the flat. Asked the next thing that happened, Topcu said that he was in panic, pacing the living room floor and looking at Moustapha. The noise from the bedroom became loud and he heard a female voice saying “No”. At about that time Papadopoulos was let into the flat by Mustapha and then went and sat down in the lounge room. The 3 males then spent some time looking at one another.

32 Papadopoulos described the noises as slapping or hitting sounds and a raising of voices.

33 Topcu said he decided to walk into the bedroom because the noises were getting louder and louder. Topcu did not hear thuds but heard “like boom, stuff like that” and could hear AB saying “No”. When he arrived in the room he saw Eken swearing at AB and slapping AB. Eken had her pinned up against the wall and she was hysterical and crying. It was clear Eken was being very violent to AB. Topcu said he tried to get between AB and Eken and asked the latter to stop. Eken responded by saying in Turkish words to the effect “Bulent I will kill you. Pull your pants down Bulent, I will kill you”. Topcu then noticed that Eken had a knife of some sort in his waist band. Topcu said he was in total shock, saw the look in Eken’s eyes, sat down on the bed and pulled his pants down.

34 Topcu said that Eken then said to AB “Suck his dick”: She refused: Eken hit her and then AB commenced fellatio on Topcu: She stopped: Eken hit AB twice on the back of the head: Topcu said to Eken “I’ll do what you want us to do. Just get out bro” and Eken walked out. Topcu then said, “AB and I stopped”. Topcu gave a similar account to the account AB had given of what happened then, following which he said that he walked out into the living room with the tissue in his hand and said to Eken words to the effect, “I did what you wanted”. Eken was yelling and smashing furniture and told Moustapha it was his turn.

35 Topcu said that after he went into the bedroom, Eken’s aggression was directed not only at AB but himself also, “the way he was staring at me and what he said to me”. Asked what he could say about AB’s act of fellatio upon himself, Topcu said “there was no way I could do anything. I didn’t want to retaliate, I didn’t want to think of the outcome, what’s going to happen to me I just – whatever he said I did in a way where so I don’t get hurt, so she doesn’t get hurt more, I just did what he said.”

36 Topcu agreed he was not physically forced to sit on the bed. He agreed during cross-examination that, at a time after he sat on the bed and after, according to his evidence, he was threatened by Eken, he could have run out of the unit. He agreed with the cross-examiner that after Eken had uttered some words in Turkish and AB asked what he meant, Eken hit AB and when Eken told AB to suck it, Topcu knew Eken was referring to Topcu. Asked if “There were no other threats to you in the bedroom?”, Topcu said “There didn’t have to be, just seeing him like that was horrifying”. He said he pulled his own pants down because he had to, it was not by choice.

37 He said he knew immediately that what was happening was wrong. He denied telling AB to go along with it so she wouldn’t get hurt any more. He said at the time he was in a total panic.

38 Asked was there anything preventing him from stopping Eken, Topcu said, “When he was waving the knife around, I saw the knife, I just didn’t want to get stabbed again, I almost died once, I just didn’t want to go through what I went through before…”.

39 Although there was a deal of common ground between AB and Topcu as to what had occurred in the second bedroom there were also appreciable differences. Topcu alleged that when AB rang to ask if she could come to the flat he said that he would need to ask Eken for permission and paused in the conversation to do so, Eken being then asleep; AB denied that this occurred. There was a difference in their evidence as to the circumstances in which Topcu entered the bedroom. AB denied that Topcu asked Eken to stop and that when Eken spoke in Turkish, it was to Topcu. AB denied that Eken had a knife in his waistband.

40 Topcu also gave evidence that he weighed 94kgs and was 178cm high and described Eken as about 100kgs and his height in the high 180s. During cross-examination Topcu conceded that as he grew up he had learned to look after and stand up for himself and had in fact served in the Turkish army for 18 months between 1996 and 1997. Training was rigorous. After that he was a man who could take care of himself.

Topcu Ground 1

As the case relied on by the prosecutor to prove the s.61JA count could never satisfy the elements of that offence, the trial judge erred in failing to direct a verdict of acquittal on the s.61JA count.

41 A number of arguments were raised under this ground. The first was to the effect that the wording of Section 61JA carried the implication that the events to which the section referred had to be performed by the offender charged. Section 61JA, so far as is presently relevant provides:-

(1) A person:

(a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and

(b) who is in the company of another person or persons, and

(c) who:

(i) at the time of, or immediately before or after, the commission of the offence, maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(ii) …

42 Drawing attention to the opening word “who” in paragraphs (a) (b) and (c) it was submitted that that person must, as a matter of statutory construction, be the same person. It was pointed out that it was common ground that the only person who had inflicted any bodily harm on AB was Eken.

43 Such a construction would amount to an extraordinary variation of the usual principles of criminal complicity and, indeed, of the general legal concept that what a person may do himself he may do by an agent. The Crown pointed out that the sections of the Crimes Act are replete with the following interchangeable expressions:

“where the act of the accused” (s18), “whosoever” (ss27-30, 35, 54, 58, 59, 94, 96-99, 106-113, 117, 125, 126, 156-158, 178A-179, 185, 188), “a person who” or “any person who” (ss31, 33A, 60, 61, 61I-61P, 66A-66D, 86, 195, 300, 315-319), “a person is guilty… if” (s52A).

44 The Crown drew attention to the decisions of Jacobs and Mehajer (2004) 151 A Crim R 452 and R v Glennan (1970) 91 WN (NSW) 609. In the first of these it was successfully argued that the words of s18(1)(a) of the Crimes Act providing:-

“Murder shall be taken to have been committed where the act of the accused… causing the death charged was done… in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable… for 25 years.”

Osland v R

45 In R v Glennan, s4E(1) of the Motor Traffic Act 1909 which provided:-

“Any person who whilst there is present in his blood the prescribed concentration of alcohol drives a motor vehicle… shall be guilty of an offence.

46 The Crown pointed out also that the overview of the Crimes Amendment (Aggravated Sexual Assault in Company) Bill 2001 which introduced Section 61JA stated the object was “to amend the Crimes Act 1900 to make sexual assault carried out in the company of others and accompanied by the infliction of harm… an offence carrying a maximum penalty of life imprisonment” and submitted that the literal interpretation suggested in the Appellant’s submissions would defeat this object and also the purpose of the Bill as stated in the Minister’s second reading speech (Hansard page 16544) when introducing the Bill.

47 The Crown’s submissions are compelling and the argument of the Appellant to which they are directed must be rejected.

48 The Appellant’s second argument under this ground had 2 elements. The first was that “at the time of” in s61JA(1)(c), when contrasted with the expression “immediately before or after” the commission of the offence referred to the time intercourse was actually occurring. The second was that, while there was unchallenged evidence that the complainant suffered actual bodily harm, there was no evidence that this occurred during the time of Topcu’s sexual intercourse with her, this being the time implicit in the indictment.

49 The first submission must be accepted. Given the inclusion of the word “immediately” and the express reference to 3 distinct time periods in the expression “at the time of, or immediately before or after the commission of the offence” it is impossible to construe that expression without giving full effect to its precise terms. Given the topic to which the expression is directed, there must be some small degree of imprecision or latitude in the expression “immediately”, but the contrast between “at the time of” and “immediately before or after” makes it impossible to regard the former expression as other than a precise specification. The time referred to is “the commission of the offence” a reference back to sub-section 1 and in particular the component thereof as refers to activity, viz. “sexual intercourse”. Both historically and in the definition of “sexual intercourse” in s61H of the Crimes Act, that occurs only while there is penetration. Assuming the absence of consent etc, it is the happening of the sexual intercourse that defines and circumscribes “at the time of”.

50 In so concluding I do not ignore Parliament’s prescription that in interpreting statutes courts must have regard to the purpose or object underlying the Act, and that in some circumstances the interpretation I have adopted might be regarded as pedantic. However, there is nothing in the statutory provision to require a prosecutor framing an indictment to choose between the 3 time periods specified in the statute and, once that is recognised, any suggested unworldliness in giving the words their normal meaning, disappears. In this case, for reasons that are not apparent, the prosecutor chose to limit the time at which the bodily harm relied on was said to have occurred.

51 However, the second part of this argument is not made good. At the cost of repetition, I repeat what I said above, and which was a careful summary of the evidence as to events at the time of intercourse. According to AB:-

“(Eken) then left the room returning with Topcu and both sat on the bed. Eken punched her again hard in the head and, pointing at Topcu, told AB to suck Topcu’s penis. The latter just sat there and then pulled down his pants. AB’s evidence continued, “and I had to suck his penis and he (Eken) just hit me in the back of the head”. Later AB was asked “You told us that when you were being made to give Billy oral sex Eken was hitting you, whereabouts to your body was he hitting you?” and replied “Around my head and my shoulders”. She described this hitting as hard and with Eken’s fist.

52 Topcu said:-

“Eken then told AB to suck his penis: She refused: Eken hit her and then AB commenced fellatio on Topcu: She stopped: Eken hit AB twice on the back of the head: Topcu said to Eken ‘I’ll do what you want us to do. Just get out bro.’ and Eken walked out. Topcu then said, ‘AB and I stopped’.”

53 Making the assumption that the statement “AB and I stopped” meant that they had resumed after AB was hit twice and the very doubtful assumption that blows during a very brief interruption of intercourse are not “at the time of … the commission of the offence”, Topcu’s evidence does not establish that blows and intercourse occurred contemporaneously. However, the evidence of AB, if accepted, does. Actual bodily harm includes any hurt or injury calculated to interfere with the health and comfort of a victim albeit it must be more than merely transient and trifling – R v Donovan (1934) 2 KB 498 at 509, R v Brown (1994) 1 AC 212 at 230. It includes bruising – R v Bernard Michael Smith (unreported, NSWCCA, 2 September 1993).

54 AB’s evidence of being hit hard with Eken’s fist around her head and shoulders was quite sufficient to entitle a jury to conclude that, in consequence, she suffered actual bodily harm from those blows. A fortiori is that so when regard is had to the evidence as to Eken’s size and the evidence to the effect that he was out of control at the time.

55 The third argument raised on Topcu’s behalf under the aegis of this ground was that the evidence did not establish that the actual bodily harm was suffered at any time when Topcu was involved in any offence. This submission also had 2 elements. It was submitted that one could not conclude that Topcu was involved in any joint criminal enterprise with Eken at the time of the first blows prior to Topcu’s entry into the room nor conclude that any blows after his entry into the room caused actual bodily harm.

56 The first of these propositions may be accepted. Indeed in this Court the Crown did not suggest that the evidence was sufficient to justify a conclusion of a joint criminal enterprise having commenced prior to Topcu’s entry into the room. However, for reasons given when I was dealing with the Appellant’s second argument I do not agree with this further proposition. If AB’s evidence were accepted, I would have no difficulty in inferring the infliction of actual bodily harm occurred after Topcu entered the room or indeed, commenced to participate in steps incidental to the intercourse – both times at which the jury were entitled to infer a common purpose between Eken and Topcu.

57 This ground fails.

Topcu Ground 2

The trial miscarried as a result of the element of malicious infliction of actual bodily harm being left to the jury on a basis not run at trial.

58 The Crown opened the case by referring to Eken punching the complainant to the face; telling her to shut up a number of times; keeping on hitting her; pushing her against a wall and kicking her; leaving the room then returning with Topcu; and fellatio occurring during which time Eken “was hitting (the complainant) on the head”. The opening continued:- AB 381

“The actual bodily harm that was inflicted for that count you’ll see some photographs. AB’s evidence I expect will be that she was hit around the cheek and she had some bruising and some swelling to her eye and round her cheek area.”

59 During the course of an application at the end of the evidence for the trial judge to direct a verdict in favour of the Appellant and in the absence of the jury the Crown Prosecutor said:-

“The actual bodily harm in relation to Mr Topcu is evidence of the swelling and the bruising that the complainant said she sustained until that point in time when fellatio occurred in the bedroom. …

“The bodily harm that I can rely upon for Mr Topcu can only be the bodily harm that is inflicted upon the complainant prior to – or at the time of – the sexual intercourse that the Crown alleges occurred with him so it is the hitting to the face and the slapping and the complainant’s evidence is that she had immediately – she said it was a bruise immediately when she was hit to the face.”

60 The Crown Prosecutor then directed the Judge’s attention to page 60 of the transcript where AB was giving evidence of hitting and bruising prior to Topcu’s entry into the room.

61 In her closing address to the jury the Crown Prosecutor identified as the actual bodily harm relied upon for count 1 the bruising to AB’s face depicted in the photographs. She then went on to submit that although the injuries were inflicted by Eken, Topcu was liable for them because at the time that the sexual intercourse occurred it was reasonably within his contemplation that Eken might inflict the harm. She submitted that the criminal enterprise agreement “most likely arose in the moment before the offences occurred and continued:-

Mr Topcu knew that there had been a comment that (Eken) wanted to fuck AB. He saw significant violence to AB, certainly sufficient to amount to actual bodily harm and indeed, heard her saying “no” whilst in the bedroom…

He says that when he went into the bedroom, he saw Eken slapping AB… it must have been clear that there was a sexual request from Eken and he, having seen the previous violence to her must, on the Crown case, have contemplated the reasonable possibility of the further infliction of actual bodily harm.

AB, at that point said “no” and Eken hit her again. Mr Topcu then sat on the bed and AB sucked his penis. During that time, Eken hit her again twice on the back of the head. They are the acts relied upon in relation to Mr Topcu.”

62 When his Honour was dealing with the case against Topcu he drew the jury’s attention to the terms of the first count that “at the time of the sexual intercourse did maliciously inflict actual bodily harm on her”, referred to Topcu pulling his pants down and then the evidence:-

“He just hit me in the back of the head and “he” she identified as Eken. Now that is the evidence of the complainant as at the time of, and that again is an ingredient that must be proved beyond reasonable doubt; not afterwards, not after the sexual connection of the type referred to in the Crimes Act, but at the time of, and that must be found by you beyond reasonable doubt and did maliciously inflict actual bodily harm on her.

Malice involves intentional action with foresight as to the consequences. Actual bodily harm can occur from bruising…” –

63 The case opened and then advanced at the time of the directed verdict application was of bruising to the eye and cheek areas. That advanced in the Crown’s closing address was an amalgam of that and the “further infliction of actual bodily harm” presumably (though not expressly stated) resulting from the hitting on the back of the head. The summing up picked up part of the latter, although the jury’s attention was not specifically told that this was less than had been embraced by the Crown.

64 It is also relevant in this connection that, although in the passage quoted his Honour drew attention to the need for harm to occur at the time of intercourse, his summing included reference to the evidence of bruising occurring earlier, did not tell the jury that any harm that occurred at that earlier time was not sufficient to establish the requirement of actual bodily harm “at the time of the sexual intercourse”, and did not address the issue of whether the blows at the time of intercourse caused bruising or other actual bodily harm.

65 That said, although counsel for Topcu, in common with other counsel, took objection to a number of matters in his Honour’s summing-up, there was no point taken about the matters the subject of this ground or to which I have just referred. The weight to be given to this fact is perhaps greater when regard is had to other statements made during the case. In an opening address that had immediately followed that given by the Crown Prosecutor, counsel for Topcu had said:-

“As you have already heard from Madam Crown there won’t be any dispute about the nature of what took place between Mr Topcu and the complainant AB…”

66 The address then moved to the topic of duress.

67 Topcu’s counsel introduced his cross-examination of the complainant as follows:-

68 His closing address included the following:-

“This is an unusual case from a defence point of view because my client came to this court and said “yes I did commit that act of sexual intercourse…” and you will recall my cross examination of the complainant when I commenced by saying that I would not be taking her to task about any of the elements of the offence as it is stated. What this case is about is the question of duress… We are simply saying – and when I say “we” I am saying the defence case in relation to Mr Topcu – that he is not guilty of either of the offences with which he is charged framed in the alternative because duress was acting upon him at the relevant time.”

69 Rule 4 of the Criminal Appeal Rules provides:-

“No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal. “

70 The matters to which I have referred make the case for refusal of leave under rule 4 strong. However the conclusion at which I have arrived is that the Court should give Topcu leave to rely on this ground and the other matters to which I have referred which, even if not strictly embraced within the ground, would fall for consideration under the sixth ground of appeal (construed in the usual way as embracing a miscarriage of justice).

71 Although it is clear that there was evidence upon which the jury were entitled to find that actual bodily harm was inflicted at the time specified in the charge and in s61JA, the manner in which the Crown addressed and the terms of his Honour’s summing up lead to the conclusion that the issues in this respect that arose on the evidence were never clearly raised for the jury’s consideration and much of the trial proceeded on a quite erroneous basis relating to these issues. Such factors hardly make for a fair trial on the first count.

72 Although no complaint was made in this respect, reflection on the evidence of events at the time of sexual intercourse and within seconds either side also causes me a degree of disquiet. On AB’s version, she was hit in at least 2 places while actually engaged in the physical activity that Eken had ordered. There is some inherent unlikelihood about that but the matter was not explored. On Topcu’s version, she stopped, presumably of her own volition, and was then hit. If, as is implicit in Topcu’s statement that she again stopped, she must have resumed intercourse and, if so, there is much to be said for the view that the event should be looked at as an entirety and one offence involving intercourse – c.f. R v Khouzame [1999] NSWCCA 173 at [55 – 90]; Davis v R [2006] NSWCCA 392 at [83]. However, there was no exploration of these matters and on Topcu’s evidence there is at least an argument that the hit or hits after intercourse commenced were not “at the time of” the intercourse or commission of the offence.

73 This second ground of appeal is made good.

Topcu Ground 3

74 This ground also was not the subject of any objection or request for redirection at the trial. It was not mentioned in Topcu’s counsel’s opening or closing addresses. It was not mentioned in Topcu’s evidence until on about the fortieth page and just prior to the end of his evidence in chief there was the following interchange:-

75 Earlier, immediately after referring to his entry into the room, trying to get between AB and Eken, and Eken saying “Bulent, I will kill you. Pull your pants down Bulent or I will kill you”, Topcu had given the following evidence, which, except for that relating to the knife, was not the subject of challenge in cross-examination:-

76 Based on the first-quoted passage, it must be said that the issue of whether Topcu was influenced by the possibility of harm to the complainant was fairly, if faintly, raised.

77 Nevertheless, neither this evidence nor the possibility that Topcu may have been influenced by the prospect of harm to the complainant found mention in the summing up and this despite the fact that the possibility of Papadopolous being so influenced was specifically raised in an application by his counsel for further directions and in additional directions given to the jury in consequence.

78 The Crown submits that these matters demonstrate that the matter could not have been overlooked and that, given the fact that Topcu had failed to give the complainant any warning following Eken’s phone call intimation of his intentions vis-a-vis AB, the suggestion that Topcu was influenced by considerations for the complainant’s well-being would be regarded as fanciful and attention to it would tend to distract the jury’s attention from Topcu’s evidence that he had been induced to do what he was told by the threat of being killed. The Crown compared the situation with that in R v Abusafiah (1991) 24 NSWLR 531 at p537 where Hunt J referred to slight evidence of some fears as “not appear(ing) to have played any real part” in the appellant’s case.

79 Certainly there is much to be said for the view that if the jury were not influenced by the evidence of threats of death to Topcu, it is unlikely they would have been influenced by his evidence, or any possibility, of his concern for the complainant or by a combination of the two.

80 Furthermore, although his Honour could well have said more on the topic, his summing up does contain a deal of instruction not recognised in the ground as expressed. His Honour directed the Jury that the Crown had to provide that the accused acted voluntarily and not under any duress. His Honour contrasted the two concepts on at least four occasions.

81 Before being asked for redirections, his Honour said that Topcu’s evidence was that he only took the actions he did “because of fear, in this case a fear of injury, serious injury or death, to himself” and later posed the question whether Topcu “genuinely believed that if he did not act in the way he did in pulling his pants down he would be killed or seriously injured”, not mentioning any fear viz. a viz. the complainant. On the other hand, between these passages his Honour did refer to the fact that Topcu had stated that “he only carried out the sexual intercourse as a result of the duress which was then occurring and also to see that nothing further occurred to the complainant.”

82 When his Honour dealt with the situation of Mr Papadopoulos he reminded the jury of the latter’s evidence to the effect that he didn’t want the complainant being hit any more and thoughts that Eken could “kill the girl, could kill me, could kill any one there.”

83 Just prior to the jury retiring, his Honour was asked to give some further or other directions. In the course of the interchanges that preceded these being given, counsel for Papadopoulos drew attention to the principle that duress is available if an accused acts out of fear of death or serious injury to another person, following which his Honour added “specifically the complainant”. His Honour agreed to further inform the jury that “the defence of duress arises if he also acts out of fear of serious injury or death to the complainant”.

84 Counsel for Topcu made no similar request although he did indicate concern at a suggestion in the Crown address, repeated in the summing up, that Topcu could have avoided the threat before going into the room. The transcript then records:-

His Honour: Yes. Well I’m quite happy to make those re-directions. Yes.”

85 Later, but still during the course of discussion concerning redirections, counsel for Papadopoulos again addressed the topic, drawing his Honour’s attention to the evidence of his client’s concern “both for his own safety and for the safety of the girl”.

86 During the course of redirections to the jury, His Honour returned to the evidence of Topcu, observing:-

“Mr Topcu said that once he was in the bedroom he was told, in Turkish language, “I will kill you. Pull your pants down or I will kill you” so they – and lest there be any doubt, they are the specific threats upon which the accused relies.”

87 Later, at a time when his Honour’s remarks seemed to indicate he had completed the re-directions he intended to give, counsel for Papadopoulos gave his Honour a further reminder on the topic of duress. His Honour then instructed the jury:-

“It is a matter which I had overlooked and I thank you for bringing it to my attention. It is an important matter of law.

That is, that in considering the question of duress and whether or not the accused acts under a genuine belief of fear, the fear which the accused person feels can be fear of serious injury or death in this case to the complainant. It is not only fear to (sic) the imminent death or serious injury to the accused but also the complainant and … I have already indicated to you the evidence of Mr Papadopoulos when he said … he thought “he could kill the girl, could kill me, could kill any one else. …

So it is put as to a genuine fear, not only as to the accused person himself, but as to others and that is the evidence in that regard and it is quite appropriate for Counsel to have brought that properly to my attention and to direct you that, as a matter of law, such fear is appropriate to be taken into account when considering that first question of whether the accused was driven to act as he did because he genuinely believed that if he did not act in a certain way, death or serious injury to himself or others could occur.”

88 What conclusions flow from the above? One is that the jury were clearly directed that, to justify a verdict of guilty, Topcu’s actions had to be voluntary. A second is that duress was inconsistent with voluntariness. A third is that it is impossible to conclude that counsel for Topcu simply overlooked the possibility that Topcu had an argument that he too had been motivated by concern for the complainant. There is a deal to be said for a fourth, based on the generality of some of the quoted remarks during his Honour’s further directions, that the jury must have understood that fear of imminent death or serious injury to the complainant was relevant to the claim of duress by both accused.

89 However, I prefer not to base my conclusion on this ground on that fourth possibility. I am not satisfied that the decision by Topcu’s counsel not to seek directions to the effect that duress on the appellant could be based on his fear of AB being at risk of being injured as well as fears for himself was not a tactical decision to emphasise the threat to kill Topcu. After all, Topcu’s evidence of concern for AB did not sit happily with Topcu’s failure to warn her of Eken’s intentions as disclosed in the phone call prior to his return to the flat. In these circumstances, I would not grant leave under rule 4 of the Court of Criminal Appeal Rules for this ground to be relied upon. The ground accordingly fails.

Topcu Ground 4

90 What his Honour said on the topic of duress included the following:-

“… The Crown has to prove that the accused acted voluntarily, and must eliminate any reasonable possibility that the accused acted under duress. It is for the Crown to eliminate any reasonable possibility that Mr Topcu acted under duress. …

Now in dealing with this question of duress, there are three matters which you would have to take into account… Did the accused Mr Topcu genuinely believe that if he did not act in the way he did in pulling his pants down he would be killed or seriously injured. … If the accused Mr Topcu genuinely believed that there was imminent danger of death or serious injury it does not matter if in fact genuine belief was mistaken. …

… The second question (is) would the threats that you found were present have driven a reasonable person to act as he did. This requires you to look at the response of a reasonable person of ordinary firmness of mind and will and of the same sex and maturity as Mr Topcu to the threats which he faced and in the circumstances in which Mr Topcu found himself. … If you find a genuine belief or a reasonable possibility that the accused Mr Topcu had that genuine belief of threats which caused him to act in the way he did – would a reasonable person of ordinary firmness of mind and will, and as the same sex and maturity as Mr Topcu, when faced in a similar situation, act in the way he did. If the Crown satisfies you that there is no reasonable possibility… that a reasonable person such as has been described to you would have yielded to the threats in the way in which Mr Topcu did then the answer to this question… is no. …

The third question is could Mr Topcu have avoided the duress by escaping from the threats without damage or injury to his person. The law states that Mr Topcu cannot say that he could not avoid the effects of the duress if a reasonable person would have done so. Now the Crown of course contends that Mr Topcu did have a reasonable opportunity to avoid the threats. …

You must ask yourself this whether the Crown has satisfied you, beyond reasonable doubt, that there was such an opportunity and then a reasonable person in the circumstances confronting Mr Topcu, that is with the risks in respect of any alternatives. And, in the face of the threats which he had, and with the same knowledge which such person might have – a reasonable person might have of Eken, would have taken advantage of that opportunity and avoided or escaped from those threats (sic). AB 91-97

91 After the request for re-directions his Honour returned to the topic of duress:-

“The difficult question of duress, which everyone fully appreciates, is a difficult matter to explain and it may well be that in explaining it, particularly said in relation to Mr Topcu, I may have inadvertently said something which was incorrect.

To clarify the position I refer to the third question; and that third question, in relation to Mr Topcu, was “could the accused Topcu have avoided the offence of the duress by escaping from the threats without damage to her person?” And I indicated that where, as was contended by the Crown in this case, Mr Topcu had a reasonable opportunity to avoid the threats and exercise his own will, then you must ask yourself whether the Crown has satisfied you beyond reasonable doubt that there was such an opportunity and that a reasonable person, in the circumstances confronting Mr Topcu, that is, with like risks in respect of any alternatives open and with the same knowledge as Mr Topcu, would have taken advantage of that opportunity and escape the threats. The Crown must satisfy you of that beyond reasonable doubt and the defence of duress has failed if the Crown satisfies you beyond reasonable doubt that the answer to that question is “yes”. If I said anything to the contrary it would be incorrect; the reason being that, as has been stated on a number of occasions, there is no burden on an accused person to prove anything. The burden is on the Crown to eliminate duress and in order to eliminate duress they must satisfy you in relation to this third question; that the answer to it is “yes”; namely that a reasonable person in the circumstances confronting the accused, with the like risks in respect of any alternatives open would have taken advantage of that opportunity and avoided or escaped those risks. The answer to that is “yes”.”

92 The principal complaint made under this ground is that the original directions relating to the third question were withdrawn and the redirections were incomplete in that his Honour did not go on to state that Topcu must have been able to take advantage of the opportunity without risk of damage or injury to the people threatened and failed to relate the issue to the potential damage to AB if Topcu had escaped from the threats. It was conceded that there was no application for what is now said to be an error to be corrected.

93 Passages to which I have referred in dealing with the previous ground of appeal make it clear that in his summing up his Honour concentrated, in dealing with the issue of duress on Topcu, on the evidence of threats to Topcu and not AB. In light of this it is impossible to avoid the conclusion that the term “her” in the first sentence of the second paragraph of the passage just quoted was a mistake, either by his Honour or in transcription and, if the former, would have been understood by the jurors as such. When one has regard to the reference in that sentence to “without damage” and to “risks” in the following sentence, it is impossible to regard what his Honour said as, to adapt part of this ground of appeal, “a failure to direct the jury that “the third question” was one of whether the appellant could have withdrawn without risk of harm to himself … either remaining or being increased. Certainly, if the “her” is, as I am confident, a mistake, the passage omits reference to the possibility of risk or damage to AB, but for reasons dealt with in considering the third ground of appeal, I do not regard that as a matter founding legitimate complaint. On this latter point, I would refuse leave under Rule 4.

94 It was further pointed out that the cross-examination of the appellant had stopped short on this component of the third question; that it was never put to Topcu that he could have left the room without injury or damage to himself; that AB’s attempts to “escape” Eken had led to substantial injury to herself; that she stood no chance in attempting to defend herself; and both Topcu and AB gave evidence that they individually felt completely defenceless. It was submitted that the real issue was whether the threat was continuing and effective and that there was no evidence it was not.

95 As a group, those propositions omit as much as they contain. It is virtually impossible to divorce the issue from the questions of whether any threat was made and whether Topcu was influenced by it or, more precisely, whether there was any reasonable possibility in these respects. According to what Topcu, who provided the only evidence in this regard, said in chief, at the relevant time Eken told Topcu to pull his pants down or he would be killed; Topcu saw the look in Eken’s eyes so he sat down and pulled his pants down; Eken ordered AB to suck Eken’s penis; she refused; Eken hit her and AB began intercourse with Topcu; Topcu then asked Eken to leave the room; Eken did so and intercourse immediately stopped.

96 Furthermore, during cross-examination, the following was said:-

97 The complaint about the state of the evidence in the respects just mentioned provides no ground for allowing the appeal.

98 Under this ground complaint was also made that there was left to the jury as possible options to negative duress, Topcu leaving the apartment before entering the bedroom or calling the police afterwards. So far as the first of these is concerned, his Honour during the course of his redirections dealt with the Crown submissions that Topcu could have left and in that connection emphasised that there was no threat until Topcu entered the bedroom and the threats relied on occurred there. So far as the second is concerned, I do not read the Crown submissions as contending that the claim of duress would or could have been defeated by Topcu involving the police after the offence was committed, rather that calling the police (after leaving the apartment) was an alternative to complying with Eken’s suggested demands.

Topcu Ground 5

99 The factual basis for this ground does not exist. The passages in the opening address of the Crown Prosecutor relied on are all to the effect - “I expect (my emphasis) … there will not be a dispute as to the elements that the Crown has to prove of the charges”, there being an addition at times to the effect that the Crown expected that the issue would be one of duress.

100 A second complaint raised under, but which does not fairly come within, this ground is that in her closing address the Prosecutor said to the jury, “so if you’re satisfied of all of the other elements, then you move on to duress”. Although prior to the summing up and in the absence of the jury, the Prosecutor acknowledged error in addressing the matter that way, that she had erred was never stated to the jury.

101 Although counsel taking objection to a number of matters in his Honour’s summing-up, there was no point taken about the matters the subject of this ground. More importantly, when his Honour came to sum up he told the jury in no uncertain terms that before they could convict they had to find that the accused’s actions were voluntary.

102 This ground fails.

Topcu Ground 6

103 Before turning to the substance of this ground it is appropriate to reflect on what should be the conclusions that flow from the grounds so far considered. The success of the second ground and the factors leading to that success mean that Topcu’s conviction on the count I have numbered 1A cannot stand. However, that ground dealt with the issue of the infliction of actual bodily harm. The conviction on count 1A necessarily means that the jury were satisfied of all of the elements of count 1B. In these circumstances, s7(2) of the Criminal Appeal Act entitles the Court on quashing Topcu’s conviction on count 1A to substitute a conviction on count 1B and, subject to any matters that may arise under grounds not so far dealt with, that is what the Court should do.

104 These matter also mean that it is unnecessary to consider so much of the current ground as extends beyond the ingredients of count 1B.

105 In this connection it was submitted that, particularly when regard is had to the limited time involved, it was not open for the jury to be satisfied beyond reasonable doubt that Topcu:-

(i) Had wilfully sexually assaulted AB;

(ii) Had not acted under duress; and

106 What these submissions ignore is a deal of other evidence. There was firstly that of Topcu himself of being told by Eken that he should wake AB because Eken proposed to fuck her. There was secondly Topcu’s evidence that his only response was to tell AB not to sit on the lounge and/or to return to the bedroom, a response clearly at odds with what common decency - in the form of repeating to AB what he had been told and giving her the practical opportunity of avoiding what Eken proposed - required. Combined with other evidence Topcu gave that soon after he moved in to live with Eken he formed the opinion that Eken was capable of violence and other people who came to the house seemed to be afraid of Eken, his failure to tell AB of Eken’s intentions justified an inference that Topcu had little or no regard for whatever wishes on the topic of sexual intercourse that AB might have.

107 As has been said, Topcu gave evidence that before entering the bedroom, he had heard noises “like boom, stuff like that” getting louder and louder and heard AB saying no. For Topcu to then enter the bedroom suggests either complicity in, or opposition to, any further abusive conduct of Eken. His evidence was to the effect that his entry was in opposition but in this he was contradicted by AB. She said that Topcu came into the room with Eken, the 2 men then sat on the bed next to the complainant, Eken told her to suck Topcu’s penis, and Topcu did nothing then but pull his pants down. When one adds to this Topcu’s own concession during cross-examination that, at a time after he sat on the bed and after, according to his evidence he was threatened by Eken, he could have run out of the unit, there was plenty of evidence upon which a jury was entitled to reject the suggestion of duress and to find Topcu guilty of the count I have numbered 1B.

108 Certainly there was evidence, including evidence from AB that argued for Topcu having had intercourse as the result of duress or, being at least a reluctant participant, not being in company with Eken. However, the issues were for the jury and, as has been said, there was evidence sufficient to preclude a conclusion that a verdict of guilty on count 1B is unreasonable.

Topcu Ground 6A

109 On 15 September 2005 this Court ordered that Eken be tried separately – see R v CE [2005] NSWCCA 326. The Appellants were sentenced on 27 April 2006 and on 16 June 2006 Eken pleaded guilty to a number of offences arising out of the events on 29 – 30 July 2004 including offences in the same terms as those on which Topcu was arraigned. Sentencing proceedings relating to him occurred on 3 and 4 October and he was sentenced on 12 October 2006.

110 The evidence sought to be relied upon was given by Eken during his sentencing proceedings. It is unnecessary for present purposes to attempt a comprehensive summary of it but its tenor included statements to the effect that he had done his best to answer questions accurately in a recorded interview with police officers on 27 January 2006; that he stood by a Statement of Agreed Facts tendered in his proceedings as accurate; that he accepted the accuracy of what AB had said; that he had no or almost no memory of what had occurred on the night in question; and in his interview made statements that accorded with what he remembered from reading a statement by AB and from some post-arrest conversation with Moustapha.

111 There are numerous and significant differences between, on the one hand the evidence of AB and the Statement of Agreed Facts and, on the other, the statements in Eken’s interview. In the interview he asserted that AB, Topcu and Moustapha were in his (Eken’s) bed when he arrived home; he made no mention of any offence by Topcu or intercourse between him and AB on the night; and said that the only way he (Eken) assaulted AB was by grabbing her hair and slapping her.

112 The transcript of the trial proceedings against Topcu and Papadopoulos reveals that on Friday 27 January after the close of evidence the Crown Prosecutor informed the court that Eken’s lawyers had contacted the Crown and indicated a willingness to give evidence. The proceedings were then adjourned without anything of present significance occurring. The transcript of proceedings on the Monday morning reveals that all counsel had just received a partial transcript and tapes of Eken’s interview. The parties were given an opportunity to review this material. No-one made application to re-open his case except in a minor and presently insignificant respect and even that application was soon withdrawn.

113 In Ion (1996) 89 A Crim R 81 at 93 Hunt CJ at CL, with the concurrence of Studdert and Sully JJ, with reference to authority said:-

“What must be established in support of a claim that there is fresh (or “new”) evidence is that the absence at the trial of the evidence upon which reliance is placed by the appellant amounted to a miscarriage of justice; this Court will so conclude in favour of the appellant only if it considers that there is a significant possibility that the jury at his original trial, acting reasonably, would have acquitted the appellant if that evidence had been before them. Relevant to that test is the credibility and cogency of the evidence put forward. There is no miscarriage of justice if that evidence was available to be called at the original trial and if the appellant had been content to go to trial without it.”

114 In R v Abou-Chabake (2004) 149 A Crim R 419 Kirby J with the concurrence of the other members of the Court said at 63:-

“… the concept of a miscarriage of justice is not an abstract investigation of truth… it is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may be worked rather better.”

115 Having read the transcript of Eken’s interview and evidence, I am satisfied that neither is cogent or credible and that any jury receiving that evidence would take the same view. Furthermore, it is clear that counsel at the Appellants’ trial elected not to rely on the interview or what they perceived it might lead to. No doubt for counsel for either Appellant to have sought to call Eken at the stage of the trial when what he could say was being considered would have entailed some delay and required leave. However, it is difficult to see that leave could have been refused. On both of these bases, insofar as the ground of appeal presently being considered relies on Eken’s evidence and interview, the ground fails.

116 The report of Dr Tran did post-date the Appellant’s trial. The substance of the report was that at the time of the events in question Eken had probably been in a psychotic state induced by drugs, and that a psychotic person, when becoming violent, would present as being more volatile and unpredictable than a non-psychotic violent person.

117 The first question that arises is how is this relevant? Certainly Eken’s conduct as perceived by Topcu was, but that is because Topcu’s perception of that conduct may have influenced Topcu’s own actions. Merely putting a label on the conduct adds nothing to this – see R v LM [2004] QCA 192. Furthermore, there was no relevant challenge to the evidence given in the Appellants’ trial to the effect that Eken was behaving in an “extremely irrational” manner and “looked like he was mentally ill” and was “going crazy” so as to found an argument that Dr Tran’s evidence would increase the probability of the primary evidence as to what occurred being accepted.

118 It is also important to recognise that Dr Tran’s opinions need as a necessary foundation primary evidence of what Eken did, be it by way of aggression, destruction or drug taking. There is nothing to indicate that there is any more evidence of those matters than that which was called or at least available at the time of the Appellants’ trial. In that Dr Tran’s opinion has to be based on such primary evidence, it was open to the Appellants at the trial that has led to this appeal to have adduced such opinion evidence founded on the primary evidence then given.

119 In short, I am not persuaded that the evidence contained in or to be inferred from Dr Tran’s report is relevant but, if it is, it or evidence to like effect was available at the trial. This ground fails.

Papadopoulos

120 I have summarised early in these reasons AB’s evidence relevant to this Appellant and I need not repeat what I have said.

121 Papadopoulos’ evidence was that while he and Eken were together in a hotel, Eken invited him to his flat. Outside the hotel Eken did not look drunk. When he arrived in the flat, Musti let him in. On entering, he heard noises from a bedroom. He sat down in the lounge room and the noises became louder – he heard raised voices and slapping sounds. Saying, “I’ll go and see what’s going on”, Topcu left the lounge room and went to the bedroom. Papadopoulos enquired of Musti “What’s going on?” and Musti replied, “Don’t worry about it.”

122 According to Papadopoulos, Eken returned to the loungeroom, going crazy. Then Topcu came out of the bedroom with his pants below his crotch. Musti walked towards the bedroom. Eken continued to go berserk and then went back to the bedroom. Papadopoulos began to leave, Eken returned and asked “Where are you going? Go sit down over there” pointing to the sofa. Papadopoulos obeyed him because of the way Eken had been acting. AB emerged from the bedroom and AB and Eken commenced arguing, screaming at and possibly hitting each other. Topcu, Musti and Papadopoulos all had their heads down occasionally looking at one another.

123 Eken told AB to suck Papodopoulos’ penis. Eken at that point had a knife in his hand. AB approached Papadopoulos and grabbed his belt. Eken, by this stage with what appeared to be two knives in his hands, kicked her on the back of the head and said “Do it”.

124 Papadopoulos was very frightened. He gave the following evidence:-

Q. …

A. After I said “no way” Eken – he looked like he was mentally ill, he was going crazy, he was waving around screaming.

125 Papadopoulos then said he pulled his pants up, put his belt on, went to the bedroom door and saw AB sitting on the bed with her pants down. He said “I was so frightened for my life, for her life, for any one in there. I felt sick.” A little later Papadopoulos said:-

“I closed the door behind me and she said to me “just pretend” and I closed the door, I was holding it behind me and she’s saying “come on, let’s just pretend” and I said “no way, are you kidding me” and I was thinking, why he’s not here now, why is she still going on with this like he’s not here, he’s outside now. And she said “come on, let’s pretend”. I felt like being sick. I opened the door and went straight to the – up the hallway straight to the toilet”.

126 Later in his evidence, Mr Papadopoulos said he threw up in the bathroom. It would seem that police found some vomit in the basin.

127 Papadopoulos also denied that his penis had in fact entered AB’s mouth in the lounge room.

128 Topcu gave a deal of support to Papadopoulos concerning events in the lounge room, including that saying at one stage Eken had one, and at another stage two knives in his hand.

Papadopoulos Ground 1

A miscarriage of justice was occasioned by the failure of the trial judge to direct the jury that in considering duress, the appellant’s fear of death or serious injury to the complainant must be taken into account when considering whether the appellant could have avoided the effect of the duress.

129 There is no doubt that in his original directions to the jury the judge confined the relevant belief on the part of Papadopoulos to a belief that he was in danger of being killed or seriously injured. In his directions on the topic, largely following the suggested directions in the Bench Book, his Honour raised three questions for the jury’s consideration. His Honour said:-

“The Crown has to prove that Mr Papadopoulos acted voluntarily and must eliminate any reasonable possibility that the accused acted under duress. …

So the first question is, did Mr Papadopoulos genuinely believe that if he did not act in the way he did, he would be killed or seriously injured. …

The second question (is) would the threats you have found have driven a reasonable person to act in the manner in which Mr Papadopoulos did…

130 His Honour had earlier reminded the jury of Papadopoulos’ evidence as to AB trying to pull his pants down, saying that Eken was going to kill her; that Papadopoulos didn’t want AB being hit any more; and pushing her back and saying “no way”. His Honour also referred to Papadopoulos’ thoughts that Eken could kill any one.

131 Then, in response to a request for re-directions, his Honour instructed the jury as I have indicated, viz:-

“That is, that in considering the question of duress and whether or not the accused acts under a genuine belief of fear, the fear which the accused person feels can be fear of serious injury or death in this case to the complainant. It is not only fear to (sic) the imminent death or serious injury to the accused but also the complainant and… I have already indicated to you the evidence of Mr Papadopoulos when he said… he thought “he could kill the girl, could kill me, could kill any one else. …

So it is put as to a genuine fear, not only as to the accused person himself, but as to other and that is the evidence in that regard and it is quite appropriate for Counsel to have brought that properly to my attention and to direct you that, as a matter of law, such fear is appropriate to be taken into account when considering that first question of whether the accused was driven to act as he did because he genuinely believed that if he did not act in a certain way, death or serious injury to himself or others could occur.”

132 His Honour was not asked to make any further or other direction.

133 In limiting the relevance of fear of harm to the complainant to the first question his Honour’s directions were clearly erroneous. However, the question arises whether Papadopoulos should have leave to rely on the ground, given the absence of any further application for re-direction.

134 The error in the direction is undoubtedly one which in some situations could not be regarded as other than one that resulted in a miscarriage of justice. In those situations, leave to rely on it notwithstanding that the absence of objection at the trial would be required. The question is whether this is such a case.

135 In my view it is not. Although Topcu gave evidence that at an earlier stage he could have left, from the time that Eken involved Papapdopoulos it does not seem to me that there was any practical possibility of the latter escaping in any normal use of that term. By that stage Eken’s irrationality had reached a point where, in the words of one witness, he was berserk. While the duress could have been resisted, particularly given that there were 3 adult males there in addition to Eken, it does not seem to me that escape by Papadopoulos was a realistic possibility. Furthermore, from the time Papadopoulos became involved, all present were at such risk of Eken’s irrationality that, putting aside any increased risk to anyone who defied Eken, there was no rational basis for distinguishing between the risk of violence to Papadopoulos and the risk to AB. The risk to the former having been raised in the direction to the jury, in the circumstances of the case I would regard the omission of the reference to AB as, in practical terms, insignificant. After all AB gave evidence she was about 5’3” in height and weighed about 50 kg, whereas Papadopoulos gave evidence that his height was 179 or 180 (cm) and that, having lost weight in prison, his weight at the time of trial was between 85 and 95 kg.

136 Furthermore, it is necessary to also consider the issues as they were defined by Papadopoulos’ evidence and his counsel. His case was that there was no intercourse. The most he did was to allow AB to undo his belt, pull down his pants and place her mouth on his penis and then himself walk to the bedroom, resisting any further yielding to Eken’s threats or the potential for injury to anyone. His counsel referred to the topic of duress as a “theoretical proposition because it (the sexual intercourse) is denied”. Implicit in this is the denial that Papadopoulos elected or was induced to have intercourse because of the threats made and/or because of the possibility of harm to AB. Considering the third question in the form in which it is claimed it should have been put, viz. “Could Mr Papadopoulos have avoided the effects of the duress by escaping from the threats without damage or injury to himself or AB?”, Mr Papadopoulos case was that he avoided the effects of duress by refusing relevantly to yield to them.

Papadopoulos Ground 2

A miscarriage of justice was occasioned by the failure to direct the jury as to the time at which it was necessary to consider the question of whether the appellant could have avoided the effect of the duress.

137 What his Honour said on the topic was:-

“The third question is could Mr Papadopoulos have avoided the effects of the duress by escaping from the threats without damage to himself or injury to himself.

The Crown submits that he could have. The Crown submits that the person referred to as Jamie and Stephen left the premises. They arrived, you will recall, Jamie arrived and then Stephen. The door was open, Jamie and Stephen and they left and there was no reason why Mr Papadopoulos could not have left.

The accused puts that this was a situation in which Mr Papadopoulos was quite out of any experience he had ever, ever, had before. That is the evidence. That he just did not know what to do. That at one stage he did get up to leave and he was told to sit down by Eken.

Where the Crown has contended that Mr Papadopoulos did have a reasonable opportunity to avoid the threats and exercise his own will, you must ask yourself whether the Crown has satisfied you beyond reasonable doubt that there was no such opportunity. And that a reasonable person in the circumstances confronting Mr Papadopoulos, who has like risks in respect of any alternatives open to him, and with the knowledge which he had as at the tie, would have taken advantage of that opportunity and avoided or escaped those threats.

In this case if the Crown satisfies you beyond a reasonable doubt that the answer to that is yes Mr Papadopoulos could have done that, then the defence of duress fails. So if they satisfy you that a reasonable person in the circumstances confronting Mr Papadopoulos with the risks and in the face of the threats and with the knowledge of what was occurring, in the circumstances, would have taken advantage and escaped. If you consider a reasonable person in that position would have done so, then duress would have failed.

If the Crown has failed to satisfy you of that, and it must satisfy you again beyond a reasonable doubt, then the defence of duress succeeds and the accused is entitled to a verdict of not guilty.”

138 It was submitted that these remarks failed to direct the jury’s attention to the limited time when any occasion arose for Papadopoulos to avoid Eken’s threats by escaping, an omission made worse by the reference to leaving when Jamie and Stephen left, this being at a time when there were no threats to Papadopoulos or suggestion that he might participate in any conduct adverse to AB. The Crown had raised this possibility of escaping during cross-examination and in address had also relied on the time Papadopoulos was in the apartment. There had been no request for any re-direction.

139 There can be no doubt that the argument that Papadopoulos could have left when Jamie and Stephen did was either misconceived or irrelevant as (a complete) answer to the claim of duress. No threats having been made at that time there were none to be responded to by escaping. The matter is so clear both as a matter of simple logic and applying the directions his Honour did give that there is no reason to think the jury would have been distracted by the raising of the possibility of escape with Jamie and Stephen or his Honour’s repetition of the Crown argument.

140 That is not to say that the possibility that Papadopoulos could have left when Jamie and Stephen did was irrelevant. That they left provided evidence that Papadopoulos had time to do so. That he chose to stay in the face of what he heard emanating from the bedroom provides some evidence that argues for a willingness on his part to contemplate with a degree of equanimity whatever led to the raising of the voices, one of which was female, and other noises he heard.

141 I would refuse leave to argue this ground. Considered on its merits the ground would fail.

Papadopoulos Ground 3

The verdicts of the jury were unreasonable.

142 In support of this ground it was submitted that the verdict on count 2A involved a rejection of the proposition that Papadopoulos was a party to a joint enterprise which included the infliction of actual bodily harm and, given Eken’s violence had been occurring for some time, necessarily entailed a rejection of the proposition that the Appellant was acting in concert with Eken and, thirdly, that the Crown had not persuaded the jury to find in the Crown’s favour on the first of the three duress questions.

143 The submissions should be rejected. The actual bodily harm relied on by the Crown in connection with count 2 was the hitting of the complainant’s head with a knife. The complainant’s evidence of the order of events was that she committed fellatio, Eken went to the kitchen, she looked up to see what Eken was doing, he obtained the knife and then hit her. Certainly, there were differences between this version and that given by Papadopoulos but the jury were quite entitled to take the view that while there was a common purpose between Papadopoulos and Eken so as to justify the “in company” finding implicit in the conviction on the count I have numbered 2B, there was no bodily harm inflicted “at the time of the sexual intercourse” as alleged in count 2A. In this connection it might be noted that the jury did seek further directions as to “the exact start and end leg of (the) definition of the time of sexual intercourse and what is the first action to commence the sexual act and what is the final action to conclude the sexual act”.

144 That explanation does not fit so happily with the verdicts in respect of counts 3A and 3B, the respective verdicts of not guilty and guilty meaning that the jury were satisfied of all the essential elements of those counts except that “immediately before the time of the sexual intercourse” actual bodily harm was inflicted. If, as AB alleged, she was struck and injured with a knife after fellatio commenced, that bodily harm did occur before the sexual intercourse the subject of counts 3A and 3B. Papadopoulos acknowledged as a possibility that AB was struck with a knife at that time.

145 However, between the time of the suggested striking and the intercourse the subject of counts 3A and 3B, Eken ordered AB and Papadopoulos separately into the bedroom; AB moved to the bedroom; Papadopoulos pulled his pants up; put his belt on; walked to the bedroom where he saw AB; entered and closed the door. While I would not have taken the view that these events precluded any previous infliction of bodily harm being regarded as “immediately before”, it is possible that the jury did so.

146 Be that as it may, I do not regard the jury’s failure to be satisfied of those elements of counts 2A and 3A as constituted the infliction of bodily harm as leading to the conclusion the jury could not reasonably be satisfied of the “in company” elements of counts 2B and 3B and rendering the convictions on those counts unreasonable.

147 It was also submitted that there was no opportunity for Papadopoulos to avoid fellatio, there being no prior indications that Eken would direct the performance of that act. It followed that it was not possible to exclude the possibility, involved in the third question posed on the issue of duress, that the threats would have driven a reasonable person to do what Papadopoulos did.

148 This submission concentrates on only one aspect of the topic of duress, ignoring the rest. The fundamental question was whether Papadopoulos’ actions were voluntary. Once the jury accepted AB’s evidence that Papadopoulos had intercourse with her in the bedroom, what Papadopoulos said as to the events the subject of counts 3A and 3B provides substantial evidence that his participation in intercourse was voluntary. According to Papadopoulos, Eken was not in the room and AB suggested that they pretend to have intercourse. To go beyond pretence in that situation is strong evidence of voluntariness at that stage. And if at that stage, the jury were entitled to conclude that, notwithstanding du`ress imposed on AB in the lounge room, Papadopoulos’ participation there was not the result of Eken’s actions and orders but voluntary.

149 His own evidence of saying “No” and later, “No way” and pushing AB away also argues against him being overawed by the threats on which he relies. It is also not without significance that in the lounge room there were three men in addition to Eken. The jury may well have taken the view that, without a deal more resistance than was displayed on either AB’s or Papadopoulos’ accounts of what transpired there, the threats would not have driven a reasonable person of ordinary firmness of mind and will to act as Papadopoulos did.

150 This ground also fails. Given the conclusion reached in respect of other grounds it follows that Papadopoulos appeal against conviction fails.

151 Before I turn to the applications for leave to appeal against sentence, it is appropriate to say this. It is apparent from the transcript that at trial Topcu’s defence concentrated on the topic of duress. Counsel for Papadopoulos concentrated on the topic of intercourse. This concentration was accompanied by blissful and careless unconcern on the part of all involved for the precision needed in all criminal trials. The grounds of appeal reflect a careful trawling through the transcript, apparently by persons who did not appear below, and then the expenditure of a deal of time in this Court considering matters that, if things had been done properly at first instance, could have been easily and fully addressed there.

Application to Appeal against Sentence - Topcu

152 Topcu’s grounds of appeal against sentence, including the 2 raised at the hearing, were:-

1. The learned judge erred in not taking account the applicant’s assistance to authorities.

1A. A lesser sentence is warranted in law by virtue of fresh evidence relevant to the applicant’s assistance.

2. The sentence imposed is manifestly excessive.

3. The applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offender Eken.

153 In light of my view that this Court should allow the appeal against Topcu’s conviction in respect of count 1A, convict him of the offence in count 1B, and thus re-sentence, it is unnecessary to address these precise grounds, albeit many of the arguments raised under them remain relevant to the issue of sentencing Topcu in respect of count 1B.

154 The matters relied on before Judge Puckeridge as assistance to the authorities were as follows. To rebut a suggestion made in cross-examination, it was led from Topcu in re-examination that he had received a subpoena to give evidence against Eken at the latter’s trial, that he would comply with that subpoena and that would mean that their friendship was at an end. The second matter was evidence Topcu gave on 30 March 2006 when, during his sentencing proceedings, he again undertook to give evidence against Eken.

155 The matters relied on as fresh evidence as to the Topcu’s assistance seem to be the following:-

(i) That Eken participated in a ERISP admitting his guilt to some offences following both Topcu and Papadopoulos giving evidence during their trial as to Eken’s actions on the night of the offending;

(ii) Eken pleaded guilty subsequent to the Applicant during his own sentencing proceedings agreeing to give evidence against Eken should the latter go to trial; and

(iii) Topcu’s evidence was tendered in Eken’s sentencing proceedings Judge Puckeridge based findings against Eken on this evidence.

156 As has been said, the Eken ERISP was on 27 January 2006, Topcu’s evidence having been given on 24 and 25 January and Papadopoulos’ on 25 January 2006. It would seem that, as was Topcu’s right, he elected prior to giving evidence at his own trial, to provide no account of what had transpired at the flat.

157 Judge Puckeridge declined to give Topcu any discount for past or future assistance. Although his Honour’s remarks as to the reasons for this are not as clear as they might be, it seems to have been simply that he did not think the sentence for Topcu should be any lower than he proposed. If, as I suggest should occur, Topcu’s conviction on count 1A is quashed, this reason has been overtaken by events.

158 However, there is another factor which disentitles Topcu to a discount for assistance. As was said in R v Cox [2004] NSWCCA 413 at [33]:-

Crimes (Sentencing Procedure) Act 1999

R v Calderoni

159 The Crown also submitted that the evidence given by Topcu at his own trial was less than frank and contained a number of lies and that on this account also no discount would be appropriate – see Stanbouli (2003) 141 A Crim R 531. I do not find it necessary to pursue this issue.

160 Before I turn to the topic of what the appropriate sentence to be imposed on Topcu should be, it is convenient to say something about the argument based on a comparison between the sentences imposed on Topcu and Eken.

161 On 27 April 2006 Judge Puckeridge sentenced Eken on 6 counts. One was of an assault, two were of assault occasioning actual bodily harm and the other three were for participation in the offences with which Topcu and Papadopoulos were convicted. In respect of the offence involving Topcu the sentence imposed was of 14 years including a non-parole period of 10 years both periods commencing on 12 May 2006. In respect of the offence which corresponds with that I have numbered 2B the sentence imposed was of 10 years including a non-parole period of 7 years commencing on 12 May 2006. In the case of the offence which corresponded with that which I have numbered 3B the sentence imposed was also of 10 years including a non-parole period of 7 years also dating from 12 May 2006. The sentences imposed on the various assault charges were largely concurrent but two of them did include incarceration from 30 July 2004 to 12 May 2006.

162 Thus the effective total sentence imposed on Eken was of imprisonment for 15 years 9½ months (approximately – from 30 July 2004 to 12 May 2020) including a non-parole period of 11 years 9½ months (approximately – from 30 July 2004 to 12 May 2016). For Eken’s and Topcu’s involvement in the same offence the respective sentences were imprisonment for 14 years including a non-parole period of 10 years on the one hand and imprisonment for 10 years including a non-parole period of 7 years.

163 Eken has appealed to this Court against the sentences imposed on him and indeed, there was an suggestion that the Appellant’s applications to appeal against sentence might be deferred to be heard concurrently with Eken’s. The Court declined to adopt that course.

164 Having regard to the change in conviction I propose and that in consequence I would sentence Topcu for a different offence than that for which Eken received the sentence of 14 years imprisonment, it is unprofitable to pursue any comparison between the sentences imposed or proposed on these 2 offenders. The matter is a fortiori when regard is also had to the other differences between them.

165 I turn then to other considerations bearing on of the appropriate sentence to be imposed on Topcu. The offence is one which arises pursuant to Section 61J of the Crimes Act, viz. having sexual intercourse without consent, knowing the victim does not consent and in circumstances of aggravation. The maximum penalty prescribed is 20 years and there is a standard non-parole period of 10 years. The circumstances of aggravation provided for may be summarised as:-

166 In light of findings previously made, the only one of these circumstances now relevant to Topcu’s situation is that he was in company. At least on the facts of this case, this circumstance is not as serious as some of the others contemplated by the section, e.g. where the victim is under the authority of the offender, perhaps his pupil or stepdaughter.

167 The circumstances of Topcu’s offence appear sufficiently above and need no repetition. However, when sentencing Topcu Judge Puckeridge made some findings that are relevant. His Honour’s remarks in this connection include:-

“The Crown accepts that on the evidence the Prisoner Topcu was scared and on the evidence could be said to have genuinely believed that if he did not act as he did he would be seriously injured.

It is further submitted that as the defence of duress has failed, the Court must determine the sentence on the basis that the threats to Topcu by Eken would not have driven a reasonable person to act as he did and/or that Topcu could have avoided the effects of any duress by refusing to comply with the demands of Eken.

The Prisoner in statements to the Court stated that he accepts that he could have done more to prevent what occurred. … The Crown does not rely upon the Prisoner Topcu’s record of previous convictions by way of an aggravating factor. The Crown further concedes that the offender’s conduct was not aggravated by the fact that the offences were pre-planned and submits that duress could be taken into account.”

168 His Honour seemed to accept that Topcu was not a person of violent disposition and was remorseful for the offence and for not doing more to prevent it occurring. His Honour took into account that Topcu was in protective custody because of information, presumably against Eken, provided for the assistance of the authorities.

169 His Honour said that he had taken into account the evidence of a psychologist and “consider it to be appropriate in the special circumstances that there be a need for a longer period for which prisoner is on parole”. Apart from referring to an opinion of the psychologist that Topcu needed to become more assertive, his Honour provided no other guidance as to what the “special circumstances” were.

170 I move from his Honour’s remarks to my own consideration of the evidence. Topcu was born on 20 June 1976. He left school during year 11 and worked for a time as an apprentice painter and then as one without trade qualifications. He married in 1998 but this marriage ended in 2002. He has not worked since mid-2005. He told the author of his Pre-Sentence Report that he had commenced cannabis use in his teens and that this use became a problem after the breakdown of his marriage. He told that author that he used other drugs when socialising. I note that statement is a pale reflection of the evidence given at his trial when he indicated that because drugs were there he was taking them and, in answer to another, viz. “Were you consuming drugs on a daily basis or what was the position?”, he replied, “We would be like three days taking them, sleep for about fourteen hours, get back up, eat something, consume more drugs”.

171 Topcu was first before a court in May 1993 for assault occasioning actual bodily harm and in 1995 had a further conviction on a similar charge. Others of his some 11 previous convictions in New South Wales include, knowingly take part in the supply of a prohibited drug, breaking, entering and stealing, having goods in custody, driving at a speed dangerous to the public, driving whilst suspended and driving whilst disqualified.

172 In December 2003 he was dealt with in the Australian Capital Territory for two charges of burglary with intent to steal, two of theft and two other offences. On each charge he was given a suspended sentence conditional on entering a recognisance to be of good behaviour for 3 years.

173 In evidence at Topcu’s sentencing hearing was a report of a psychologist, Mr Watson-Munro. He suggested that a number of Topcu’s problems arose from the use of cannabis which he was informed had increased following the failure of his marriage and also following his being stabbed. In his conclusions, Mr Watson-Munro said that Topcu described “a complex developmental history, characterised by substance abuse in his teenage years, substantial depression subsequent to the breakdown of his marriage and the development of a significant Post-Traumatic Stress Disorder as a consequence of being stabbed” and that “His depression and the stabbing incident caused a recrudescence and significant escalation of his drug use, in addition to rendering him psychologically vulnerable to the potential manipulation and exploitation of others …”. Mr Watson-Munro said that Topcu required ongoing professional assistance including psychotherapy to help deal with his unresolved symptomatology coupled to more specific social skills training to assist with his low self esteem and poor capacity to assert himself in difficult situations.

174 This attention to the circumstances of Topcu must not be permitted to overshadow the seriousness of his offence. There was before Judge Puckeridge a Victim Impact Statement read by AB the terms of which indicated that the events of the day had had a substantial impact on her life, affecting her ability to sleep, socialise and work for an extended period. There was nothing in the statement to suggest that this impact had ceased.

175 Furthermore, the statutory provisions make clear that Parliament regards offences of the nature of that committed by Topcu seriously. On the other hand, it must be recognised that, in accordance with accepted sentencing practice, an assessment is required as to the heinousness of an offence. The maximum sentence provided for is one reserved for an offence which can be described as within a worst category of the offences with which the statutory provision deals – see Veen v R (No 2) (1987-1988) 164 CLR 465 at 478 - and some assessment against this standard is required for lesser offences.

176 Topcu’s offence did not fall into the category of a worst case. Because of the importance they have to any assessment of the seriousness of Topcu’s offence relative to a worst case, there are some other factors that should be mentioned or mentioned again. The first group includes the Crown concession reflected in Judge Puckeridge’s findings that, on the evidence Topcu was scared and genuinely believed that if he did not act as he did he would be seriously injured and that the sentence should be determined on the basis that the threats to Topcu would not have driven a reasonable person to act as he did and/or that Topcu could have avoided the effects of any duress by refusing to comply with the demands of Eken. Implicit in this is the conclusion that Topcu’s criminality was to a large degree the product of weakness rather than the criminality and unqualified abuse of power commonly involved in rape.

177 These circumstances and factors mean that the weight to be given to a number of the purposes of sentencing – general deterrence, personal deterrence, rehabilitation, retribution and protection of the community - see Veen v R (No 2) at 476, is appreciably different from that appropriate for most offences under s61J and other sections in Part 3, Division 10 of the Crimes Act.

178 There is nothing to indicate that Topcu’s own offending was premeditated and although I have criticised him for his disregard of AB’s interests in not informing her of Eken’s intentions as expressed in the phone call, that was not part of the offence and, except insofar as it may throw some light on Topcu’s subjective features, not relevant in the determination of his sentence. That Topcu’s offending lasted for but a short time and it stopped as soon as Eken left the room is also a factor that makes Topcu’s offence less serious than many the courts have to deal with. He did not ejaculate and AB was not faced with the fact or fear of an unwanted pregnancy. There is no evidence whether there was any risk or fear of HIV infection although clearly AB’s victim impact statement indicates that a result of the night’s events has been fear in other areas.

179 Topcu’s apology and ruse of spitting onto a tissue shows that he was not without some consideration for AB as soon as Eken’s influence on events was reduced or removed. In totality, these factors mean that, by comparison with others that can arise under s61J, Topcu’s offence fell well below an offence in the middle of the range of objective seriousness.

180 Given the report of Mr Watson-Munro, and the different nature of Topcu’s prior offences, I do not regard Topcu’s criminal antecedents as themselves arguing to any substantial extent for increasing his sentence upon the ground he is a recidivist. Given its circumstances and in particular the role of Eken, I do not regard the offence for which Topcu is now to be sentenced as manifesting a continuing attitude of disobedience of the law. Similar considerations lead me to the view that the fact that Topcu was on conditional liberty at the time should not have the same aggravating weight as it commonly does.

181 That is not to say that these matters are irrelevant. Topcu’s subjective circumstances are not nearly as favourable as those of Papadopoulos. Furthermore, Topcu’s own evidence of the lifestyle followed while he was living with Eken provides compelling grounds for thinking that he had not learnt much from prior experiences with the law or taken seriously the conditional liberty that had been extended to him. He is not, of course, now to be punished for that lifestyle or the offences he apparently committed during it but both are relevant to an assessment of his prospects of rehabilitation and the likely deterrent impact of any particular sentence.

182 Judge Puckeridge found special circumstances. Given Mr Watson-Munro’s assessment as to Topcu’s need for counselling, this Court should maintain that finding and, particularly as the sentence I propose will be significantly shorter than that imposed by Judge Puckeridge, the non-parole period should be greater than the proportion referred to in s44 of the Crimes (Sentencing Procedure) Act.

Application to Appeal against Sentence - Papadopoulos

183 The grounds upon which Papadopoulos seeks leave to appeal against sentence are:-

1. The sentences are, individually and in their combined effect, manifestly excessive.

2. The Applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offender Canan Eken.

184 As stated above the sentences imposed on Papadopoulos were on the charge I have numbered 2B, imprisonment for 6 years, including a non-parole period of 4½ years, commencing on 30 March 2006 and on the charge I have numbered 3B, imprisonment for 7 years and 4 months, including a non-parole period of 5½ years, commencing on 30 June 2006. The effective sentence was thus imprisonment for 7 years and 7 months including a non-parole period of 5 years and 9 months. (Again I ignore the adjustment made by Judge Puckeridge on account of pre-sentence custody.)

185 Counsel for Papadopoulos made no challenge to the findings or remarks on sentence of Judge Puckeridge. Those presently relevant include:-

“… Papadopoulos has had no prior convictions of any kind…

… He is now in a position quite contrary and at odds with the way he has been brought up and with his life to date… He is a person who has been in constant employment… There is evidence from the employer in particular that despite his conscientious behaviour (the employer) noted a certain immaturity in his make up. Such immaturity may well have prevented him from leaving the premises at Rosebery. I certainly have taken into account fixing the non-parole periods in respect of counts 2 and 3 the fact that he was scared, terrified, as to what was happening at the time… I particularly had regard, in relation to the alternative to count 3 and the finding of the jury, that it is consistent with the verdict of the jury that the actions of prisoner Papadopoulos were voluntary, so far as he leaving the lounge room and proceeding into the bedroom behind Eken.

… The fact that he has been found guilty by the jury of these offences is at odds with his prior character. I accept that it is unlikely that he will re-offend on his release from prison…

… In view of the unlikely event of him re-offending, I do not consider that there would be a need to reduce or increase the parole period of imprisonment which would apply. I have taken into account in fixing the term of imprisonment in relation to the prisoner Papadopoulos the fact that the deprivation of his care for his father and his support for his family will have a significant effect upon the family.”

186 His Honour also observed that the Crown had conceded that Papadopoulos’ offences fell below the middle of the range of objective gravity for such offences and that he gave Papadopoulos no discount for any offer of assistance.

187 It is convenient to deal with the parity ground first. The sentences imposed on Eken for the offences corresponding to those on which Papadopoulos was convicted were each of imprisonment for 10 years including a non-parole period of 7 years. These sentences were, as has been said, concurrent with the sentence of 14 years imprisonment, including a non-parole period of 10 years, imposed for the offence with which Topcu was also convicted by the jury.

188 Even putting the topic of concurrency with the 14 years sentence aside, the differences in criminality are not reflected in the sentences imposed on Papadopoulos and Eken. The criminality of the latter was vastly greater than that of Papadopoulos, particularly in light of Judge Puckeridge’s findings that the latter was “scared, terrified”. Eken’s conduct, at least to the extent of himself intending to have sexual relations with AB, was found to be premeditated, whereas that of the Appellants was not so characterised. Papadopoulos had no criminal record whilst that of Eken was, while not bad, significant. It included one offence of assault occasioning actual bodily harm, a number of assaulting and resisting police, 2 of possession and one of supply of a prohibited drug, one of driving whilst unlicenced and one of driving in a manner dangerous, although it is appropriate to observe that the heaviest sentence imposed on Eken for any of these offences was 18 weeks imprisonment. Papadopoulos had lived a productive life prior to the offence. Eken’s was largely characterised by drug taking. Papadopoulos was found unlikely to reoffend. Eken had no such finding in his favour. On the other side of the record, Eken did plead guilty and was in protective custody. He also had considerable difficulties in his upbringing.

189 Subject to the issue of whether the sentences imposed on Papadopoulos are so low that they should not be reduced, I would uphold Papadopoulos’ second ground of appeal against sentence.

190 Turning to he first ground, one or both of Papadopoulos’ offences shared many of the characteristics I have referred to when dealing with Topcu’s offence. These include that Papadopoulos’ criminality was to a large degree the product of weakness rather than the criminality and unqualified abuse of power commonly involved in rape. There is nothing to indicate that his offending was premeditated. Each offence lasted for but a short time – AB estimated that the fellatio lasted 10 seconds and the vaginal intercourse 20 seconds. Papadopoulos did not ejaculate and AB was not faced with the fact or fear of an unwanted pregnancy. Although AB had consensual and unprotected intercourse earlier that day with Musti, I would infer that Papadopoulos’ vaginal intercourse imposed some (or increased) fear of HIV infection. After AB pushed Papadopoulos off, he immediately said he was sorry. Although there were two offences, these factors lead to the conclusion that, by comparison with others that can arise under s61J, each of Papadopoulos’ offences fell well below an offence in the middle of the range of objective seriousness.

191 Reliance was placed on the Judicial Commission statistics. Those for offences under Section 61J for the period from February 2003 to December 2006 in the category “Non-consecutive terms only – All offenders” show that for 29 offenders the head sentences have ranged from 2 to 12 years with the a median of 6 years (24% of offenders receiving a sentence of that length) and the non-parole periods for those offenders have varied between 6 months and 8 years with a median of 3½ years (10% of offenders receiving a sentence of that length). For 7 offenders in that group who had pleaded “not guilty” the head sentences ranged between 3 and 10 years with a median of 6 years (20% of offenders receiving a sentence of that length). The non-parole periods for these 7 offenders have varied between 1 and 7 years with a median of 3½ years.

192 Given the existence of a standard non-parole period of 10 years throughout the period covered by these statistics, and recognising that that period has limits to its application in the case of offenders who plead guilty, the sentences reflected in these statistics strike me as on the low side. However, as that possibility was not canvassed during the appeal, and there is in any event the standard non-parole period to assist in determining the proper sentence in this case, I do not need to pursue that issue concerning the statistics further.

193 Each of Papadopoulos’ offences fell, as I have indicated, well below the middle of the range of objective seriousness. They also fell well below what I may refer to, with imprecision, as the norm for offences under the section that come before the courts. Papadopoulos’ subjective circumstances are also considerably better than those of most offenders. In the circumstances I am satisfied that the individual sentence imposed on him, and quite independently of those imposed on Eken, are manifestly excessive and should be quashed.

194 Notwithstanding Eken was the inspiration for both offences, and because the jury’s verdict carries with it the implication that the offence in the bedroom involved additional criminality to the offence of fellatio in the lounge room, there should be a degree of accumulation in Papadopoulos’ sentences. Given the circumstances, including that the offence in the bedroom involved vaginal intercourse and, Eken having left the room, there was more opportunity to avoid complying with his demands, I regard the offence committed in the bedroom as the more serious.

Conclusion

195 Appropriate orders in the case of Papadoplulos’ are:-

(i) For the offence I have numbered 2B (involving fellatio), imprisonment for a non-parole period of 1 year and 6 months and a total term of 2 years, both such periods to commence on 17 March 2006;

(ii) For the offence I have numbered 3B, (involving vaginal intercourse), imprisonment for a non-parole period of 2 years commencing on 17 December 2006 with a balance of term of 15 months.

(iii) Record as the date upon which it appears that Papadopoulos will become eligible for parole, 17 December 2008.

196 As I have said, Topcu’s subjective circumstances are not as favourable as those of Papadopoulos and he is not entitled to leniency on that account. Accordingly, while I do not see in the objective seriousness of his offence anything that makes it more serious than Papadopoulos’ first offence, Topcu’s sentence should be higher. In his case appropriate orders are:-

(i) For the offence I have numbered 1B (involving fellatio) imprisonment for a non-parole period of 2 years and 3 months and a total term of 3 years and 6 months, both such periods to commence on 24 January 2006;

(ii) Record as the date upon which it appears that Topcu will become eligible for parole, 24 April 2008.

197 In selecting the starting dates I have, I have adopted a method of taking account of pre-sentence custody preferable to, or an least neater than, that adopted by Judge Puckeridge of specifying in his orders terms of years and then specifying inconsistent concluding dates calculated to reflect the pre-sentence custody.

198 HOEBEN J: I agree with Hulme J and the orders which he proposes.

ORDERS

199 The orders of the Court are:-

In the case of Papadoplulos :-

(i) Dismiss the appeal against conviction;

(ii) Allow the appeal against sentence;

(a) For the offence of, while in company with CD having sexual intercourse with AB, without the consent of the said CD (sic), knowing that she was not consenting (involving fellatio), imprisonment for a non-parole period of 1 year and 6 months and a total term of 2 years, both such periods to commence on 17 March 2006;

(b) For the offence of, while in company with CD having sexual intercourse with AB, without the consent of the said AB, knowing that she was not consenting (involving vaginal intercourse), imprisonment for a non-parole period of 2 years commencing on 17 December 2006 with a balance of term of 15 months.

(iv) Record as the date upon which it appears that Papadopoulos will become eligible for parole, 17 December 2008.

In the case of Topcu :-

(i) Allow the appeal against conviction;

(ii) Quash the conviction on the charge of, while in company with CD, having sexual intercourse with AB, without the consent of AB, knowing that she was not consenting and at the time of the sexual intercourse maliciously inflicting actual bodily harm on her;

(iii) Convict Topcu of the charge of, while in company with CD, having sexual intercourse with AB, without the consent of AB, knowing that she was not consenting;

(iv) Quash the sentence imposed by Puckeridge DCJ;

(v) Sentence Topcu in respect of the offence on which this Court has convicted him to imprisonment for a non-parole period of 2 years and 3 months and a total term of 3 years and 6 months, both such periods to commence on 24 January 2006;

(vi) Record as the date upon which it appears that Topcu will become eligible for parole, 24 April 2008.

**********

13/09/2007 - incorrect date - Paragraph(s) 196(ii)

Citations

Papadopoulos v R Topcu v R [2007] NSWCCA 274

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CITATION:	PAPADOPOULOS v R TOPCU v R [2007] NSWCCA 274 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 March 2007
JUDGMENT DATE:	12 September 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 4; Hoeben J at 198
DECISION:	See paragraph 199
PARTIES:	Regina Christovalantis PAPADOPOULOS Bulent TOPCU
FILE NUMBER(S):	CCA 2006/5461; 2006/4824
COUNSEL:	Crown: Mr D Arnott SC Applicant Papadopoulos: Mr H Dhanji Applicant Topcu: Mr B Walker SC with Ms G Bashir
SOLICITORS:	Crown: S Kavanagh Applicants: SE O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0577
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ