R v Ford

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 164 of 2006

THE QUEEN
	v
JOHN PATRICK FORD

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JUDGES:	VINCENT, ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2007
DATE OF JUDGMENT:	10 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 221

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Criminal law – Conviction – Intentionally causing injury – Threatening to inflict serious injury – False imprisonment – Making a threat to kill – Rape – Burglary – Aggravated burglary – Stalking – Complainant in relationship with applicant – Fresh evidence discovered since applicant’s conviction – Whether doubt cast upon complainant’s evidence which could materially affect the jury’s verdict – Whether applicant denied chance of acquittal – Cross-examination of complainant on embarrassing material restricted by trial judge – Whether material irrelevant in the circumstances – Severance – Inconsistency of verdicts – Whether verdicts unsafe and unsatisfactory – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T F Danos	Paul Vale Criminal Law

VINCENT JA:

The applicant was found guilty in the County Court at Melbourne, on 13 December 2005, on three counts of intentionally causing injury (counts 1, 3[1] and 4); two counts of threatening to inflict serious injury (counts 2 and 13); one count of false imprisonment (count 9); one count of making a threat to kill (count 10); one count of rape (count 11); one count of burglary (count 12[2]); one count of aggravated burglary (count 14); and one count of stalking (count 15).[3]
[1]Statutory alternative.
[2]Statutory alternative.
[3]The applicant was acquitted on one count of indecent assault (count 6); one count of rape (count 7) and one count of aggravated burglary (count 12). In respect of count 3 (intentionally causing serious injury), count 5 (threatening to inflict serious injury) and count 8 (indecent assault), her Honour directed that acquittals be entered on each count. With respect to count 5, her Honour ruled that there would be a directed acquittal as no evidence had been led by the Crown to support it. There was no evidence given by the complainant and this was conceded by the Crown.

He now seeks leave to appeal against these convictions[4] on the grounds that:
[4]After hearing a plea in mitigation of penalty, the sentencing judge, on 26 May 2006, imposed the following:
On count 1  -           one month imprisonment;
On each of
counts 2 and 3               -           three months’ imprisonment;
On count 4   -           four months’ imprisonment;
On each of
counts 9, 10 and 12        -           nine months’ imprisonment;
On count 11                   -           30 months’ imprisonment;
On count 13                   -           12 months’ imprisonment;
On count 14                   -           four years and six months’ imprisonment;
On count 15                   -           18 months’ imprisonment.
Her Honour directed that the individual sentences imposed on each of counts 11 and 13 be served cumulatively with that imposed on count 14 and that the remaining counts all be served concurrently. This created a total effective sentence of eight years’ imprisonment in respect of which a non-parole period of five years was fixed.

1.Fresh evidence has arisen since the convictions of the applicant which could materially affect the verdicts, namely, two statements made by the complainant on 17/2/06 and 28/4/06.
2.The learned trial judge erred in her direction to the jury in relation to count 14, by allowing the jury to rely on the “knife from the shed” as an “entry to the premises” to support an aggravated burglary.
…
4.The learned trial judge erred in restricting the cross-examination of the complainant with regard to [certain] emails between the complainant and the applicant.
5.The learned trial judge erred in not severing count 15 from the presentment.
6.The verdicts of “not guilty” on counts 6, 7 and 12 are inconsistent with the verdicts of “guilty” on the other counts.
7.The verdicts of “not guilty” on counts 6, 7 and 12 are inconsistent with the verdicts of “guilty” on counts 9, 10 and 11.
8.The verdicts of “guilty” are unsafe and unsatisfactory.[5]
[5]Ground 3 was abandoned and need not be addressed.

The Background

The prosecution contended at the trial that the applicant committed a series of offences against the complainant, to whom I will refer as N, over an 11 month period between 8 March 2003 and 11 February 2004, during and following the effective break-up of a relationship with her.

In view of the nature of a number of the grounds upon which reliance has been placed by the applicant, it is, I consider, desirable to set out in some, but by no means complete, detail the evidence adduced at the hearing.

The Evidence

N stated that, during late 2002 to early 2004, she entered into a relationship with the applicant, her supervisor in a government agency at which she was employed. At that time, she was living in rented accommodation in Roxburgh Park. She subsequently moved to rented accommodation in Moonee Ponds.[6]
[6]The applicant would stay overnight at the Roxburgh Park house, approximately once or twice a week, and, less frequently, after she moved to Moonee Ponds.

When she first met the applicant, she was living with her ex-husband, B, and their two children, aged five and seven. For some time following the separation, the children lived with her and then on a “week about” shared care arrangement thereafter, so that there was relatively regular contact between B and herself.

It appears that, on the basis of N’s evidence, there was no apparent problem in her relationship with the applicant until 8 March 2003, when they went to a “toga” party at a friend’s home in Kensington. During the evening, the applicant, who had been drinking heavily, formed the view that N was not giving him adequate attention and became jealous and aggressive. In order to calm him down, she suggested they go for a walk to a nearby park. However, once there, he punched a tree and a bench, screaming abuse at her for ignoring him. He appeared to settle down and they returned to the party. N remained apprehensive and a friend, Rachel Crosbie, took her to a neighbour’s house. However she returned to the party when she was informed that the applicant was there and that he was harassing people. She met him at the front door and again tried to calm him. She asked why he was behaving in such a manner and he told her that he was jealous, and that she was treating him badly. They went for another walk and, while they were facing each other, he hit her very hard to the upper left cheek with his right hand (count 1). Afterwards he was remorseful and apologetic and they returned to the party. When she awoke on the next morning, N observed bruising to her eye and upper left cheek and a cut to her cheek, as a result of the applicant’s blow.

When she met him, the applicant told her that he was single and that he had never been married. However in mid-June 2003, she learned that neither of these statements were true when she received a telephone call from his wife.

Nevertheless, until about August 2003, with the exception of the “toga” party incident, which she categorized as a “one off”, N continued to perceive the relationship as a caring and loving one.

On the morning of 15 August 2003, after the applicant had stayed overnight at her home, N came across a second phone belonging to him, the existence of which she had been unaware. She observed that it contained several messages and recorded calls to and from his wife. She decided to confront the applicant about them as he had earlier assured her that they were not in contact. When she asked him about it he became angry, grabbed her mobile phone from the bedside table and threw it on the bathroom floor, smashing it. He then picked up a large kitchen knife, pushed her back against the wall and held it to her throat, saying that he was going to “bleed [her] like a pig” and threatening to kill her (count 2). He then pushed harder with his arm under her throat, repositioned the knife against her ribs and threatened to stab her. At that point, she was “absolutely terrified” and “thought he was going to kill [her].” He let her go and became remorseful. Shortly afterwards, she left for work.

At 8.37am, N received a lengthy “joke-type” message. This was the first of a number that passed between them on that day.[7] In them, reference was made to the incident that occurred in the morning; there was a reference to her leaving work and going out rather than returning home and references to requests by N for the return of her keys.
[7]N was taken through the sequence of emails that were transmitted on 15 August 2003 (Exhibit B).

When she left work on that afternoon, N decided to visit Rachel Crosbie. Later they went out for dinner with friends. In the course of the meal, she received “25 calls” on her mobile phone from the applicant, which she ignored. She then turned it off. However, he then began to ring her friends, and they complained that he was “hassling” them, so she switched it on again.

Between 16 August and early September 2003, the applicant was again very remorseful and loving. He expressed a desire for “another chance” and she described their relationship during this period as being “in neutral.”

On 7 September 2003, in the late afternoon or early evening, N was at home when the applicant came to her house. During the day, she believed, he had used the computer that he had earlier installed there, as there was correspondence on it between his wife and him. Doubting that the applicant was being honest concerning his relationship with his wife, from whom he had told her he was divorced, and while he was having a shower, N checked his wallet, and found a wedding ring. She queried why he had it, if he was divorced as he claimed. He told her that he had been separated from his wife for over a year. However she was dissatisfied with his response and continued to question him about the true nature of their relationship. The applicant “exploded” and started yelling and screaming. She stated that he “came for [her]” and she attempted to leave the house. He was insisting, “Drop the ring, [N]. Give me back the ring”. He stopped her from going out the front door, pushed her down on the couch with his hands around her throat and “commenced to strangle [her]”, demanding that she “drop the fucking ring”. He yelled, “Do you want me to kill you? Is that what you want?” He was choking her while she tried to extract his hands from around her throat. She said she could not breathe or speak and her throat was burning. She thought that she was going to die and then lost consciousness (count 3).

N awoke lying on the floor to find the applicant wiping her face with a cool cloth. He told her that he had called an ambulance and that he was really sorry. She was subsequently taken to the Northern Hospital, where she was admitted. She had sustained bruising around her neck and some scratch marks. She was discharged and returned home the next day.

Very late in the evening or the early hours of the following morning, the applicant came to her home in contravention of an Apprehended Violence Order that had been arranged by the police when she was in hospital. When N first became aware of his presence, the applicant was standing at the foot of her bed.[8] She was shocked and very scared. He was again apologetic and told her that he wanted her forgiveness. He said that he became angry and did not know why he was losing his temper. He then left voluntarily.
[8]She said that, if he did not have keys to the house, he knew where she kept her spare set.

They attended court on the following day, and the applicant’s lawyer spoke to N at length about the possibility that the applicant would give an undertaking to the court that he would not repeat his conduct, and she was encouraged to revoke the Order. She agreed, as she believed that she would be better off without police intervention, which appeared only to aggravate the applicant, and because she had “lost faith” they could actually help her. She made a statement, on 9 September 2003, withdrawing her complaint and requesting that no further action be taken.

She said, in cross-examination, that she wrote an undated letter,[9] shown to her, to the applicant before the end of September 2003, just before the police had stopped their investigation into this incident. She wrote this letter in an attempt to reassure the applicant that she had done everything that she could to assist him because he was very upset that the police were still actively pursuing the matter. She handed the letter to him, in September 2003, possibly at their workplace. Later, there was an occasion, in late October or November 2003, when he took it from his wallet. He said: “I keep it there to remind me of just how … beautiful you are and what you’ve done for me.”
[9]Exhibit 6.

Between the September incident and November 2003 when she moved to Moonee Ponds, N decided that she did not want to continue the relationship. When she informed the applicant, he indicated that this decision would be very serious for him, as he had “nobody”, “no family support” and “no friends”. He told her that he wanted counselling to help him adjust and requested her help. She agreed and they had some irregular contact from that time.

On 14 December 2003, N was in her bedroom at the Moonee Ponds house, packing to go on a holiday. The applicant, who was present, looked at her mobile phone and found various SMS and call records from her ex-husband regarding their children. He became angry and an argument ensued concerning the extent of her contact with her ex-husband. When she tried to walk past the applicant, he pushed her onto her bed and pinned her by kneeling on her shoulders. He then punched her 22 times to the left side of the face (count 4). She described the blows as very hard, ranging from closed fist to open hand striking, and said that her face felt as if it was “on fire.” There were tears in her eyes as she was in a deal of pain. While he was hitting her, the applicant made statements to the effect that she disgusted him. After he stopped, he sat upright and looked at her and repeated this expression. She then slapped him on the face and he left. She was bruised down the left side of her face; her ear was extremely swollen, and the side of her head was very bruised and tender.

As on the earlier occasions, the applicant later indicated that he was sorry and said that he wanted to talk to her, assuring her that it would not happen again. He said that he had commenced counselling sessions at work and she subsequently attended some of them with him.

N planned to go to New South Wales to visit her family for Christmas and told the applicant that she did not want him to accompany her. He sent her an email message saying that he would be alone and that he was very sad. In consequence, she reluctantly agreed to him going with her. They were then together, until about 4 January 2004, but there were “arguments” and “horrible instances”.

When they returned home and unpacked, N ignored the applicant, hoping that he would leave, but, as he gave no indication of doing so, she eventually asked him to go. He ignored her request and started cleaning her house.

On the day they arrived back in Melbourne, her ex-husband called her to make arrangements to return the children to her and the applicant left when he learned that B was coming. N had dinner with her ex-husband and the children and, after they put the children to bed, they chatted about the holiday period and shared a bottle of wine. During the course of the evening, the applicant rang several times to see whether B was still there. She told him that they were talking and spending time with the children. In one of these calls, he “threatened that he had got a gun.” The applicant said that he was “coming around,” but arrived almost immediately at the front door. On entering the house, he said that he had been standing outside the lounge room window listening to their conversation. She told him that she wanted him to leave, but he refused to do so until he had retrieved some of his belongings. He said that he wanted his ATM card, although she had never had it, and he wanted his bottle of wine. Unfortunately, that was the wine they had been drinking. He refused to accept her offer to purchase another bottle. When it became apparent that the applicant would not leave, B suggested that N and he take the children to his house and that it would be best to leave the applicant. They woke the children and put them in B’s car, but the applicant positioned his motorbike so that it blocked their exit. After making unsuccessful attempts to convince him to move, B called for a taxi. When it arrived and the children and N got into the back seat, the applicant held the door open and would not let her shut it. He became sufficiently angry and aggressive, that the taxi driver called the police. The applicant then backed away, and the taxi was leaving as the police car arrived.

B drove N home on the following morning (5 January 2004). She found the applicant inside her house and informed him that her ex-husband and she were going to reconcile. This was not true and she made the statement in the hope that he would leave her alone. The applicant became very emotional and lay on the kitchen floor crying. B and she left the premises again. When he drove her back home later that day, they found that the applicant had gone.

The applicant contacted N over the following couple of weeks, wanting her support with his counselling. He asked for her forgiveness, apologised and insisted he would not conduct himself in that fashion again.

On a day in January 2004, N was at home when the applicant arrived unexpectedly. He wanted to mow her grass and had brought a lawnmower. She refused his offer and an argument ensued in which he told her that he wanted to do something for her. He had a dog with him that she had never seen before. The applicant then directed her to go into the lounge room where she sat on the couch and the dog jumped up next to her. The applicant produced an ice-pick from a leather bag he was carrying and handed it to her. He told her to insert the handle end into her vagina. He spoke to her in a “forceful and intimidating” manner using words to the effect of “I want to see you put this in yourself” and knelt in front of her. As she was scared and did not want to agitate him further, she complied and inserted the handle of the ice-pick as directed (count 7). The jury returned a verdict of not guilty on this count.[10] The applicant then seemed to relax. He stood up and said he was leaving, calling the dog to stand. He then said “Give us a kiss goodbye.” He handed her the dog and directed her to “kiss it.” She leant forward and patted the animal around the head, however the applicant then told her to “kiss its dick.” She hesitated and he ordered her more forcefully to lick the dog on its penis. She complied, fearing that if she did not do what he wanted, she would be hurt physically (count 6). The jury returned a verdict of not guilty on this count. The applicant left shortly afterwards, taking the ice-pick and the dog with him.
[10]Count 8 was put to the jury as an alternative to the rape count (count 7). The judge was of the opinion that if the jury reached a verdict of not guilty on count 7 then, as a matter of law, they could not convict the applicant on count 8 because of the state of the evidence. That is, the complainant clearly gave evidence of sexual penetration. The judge told the jury that if they did not accept the complainant’s evidence about that aspect then the jury could not, by way of compromise, return a verdict of guilty with respect to the count of indecent assault in the particular circumstances.

On 16 January 2004, N was at work when the applicant approached her and told her that he did not feel well enough to ride his motorbike. He wanted a place to rest and asked her for her keys to her house. She “eventually relented” and said that he could stay there as long as he had left by 5.00pm, when she was due to return home, and that he was to place the keys in the mailbox.

Later, during the day, when N came out of a meeting, she found a message from the applicant on her answering machine, to the effect that, if she did not call him back, he would remove her children from their crèche, come to the office and make a scene and lay in wait for her at home. She requested her team leader and co-workers, to listen to the message and then returned the call. When she did so, the applicant told her that, if she did not go home immediately, he would kill himself. After she hung up the phone, her workmates and she discussed what should be done.

After these discussions, she did go home, arriving there at about 7.00pm. The applicant was in the house and he was very angry that she had not responded immediately. She told him that she did not want to be manipulated and pressured in this fashion. They talked for hours, with the applicant insisting that he wanted to be with her. Finally, she begged him to leave, but he refused. She responded, saying that she would be the one to do so and picked up her suitcase. The applicant then went to her handbag, took out her keys and stood between her and the door, obstructing her path, He said, “You’re not fucking going anywhere. I’ll kill you before I let you leave” (counts 9 and 10). She continued to beg him to go, as she had an early flight the next morning and wanted to go to bed. He then said, “Well, I want you to promise that you’ll let me take you to the airport in the morning.” She finally agreed, saying: “Fine, fine. …I’m going to bed.” She then repeated her request that he leave and again he refused. Finally, she went to bed in her clothes – underwear, a skirt and a shirt. The applicant got in beside her, saying that he needed to be with her and that he loved her. He began kissing her mouth very hard and she did not respond. He then pulled her onto her back, lay on top of her, pulled her underwear to one side and forcefully penetrated her vagina with his penis (count 11). She did not consent to this. She lay very still and was silently crying. He ejaculated inside her vagina and then went to sleep. In the morning N changed her clothes and the applicant took her to the airport on his motorbike.

She arrived back in Melbourne, on 19 January 2004. The applicant called her and became angry when he heard her children and her ex-husband in the background. He threatened to go to the house and shoot B and she pleaded with him, but he said he was on his way over and hung up on her. She rang him back and begged him not to come and he agreed.

On the next day, she attended Moonee Ponds Police Station and the police advised her to take out a restraining order. Arrangements were made for her to go to a women’s refuge, but she went to Rachel Crosbie’s house in Kensington instead. During that evening, Ms Crosbie and she visited another friend, Catherine Curry, for dinner. The applicant came to Ms Curry’s front door and refused to leave until he had spoken to N. Eventually she agreed to talk to him. In this conversation, the applicant acknowledged that he had threatened to shoot B and wanted to know why she had obtained another intervention order, indicating that he was displeased. He was told to leave but refused to do so until Ms Curry threatened to call the police. He then left.

On the following day a police member called N and told her that the applicant wanted to call at the house to collect a pair of socks. The police member escorted him to the premises and the applicant collected his socks. He asked, “Why” and said that he wanted her to revoke the order. She refused his request.

The same policeman subsequently returned to her house and served her with an intervention order taken out by the applicant against her, prohibiting her from contacting any of her friends, either directly or by phone, from contacting her ex-husband or her children and from going to work. The applicant told her that as she had isolated him from her, he would now isolate her and would only revoke his order if she agreed to revoke hers. She attended court and they both withdrew their orders at the same time.

On 5 February 2004, N received a voice message on her telephone from the applicant, blaming her for his inability to return to work and demanding that she do whatever she could to get him his job back.

On the evening of 10 February, N was at home expecting a call from a friend. The applicant rang her and said he was on his way over. She had previously made an arrangement for Sean Epstein, a co-worker, to call her at 8.30pm to talk about “advancements at work.” She called Mr Epstein and told him not to ring that night, because, if the applicant found her talking to someone on the phone, he was “likely to go ballistic.” It was while she was speaking to Mr Epstein that she heard someone at her front door. When she opened it, the applicant pushed past her and grabbed the phone (count 12).[11] He demanded to know to whom she had been speaking and told her that he had been outside listening. When she responded that it was Mr Epstein, the applicant ripped his shirt open and howled like a dog. He produced a knife from his bag and told her to sit on the couch. Then he knelt in front of her holding the knife to her ribs (count 13) and said:

Right, we’re going to have a little talk, You’re going to answer my questions honestly. Each time I think you’re lying to me you’re going to get one of these between the ribs. It won’t kill you. I know how to stab somebody so it doesn’t kill them but it will hurt you a lot.

[11]The jury found the applicant not guilty of aggravated burglary (count 12) but returned a verdict of guilty on the statutory alternative of burglary.

She stated that she thought that this time he was going to kill her. He questioned her for several hours, demanding to know whether Mr Epstein and she were intimate or a couple. She replied that they were not. He then made her call Mr Epstein and he listened to the conversation in order to secure some sense of the nature of their relationship. After this conversation, he was satisfied that they were not involved. He warned her not to “jerk him around”, and left.

On 12 February 2004, the applicant asked N whether he could attend the house in order to collect some items that he had left there. He said that he wanted one hour of her time in exchange for his agreement to “never ever” contact her again. She initially said – no – but agreed when he said that he only wanted an hour to redeem himself in her eyes, and that he would make sure there was a third person present, if that would make her comfortable. She refused his request to meet at her house and instead agreed to go with a friend to see him, in his brother’s presence, at his parents’ house; making clear that they would speak for exactly one hour. She would give him his belongings and that it was understood that he would never contact her again. He agreed.

A friend, Michael Shamgar, and she put the requested items into her car and went to the applicant’s parents’ home in Sunbury. She first ensured that the applicant’s brother was present and then Mr Shamgar and she unpacked the applicant’s belongings and left them in the garage. She went into the house and let the applicant speak to her for an hour. He told her how sorry he was and that he realised he had problems and that he was receiving counselling. At 10.20pm she left the house and Mr Shamgar and she drove back to Melbourne.

On 14 February 2004, she spent some time at her ex-husband’s house with the children. While she was there, the applicant tried to contact her on her mobile phone. When she ignored the calls, he then rang B’s home number. N spoke to him saying, “You didn’t even last two days without contacting me after you promised. What is this about?” He said that she had failed to return a couple of items that he wanted to collect.[12] She refused, asserting that he was using them as an excuse for further contact. After he insisted on picking up these items, she told him that he would have to arrange for someone else to collect them and she suggested his friend, Andrew West, who worked at an hotel not far from her home.
[12]The items involved were a deodorant, a hammer and half a fishing rod.

The applicant sent her a text message, saying that he had contacted Mr West who would be at her house between 3.00 and 4.00pm that afternoon, and to make sure that she was present.

Her ex-husband drove her home and dropped her off in the driveway. She saw Mr Shamgar and Ms Crosbie, with whom she had made arrangements for the afternoon, sitting on her front step waiting for her. As she started to walk towards them, the door burst open and the applicant emerged (count 14). He had a large knife in his hand and had apparently cut himself across the face so that he was bleeding heavily.

He told Mr Shamgar and Ms Crosbie to leave, indicating that he wanted to talk to N alone. Ms Crosbie said: “No, John” and started to call the police on her mobile phone. The applicant directed her to put the phone down. When she refused, he cut his arm from his wrist to his elbow (count 15). Mr Shamgar then stood between the applicant and the two women to stop him from coming any further. They noticed a neighbour backing a car out of her driveway, attracted her attention and told her what was happening. The neighbour took N inside her house until the police arrived, while Mr Shamgar remained with the applicant. Several police members attended and spoke to him, from a distance, for about ten minutes before they convinced him to give up the knife.

On entering her home shortly afterwards, N noted that the applicant had removed her clothes and other belongings from the walk-in wardrobe in her bedroom and put them in the back shed. Insect screens had been removed from the front windows and were also in the shed. There was a teddy bear on her bed with a bloody hand-print on it, together with a blue vibrator and lingerie. These items were not there when she left earlier that day. Her video-camera, which had been on a shelf in the kitchen, was plugged in on the floor next to the bed. There were knives and an ice-pick, that did not belong to her. The bath, which had water in it, was empty when she left that morning.

Other witnesses

Dr Ahmad Al-Sharifi, is a medical practitioner, who, on 7 September 2003 at about 11.22pm, examined N at the Northern Hospital.

He stated that she reported that she had been assaulted and had been held around the throat and shaken a few times. She complained of neck pain and a sore throat. Upon examination, he observed that she had red marks around her neck consistent with the history given to him. He administered a pain-killer and directed that she remain in hospital overnight for observation. However she discharged herself after she asked to go home.

Sean Anthony Epstein is a client services officer. In February 2004, he was working at the government agency, with N and the applicant. Mr Epstein was, at the time of the trial, the complainant’s boyfriend and they resided together.

On 10 February 2004, he was in contact with the complainant on a number of occasions. He received a telephone call either late that evening or early the next morning, in which she told him that as they were work colleagues, she felt that it would be inappropriate for them to conduct a friendship outside the office. He stated that she sounded very reserved and stifled, which was not her usual way of communicating with him at the time.

Michael Adir Shamgar manages a computer games company and, in the early part of 2004, lived with Rachel Crosbie in Kensington. He knew N through Ms Crosbie and he had met the applicant. On the night of 12 February 2004, he attended the home of the applicant’s brother with the complainant. He stayed outside in the car, while she went into the house. She later returned to the car and they drove off.

On 14 February 2004, Rachel Crosbie and he went to N’s house in Moonee Ponds at about 2.00pm. When they arrived, the complainant was not there and they waited on the front steps. She arrived about 15 minutes later and was dropped off by her ex-husband, who the witness had met on a couple of occasions. N took her keys out of her bag and was walking towards the front door when it opened and the applicant emerged. He had cuts on his face near his eyes, and was carrying what the witness thought was a kitchen knife in one of his hands. Mr Shamgar said that he was shocked to see the applicant, who said something to the effect, “I want you and Rachel to leave immediately”. The witness replied, “There’s no way we’re leaving.” The applicant then said, “This is my house, I live here” and someone responded “No, it’s not. You don’t live here.” At that stage, Ms Crosbie called the police. The applicant responded, “If you don’t leave” or “If you don’t put the phone down or leave now I’m going to cut myself”. He then proceeded to cut his arm. Mr Shamgar described it as a fairly deep wound, with the applicant “really pushing the knife in quite deeply and cutting quite slowly and deliberately, a fairly long cut, about 15cm long.” Mr Shamgar positioned himself between the applicant and the women, who were very distressed. Ms Crosbie then took the complainant to a neighbour’s house.

After the women left, Mr Shamgar tried to calm the applicant in order to ensure that he stayed there until the police arrived. The applicant made statements to the effect that he did not have anything to live for as his girlfriend had left him and he had had to put his dog down. They talked about dogs and he told the applicant not to hurt himself further. However, at some point, the applicant cut his other arm and then cut again the arm that was first injured. Just before the police arrived, the applicant sat on the front steps with the knife in both hands and the point a couple of centimetres from his stomach. Mr Shamgar stated he became “quite concerned” that the applicant would try to stab himself. Altogether, they talked for about 15 to 20 minutes.

Matthew Hunter Mulcahy, a team leader in the office at which the applicant and N were employed, knew the applicant and was aware that the complainant and he were in a relationship. The applicant attended the office for the last time, on 17 January 2004. On 5 February 2004, N received a telephone call at work and she motioned to him that she was distressed, so he listened to the call and overheard a conversation between the applicant and her, in which the applicant asserted that it was her fault that he was not at work. He demanded that she speak to senior management about the reason for his absence, so that he could return. She said that she would do that, but that she did not think it would make any difference.

The complainant then asked the witness to listen to a voice-mail message recorded on her work telephone. He recognised the applicant’s voice, demanding that she call him back, and indicating that, if she did not, he would pick up her children from child care. There was also a comment about his wish for her to talk to senior management about the fact he that was not able to come to work.

Andrew Robert West, a hospitality manager, was, in February 2004, employed at the Lincolnshire Arms Hotel as a manager. He was a friend of the applicant and he had worked the previous night’s “graveyard shift”. He finished work at 8.00am on 14 February 2004, and was home in bed when he received a telephone call from the applicant, indicating that he needed his help to pick up some of his belongings from the complainant’s house later that day.

Mr West stated that he agreed to this request, saying he would be going back to work at about 4.00 or 5.00 o’clock that afternoon, and N’s house was not far from the hotel. The applicant provided him with the complainant’s telephone number and asked him to telephone her to let her know when he would be arriving. There was no discussion about whether the applicant would be there. The witness telephoned the complainant at about 3.00pm and said he would call in to pick up the applicant’s belongings. She said that would not be possible because the applicant had been taken away in an ambulance.

Joseph Paul Strachan, a Senior Constable of police, was, on 7 September 2003, performing general duties in the Craigieburn and Roxburgh Park area with Constable Harrison. At about 10.15pm he attended premises in Roxburgh Park, where he spoke to the applicant. Senior Constable Strachan also spoke to N and noticed that she had red marks around her throat and neck. She was being cared for by ambulance officers, who subsequently took her to the Northern Hospital. He arrested the applicant and later conducted a recorded interview with him.[13]
[13]Exhibit F.

On 9 September 2003, he returned to the complainant’s house in Roxburgh Park with a prepared statement[14] and spoke to her. He said that he was concerned to satisfy himself that she genuinely wished to withdraw her complaint. He stated that he probably would have gone inside the house, and taken N through the statement, explained the consequences, and that it was likely that the charges would be dropped, but that there would be a process of review undertaken by senior police officers before that could occur.
[14]Exhibit 8.

On 16 October 2003, he wrote to the applicant[15] saying that the investigation was concluded and that there would be no charges. He also wrote a similar letter to N.
[15]Exhibit 10.

Leanne Margaret Dewhurst, a public servant, was working with N, who was training and assisting her in 2003 and 2004. They had daily contact, as their work stations were contiguous. On a day towards the end of 2003, she noticed that the complainant had marks down the left side of her face, that looked like bruising. On the same day, she noticed that the applicant had a very dark, black eye.

On a day in January 2004, she accompanied N to the Moonee Ponds police station, then to the complainant’s home and then afterwards to court.

Rachel Kate Crosbie, a senior administrator, met N in 2002. She had been a friend of N’s since that time and had met the applicant in about December 2002. On 8 March 2003, she had a “toga” party at her house in Kensington, at which both the complainant and the applicant were present. She said that the applicant seemed very agitated when another male friend accidentally walked in on N while she was in the toilet. The applicant was very upset and N went out to the park with him in order to console him. She next saw the applicant at the front door with blood on his hands. N was not with him and she became concerned. On searching the area, she located a terrified N hiding behind her house. Ms Crosbie then took her to a neighbour’s house. Later, both women returned to the party and the applicant and N stayed overnight in the spare room. The next morning she saw that N had a grazed and swollen left eye.

On 15 August 2003, the complainant came to her home. They then went to dinner with friends, and later to an hotel in St Kilda. During the course of the evening, N received a number of text messages from the applicant who wanted her to contact him as he was waiting for her to arrive home. He then rang both N and the witness on their mobile phones. The complainant became very agitated and worried and would not answer his calls. Soon after, they went to Crown Casino and then went to Ms Crosbie’s home where N stayed the night.

On 18 January 2004, at about 6.00pm, the witness was contacted at home by N and an arrangement was made for the complainant to stay the night at Ms Crosbie’s house as she had taken out an intervention order against the applicant. They later attended Catherine Curry’s[16] house for dinner. During the evening, she saw the applicant at Ms Curry’s front door. His demeanour was very calm.There was discussion at the door between the applicant and N concerning a threat against B and the return to the applicant of some firearms that the police had taken. The applicant denied that they had been returned to him. At one stage, N became very upset and agitated and they left the applicant standing on the front step and went back inside. He continued ringing the door-bell until Ms Curry threatened to call the police.
[16]Ms Curry is Michael Shamgar’s girlfriend, and a friend of Ms Crosbie and N.

On 12 February 2004, Michael Shamgar and she went to the complainant’s home. Ms Crosbie looked after N’s children while Mr Shamgar and N left the house in a car containing some of the applicant’s belongings. Later that night they returned.

Michael Shamgar and the witness went to N’s house in Moonee Ponds just after 2.00pm on 14 February 2004, and waited for about 10 to 15 minutes for her to arrive. The complainant was showing them a handprint on her front window when the applicant came out the front door, with a knife in his hand. He told them that it was his property, that he knew his rights and he wanted Mr Shamgar and her to leave. Mr Shamgar said that it was not his house, that it was N’s property and that they would not go. N seemed terrified and was visibly shaking. Ms Crosbie began ringing the police on her mobile phone. The applicant, in response, said that if she did not put the phone down he was going to cut himself. He then proceeded to cut his arms. When he came out of the front door, he had blood on his face. They flagged down a neighbour, and waited at her home for about five to 10 minutes until the police arrived. The police tried to persuade the applicant to surrender the knife and eventually he complied.

B, a systems analyst, was previously married to N, with whom he has two children. Their divorce was finalised in February 2004, after they separated in November 2002. He first met the applicant in March 2003 and he understood that N and he were in a relationship.

On 7 September 2003, upon receiving a call from the police, he went to his ex-wife’s home in Roxburgh Park. The applicant was outside the house and the ambulance was parked nearby. B went into the house where he saw that N, who was very distressed and upset and had red marks on her neck, was being attended by ambulance officers. He looked after the children and waited there until she returned home later that night.

The applicant later sent him a letter in September 2003[17] regarding the welfare of the children and the incident that occurred on 7 September 2003.
[17]Exhibit G.

On 4 January 2004, B went to N’s house to return the children, who had been in his care since Boxing Day. After they put the children to bed, N and he talked for some time. During the evening, there were numerous telephone calls to the house from the applicant, who later arrived in a very argumentative state. N tried to persuade the applicant to leave but he refused to do so, to which the applicant kept repeating, “Well, where’s my credit card” or “Where’s my bottle of wine” and statements about how much he loved the complainant. N and B decided to take the children to his house to remove them from the situation. They told the applicant that they were leaving and put the children into B’s car, but the applicant put his motorbike behind their vehicle to prevent them driving away. B then called a taxi. When it arrived, the complainant got into the back seat with the children, while he sat in the front passenger seat. However, the applicant opened the back door and held on to it. They pleaded with him to let them leave, but he did not release his grip on the door until the taxi driver called the police. A police car arrived and the witness spoke to them while N and the children continued on in the taxi. The police then assisted him to retrieve his car and he returned home. His telephone and N’s mobile telephone kept ringing all night.

On the next day, he drove the children and N back to her house, where they found the applicant crying in the front hallway. The applicant said that he wanted to speak to N alone for 15 minutes. B left her there and took the children to child care, then returned to the house. She informed the applicant that B and she had reconciled. This was untrue.

On 14 February 2004, B picked up the complainant from her house and drove her to his home so that she could collect her motorcycle. The applicant rang while they were there. He answered the phone and the applicant asked for N, as he wanted to speak with her. He told the applicant that she did not want to speak with him, to which the applicant replied that, if she was not going to speak with him, he would go over there “right now.” He told N, who took the phone and spoke to the applicant. She became angry and said “Why don’t you organise for Trevor to come and pick your stuff up out of the house.” She said that she definitely did not want the applicant to go to the house, and said she wanted to be left alone and that she never wanted him there again.

They could not get the motorcycle started, so he took her home where Ms Crosbie and Mr Shamgar were waiting. He then drove off.

Adrian Wrout, the informant assigned to this matter, was a Detective Senior Constable stationed at Moonee Ponds CIU. He attended at premises in Heritage Street, Moonee Ponds, on 14 February 2004, after the applicant had been removed. He spoke to N and to other police members present. He took photographs of the scene[18] and observed a JVC video camera on the floor in the main bedroom, plugged into the power point, near the bed. On the bench in the kitchen were drugs prescribed to N and black ties. All the windows and doors were in good working order and there were no signs of forced entry. Inside the shed at the back was a motorcycle and a large amount of clothing and some fly-screens.
[18]Exhibit A.

In the house, he located a black-handled knife, and a “pig stabber”.

Later that evening he conducted an audio-tape recorded interview with the applicant. On 22 March 2004 he applied for an order to further interview the applicant. The applicant consented, and he was interviewed on the same day at the Moonee Ponds CIU office.[19] On 18 August 2005, with the applicant’s consent, he was further interviewed.[20]
[19]Exhibit O.
[20]Exhibit P.

Defence Witness

Trevor Dale Ford, an optical technician, is the brother of the applicant. In early 2004, he was living in Sunbury at his parents’ house and the applicant stayed there from time to time.

He knew N as the applicant’s girlfriend, but he believed that, in February 2004, their relationship was ending. N came to the Sunbury house in the few weeks prior to the day the applicant was arrested. She was there for about an hour having a conversation with the applicant, while he was in another room.

After the applicant was arrested and in custody, he received mail for him at Sunbury. At first he kept it aside and then forwarded it to him. However, the applicant asked him to open the mail and only send it on if it appeared to be important. He recalled opening a letter addressed to the applicant and guessed that it was from N.[21] He first saw this letter in late February or early March of 2004 and placed it into a cupboard. He later told his brother about it who requested that it be sent to him. He did so, by post, together with other mail, in about mid-March 2004.
[21]Exhibit 6.

In cross-examination, he stated that he could not recall the envelope containing the letter as he looked at it only quickly and then placed it in the pile with the other mail for the applicant. There was no covering note with the letter. It had fold marks on it and he conceded that it could have been folded down sufficiently to fit into a wallet.

The Application for Leave to Appeal Against Conviction
Ground 1

In the period between the conviction of the applicant and the consequent plea hearing, the Crown served on the defence a number of photographs of the applicant supposedly taken on 14 February 2004, the date of the commission of the offence encompassed by count 14. They depicted the applicant in sexually suggestive poses and were considered by the prosecution to possess relevance for sentencing purposes.

When it was conveyed to the Crown that the admission of these photographs was opposed, a statement, sworn by the complainant, supporting the contention that they must have been taken on the day claimed, was served. However, upon further investigation, it became clear that this was not the case and a further statement was made by N to the effect that she had initially become aware of the photographs when she discovered them on her digital camera, when she observed them through the viewfinder with which it was equipped. At that stage she formed the conclusion, based upon what she could discern of the background, that they must have been taken on 14 February 2004, prior to her arrival home, and so informed the police. It was not until April 2006, when she obtained a monitor for her home computer and was able to see the detail clearly, that she realized a mistake had been made.

In this Court, the argument has been advanced that it can be seen that fresh evidence has arisen since the conviction of the applicant that could have materially affected the jury’s view of the reliability of the complainant’s evidence which was, it was contended, crucial in the circumstances. There is a distinct possibility, counsel asserted, that, had this material been available to them, the credit of N would have been likely to have been affected to the extent that the applicant may well have been acquitted.

There can be no doubt that the evidence under consideration is to be regarded as “fresh”[22] as it was clearly not available to the defence at the time of the trial. Equally clearly, the credibility and reliability of the complainant was the focus of considerable attention in the proceeding and it is well recognised that there are cases in which the credit of a witness can be seen to be so inextricably intertwined with a fact in issue that matters going to the credit of the witness are not to be regarded as peripheral or subject to the so-called finality rule.[23] Had the evidence concerning the photographs been available, the argument proceeded, the applicant would have been in a position to argue that, in relation to that matter, N was shown to have been at least so mistaken and unreliable or possibly sufficiently hostile towards him that she was prepared to attribute to him criminal conduct of an extremely serious character.
[22]Mickelberg v R (1989) 167 CLR 259; Gallagher v R (1986) 160 CLR 392; and Ratten v R (1974) 131 CLR 510.
[23]Nicholls and Coates v R (2005) 219 CLR 196.

However, the credit of N was subjected to extensive challenge in the course of the trial, with the nature, detail and duration of her relationship with the applicant being addressed at length. Even had it not been repeatedly pointed out in the course of the proceeding, the jury, as a group of reasonable people possessed of ordinary human experience of personal relationships, would have contemplated the possibility that the complainant may have distorted, exaggerated or misrepresented what had taken place between the applicant and herself, generally and on the specific occasions under consideration. As a practical proposition, the evidence in question would have added little in the circumstances where there was a substantial body of evidence in the trial concerning what was clearly a complex relationship. The explanation given by the complainant was plausible and unlikely of itself to cast her evidence into greater doubt. It is also significant, as will later emerge in this judgment, that it is apparent that the jury did not act solely upon the evidence of N in relation to the offences of which the applicant was convicted. Further, it is difficult to see how the issue could have been raised other than in cross-examination and without the production of the potentially highly prejudicial photographs, or indeed in any way that would not have operated adversely to the applicant.

This ground fails.

Ground 2

When directing the jury, the trial judge said:

Count 14, members of the jury, is the aggravated burglary[24] that relates to the final incident in this whole picture that you have had, on February 14, where it is plain the Crown say, from all the evidence, and they rely upon the evidence of [N] who attended at the house and saw him come from the house. Her friend, Crosbie, and Shamgar who also saw him come from the house, and there is really no issue between the parties, he was in the house, so the Crown say therefore there is no issue that he entered the house.
The question is really, in what circumstance did he enter the house? The Crown say it is plain he had no permission to enter – that he had with him at the time a bag of various weapons but certainly that he had a knife, and that you can infer that from the conduct later when he had the knife and he came from the house and slashed his wrists with it, but also the knife on the bookcase that you saw in the photographs, and the fact that the Crown said even in his own record of interview he said that he entered with his fishing knife from the shed, so another knife that at some stage the Crown say he plainly entered that house with, and the Crown say that on all the evidence of that particular day, you can be satisfied, in particular the way the house was set up and the evidence of the photos and the police description of the house and Crosbie and Shamgar’s evidence, that he was there with the intention to assault the complainant – that he had set up that premise in such a way by removing her clothes, by putting those items around the house, that there is no other reasonable conclusion that you could make on the evidence that when he entered that house he was there to assault the complainant when she arrived home, and the Crown say that there would be no other inference you could draw other than that this charge was made out.

[24]Section 77(1) of the Crimes Act 1958 (Vic) reads:

A person is guilty of aggravated burglary if he or she commits a burglary and –

(a)at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or

(b)at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.

It was never suggested to the complainant that the knife used by the applicant to cut himself, the knife found in the premises or the ice pick (or pig stabber) were ever in the house prior to that day. She indicated that she had not seen them before and her evidence on this aspect was not challenged. The applicant, however, told the police, when interviewed, that what he described as “my fishing knife” was already in a shed at the back of the house. He also claimed that he brought the “pig stabber” in from the shed. In this regard, he stated:

Okay. … as a result of searching the house today, we located several knives or foreign objects in the premises, that weren’t there prior to [N] leaving earlier.
I don’t know about several knives. There was a fishing knife of hers that was in the house. There was my fishing knife that I’d cut myself with, which was out in the front yard, by the time everything was over with. I’ve been told there was what’s called, a pig stabber, which is a stationery item for punching paper in the house. But I found that out in the shed. That was in my boxes of stuff that were out there, originally, that she brought back to me. So, I put it up on the book case, next to my books. I thought I’d grab that on the way when I get all my books together. I don’t know about anything else that would be considered a foreign object. There was the straps – the …. straps on the kitchen bench, that I was trying to make some tie downs with for my bike. I can’t think of anything else there – there would be.

Although no objection was taken to the judge’s directions by counsel at the trial, it is now contended that her Honour fell into error in that her instructions encompassed “two quite separate incidents each of which was capable of being adjudged to be an [aggravated burglary]” and that “[her] charge contained no directions to the jury as to how to deal with that situation.”

The major obstacle lying in the path of the acceptance of this argument is that throughout the trial the prosecution contended, on the basis of the unchallenged evidence of the complainant on this aspect, that the applicant had knives and the ice pick in his possession when he went to the premises on that afternoon. As I understand the manner in which the case was conducted, at no stage was any alternative presented by the prosecution based upon the possibility that the applicant may have brought a knife or knives from the shed. His defence, which was clearly directed to addressing the prosecution case, as summarised to the jury in the judge’s charge, was that:

… he entered this house with the intention of retrieving his belongings, and that in effect, he lost it later on in the day when he hears Crosbie and Shamgar outside, talking outside the building. At the time of entry, his only intention was to get all his things together and, as you heard in the record of interview, he is cutting the ties and those sort of things because he was going to pack up some and take on the bike and others he was going to leave for Mr West.
The defence say you just could not be satisfied on this evidence that he entered with a knife at all, but certainly that he had the knife at any stage with the intention of assaulting her. The only admission he makes in the record of interview in relation to that fishing knife the defence say, is that he brought it in there from the shed because he was using it to cut these ties up, not to assault her, so you have to look at the evidence yourself in relation to that, but the defence would say there is just no way you can infer that sort of an intention beyond a reasonable doubt. At the very least, his explanation in the record of interview the defence would say is equally open on all the facts there, and that you could not reject that beyond a reasonable doubt, which you would have to do if you were gong to accept what the Crown says about this particular circumstance.
Again the defence say, just because the pig sticker or whatever it is and the other knives were on the shelves, does not allow you to infer that he has brought them in there or brought them in there with any purpose, and that you just simply cannot draw this conclusion that the Crown say that there is this sort of bag of weapons brought in and laid around the house.

The respective positions were clearly put before the jury and in the context of appropriate instructions concerning the burden and standard of proof.[25] Her Honour’s reference to the applicant’s admission that he brought a knife into the house, albeit, he claimed, from the shed, was made against that background. As I have already mentioned, no objection was taken by the applicant’s counsel to these directions. Indeed, it would have been surprising and, if ever considered, almost certainly perceived as forensically disadvantageous for the alternative basis for conviction propounded in this Court to be raised. This ground also must fail.
[25]No complaint about the adequacy of the directions of these matters has been advanced in this Court.

Ground 4

This ground relates to the refusal of the trial judge to admit evidence of some email messages passing between the applicant and N in the period following her discovery in mid-June 2003 that he was married. The applicant’s counsel argued that:

COUNSEL:   ... [T]his relationship covered a lengthy period of time. It covered a variety of circumstances. Ultimately, I want to be able to put matters to the jury as to despite this happening it’s clear the relationship went on. Despite that happening, the relationship continued on. Now, this is, Your Honour – this exchange that I’m about to take the witness to is directly after it’s said the (sic) my client – and there’s no issue about this. He hadn’t told her about the marriage. It’s not in issue.
HER HONOUR:      Yes.
COUNSEL:   Yet there’s this exchange that exists between the two of them. It is obviously highly personal and highly – ‘confidential’ is not the right word.
HER HONOUR:      No.
COUNSEL:   Highly intimate between the two of them. Now ---
HER HONOUR:      But the witness doesn’t deny that after that point in time, that the relationship continued in that way.
COUNSEL:   Well, Your Honour, it’s my submission I’m entitled to put to this witness the extent of the relationship, and that’s all it’s going to.

Her Honour responded:

HER HONOUR:      … I can’t see how this series of emails takes the matters any further. The witness does not say in any way, shape or form that she wasn’t intimate with the accused man after the exchange early in July about his ex-wife, et cetera, and the material shows quite patently she was.
COUNSEL:   Yes, well ---
HER HONOUR:      Well, how does this take it any further?
COUNSEL:   Well, Your Honour, the jury don’t know that.
HER HONOUR:      The jury do know that. That’s what I’m saying. The evidence is before them quite plainly that there was a continuing relationship after that day, and that it was of an intimate nature. The fact that this might talk about matters that you say are of a personal nature between them, is really more to embarrass it seems to me the witness rather than to take this case anywhere at all.
COUNSEL:   With respect, Your Honour, I’m entitled to demonstrate the extent and the nature of the intimacy between these two people, despite the fact that he has clearly, Your Honour – and I’m entitled – he has obviously lied to her prior to this. What I’m entitled to do is say, ‘Well, look at the nature of these sort of exchanges.’ Within days of that happening they back (sic) to – and it’s all forgiven and forgotten. ‘Look at the nature of what’s being ---‘
HER HONOUR:      But this is not an issue that’s between the parties. I mean, the witness has agreed that she has in fact had a consensual relationship with him from July through to the end of that year on a number of occasions. She has also indicated that in fact she regarded herself as very much in love with him at this point in time. Now, these emails do not in my view become relevant.

The judge was understandably concerned to avoid the introduction of embarrassing material[26] directed to the establishment of facts that were not only not in dispute, but concerning which there was other ample evidence. This ground lacks substance.
[26]Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; R v Aldrige (1990) 20 NSWLR 737; see also Evidence Act 1958 (Vic) ss 37 and 38–42.

Ground 5

At the trial and in this Court, the argument was advanced that the presence of count 15 containing an allegation of stalking[27] unnecessarily complicated the trial and created prejudice for the applicant.
[27]Section 21A of the Crimes Act 1958 (Vic) relevantly reads –
(2)A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following –
(a) following the victim or any other person;
(b)contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;
…
(c)entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;
(d)interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property);
(e)giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;
(f)keeping the victim or any other person under surveillance;
(g)acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person -
with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.
(3)For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if-
(a)the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or
(b)the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.

The conduct upon which the prosecution relied to support this count was summarised by the trial judge in her charge:

The Crown asks you to accept that the conduct that they rely upon in this case for the stalking – that is the conduct between 5 and 10 February that the prosecutor has referred you to, does amount to stalking, so the Crown rely upon, and it is very specific members of the jury, the phone call or phone message on 5 February, you will recall the message left on her machine that Mr Mulcahy hears as well as her, that he is going to pick up the children from crèche and talks about wanting to come back to work and demanding she does something about it. The Crown say that is a veiled threat about her children to her in that circumstance.
The Crown also rely on the 10 February call prior to him arriving at the house. You will remember we have talked about that in other instances, but just the phone call itself saying, in effect, ‘I’m coming over whether you like it or not’, the Crown say that is also part of this process, and the third thing is that on 14 February the Crown say when he cuts his wrists in front of her, after on 12 February he is agreeing not to have anything to do or try not to see her, and two days late (sic) he comes out of that house and cuts his wrists in the way you have heard, in front of her, that that was a bit of behaviour designed to create fear and apprehension in her in relation to her own safety or that of others.
The Crown say those three instances, if you like, represent a course of conduct that you should accept is a stalking offence for the purpose of this charge.

With respect to these matters the jury was instructed:

… you have to look at the facts and what construction you can put on those particular incidents. But one thing I want to direct you about when you are looking at this stalking, you are entitled to look at it in the context of the whole relationship when you are looking at what was her reaction to it, … .

No complaint has been advanced concerning these directions which were simply expressed and entirely appropriate. As the trial judge pointed out, the behaviour that the prosecution asserted constituted stalking had to be viewed in the context of the relationship between the parties and the other activities in which they were satisfied he engaged. Obviously the character and significance of an individual’s statements or actions, sometimes on their face seemingly innocuous, are often only identifiable when the background against which they are made or occur is taken into account. The judge was mindful of that consideration, but also concerned to ensure that the jury focussed upon the specific alleged behaviours on which the count rested.

It was open to the jury, if they accepted that the applicant engaged in the conduct claimed, to return a verdict of guilty on that count. No question of overlap or uncertainty with respect to the other counts arose and the evidence concerning the relationship between the applicant and N was admissible on the basis and for the purpose set out by the judge in her instructions.

The judge was correct in refusing the application for severance[28] in these circumstances and nothing transpired in the trial which can be seen to have altered the position in any significant respect or which could reasonably give rise to any suspicion that the failure may have possibly resulted in some prejudice or injustice to the applicant.
[28]R v Renzella (Unreported, Court of Appeal, 7 August 1997); R v Matheas [2003] VSCA 221; and s 372(3) of the Crimes Act 1958 (Vic).

Grounds 6, 7 and 8

These grounds are appropriately addressed together.

It is, I consider, evident from the summary set out earlier that, whilst the conviction of the applicant on almost all of the counts on which verdicts of guilty were returned was dependent upon the acceptance by the jury of the complainant’s version, there was a deal of other evidence before them that provided some background support for her. The situation is broadly summarized below:

Count 1 (intentionally causing injury)

· The applicant conceded that he did strike N but he said that he hit her on the shoulder and his blow deflected and hit her in the face.

· N’s injuries were observed by Ms Crosbie who gave evidence that she saw her the next morning with grazing and swelling near her left eye. Ms Crosbie also said that she saw the applicant with bloodied hands and in an agitated state.

Count 2 (threaten to inflict serious injury)

· N’s version was to some extent supported by the various emails between the applicant and her on 15 and 16 August 2003 in which references to the occurrence of an incident were made.

· There were also mobile phone records relating to the following evening when N was out with Ms Crosbie. On that evening N received a number of calls from the applicant. Ms Crosbie also gave evidence to that effect.

Count 3 (intentionally causing injury – statutory alternative)

· There was no issue that there was an argument between N and the applicant in the course of which N was grabbed by the throat, nor was it disputed that she fell into a state of unconsciousness or that the applicant rang for an ambulance.

· Dr Al-Sharifi gave evidence of his observations of the complainant’s injuries following the incident.

· N’s ex-husband noticed marks on her neck and that she appeared quite stressed.

Count 4 (intentionally causing injury)

· The complainant gave evidence that the applicant became angry when she received a text message from her ex-husband. According to her, he pushed her onto the bed, pinned her down and punched her to the face 22 times. Her injuries were a swollen ear and face.

· At around that time, a co-worker, Leanne Dewhurst, noticed that N had bruising in the face area, despite her wearing thick make up. She also noticed that the applicant had a dark black eye.

Counts 9 (false imprisonment), 10 (threat to kill) and 11(rape)

· There was evidence that, on the day of the commission of these offences, N found a message on her answering machine, from the applicant, in which he said that if she did not call him back, he would attend her children’s crèche and remove them, come into work, make a big scene and lay in wait for her at home.

· Her team leader and a co-worker listened to the message.

· N returned the call. When she did so, the applicant told her that if she did not return home immediately he would kill himself. When the call terminated, a number of co-workers witnessed her state of distress, and they all went into a meeting about the call.

Count 14 (aggravated burglary)

This count related to the applicant’s conduct on 14 February 2004.

· The applicant was seen to emerge from N’s front door with a knife in his hand.

· N was in the company of Mr Shamgar and Ms Crosbie who gave evidence to that effect.

· There was no suggestion that the applicant had any permission to enter, or believed that he did, and he had in his possession a bag with various weapons, including a knife, that he used to slash himself. In the applicant’s recorded interview he admitted to entering the house with a fishing knife, claiming that he secured it from a shed on the premises.

· The investigating police gave evidence of the manner in which the house was set up and the evidence of Mr Shamgar and Ms Crosbie seemed to suggest that the applicant was there to assault the applicant.

Count 15 (stalking)

· There was evidence of the applicant’s 5 February 2004 conduct when he left a message on N’s answering machine at work telling her that if she did not come home he would remove her children from their crèche. He also demanded that she do something about his inability to return to work. This message was heard by N’s supervisor and another co-worker. She returned his call and seemed distressed by the time the call terminated, according to them.

· With regard to the applicant’s 10 February 2004 telephone call to N in which he told her he was going to her home whether she liked it or not, Mr Epstein gave evidence of her manner when he spoke to her on the telephone on that night.

· There was evidence of his 14 February 2004 conduct in which he cut himself in front of N, Mr Shamgar and Ms Crosbie.

Setting to one side the acquittal of the applicant on counts 6 and 7 and of aggravated burglary on count 12, after conducting a review of all the evidence before the jury in relation to each of these counts, in accordance with the principles set out by the High Court in M v R,[29] I am of the view that it was clearly open to them to return the verdicts at which they arrived. None of these convictions could properly be categorized as unsafe or unsatisfactory in the circumstances.
[29](1994) 181 CLR 487.

The question then arises – can the position be seen to be affected by the acquittal of the applicant on those other counts. In other words, is there some inconsistency in the outcomes that might, as a matter of justice, render unsafe reliance upon the verdicts of guilty?

The approach to be adopted in assessing this question was considered by the High Court in MacKenzie v R[30] where, in a joint judgment, it was stated:
[30](1996) 190 CLR 348.

From a review of the cases, a number of general propositions can be stated:
1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. …
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. …
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone … is often cited as expressing the test …:
"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."[31]
[31]Ibid 366.

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense … . Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted … . If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury … . In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt… . Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries … . … In R v Kirkman …, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty … . More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law… . It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside… . It is impossible to state hard and fast rules. "It all depends upon the facts of the case."
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission … .[32]
Counts 6 (indecent assault), 7 (rape) and 12 (aggravated burglary and statutory alternative of burglary)

[32]Ibid 367-8.

In the present case in respect of counts 6 and 7, the jury returned verdicts of not guilty. After perusing the evidence of the complainant and the charge it seems that:

· She was unable to give an exact date other than January 2004;

· There was no other supporting evidence of the applicant’s presence at her home on that day.

· She made no immediate complaint and did not report the incident until August 2005, after the committal hearing.

· She went out with him again, on 31 January 2004, to Bacchus Marsh.

With respect to count 12, the jury acquitted the applicant on the count of aggravated burglary and convicted him of the statutory alternative of burglary. According to N, the applicant called and she asked him not to visit. A little time later she heard someone at her front door and opened it. The applicant, according to N, pushed past her, ripped off his shirt and howled like a dog. He then produced a knife from his bag, knelt in front of her and held it to her ribs, saying:

Right, we’re going to have a little talk, You’re going to answer my questions honestly. Each time I think you’re lying to me you’re going to get one of these between the ribs. It won’t kill you. I know how to stab somebody so it doesn’t kill them but it will hurt you a lot. (count 13 – threaten to inflict serious injury).

He then interrogated her about the nature of her relationship with fellow employee, Mr Epstein.

· According to N, the applicant made her call Mr Epstein so that he could listen in on their conversation, in order to ascertain the state of their relationship.

· Mr Epstein gave evidence that N seemed “very reserved and stifled, and that [it was] not [N]’s normal way of communicating with [him].”

Whilst on the basis of their verdict on count 12, the jury was satisfied that the applicant entered N’s premises as a trespasser with intent to commit an assault, they were not prepared to find him guilty of aggravated burglary. There are a number of possible explanations, including the possibility that it may have been somewhat merciful or that they were not satisfied that the applicant had intended to resort to the knife at the time that he entered.

There is no legal or technical inconsistency between the verdicts in this case.

No problem or confusion can be seen to arise from the instructions given by the trial judge which were correct in principle and both appropriate and adequate in the particular circumstances. Nor, in my opinion, can the different verdicts be reasonably perceived as an affront to logic or common sense or in any respect suggestive of the possibility that a miscarriage of justice may have occurred. There is no justification for inferring from the acquittal of the applicant on counts 6 and 7 more than that in the absence of any supporting evidence at all, either directly bearing upon the complainant’s version of events relating to those counts or as sufficiently connected with the claimed occurrences that her version could be seen to be circumstantially supported in some way, the jury was not satisfied that the criminal standard of proof had been met. It certainly does not follow that N was disbelieved or that the same view had to be adopted in relation to any of the other offences. The jury was instructed to consider each count separately and on the basis of the evidence relevant to that count. That they reached different verdicts is in the circumstances entirely consistent with their compliance with those instructions.

None of the grounds of the application having been made out, I would dismiss this application.

ASHLEY JA:

I agree with Vincent JA, for the reasons which his Honour gives, that this application should be dismissed. I would add this: with respect to ground 8, applicant’s counsel laid some stress on the timing of the letter written by the complainant to the applicant, concerning which the applicant’s brother gave evidence. Counsel submitted that if, consistently with the brother’s evidence, the letter was composed after the applicant’s arrest, its content was inconsistent with the serious allegations raised against the applicant.

In my opinion that argument was flawed. In the first place, the evidence of timing given by the applicant’s brother was not such as must have been accepted. Second, the use sought to be made of the content of the letter was not, as appears

from the judge’s charge, the use sought to be made of it at trial. Third, according to applicant’s counsel two arguments were advanced at trial with respect to the letter; and the issue agitated on the appeal was one of those arguments. But if that was so, and if the argument was thought to be of substance, it is surprising that no relevant exception was taken. Fourth, whatever be the timing of the letter, the relationship between the complainant and the applicant was evidently complex; and in my view it was quite consistent with such a relationship that the letter be written and yet that the applicant should have committed the offences of which he was convicted. Fifth, as Redlich JA observed in argument, the contention that the convictions were unsafe and unsatisfactory, all other evidence apart, collided at some points with admissions made by the applicant.

REDLICH JA:

I agree that the application for leave to appeal should be dismissed for the reasons stated by Vincent JA.

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[2007] VSCA 221

10 October 2007