R v Harbulot

[2003] NSWCCA 141

CITATION:	Regina v Harbulot [2003] NSWCCA 141
HEARING DATE(S):	03/03/03
JUDGMENT DATE:	21 May 2003
JUDGMENT OF:	Giles JA at 1; Dunford J at 2; Smart AJ at 3
DECISION:	Appeal dismissed
CATCHWORDS:	Sexual intercourse without consent - admission of complaint evidence - probative value not outweighed by danger of unfair prejudice - hearsay evidence - s.165 warning not required in circumstances - summing-up not unbalanced - Crown case was strong and summing-up reflected that - Defence case was put fully.
LEGISLATION CITED:	Evidence Act 1995 s 165(1), (2)(a)
CASES CITED:	Clarke (2001) 123 A Crim R Cross on Evidence 6th Aust Ed 2001 [15260] R v Stewart (2001) 52 NSWLR
PARTIES :	Regina v Peter Raymond Harbulot
FILE NUMBER(S):	CCA 60160/02
COUNSEL:	(C) D Frearson (R) J Miller
SOLICITORS:	(C) S E O'Connor (R) Parry Carrroll Kanjian

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/31/0354
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

60160/02

GILES JA

DUNFORD J

SMART AJ

Wednesday, 21 May 2003

REGINA v PETER HARBULOT

Judgment

1. GILES JA: I agree with Smart AJ

2. DUNFORD J: I agree with Smart AJ

3. SMART AJ: Peter Harbulot appeals against his conviction after a three day trial of the offence that he on 25 June 2001 at Wickham did have sexual intercourse with NH without her consent, knowing that she was not consenting. He was sentenced to imprisonment for 3 years 6 months to commence on 7 March 2002 with a non-parole period of 2 years. There is no application for leave to appeal against sentence.

4. The appellant complained that the judge had erroneously admitted evidence of complaint, failed to direct the jury as required by s.165 of the Evidence Act 1995, delivered an unbalanced summing-up to the appellant's detriment and that there had been a miscarriage of justice.

5. The Crown Case

NH and the appellant met around August/September 2000 at the Lucky Country Hotel, Newcastle and over the ensuing weeks became friendly. For about four weeks from early December 2000 to early January 2001 NH lived at the appellant's flat. After NH left that flat she and he kept in touch and met up about weekly. They often had a drink together at the Lucky Country Hotel.

6. A few days before Sunday 24 June 2001 NH telephoned the appellant in Katoomba where he was playing in a music festival. She enquired when he would be home and what he was doing. She wanted to catch up with him. She arranged to meet him at the Lass O'Gowrie Hotel, Wickham, Newcastle on Sunday 24 June 2001. He was playing there from 7.30 p.m.

7. On Sunday 24 June 2001 NH's flatmate, Tammie dropped NH off at the Lass O'Gowrie Hotel about 7.30 pm. The appellant was playing. About five minutes after NH arrived the appellant came over and spoke with her. He told her that he was playing again soon. As she had no money he lent her ten or so dollars. She purchased some VB beer. Later in the evening, John Herbert and a man called Jack joined her. She was not expecting them. She knew them from the Lucky Country Hotel. During the evening they bought her some drinks. While she did not know exactly how much she had to drink she estimated that during the evening she had drunk about ten schooners of VB beer.

8. NH said that she remained at the Lass O'Gowrie until about 10.30 pm, 11 pm. She left with the appellant and went to his flat which was next door to the hotel. They had a couple of drinks in the lounge room. She started feeling "really sick in the stomach" and said "I think I'm going to be sick." She went to the bathroom and was there for about ten minutes and vomited in the toilet. The appellant was in the bathroom making sure she was managing. She was not standing well. She said that she was not worried that he was in the bathroom because he could help her as needed. She reiterated that she was very sick.

9. While in the bathroom toilet the appellant asked her if she wanted a bath. Initially she was not going to have a bath but then decided to have one. She took off her black linen pants and a pair of long cotton pyjama pants she was wearing underneath and her black cardigan. She said that she stepped in the bath wearing her black singlet and black underwear. She told the appellant she was going to vomit again. After she finished vomiting she got out of the bath.

10. She said that the appellant gave her a towel. She wrapped it around herself and drew it across her chest. She was trying to hold it and remove her wet singlet and underwear. The appellant was around. She said that she put her two pairs of pants back on and the appellant lent her one of his jumpers, which she wore. She said that she went back into the lounge room and lay down on the lounge. She said that the appellant came in wearing a towel so she deduced that he must have had a bath. She continued to lie on the lounge. He came and talked to her. She thought he sat on the floor. They talked about people at the hotel and her ex-boyfriend and that everyone at the hotel assumed that she and the appellant were together and how stupid they were. There was no physical contact between them in the lounge room.

11. She said that the appellant asked if she wanted to go and lie in his bed and that he helped her to go into his bedroom. She asserted that as they went into his bedroom she said, "Don't try anything because I wouldn't be here if I wasn't drunk and I didn't feel like I was going to throw up." She claimed that she was only joking as she trusted the appellant. She said that she laid down on the bed (double or queen sized) on the right side and went to sleep straight away. She did not know what time this was. She said that when she got into the bed she was wearing the two sets of pants and the jumper which the appellant had given her. She said that she was lying on the right side of her body with her arms around her head; there was a wrist on either side of the forehead.

12. She said that she woke up because she could feel the appellant inside her. He was pushing his penis inside her vagina. This lasted about a minute. She said that the top part of her arms were still in the same position but her legs had been moved upwards; her knees were pointing towards the ceiling. She said that she did not say anything or do anything. Her eyes were closed. She was scared and in shock. She did not move from the position in which she had awoken. She did not know where the appellant's face was. She alleged that after about a minute he stopped, pushed her legs back to the right so she was in the same position as she was in when she went to sleep. She felt hid hand on the left side of her bottom and then he was not near her. She got up. Her pants had been removed, she was still wearing the jumper as she got out of bed.

13. She said that she found her pants at the end of the bed and put them back on. She took off his jumper and put on her cardigan/top, her woollen jacket and her shoes. She then ran home to the flat she shared. She estimated that it took her five to ten minutes. She said that she knocked on the door as she did not have her key, that she was crying and that Tammie opened the door. NH said she just broke down and told her what happened. An objection was taken to the words "told her what happened" but the judge allowed the evidence.

14. NH said that she had earlier given the key to the flat to the appellant. When the Crown asked NH what she said to Tammie, NH replied "I don't remember exactly, I was, I said a hundred things. I was pretty hysterical and upset ---". Over objection, the judge said to NH "You said 'I was hysterical'. Keep going." NH did not do so. She said that she remained at the flat she shared with Tammie for the beginning of the morning. At Tammie’s suggestion NH telephoned KH, her sister, who lived at Gwandalan which is about 40 minutes from the flat by car.

15. NH said that she said to her sister, "Something bad's happened" and that she (NH) was crying and sobbing. Her sister said, "How bad?" NH replied, "Really bad." Her sister said that she was on her way. After her sister arrived NH spoke to her. This passage appears in the evidence of NH:

"Q: Where were you when you spoke to your sister?

A: I was in her car.

…

Q: What did you say to your sister at that stage?
A: I don't remember exactly what I said.
…

Q: At what stage did you tell your sister what had happened?

A: As soon as I got in the car.

Q: Later that day did you go to the police?

OBJECTION. Legal argument.

HIS HONOUR: Your objection is noted …

CROWN PROSECUTOR: At some stage did you go to the police station?

A: Yes.

HIS HONOUR: Madam Crown … The witness has said … First of all she said, I' don’t remember what I said' and then you asked her, 'I told my sister what happened.'. Are we going to hear anything as to what she told her sister?

CROWN PROSECUTOR: Do you remember what you told your sister?
A: Not in words no. I just told her what happened. I don't remember the exact context I put it in. I was upset and I wasn't taking notes right then."

16. NH said that after being at the police station she went that day to the John Hunter Hospital where they did some tests on her.

17. NH said that prior to the incident in question she had never had a sexual relationship with the appellant. Her relationship was one of friendship. She had given him a hug once or twice when she greeted him, but there was nothing more.

18. In cross-examination NH agreed she had been to the appellant's flat at Wickham prior to 25 June 2001 including in the week prior to 24 June 2001. It had two bedrooms. She knew that one was being used as a storeroom. She agreed that in the period leading up to 24 June 2001 there had been a bit of an association between her and the appellant. She had met him at hotels, spoken to him on the telephone and been to his flat. She liked the appellant. There was only one bed in the appellant's flat.

19. NH agreed that the band finished playing about 10 pm and that she assisted him in carrying items such as drums, back to his flat. She was physically competent enough to be entrusted with the drums. She had to walk down a fairly rough and small side passageway which had no lighting carrying the drum and other items. She could not remember if he left her in his flat while he returned to the hotel to collect more equipment.

20. She agreed that she telephoned the appellant on 24 June 2001 and asked if she could meet him at the hotel. She did not remember asking him if she could stay over at his flat for the night but she may have. She agreed that at the time of that telephone conversation she was aware that there wad only one bedroom in the premises which had a bed in it. She had not thought about where she would sleep.

21. NH insisted that she had put her pants on after she removed her wet underclothes and that she went into the lounge room wearing the jumper or shirt which the appellant had lent her.

22. She said that at the flat they opened one long neck bottle of beer. She had some VB beer to drink She was not sure whether the appellant had some beer. She denied producing and having a joint. That was not the reason she became ill. She had had too much to drink. It did not occur to her to wait until the illness had passed and then go home.

23. NH did not remember the appellant asking her at one stage if she minded if he got into the bath. She denied that at any stage she and the appellant shared the bath, even for a short period of time.

24. NH explained that when she arrived at the appellant's flat she took off her jacket, cardigan and shoes and was walking around inside his flat just in her singlet and pants. This was before she got sick.

25. She said that when the appellant was sitting on the floor talking to her he had nothing on but a towel. She said that she did not have a problem with this as she had lived in the same premises with him and he would often be wearing a towel when he came out of the shower or out of the bath.

26. NH agreed that it was apparent to her that the appellant was likely to get into he same bed as her. She had not thought about him going to bed without any clothes on. She did not think about what he was going to wear to bed.

27. She confirmed that while he was having intercourse she did not resist and did not do anything. She said that she waited; he finished and rolled off. She said that she did not tell anybody that she pushed him off and that as a result the assault stopped.

28. She stated that the removal of her black slacks and pyjama pants did not cause her to wake. She did not recollect them being taken off. She was lying on her side. She denied that there were acts of foreplay prior to intercourse taking place and that she put her hand on his penis. She insisted that when the appellant went to put his arm around her after he had got off, she got out of the bed and left the premises. She denied that the act of intercourse was consensual. She denied that she moved her hips in response to his or gave voice to a degree of satisfaction with the intercourse which occurred.

29. Dr A C Kirkpatrick saw NH about 6.30 pm on 25 June 2001 He obtained this history from her:

"… on the previous night she had been drinking with a male friend who was known to her. She said that they returned to his flat and she found herself to be quite intoxicated and was sick and vomited. She then went to his bed to sleep it off. She said that there was no indication from her that she was going to his bed for any sexual encounter and there was no mention of this and she then said that she was awoken in the early hours of the morning by the assailant who had removed her underclothes and had actually inserted his penis into her vagina which had awoken her. She then said that she pushed him off and he didn't do anything further and he stopped assaulting her."

30. The doctor did not ask any further questions. He conducted a physical examination including an examination of her genital area. There were no physical abnormalities, no cuts, bruises, scars et cetera. What he found was consistent with what he had told her. She had not described a violent assault so he would not expect to find any abnormalities.

31. Tamara Jane Sidorenko stated that as at 24 June 2001 NH was living with her and that she drove NH to the Lass O'Gowrie Hotel later in the day. She next saw NH very early in the following morning when she woke up to a knock on her front door. NH was crying and upset. Ms Sidorenko asked what had happened. NH did not say anything. She was crying and came inside. Ms Sidorenko said that as NH still would not tell her what had happened she asked, "Have you been attacked?" NH started to tell her what had happened. Ms Sidorenko said that she could not relate the conversation in detail as she could not remember it.

32. On being asked to say what was said to her best recollection Ms Sidorenko gave this account of what NH said:

"She said 'Everything was going all right. We were having drinks at the pub.' There was a few friends there that she knew. She got really drunk and was sick. She either was sick or felt very sick at that stage and they went to Peter's house and she was sick there, vomiting and she was very drunk and she had to have a bath because she had vomit on her or something like that and then she fell asleep in Peter's bed. Then she woke up with her clothes off, her pants off, with Peter doing stuff to her and she froze. She froze. She didn't know what to do and she waited for it to stop. She said it didn't last long but that she waited for him to go to sleep and she got out of there."

33. Ms Sidorenko said that NH was upset, crying, distressed and distraught and that she tried to settle NH down. Ms Sidorenko said that the situation became very stressful for her so she advised NH to call her sister. Some time later her sister came to the flat.

34. She had told the police that NH came to the flat about 6 am and agreed that that was correct.

35. KH, the sister of NH said that NH telephoned her on the morning of 25 June 2001 at her house on the Central Coast. After saying hello, NH went really quiet and did not really say anything. KH gave this account of their conversation:

"She said something horrible had happened and I asked her what it was and she didn't say anything. She was just really quiet and her voice was very shaky and she just, I could tell she was a bit upset. Then I just sort of asked her what had happened. She couldn't tell me, she said it was hard to talk about, hard to say and I just told her to forget really about what it was and just talk to me about it, tell me what had happened. And she didn't really say anything from there and I just had a guess. I just said, 'Look were you raped, did something happen?' She said yeah, that's what had happened and I was going up the area so I just told her I'd be there in 45 minutes or so."

36. KH said that NH was waiting for her outside her flat when she arrived and got into her car. KH gave this account of what NH told her on the trip to their mother's place at Maitland:

"[NH] told me that she'd gone out the night before with Peter. That they'd gone to the pub which was near where Peter had lived and they'd been there for a while and she said she'd had quite a few drinks and was pretty, pretty drunk by the end of the night. She went back to, ended up going back to Peter's place and she said that she was going to, to stay there because it was closer so she was going to sleep on the lounge and he'd offered if she wanted to sleep in her bed, in his bed sorry. And then she said she just fell asleep as soon as she went to bed and then she said she woke up from him being inside of her. She said that she just freaked out and didn't know what to do. She said she just kept her eyes closed because she didn't want to look at him and then she waited until she thought he had, it was over and he was asleep and then she just left and went home."

37. KH said that NH was crying the whole time they were talking and that it took NH "a while for her to get through each sentence, trying to put it together." NH was very sad. KH took NH to the police station and then to the John Hunter hospital.

38. Mr J W Henderson worked at the Lucky Country Hotel helping out with bar duties, cellar duties and general cleaning. He knew the appellant as a regular customer and for the previous 12 to 18 months as a friend and associate at the hotel. He knew NH as a patron of the hotel.

39. On 24 June 2001 he went with his friend, John Herbert to the Lass O'Gowrie Hotel, arriving about 7 pm. The appellant was playing in the band as they entered. He and Herbert went to the bar. Mr Henderson said that NH arrived at the hotel at a later time, estimated to be about 7.30 pm. She came and spoke to him and Herbert and remained with them. They bought her some drinks. During a break in the playing the appellant joined their group. He talked to them and to NH. Mr Henderson did not see any physical contact between the appellant and NH. There was a little bit of flirting, that is, very happy small talk of the usual variety between males and females. While that was occurring Messrs Henderson and Herbert were talking to another lady. Mr Henderson thought that the small talk between NH and the appellant occurred as the evening went on and during the band breaks.

40. Mr Henderson said that when he left the hotel when it closed about 10 pm NH and the appellant were still there. He was talking to her at the end of the dance floor where the band set up.

41. Mr Henderson said that NH drank throughout the evening. She was not drunk or grossly affected by alcohol. He described her as "medium range." He had no difficulty in understanding what she was saying.

42. Mr J A B Herbert knew the appellant from his previous work at the Lucky Country Hotel and also NH. Mr Herbert said that he went with Mr Henderson to the Lass O'Gowrie Hotel on 24 June 2001, arriving there about 6.45 pm. When they arrived the appellant was playing in the band. NH arrived after him. She came up and spoke to him. She talked for a while and he bought her a drink. He bought her drinks during the evening, that is a schooner of beer on each occasion. The appellant joined their group during breaks when the band did not play. He talked with NH. Any physical contact during the first break was limited to a "very genuine sort of greeting." During a later break the appellant and NH did a bit of flirting. It included NH embracing the appellant and him putting his hand on her leg. This took place when another lady joined the group. As recounted by Mr Herbert it all seemed pretty harmless with one of the purposes being to discourage the other lady.

43. Mr Herbert said that the appellant and NH had left the hotel before he left about 10 pm or a touch after 10 pm.

44. In cross-examination Mr Herbert estimated that he bought NH about three schooners. He did not think Mr Henderson bought her any drinks. Mr Herbert said that he did not have ten schooners of VB beers during the evening.

45. In his police record of interview on 5 July 2001 the appellant said that he was aged 47. He described NH as fair, blonde, blue eyed, sort of vivacious young girl. He agreed that he had first met her about eight months previously at the Lucky Country Hotel. He had allowed her to move into his previous flat for a couple of days to help her out. She stayed some weeks. When he told her she would have to pay rent and help with some of the bills she moved out. He said that after she was asked to leave a subsequent flat she came to his present flat and asked if she could store some of her furniture and goods. Although he didn't really have the space he agreed. About a week prior to 24 June 2001 he ran into her at another hotel and she told him that she was going to visit her father in Thailand and asked if she could store her goods at his flat for an indefinite period of time.

46. The appellant said that on 24 June 2001 she telephoned him. It was about 5.30 pm. She told him that she felt like going out for a drink and asked if he could lend her some money or buy her some drinks. She stated that she would possibly even stay over. They agreed to meet at the Lass O'Gowrie Hotel about 7.30 pm.

47. The appellant said that he started playing music about 6.30 pm and that NH arrived at the hotel at approximately 7.30 pm. He was not sure of the time. He saw NH drinking during the night. He did not buy her any drinks but he gave her about $12. NH was talking to John Herbert and another man who worked at the Lucky Country Hotel. There was another woman at the Lass O'Gowrie Hotel who was trying to come on to the appellant pretty hard. NH was "kind of coming on to me so that the other one wouldn't come on to me." The appellant said that during the night he had about six drinks of VB beer.

48. The appellant further told the police that it would have been just after midnight that they walked from the hotel to his flat. NH helped to carry his drum and equipment back to his flat.

49. When they were at his flat she wanted to be sick, so he guided her out to the toilet. He asked her if she wanted a bath to clean up and she said "Yeah, fine." He ran the bath for her. She undressed but did not remove her underwear. She got into the bath. He remained in the bathroom. After a while he asked whether she minded if he got into the bath. She did not, so he undressed and got into the bath. After a period she got out of the bath and removed her wet underwear in front of him. He remained in the bath a little longer and then got out. Shortly afterwards he suggested that she go to bed. She had one of his jumpers on only. He helped her to bed. He had a cup of coffee and then went to bed. This was about 1 am. He was not wearing any clothes.

50. The appellant further told the police that when he woke up her hand was on his penis; she was stroking it. He touched her genital area. He next had penile vaginal intercourse with her. The appellant said that there was no conversation between them during this period and that she seemed to be enjoying the intercourse. He said that all she had to say was "No" and he would have desisted. The appellant said that he went back to sleep and that when he woke up the top which he had given her was on the floor, the door was ajar and she was gone. He tried to telephone her later on to make arrangements to return the key to her flat.

51. The police put parts of the statement of NH to the appellant. He agreed with her statement "pretty well" that there had never been anything between them and that they were just good friends. The appellant agreed that after the band finished playing he bought two long necks of VB beer and they went back to his place and had a couple of beers in the lounge room. He agreed with her account of being sick, her undressing and getting into the bath in her underwear. He confirmed that he had given her a jumper or top to put on. He said that he could not remember if she put her pants on. He said that she could have gone back to the lounge room and laid on the lounge. He agreed that when he got out of the bath he would have had a towel wrapped around him.

52. The appellant remembered that he and NH had a conversation in the lounge area but he said that he was starting to feel a bit under the weather and did not seem to remember the terms of the conversation.

53. The appellant did not remember her saying not to try anything and that she wouldn't be laying in his bed if she didn't think she was going to throw up or if "I wasn't so drunk". He did remember her saying, "You'd better bring the bucket in case I throw up gain." Once she was in the bed she went to sleep immediately. The appellant agreed that she was sleeping on the right hand side of the bed as you lay in it. When asked if she was wearing black linen pants, pyjama pants underneath and a jumper the appellant replied, "I remember giving her the jumper, "Um oh well, whatever else there, I didn't, I did, wasn't paying much attention."

54. When the police asked the appellant to describe NH's response while he was making love, he replied, "Ah, just getting a few oh's and ah's, that's what I mean, there was no objection. He said that her eyes were closed most of the time, that it was dark and that he did not know really. On this being read to him from her statement, namely, "Then he kind pushed my legs to the side and lay down beside me and he put his hands on my butt”; and on his being asked, "Do you remember that happening?" he replied, "Um, well not really, I just, yeah laid down, yeah probably, yeah,"

55. The appellant told the police that he did not remember taking off NH's pants.

56. The police asked the appellant if he would care to comment on her statement that she did not give him permission to have sex with her and that she did not intend to have sex with him at any time during the night. He responded:

"Ah, well she didn't say, No, either, and ah, you know … the conversation was sex all bloody evening …"

The appellant said that the conversation centred on each person's sex life.

The appellant agreed that NH did not say that she would like to have sex with him.

57. The appellant said that every time he ever saw her in the hotel the conversation was always about sex and how her sex life was progressing and her latest man. He said that before 24 June 2002 they had had no more than a cuddle and a kiss between friends. He said that when he had made advances to her in the past for a sexual relationship she had laughed them off.

58. The appellant accepted that the music stopped at 10 pm. The staff would then have a drink and socialise. Then the "gear" had to be removed. He did not see her bring any bag or take one back to his flat.

59. The appellant told the police that while he did not know, he probably inserted his finger into her vagina. When he touched her she gyrated with her hips. He assumed that everything was sweet. She had her hands on him. There were no objections. He said that after touching her on the buttock he rolled her over on her back and had intercourse. He believed he ejaculated when he had intercourse. He said that their intercourse only lasted for a few minutes.

60. The appellant said that while he was making love to NH he kissed her face, lips, shoulders, neck. She did not complain. When asked did he think it was strange that she had responded to sexual advances on this occasion but had not done so previously, the appellant replied that in his experience women want you one minute but not the next.

61. The appellant said that NH was not overly intoxicated and that she seemed to know what she was doing. He gathered this from her speech and conversation.

62. The appellant said to the police, "… it was all come on …" He agreed that she did not actually say that and added:

"… there was nothing to stop me … there was nothing said or body language, everything was just all systems go, green light, you know. The whole night was a green light basically, the conversation right through the night. …"

He agreed that it was a fairly sexually charged conversation throughout the night. The appellant denied that he might have been a bit reckless in having sex with NH.

63. I have summarised the contents of the record of interview at some length. In many of his answers the appellant supported the version of events given by NH, although there were significant departures as to what took place in the bathroom and the bedroom. The appellant's initial assertion that NH only had a jumper on after her bath and his inability to remember whether she had her pants on as he guided her to the bed when pressed on this point by the police raised doubts as to his reliability.

64. When the interview is considered as a whole the issues which emerge are whether the appellant knew that NH was not consenting or whether he was reckless as to whether she was consenting or not. The difficulty for the appellant arising from his interview was that the jury was entitled to take the view that this was a case of a 47 year old man taking advantage of a young woman who was intoxicated (to a medium degree) and who was temporarily ill.

Appellant's Case

65. The appellant in his evidence said "There was intercourse but … it was with consent as far as I was concerned."

66. The appellant said that there was no sexual contact between them during the period of almost one month that she stayed at his former flat in late 2000. He said that he lost contact with her for a few months. Then about a week before 24 June 2001 she threw her arms around him and said that she had missed him and loved him. He said that he did not take that to mean anything for romance. She said she was going to visit her father in Thailand and that she would like to spend some time with him before she went. During the week she dropped into his flat one morning for a cup of coffee and a chat. She ascertained that he would be in Katoomba for the weekend to play some music and said that she would contact him over the weekend. She did so on Sunday afternoon. They arranged to meet at the Lass O'Gowrie Hotel at 7.30 pm that evening. During the discussion she suggested that she would possibly stay over the night.

67. The band played from about 7 pm to 10 pm. There were three sessions of about 40 minutes each with breaks between the sessions.

68. Without detailing all that took place during the evening the appellant said that NH "was flirting with me, rubbing my back and everything and just so that this Susie girl would think that we were together." At that time he did not regard NH's conduct as any sign of any genuine sexual interest in him. He said that they finished about 9.50 pm to 10 pm, had his last "staffy" beer, packed up his gear and NH assisted him to cart some of the gear to his flat next door. The appellant said that both NH and he were mildly intoxicated. He made about four trips back and forth from inside the hotel carrying gear back to his flat. He spoke to other musicians at the hotel, but did not have any more beer. NH remained in the flat after the first trip. The appellant said that he bought two long necks of VB beer each of which held about 750 ml. He opened one bottle and he and NH had a drink. NH produced a joint (a marihuana cigarette) which they shared and smoked. NH became ill. He took her to the toilet and then suggested she have a bath.

69. Omitting intermediate detail which has previously been stated, he asked her if she minded if he jumped into the bath. She said that she could not care less. He said that as he jumped in "she was kind of getting out."

70. He said that when she got out of the bath she removed her items of wet clothing and then grabbed a towel. He gave her a jumper to put on. She did not put anything else on. The appellant said that he rinsed out her wet clothing and hung it up to dry. He said that after he had taken her into the lounge room he picked up her pants from the bathroom and placed them on a stool between the lounge room and his bedroom.

71. Ultimately, he helped her to her feet from the lounge, guided her to the bedroom and put her in the bed. He finished his beer, made himself a cup of coffee, mopped out the bathroom, emptied the bath, tidied up and then got into the bed, naked. He said that at some stage he woke up. He was aroused. NH's hand was on his penis. He said that he took that as a come on and touched her breasts, stomach and vagina. He placed his finger in her vagina. He stated that all the signs of female arousal were present. They had intercourse. There were no "knock backs, push offs or certainly no's and I thought there was, you know, all systems go. Green, I had green lights." Her response comprised physical movements and verbally. "oohs and aahs and sort of sexual sounds." She was gyrating her hips and pushing towards him. He believed she was consenting.

72. After he had intercourse with her he rolled onto his right hand side. He put his arm around her, pulled her in tight, had a bit of a cuddle and went back to sleep. When he woke up in the morning she was not there. The jumper he had given her was on he bedroom floor and the back door was ajar.

73. The appellant said that on the night prior to his arrest he had been at what was basically an all night party. When the police came, he was extremely tired and intoxicated. (The police said that the appellant was showing signs of some fatigue and having had a night out). The appellant said that during the police interview he did not know whether he was coming or going. He did not know where the police were leading him; he was confused. The appellant said that he had a vasectomy about 18 years ago.

74. In cross-examination the appellant said that he had always fancied NH. However, there had been no serious affection from her. There was no conversation at the Lass O'Gowrie Hotel that evening between him and her about the possibility of her having sexual intercourse with him. Whilst at the hotel he had no intention of having sexual intercourse with NH. Prior to her becoming ill there was no conversation at the house about having sexual intercourse nor any intimate physical contact. Before she became ill he had not intended to have intercourse with her.

75. The appellant said that he got into the bath with her rather than waiting for her to finish because she looked like going to sleep in the bath. He thought she had finished vomiting. He estimated that they were only in the bath together for no more than 30 seconds. At that stage he did not consider having sexual intercourse with her. He was merely trying to assist her as a friend.

76. When pressed for an explanation why he told the police that he was not paying much attention to what NH was wearing and on another occasion that he could not remember what she was wearing, the appellant said that he was extremely tired and that the only reason he was talking to the police was to get out of there and go home and sleep. He was also intoxicated. He also agreed that he did not tell the police that he had removed her pants from the bathroom to the lounge room area.

77. The appellant agreed that in the lounge room area (after the bath) there was no romantic physical contact with NH. Nor was there any discussion there about having sexual intercourse later in the evening. He was still cleaning up and sex was the last thing on his mind. The appellant said that when he later got into the bed naked he had no intention at that stage of having sexual intercourse with NH. Up until the time when he got into the bed there had been nothing earlier in the evening to suggest the possibility that NH would have sexual intercourse with him that night. He agreed that when she went to bed he would not have suspected she was in any sort of condition to have sexual intercourse.

78. The appellant agreed that both of them were lying on their sides in the bed. She had her left arm reaching back over her side touching his penis. He supposed he was a little bit shocked. He said nothing to her, he just touched her back. This was the first time there had been this type of intimate association.

79. The appellant was questioned about his statement to the police that the whole night was a green light. He explained that he was short of sleep and was getting a bit hot under the collar with the police questioning which he thought was leading towards rape. Eventually he agreed that there was nothing before she touched his penis which he considered to be a green light. The appellant said that he did not know how long it was from the time he woke up until the time he rolled her over, but estimated that it was five or ten minutes. The appellant stated that nothing was said during this period.

80. The appellant agreed that he was attracted to NH and that if the opportunity presented itself he certainly would have had intercourse with her.

81. The appellant insisted throughout his cross-examination that she had consented and was aroused. He detailed the signs.

82. Ms S J Doolan gave evidence that she had known the appellant for five years and had seen him socialise in the presence of both men and women. She had never seen him engage in sexually inappropriate behaviour or being sexually predatory. She spoke of an occasion when she became intoxicated and ill and the appellant took her home. He, too, was intoxicated. They shared a bed. Nothing inappropriate occurred. She said that they both wore clothes. She was not aware of the appellant being more than a friend to her.

83. Ms B Ferguson gave evidence that she had known the appellant for about seven years as a partner and a friend. She had seen him socially in the company of both sexes. She had never seen him being sexually inappropriate to women or behaving in a sexually exploitative or predatory way towards women.

84. Appeal Ground 1 reads:

The court of trial erred in admitting evidence of complaint as the probative weight of that evidence was outweighed by the danger of unfair prejudice to the accused; s137 Evidence Act 1995 .

85. In support of that ground the appellant relied on the following as demonstrating that the evidence was of little probative weight and unfairly prejudicial:

(a) NH gave no detail of the words she used when she arrived at Ms Sidorenko's flat. NH said, "I was crying … I just broke down and told her what happened." It was contended that the judge erred in admitting the words "told her what happened." When asked what she said NH said, "I don't remember exactly. I was, I said a hundred things. I was pretty hysterical and upset."

(b) NH gave little detail of the words she used when she spoke to her sister, KH on the telephone from Ms Sidorenko's flat. NH said that she told KH that something really bad had happened. NH said she was sobbing.

(c) NH said that when she got into her sister's car (later that morning at Ms Sidorenko's flat) she spoke to her sister. However, she did not remember exactly what she said. A little later NH was asked "At what stage did you tell your sister what had happened?" NH replied "As soon as I got in the car." When asked "Do you remember what you told your sister?" NH replied "I just told her what happened. I don't remember the exact context I put it in. I was upset and I wasn't taking notes right then."

86. No attempt was made by the Crown Prosecutor to elucidate the subject matter which NH had raised or discussed. The appellant submitted that the problems arose because the judge admitted over objection, the words, "told her what happened" and words to that effect.

87. The evidence of NH that she was crying, sobbing, upset, hysterical and broke down was admissible. She was also entitled to say that she spoke to Ms Sidorenko and her sister, KH, and that she said to KH "Something really bad has happened." That was consistent conduct especially as it was so very soon after the incident alleged and Ms Sidorenko and her sister were the first persons with whom she spoke thereafter.

88. This evidence was led shortly after NH had described what she alleged the appellant had done to her. For a young lady who has recently been raped to be so upset that she cannot remember exactly what she said to Ms Sidorenko and KH is not surprising. The jury could well have inferred what the cause was, given the setting.

89. The submission that this evidence of complaint was inadmissible is without substance. Its probative value was not outweighed by the danger of unfair prejudice.

90. As to the evidence of Ms Sidorenko

(a) Ms Sidorenko said that when she opened the door to her flat NH was crying and upset and this continued inside their flat.

(b) NH would not tell Ms Sidorenko what happened. Ultimately Ms Sidorenko said to NH, "Have you been attacked?" The appellant complained that this was very suggestive and a prompt which robbed the reply of much of its value.

(c) NH started to speak. Ms Sidorenko said, "I can't really say in detail the conversation because I can't remember it." The appellant complained that without the detail the evidence was of little value.

(d) Subsequently, as earlier set out, Ms Sidorenko gave in some detail the effect of what NH had said to her. It was obvious from the language used by Ms Sidorenko that she was broadly repeating what NH had told her, covering the period from when NH was in the hotel having drinks to when NH left the appellant's flat soon after the appellant had done "stuff" to her. It did not cover every detail, for example, what happened in the bathroom, but it did cover the essence of what NH alleged happened in the appellant's bed.

(e) Ms Sidorenko described NH as distraught and tried to console and calm her down.

91. Again the physical state of NH as observed by Ms Sidorenko was admissible. Further, the evidence of Ms Sidorenko as to what NH said was admissible. There was a prompt complaint. Indeed, it was at the earliest opportunity and conveyed the essence of the sexual assault which NH alleged.

92. The probative value of this evidence was appreciable and it was not outweighed by the danger of unfair prejudice.

93. As to the evidence of KH

(a) KH said that when NH telephoned her, NH's voice was shaky and NH was upset. KH said that NH could not tell her what had happened. The appellant pointed out that NH gave no details of what she alleged to KH.

(b) KH made a strong suggestion and gave a direct prompt when she asked "Look were you raped, did something happen?" NH replied, "Yeah." It was submitted that this reply was of little value in view of the suggestion and prompt. It was not a spontaneous complaint. This suggestion or prompt set the scene for what followed.

(c) As earlier set out, in KH's car, NH gave a reasonably detailed, but not complete, account of what she alleged had happened. She conveyed the essence of the sexual assault.

94. Again, the physical state of NH was admissible. While the strong suggestion and direct prompt of KH reduced the evidentiary value of the complaint it did not destroy its value. Indeed, the jury was entitled to conclude that NH was just too distressed to be able to put into words what had happened. The probative value of the evidence of KH was appreciable and was not outweighed by the danger of unfair prejudice.

95. When the evidence of NH, Ms Sidorenko and KH as to complaint is taken together it was formidable.

96. Ground 1 fails

97. Appeal Ground 2 reads.

"Evidence of complaint being admitted, the court of trial erred by failing to direct the jury as required by s,165 of the Evidence Act 1995 .

98. Upon the conclusion of the main body of the summing-up the appellant sought a direction that the judge, pursuant to s.165(2)(a) of the Evidence Act, 1995, warn the jury that the hearsay evidence may be unreliable.

99. The judge declined to give such a direction expressing the view, in effect, that there was no material suggesting, or which could lead to the view that the hearsay evidence may be unreliable As I understand the judge’s view it was not sufficient for an accused to point out that there was evidence of a kind mentioned in one of the sub-paragraphs in s.165(1) and request a direction under s.165. The accused must be able to point to some material suggesting, or from which it can be inferred, that the evidence in respect of which the warning is sought may be unreliable.

100. Section 165 relevantly provides:

(1) This section applies to evidence of a kind that may be unreliable including the following:

(a) evidence in relation to which Part 3.2 (hearsay evidence) … applies

…

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause the evidence to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.”

101. In R v Stewart (2001) 52 NSWLR 301 Howie J approached the construction of s.165 against the background of the pre-existing common law position. Spigelman CJ (par 8) took the view that the Act was intended to make a significant change in the law and adopted the view of J D Heydon in Cross on Evidence 6th Aust. Ed 2001 at [15260], namely, “Sections 164 and 165 though they have statutory and common law precursors constitute an attempt at a fresh start”.

102. Spigelman CJ at 16 said:

“The word ‘kind’ is a word of breadth and generality which it may be appropriate to read down. Any reason that could be advanced for questioning the reliability of evidence in the specific circumstances of a case can be stated at different levels of generality. Once stated at a level of generality higher than the specific facts of a particular case, such a reason could satisfy the description of ‘a kind’ of evidence. That would have the result that in every case in which an assertion of lack of reliability is made, the compulsory provisions for a warning on request in s 165(2) would apply, subject only to the exception in s 165(3). The acknowledgment in s 165(5), that there will be other circumstances in which a judge will be required to warn or inform the jury with respect to these matters, suggests that the word ‘kind’ must be read down in some way.”

103. Spigelman CJ took the view in Stewart that by reason of the applicability there of s.165(1)(d) it was not necessary to decide the true scope of the introductory words “evidence of a kind that may be unreliable”.

104. Howie J at [92] held that the categories of evidence designated in s.165 “include, generally speaking, those kinds of evidence where the common law (as affected by legislative intervention in the case of sexual assault complaints) had required that a warning be given.” Howie J stressed the importance of the words “evidence of a kind” in s.165(1). At [98] he said:

“Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not of a kind which may be unreliable and the section does not apply.”

105. By the phrase “appropriately assess its weight”, Howie J had in mind the situation where there is a danger that the jury may overestimate the probative value of the evidence and, perhaps, other situations. Howie J referred to a number of decisions of this Court in which s165(1) was given a wider operation than he would attribute to it.

106. Clarke, (2001) 123 A Crim R 506, was convicted of murder. The principal prosecution witness (B) had been indemnified from prosecution and he gave evidence that the appellant had confessed to him that he had driven the deceased away and killed her. B did not tell the police about the confession for more than 12 months. B had no role in the crime, he had no part which could be reversed with that of the appellant. Any offence of which B might have been convicted was not one which would tempt him to exaggerate or fabricate evidence about the appellant’s guilt. Accordingly, no warning under s.165 was required.

107. At [70] Heydon JA said:

“The issue is not limited to whether [B] is a witness within the language of par (d) but whether the evidence which he, being a s165(1)(d) witness, gave was ‘ of a kind ’ that may be unreliable.’ That is the opening words of s.165 qualify par (d).”

Section 165(1)(d) refers to evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been concerned in the events giving rise to the proceedings.

108. At [71] Heydon JA continued:

“Whether [B’s] evidence was of that kind depends on the circumstances.”

(They were reviewed)

and

“The idiosyncrasies and particular potential deficiencies of a given witness do not of themselves make that witness a member of a ‘kind’, and even if they do, the trial judge repeatedly exposed those idiosyncrasies and particular deficiencies.”

109. Bell J agreed with Heydon JA. Dowd J agreed with Heydon JA’s reasons as to the construction and application of s.165.

110. While Heydon JA and Howie J both take the view that the opening words of s.165(1) qualify the sub-paragraphs which follow and attach importance to the words “of a kind”, Heydon JA did not construe s.165 against the background of the pre-existing common law position. While Heydon JA referred to what Spigelman CJ said in Stewart, he did not purport to deal with the propositions advanced by Howie J. From the approach taken by Heydon JA, I doubt if his approach to s.165 would be quite as restrictive as that of Howie J. The question arises whether the approach of Howie J gives adequate weight to the terms of s.165. It is not necessary in the present case to resolve that issue or any apparent difference un approach between Heydon JA and Howie J. Nor is it necessary to consider the approach taken in other decisions of this Court. Full argument on these points was not addressed to the Court, although the decisions were cited.

111. The appellant submitted that:

(i) the evidence of Ms Sidorenko and KH fell within s.165(1)(a) of the Evidence Act 1995 .

(ii) that such evidence fell within the phrase ‘evidence of a kind’ that may be unreliable in that it is:
(a) evidence from a person (the complainant) who was affected by alcohol or drugs at the time of the event (the making of the complaint) to which the evidence refers;
(b) testimony from a witness (the complainant) who has made a prior inconsistent statement (the history given to Dr Kirkpatrick);
(c) evidence from persons (Ms Sidorenko and KH) biased in favour of the complainant;
(d) evidence of complaint lacking detail.

112. The complaint to Ms Sidorenko was made an appreciable number of hours (about 4 to 6 hours) after NH had last consumed liquor and was alleged to have smoked a joint and after she had been ill. The complaints to KH were made some hours later. There was no sufficient evidentiary basis for suggesting that NH was affected by liquor or drugs when she made her several complaints, or affected to such an extent that the reliability of her complaints had been reduced. The evidence of Dr A C Kirkpatrick substantially supported the complainant and the inconsistency alleged was of a minor order.

113. Ms Sidorenko, as a friend and flatmate, and KH, as NH’s sister, were naturally sympathetic to NH but their evidence does not suggest bias. They simply related NH’s condition, the effect of the conversations they held with her and what each did, so far as it was relevant. The allegation of bias is unfounded. While the complainant could not remember exactly what she said to Ms Sidorenko and to KH, her condition and actions spoke of complaint. Both Ms Sidorenko and KH were able to state, perhaps to some extent in summary form, the effect of what NH had said. More could not be expected in the circumstances. It would be unreal to expect a verbatim account. The appellant’s complaint as to lack of detail lacks cogency.

114. The appellant submitted that there were no good reasons for refusing to give a direction pursuant to s.165 and that there were these good reasons for giving such a direction:

(i) As the judge commented, “Much has been made in this case of the question of complaint.”
(ii) If accepted by the jury on the basis put by the judge, the evidence of complaint was potentially decisive in favour of conviction.
(iii) The evidence was disputed and was challenged as to admissibility.

(iv) The evidence was prejudicial to the appellant.

(v) There was a real risk of the jury overestimating the probative value of the evidence.

(vi) The evidence may well have been unreliable.

(vii) The evidence of complaint was significantly contradicted by the evidence of Dr Kirkpatrick who had made a contemporaneous note of his consultation with the complainant.

115. The appellant sought to make much of the question of complaint, the alleged deficiencies in the complaint evidence forming a significant part of the defence. The complaint evidence was strongly supportive of the complainant. However, the weight of her direct evidence, the facts he admitted in his ERISP and the unconvincing explanations which he gave were more important. The complaint evidence was admissible. It was for the jury to resolve any disputes. It was not a case where resolving the dispute was likely to cause any difficulty. The evidence was prejudicial to the appellant, but not unfairly so. There was no real risk of the jury overestimating the probative value of the complaint evidence. The complaints were made very promptly. Indeed, they were made as soon as possible. The condition of the complainant strongly supported the complaints which she made.

116. There was no material from which it could be suggested or inferred that the complaint evidence may be unreliable. While the evidence of complaint given by Ms Sidorenko and KH was hearsay evidence the complainant herself gave evidence and was cross-examined at length. It is not correct to say that the evidence of complaint was significantly contradicted by Dr Kirkpatrick. The appellant has incorrectly sought to elevate one minor discrepancy into a matter of major importance. The appellant’s submissions in support of Appeal Ground 2 have not been made good.

117. Often, a warning should be given in relation to hearsay evidence. The jury should be apprised of the danger that in retelling or repeating what the utterer of the words said the original words used (or their effect) may not be accurately recalled and repeated. In some cases it may also need to be pointed out that there has been no opportunity to cross-examine the utterer of the words. Every case has to be considered in the light of its own facts. In this case a warning was not required.

118. During the course of the appellant’s submissions on this and the following ground of appeal (absence of balance in the summing-up) the appellant submitted that the judge had failed to direct the jury on various matters calling into question the complaint evidence.

119. In commencing his summing-up the judge reminded the jury of what he said at the start of the trial, that is that they were the sole judges as to all matters of fact and that what he might think as to the facts was “totally and utterly irrelevant”. He added, “I do not intend to express any views with regard to this matter but if it appears to you that I hold some view as to any matter of fact, then you are quite entitled to ignore that view, unless you coincidentally share it.”

120. The judge reviewed the evidence of NH, pointing out amongst other things, that she could not remember what she said to Ms Sidorenko, that she told her sister on the telephone that what had happened was “really bad” and that NH could not remember what she had said to her sister in the car.

121. The judge next reviewed the evidence of Ms Sidorenko, pointing out that NH initially did not respond to the question, "What's happened?" but kept on crying, that Ms Sidorenko then asked NH "Have you been attacked?" and that NH responded. The judge summarised that response (which has earlier been set out). The judge also mentioned that having given that explanation Ms Sidorenko said that NH remained upset, was still crying and was distraught and that Ms Sidorenko advised NH to call her sister.

122. The judge also reviewed the evidence of KH as to what occurred over the telephone when NH spoke with her, referring to NH saying that something horrible had happened and KH asking, "Were you raped?" and that KH stated that NH was crying and bawling. The judge then set out what KH said that NH had told her in the car (as earlier stated). The judge correctly told the jury that it was a matter for them whether NH made a complaint to Ms Sidorenko and KH. The judge gave the jury these directions at SU10-11:

“Assuming that you so find [that NH made a complaint to Tammy and KH] the evidence as to complaint relates to statements made to Tammy Sidorenko and [KH] in the past and outside of this courtroom. Such statements are referred to in the law as hearsay evidence. Each of the witnesses was merely repeating in court what she says the complainant told her about the incident alleged. Neither of those two witnesses were present and able to observe what the complainant described as having occurred between she and the accused. Accordingly, these two witnesses could not give direct evidence of the event.

You will therefore necessarily approach the evidence of each of those two witnesses with caution, however bearing in mind this warning, if you accept that the complaint was made to the witnesses, then you may take that complaint into consideration as some evidence of the fact that the sexual assault charged against the accused actually took place.

The fact that the complaint was made may also assist you in determining your assessment as to the reliability of the complainant's evidence here in court. The fact that such a complaint was made may assist you in that task because the Crown says that it shows a consistency of conduct on her part. She complained to two persons very soon after the incident, persons to whom she would reasonably expect to complain to, if she had been sexually assaulted. The Crown says that her conduct was that that would be expected of a truthful person who had been sexually assaulted. That is how a truthful person would behave. She would go and make a complaint soon after the event to persons to whom a complaint would normally be directed, and that is what the Crown says occurred here.

In other words, the evidence as to complaint is a matter which you would consider in assessing the credit of the complainant as a witness in that it may increase the weight which yo give to her evidence s to the sexual assault with which the accused has been charged.

On the other hand, it is the accused's case that the complaint was unable to remember just what it was that she said to the two witnesses and, accordingly, you do not have her account of just what it was that she said to Tammy Sidorenko or to [KH]. The accused says, through Mr Egan, that you would therefore have some doubts about those complaints and about their reliability and as to what weight should be given to them."

123. The summary of the complaint evidence given by the judge was adequate. It made the point that NH could not remember exactly what she said to Ms Sidorenko or her sister. A jury may well have thought that this was understandable given what she alleged had happened to her and her state of obvious distress. Indeed, the jury may well have taken the view (and almost certainly did) that her distraught state was eloquent of complaint. Importantly, Ms Sidorenko and KH were able to state the effect of what NH had said.

124. The appellant complained that the judge did not point out to the jury that NH's complaint to Ms Sidorenko only came after the latter had asked, "Have you been attacked" and that NH's complaint to KH only came after she asked NH "Were you raped?" The judge referred to these questions when summarising and reviewing the evidence of Ms Sidorenko and KH respectively. It is true that the judge did not comment upon these matters but he was not obliged to do so. The view could well be taken that the distraught state of NH indicated that something horrible had happened to her, that she was having difficulty in speaking coherently and that a question or questions were needed to find out what had happened. While the judge could have commented that NH's answers came after suggestive questions, a comment could have been made as to why they seemed necessary along the lines just indicated, and even if not articulated would probably have occurred to the jury. The absence of comment about the suggestive questions is not of consequence. A comment could have been counter productive.

125. It was further submitted that in the context of the complaint evidence the judge should have highlighted that NH had told Dr Kirkpatrick that after the appellant had inserted his penis in her vagina she pushed him off and that the statement as to "pushing him off" was inconsistent with her evidence and what she told Ms Sidorenko and KH. It was submitted than this further detracted from the reliability of the complaint evidence and required a comment from the judge. In summarising the accused's arguments the judge said:

"You were taken to the evidence of Dr Fitzpatrick (Kirkpatrick) and the discrepancy between his account of what she told him as to how sexual intercourse concluded and her account. It was put to you that this demonstrated some inconsistency or unreliability on her part."

126. Consequent upon submissions made by the appellant after the main body of the summing-up had been completed and immediately before the jury retired the judge read out to the jury the evidence of Dr Kikpatrick as to the history NH gave to him and added:

“Now as I indicated to you before there is a difference in her account as to how sexual intercourse was terminated to that record by Dr Kirkpatrick: I thought that I had put to you that it had been submitted by [counsel] that this demonstrated some inconsistency. It is a matter for you as to what you make of it.”

More than this was not required.

127. At SU16 the judge told the jury:

"… you can convict on the basis of the unsupported evidence of the complainant alone provided that you find her to be an essentially reliable and honest witness with regard to the sexual misconduct she described."

At SU 17 the judge continued:

"… the Crown case stands or falls upon the evidence of the complainant … It is therefore essential that you carefully scrutinise her evidence, remember what she said and the way in which she gave her evidence. It is for you, the jury to say whether the complainant here gave both an honest and reliable account with regard to the essential features of her evidence, as to the sexual misconduct she described. There may be some inconsistencies with regard to matters of no real importance, however carefully consider her account and ask yourselves was she both honest and reliable when she told you what happened in that bed on that occasion …

It is only if you would find that she is an honest and reliable witness that you could convict the accused. If you find that she was not, then he would be acquitted."

128. The various complaints made under Appeal Ground 2 should be rejected.

129. There was no sufficient basis in the circumstances of the present case to hold that the complaint evidence may be unreliable, despite the fact that much of it was hearsay. The circumstances pointed to that evidence being reliable. Further, the judge adequately explained the limitations of hearsay evidence. The warning sought was not required. There was no miscarriage of justice. Appeal Ground 2 is rejected.

130. Appeal Ground 3 reads:

“The court of trial erred by failing to direct the jury in a manner that presented a balanced view of the case to the detriment of the appellant.”

131. The appellant submitted that the judge’s summing-up, taken as a whole, so lacked balance as to be defective. I summarise the matters on which reliance was placed and my views upon them:

(a) (i) On the question of intoxication (SU12-14) the focus was wholly on the appellant. It was only in respect of the appellant that the judge suggested that it was relevant to consider that being intoxicated he may have acted in a manner that he otherwise may not have. The appellant contended that the complainant’s high level of intoxication may have removed her self-restraint and made her do things that she would not normally do and that this should have been put to the jury. The re-direction sought by the appellant was rejected.

(ii) The judge explained to the jury that the Crown had to prove beyond reasonable doubt that the appellant was capable of forming the necessary intent and that if the appellant was unable to form the that intent by reason of his intoxication the Crown would not have proved that intent. After stating that intoxication on the part of an accused does not amount to a defence the judge continued:

“… in many cases alcohol and intoxication does no more than to remove the self-restraint which normally governs peoples’ behaviour. That in some cases it makes people do things that they would not normally do if they had not consumed alcohol. In such cases the use of alcohol and intoxication makes people more confident and lessens their sense of self control.”

The judge further stated that intoxication was only relevant if the appellant was so overcome by alcohol that
he was incapable of forming the intent to have sexual intercourse with NH without her consent.


(iii) The comments to which the appellant refers were made to explain the relationship between intent and intoxication. The general comments about alcohol having the effect of removing self-restraint and lessening self-control are matters of common knowledge. No doubt the jury when considering NH’s behaviour would have taken into account these matters of common knowledge. NH’s conduct was unwise but she was young and trusted the appellant.

(iv) In his supplementary directions the judge said:

“If you believe, accept that the accused was intoxicated at the time when the sexual act occurred or you believe that the complainant might have been so intoxicated, that is a matter that you would take into account when considering the accused’s perception of whether consent was forthcoming, you would take it into account as to the complainant’s perception of what was occurring, what she believed was occurring by way of the accused’s actions and her own actions.”

(v) While it might have been better if the judge had reminded the jury that alcohol was capable of having the effect of the complainant losing some self-restraint, that is an obvious factor which the jury, exercising common sense, would have taken into account. Of course, the loss of some self-restraint does not amount to consent to intercourse or lead to the appellant believing that she was consenting.

(b)(i) The judge, having taken up detailed commentary on the evidence failed to adequately put inconsistencies in the prosecution case, such as:

On the Crown case -

· the complainant remained asleep as her clothes were removed and throughout the start of penetrative intercourse

· the appellant remained asleep during the complainant leaving his bed, recovering her clothes from the bottom of the bed, otherwise dressing herself and leaving the flat.

· the complainant took flight as she left behind her keys and underwear and left open the door to the flat. However, before leaving the flat she discarded the appellant’s jumper, found her two sets of pants, her cardigan/jacket and shoes and put them on.

(ii) These points cannot fairly be described as inconsistencies in the Crown case. These were, at best, arguments why the complainant should not be accepted as a witness of truth, albeit not persuasive ones.

(c)(i) When dealing with the accused’s record of interview the judge was unfair in that he drew attention to the few unfavourable parts alone
(ii) The judge pointed out that there had been no admission or confession by the appellant. The judge referred the jury to the appellant saying that he woke up with her hand on his penis, he had a bit of a dabble, received no complaints and had intercourse with her. That was the essence of the appellant’s evidence. His principal explanation for his admitted intercourse was that she had her hand on his penis. This was a signal to him and was said to eliminate the need for any talk or romantic talk.
(iii) The judge pointed out the various versions he gave as to whether she put, or had her two sets of pants on, after the bath. He also repeated the appellant’s explanation of being sleepy and tired when he underwent the interview because of a big night out and that he was confused and did not know what the police were getting at or where they were leading him.
(iv) The judge commented that the appellant made it clear in his interview that it was the complainant who initiated by her physical actions, the sexual activities, that her “oohs” and “aahs” gave him every reason to believe that the foreplay was acceptable and that she was an active participant in the sexual intercourse. That corresponded with the essence of the appellant’s defence.
(v) There was much other material in the recorded interview, the transcript of which occupied some 53 pages. Much of the material was repetitive and much dealt with the events at the hotel, prior to going to bed and the early period in bed before anything happened between the appellant and the complainant. It was not necessary to canvass the details of what he said had happened after he woke and found she had her hand on his penis.
(vii) I am not persuaded that the judge’s review of the recorded interview was unfair.

132. The judge strongly put the Crown case to the jury. The Crown’s arguments were formidable and they were cogently marshalled and summarised by the judge. The judge put the appellant’s case to the jury quoting the critical portion of his evidence verbatim. I have summarised this account [71]. The judge told the jury that if they accepted that account, it would appear that the appellant was aroused by NH and that he would have had every reason to believe that she was consenting to an act of sexual intercourse. The judge later made it clear that, although the appellant had given evidence, he had to prove nothing.

133. The judge summarised what appear to have been the principal arguments advanced on behalf of the appellant and reminded the jury of the evidence called on his behalf. The arguments advanced on behalf of the appellant did not appear to have the cogency of those advanced on behalf of the Crown.

134. The evidence of the condition of NH shortly after the incident strongly favoured the prosecution case as did the evidence of complaint. The jury were adequately alerted to the problems of hearsay evidence but in this case it did not seem to give rise to difficulties of consequence.

135. The judge gave the jury all the necessary directions and put both the Crown case and the appellant’s case to the jury. Neither were skimped. The appellant‘s difficulties lay in the evidence of the Crown having considerable strength and the submissions of the Crown being more cogent than those of the appellant. The jury were entitled to take the view that this was the case of a sexually eager older man taking advantage of a young lady who had been ill. The appellant’s admissions in the ERISP and his unconvincing explanations did not assist him. His initial assertion that he had the “green light” prior to her touching his penis was very thin and, again, unconvincing.

136. The complaint of lack of balance in the summing-up fails.

137. Appeal Ground 4 reads:

“There being a miscarriage of justice, the conviction should be set aside, judgment and verdict of acquittal entered.”

138. There has been no miscarriage of justice.

139. The appeal against conviction should be dismissed.

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Last Modified: 05/26/2003