Regina v David Walsh

[2001] NSWCCA 109

CITATION:	REGINA v DAVID WALSH [2001] NSWCCA 109
FILE NUMBER(S):	CCA 60575/2000
HEARING DATE(S):	22 February 2001
JUDGMENT DATE:	22 February 2001
PARTIES :	REGINA v DAVID WALSH
JUDGMENT OF:	Mason P at 1; Whealy J at 70; Howie J at 71

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/0060
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	Crown: C K Maxwell QC Appellant: P Byrne SC
SOLICITORS:	Crown: S E O'Connor Appellant: Joseph P Saad & Co
CATCHWORDS:	Criminal appeal - aggravated sexual assault - assault occasioning actual bodily harm - whether verdicts unreasonable. ND
DECISION:	Appeal dismissed.

CCA 60575/2000

MASON P
WHEALY J
HOWIE J
Thursday 22 February 2001

REGINA v DAVID WALSH

JUDGMENT

1    MASON P: After a trial in the District Court before Judge Nield and a jury, the appellant was convicted of aggravated sexual assault and assault occasioning actual bodily harm . He was sentenced on the first count to a period of imprisonment of five years comprising a non-parole period of two years and six months, and on the second count a fixed term of imprisonment of six months.

2    The verdicts are challenged as unreasonable having regard to the evidence. There is also a challenge to the directions in relation to complaint.

Facts

3    The complainant and the appellant had been fellow workers at a university in Sydney. At the time of the alleged offences (the evening of 30 October 1998) the appellant was aged 35 and the complainant was aged 21. A sexual relationship between the two had developed by about July 1998. One or two times a week the complainant returned with the appellant to his home at Strathfield. Intercourse took place in the granny flat he occupied at the rear of his mother's home there.

4    A fairly trivial incident involving the family dog on 16 October 1998 contributed to a cooling of the relationship. However, the couple agreed to meet for a drink in a city hotel on the evening of Friday 30 October. Others were meant to join them, but they did not arrive. Versions of what happened at the hotel differ in minor degrees as to the level of tension between the couple while they were there. Considerable quantities of alcohol were consumed. The complainant spent her taxi fare and so the appellant agreed to drive her home to Menai, as he had done previously. They took the train to Strathfield to pick up his car.

5    The complainant’s evidence was that the events of the fortnight after 16 October and the discussion at the hotel made it clear that the intimate relationship was over. There were arguments on the train and she told him that she did not have to settle for this. The appellant agreed that things were strained, but his version of events had the couple acting affectionately on the train journey to Strathfield.

6    The complainant’s evidence was that, when they got to the flat (at about one o’clock), the appellant invited her in while he changed out of his work clothes before driving her home. She was tired, so she curled up on the lounge fully dressed. She was wearing a long black skirt, black stockings, a red blouse and a black jacket.

7    She said that while she was half asleep on the lounge she felt a hand at the front of her skirt. She then saw the appellant trying to pull her skirt down. He tried to force himself on top of her. She asked him to stop as she did not want to do this. She told him that she wanted to go home. She tried to push the appellant away but since she was on an awkward angle she fell off the lounge. She said that the appellant grabbed her right calf, dragged her and put pressure on her stomach. She felt she could not move and she cried. She said that her underwear was pulled down with her stockings. She said that she believed the appellant had penetrated her vagina with his penis. She did not know whether he had ejaculated. After that the appellant threw her shoes at her legs and said “Now you can get in the car”. She said she picked up her stockings, put them in her bag and went very quickly into the appellant’s car. She said the appellant told her that she brought everything upon herself and everything she did was her own fault. She was a bitch and nobody would believe her against him.

8    The complainant’s version of the encounter was unequivocally that of forced and unwelcome sexual assault in which the appellant penetrated her vaginally with his penis, despite her protestations and knowing that she did not consent.

9    The second charge arose out of an incident during the drive home. The complainant said that there was initially silence between the two of them. However they got to arguing. It was common ground at trial that unpleasant words were exchanged. They got to near the complainant’s home. The complainant said that the appellant told her at one stage: “You came from nothing. You are nothing and you are always going to be nothing” , whereupon she “saw red” and hit him with her soft satin clutch bag. It knocked out a lens of his glasses. What then happened was described by her in the following terms:

Q. You told us about the conversation at that point. What happened after that?
A. After that, basically he grabbed me by the neck. I think I angered him with what I said. He grabbed me by the neck. I could breathe still – he just grabbed me and he hit me several times. I covered – put my hands up to cover my head. He pulled me down so that my chest was nearly touching my knees, he hit me several times on the left ear and mostly my arms ‘cause I had my arms up.

Q. You say he hit you several times on your left ear?
A. Mm.

Q. Do you know if those blows connected with anywhere else on your person.
A. I think mostly my arms copped it, and my head really, the back of my head.

Q. Did he say anything to you at this point?
A. I don’t recall that he said anything to me at that point.

Q. Did you see him do something?
A. Just after that he just shoved me aside and he said, ‘Get out’. Just like that.

Q. What did he do after he said, ‘get out’?
A. Well I wasn’t quick enough. He got out of the driver’s side, he came around to my side of the door, he opened the door, basically threw my shoes out which were on the floor - no he threw me out first. He got me and he pulled me straight out of his car and then he threw my shoes at me.”

10    When she went back to the appellant’s flat that evening the complainant had another, larger bag, containing personal possessions including books. When standing outside his car after the beating she asked the appellant: “Can I get my bag?” He told her, on her version, to “fuck off” and then drove off. (In his own evidence, the appellant said that she had left the bag back at the flat, that during the argument he had said he would “mail it” and that he never returned it to her. Instead he dumped it by the roadside.)

11    According to the complainant, when she got home in the early hours of the Saturday morning she was feeling sick, scared and sore. Her mother was up and asked her what was going on. The complainant’s evidence was:

I went out and my mother was up and she asked me: ‘What’s going on? What’s going on’ because I was obviously crying and really distressed and she said, ‘Just tell me what happened’ and she started to get panicky and I couldn’t tell my mother. I did not want to tell my mother. I think I said ‘He hurt me’ or ‘he hit me’ and then I said, ‘I just want to go’ and I went into the bathroom and I vomited several times and basically I just went to bed to think about it because I didn’t know what to do.

Q. Did you talk to your mother any further about it that you can remember?
A. Basically she said, ‘There’s nothing you can do about it.’ That’s basically what she said to me and I didn’t want to push the issue because I’d promised her that I would not see the defendant again and I felt very guilty because I had broken my promise and since she believed all he did was hit me, she said basically all I can do is learn a lesson –

PORTER: All you can do –

CROWN PROSECUTOR: I’m not pressing this, your Honour.

PORTER: She was saying something, her mother said, ‘All you can do is to learn – ‘

WITNESS: Basically what she said is ‘There’s not much you can do.’ I took that to mean, knowing my mother that you have to learn your lesson, don’t go near him again.

12    The following Monday the complainant returned to work. Her work colleague Martha Walkowsky asked her about her apparent distress. There was a conversation to whose details I shall return. The upshot was that Ms Walkowsky persuaded the complainant to report the matter to the police and the complainant did so by telephoning the police at 4.45pm that day. Arrangements were made for her to be examined medically the next day and to give a statement to the police the day thereafter. There was no suggestion that the statement differed in any material way from the evidence given at trial.

13    The complainant later retrieved her ripped pantyhose stockings and they were tendered into evidence. There is a vertical tear in the fabric beneath the waistband, consistent with the complainant’s account of the sexual assault.

14    On the other hand, the appellant denied that these were the stockings she was wearing on the night. He said that she was wearing a black bra, black underwear and white stockings. He denied “absolutely” that she was wearing the dark tights put into evidence (Tr p5, 17/4/00). It is however interesting that he volunteered during cross-examination that, after she had removed her outer garments, he removed “her black underwear and her bra” (Tr p97 14/4/00).

15    In cross examination the complainant adhered to her testimony about the two assaults.

16    The appellant called character evidence from several associates. He has no criminal antecedents and has always been employed in positions of responsibility.

17    The defence case was that consensual intercourse took place at the flat and that no blow was struck by the appellant in the car.

18    As to the alleged assault in the car, it was put to the complainant in cross-examination that “there was never any blow by him to you” (Tr p78, 13/4/00).

19    In his evidence, the appellant agreed that there had been some estrangement between 16 and 30 October following the dog escape incident. However, the couple had arranged to meet at the hotel with fellow employees. The appellant’s version of events in the hotel did not differ materially from that of the complainant. He agreed that he offered to drive her home after she first mentioned herself catching a taxi. They went to Strathfield by train, according to him kissing each other three or four times en route.

20    The appellant swore that when the couple got back to the flat the complainant removed her outer garments and her white stockings which went to mid-thigh. He then removed her underclothing. The appellant then went upstairs and had a shower. He came back and there was then entirely consensual intercourse.

21    In cross-examination, the appellant said that after the complainant was undressed, there was affectionate foreplay including digital penetration of her vagina. He then went up for his shower. He returned, dressed in a T shirt, underpants, tracksuit pants and tracksuit top and slippers. Then intercourse took place. The probabilities of this account being accurate were challenged in cross examination. In my view the jury were entitled to be sceptical.

22    According to the appellant, nothing really was said in the car until the couple got to Bankstown. The complainant then chided him with “do you always wake up people after having sex?”. There were other niggling comments. She then lit up a cigarette, something she had not previously done in his car. He grabbed the cigarette and threw it out of the window. The discussion started to get angrier, although the appellant denied having told her that she was “nothing”. She alluded to the fact that he had inherited his car from his late father. This admittedly stung him. Initially he said that “I was pretty angry and I reached over and grabbed her here(sic:? hair) and I said ‘if you don’t shut up I am going to move from a win/win to a win/lose situation in a minute’” (Tr p27 14/4/00). (As the trial judge pointed out at that stage, none of this had been put to the complainant.)

23    The appellant said that he called her a “stupid little bitch”. She retorted with a jibe about him still living with his mother. According to the appellant, what happened next was:

Q. What happened then?
A. I hit the brakes, the car was still in gear. I was pretty angry. I wanted her out of the car. She opened the door up. She had a seatbelt off. The light was on. She was sort of bending over like this, gathering up her shoes and bags, whatever else and I said, ‘Get up’. I pushed her again and she ended up sitting with her feet outside the car on the ground. She had her stuff between her legs and she was looking over her shoulder at me like that and I was sort of looking over at her. Then she had a red handbag. She swung it round and hit me in the face with it.

The appellant said that the complainant then hit him with her bag, knocking the lens of his glasses out. She got out of the car and he followed. He then“poked her in the shoulder a couple of times” (Tr p29 14/4/00). He denied hitting her, grabbing her in the neck or punching her as she had contended.

One matter upon which the appellant was cross-examined, and which would not have impressed the jury, concerned the complainant’s handbag with a strap containing her personal belongings. She had left it in the flat when the couple drove off to her home. On his evidence, he had promised to mail it to her. When the appellant returned from Menai he saw it at the bottom of the stairs inside the front entrance of the house. He put it in a cupboard upstairs in his room and later threw it away, something which he admitted was a stupid thing to do. This had been the subject of a third count in the indictment, but a verdict of not guilty was directed at the close of the Crown case, ie before the appellant gave this evidence about what he had done with the bag.

Ground Three

26    It is convenient to address this ground first.

The evidence of Ms Martha Walkowsky was given without objection. She saw the complainant at work on the Monday morning. The complainant was quite distressed, nervous and upset, and just not herself. Ms Walkowsky gave the following evidence:

Q. Did you speak to her?
A. Yes, I did. I was a bit concerned as I would be with anybody, and I asked her what was wrong.

Q. What did she say?
A. She said that something bad had happened and she felt really stupid.

Q. What did you say?
A. I said ‘What, tell me’ and I wanted her to tell me so that I could try and help her, and I said that ‘I can only help you if you tell me what’s wrong.’

Q. What did she say?
A. She said that she’d been assaulted and I asked her how, ‘How had you been assaulted?’ and she said ‘Sexually’ and I said ‘Rape?’ and she said ‘Yes.’

Q. When she said that how did she appear?
A. Very, yeah, she was on the point of crying.

Q. Was there mention of anyone’s name.
A. It did came up and David Walsh’s name came up, yes.

Q. Did you give her some advice?
A. I told her that she should go to the police because it was a very serious offence.

Q. What did she say to you?
A. She said she didn’t want to cause trouble and I said ‘You’re not causing trouble.’ I said ‘This is really serious’, and I said ‘You have to tell, you have to tell someone, you have to tell you mother, you have to tell the police.’

Q. Did you notice, apart from the distress and the upset you told us about, did you notice anything physically about her body.
A. Bruising, no I didn’t at the time, I was actually more concerned with her going to the police and reporting it, I don’t remember taking note of bruises, no.

Q. At some later stage did you become aware of bruises?
A. Yes.

Q. When was that?
A. Someone else pointed it out to me and then yes, I did.

Q. When was that?
A. Later that day.

Q. Whereabouts on her person or on body did you see the bruises?
A. I think they were on her arms and she was wearing, I think she was wearing pants that day so I think I only saw the ones on her arms.

Q. Did she say about anything happening in his car, did she tell you anything about that?
A. She – I didn’t want to ask her too many questions because I didn’t really want her to have to relive the whole thing. She told me that, I think, this is a while ago, they were in the car and I think they had an argument, something and he snapped, she said he snapped and it was like he was a different person and she said that she became really scared.

28    Her evidence was unchallenged in cross-examination. Indeed, she was effectively asked to confirm that there had been a complaint of rape and that she had urged the complainant to tell her mother about it and report it to the police straight away. All that was asked in cross-examination about the detail of the conversation was:

Q. What she told you was that they were in the car and something happened and he snapped?
A. Yes.

Q. She didn’t tell you what had happened?
A. I think she may have but I don’t remember.

29    Somewhat surprisingly, the Crown Prosecutor re-entered the fray in re-examination and the following evidence was given:

CROWN PROSECUTOR: Q. Yes, what was the conversation that she said about the car, what happened in the car?
A. What was the conversation, she just said that he snapped, I didn’t want to ask her details, I didn’t, I don’t really know a lot about what happened, I just know that he snapped and then that was the beginning of what happened.

Q. What was the conversation about the sexual assault?
A. I don’t remember, I just know that she said that – she told me what happened and to me the only thing that mattered –

HIS HONOUR: Q. You tell us what she told you about what happened.
A. Okay, she said that they were in the car, I think they had, I’m not sure, I think they had an argument, she said he snapped and then he raped her. That’s what it came down to.

Q. Did you make a note of that at the time?
A. What do you mean a note?

Q. Were you asking her questions about this?
A. No I didn’t, I didn’t. I wasn’t really concerned with the details.”

30    The complainant’s version of this conversation had been as follows:

Q. On the Monday did you go to work?
A. Yeah and I couldn’t handle it.

Q. When you say you couldn’t handle it what do you mean?
A. I couldn’t work. I just kept bursting into tears and running into the bathroom. I couldn’t cope with it. My body was very sore and Martha knew that something was the matter with me and she badgered – basically she talked and talked and talked at me until I told her what happened.

Q. This is Martha Walkowsky is that correct?
A. It is that's correct.

Q. What did you say to her? Do you remember what the conversation was between yourself and Martha Walkowski? A. She saw a bruise on me I believe and asked what it was. I told her that David attacked me. I told her when also, I believe, that it happened and she then spoke to me about my responsibilities about going to the police, about doing the right thing and her talk convinced me to ring the police.

Q. Did you in fact ring the police?
A. I called the police after I spoke with her and I spoke to a Constable Christine Powers. Over the talk we had on the phone she convinced me it was not too late, I can go down there, I can do something about this but just to get down there as soon as possible and make a statement.

31    In his summing up the learned trial judge told the jury that they were entitled to use the fact of complaint to Ms Walkowsky to show “some consistency” in the complainant’s conduct and as proof of the thing complained of. The jury were reminded at this stage that the complainant did not complain of rape to her mother or other members of her family.

32    In final address, senior counsel for the appellant relied upon the complainant’s evidence that all the complainant told her mother was that the appellant had hit her. He also relied considerably upon Ms Walkowsky’s version of the complaint as destructive of the complainant’s credibility. He argued that Ms Walkowsky emerged with the “clear impression” that the alleged rape happened after the quarrel in the car, and after the appellant “snapped” in the car. Counsel continued:

Well, ladies gentlemen, it’s all very well for the Crown to say Martha might have made a mistake or something, but you'll remember that Martha was the person that was pressing and pressing and pressing her to get the story and finally persuaded her to go to the police right away. Would she have persuaded her to go to the police right away if she didn’t even know where the rape took place or what was the nature of the allegation. Is not this story she told to Martha a sort of dry-run allegation which was later changed to what she thought would be a better allegation?

33    The learned trial judge adverted to this argument of defence counsel three times in the summing up.

34    In this Court, the appellant submitted that the directions given about the evidence of complaint to Ms Walkowsky were erroneous and inadequate. At its highest, the submission was that the evidence was inadmissible as evidence of the fact, with the consequence that the trial judge erred in so instructing the jury. The submission does not depend upon any lack of “freshness” in the sense discussed in Graham v The Queen (1988) 195 CLR 606. After all, the time lapse between the alleged sexual assault and conversation with Ms Walkowsky was only about 55 hours. The nub of the challenge is what is said to be the “significantly different assault” reported to Ms Walkowsky compared to that given by the complainant in her statement to the police and her evidence at trial. In these circumstances, Ms Walkowsky’s evidence is said to have been incapable of demonstrating either the consistency of the complainant’s account or the fact of sexual assault having occurred. Alternatively, the discrepancy is said to have enlivened a need for very careful directions by the trial judge. Reliance is placed upon BRS v The Queen (1994) 191 CLR 275.

35    I would reject this ground of appeal.

36    The appellant submitted that the jury should not have been told that they could use the conversation with Ms Walkowsky as evidence of the facts complained of. It was submitted that, since Ms Walkowsky gave what was described as an unequivocal and unqualified account of the complaint, being an account which involved an allegation of rape occurring in the car after the appellant had “snapped” there, the trial judge should not have directed the jury as he did.

37    The ground of appeal is not and could not be that the evidence of the discussion with Ms Walkowsky was inadmissible. The ultimate question is whether a miscarriage occurred by reason of the directions given to the jury about it. In this context, it is significant, but not determinative that no redirection was ever sought.

38    Alternatively, this material is one of the matters at the forefront of the appellant’s challenge to the verdicts on the basis that they were unreasonable, having regard to the evidence.

Not every discrepancy between evidence of complaint and evidence at trial precludes a jury from being instructed that they can make the conventional dual use of the complaint as going to (1) the consistency of the complainant’s position and (2) the truth of the matters alleged. It must be open for a jury to go to the essence of a complaint and (provided they accept that it was made in its essential terms) to use it in what I have termed the conventional manner. There will be cases where the matter alleged in a complaint is so different in time, place and detail to the substantive case at trial that the judge should hold that it is incapable of being used to support the Crown case. But the present was not such a case, nor was it seen to be by the appellant’s very experienced senior counsel at trial, who sought no redirection.

40    The present submission has to be analysed in its context, ie in the context of the issues joined at trial and in the context of the evidence given by the two women about the conversation said to involve the critical complaint.

41    As to the issues joined, it was common ground that intercourse occurred at the flat, and there was never a suggestion of intercourse occurring in the car.

42    I think it important to observe that the complainant was never asked to give a full or verbatim account of what she said to Ms Walkowsky. It is obvious that the complainant’s version of the conversation given in the passage set out above is the barest of summaries. For understandable tactical reasons cross examining counsel did not probe more deeply. But neither did he challenge the complainant’s account in substance or detail. In these circumstances I would reject as entirely unrealistic the submission that “I told her that David attacked me” was not a summary of an allegation of rape. It was clearly understood to be such by Ms Walkowsky and so it was reported later that day when, at Ms Walkowsky’s prompting, the complainant contacted the police.

43    Ms Walkowsky’s version of the conversation has also been set out above. She too was not asked to give a verbatim report of the conversation or conversations she had with the complainant.

44    There is much in common between the two truncated accounts, namely the complainant’s visible distress, the complainant’s reluctance to talk about details, a charge of rape, identification of the appellant and implicit indication that the attack occurred in the preceding weekend.

45    On the complainant’s version of what happened in the car it is quite understandable that she would have referred to the appellant as having “snapped”. This suggests the possibility that Ms Walkowsky may have elided two separate events.

46    Nevertheless, Ms Walkowsky’s impression or memory of what she was told was that the rape occurred in the car, after the appellant “snapped”. In my view this did not preclude the jury from using Ms Walkowsky’s evidence for the dual purpose they were told they could, to the extent that they were satisfied that a complaint of rape against the appellant had been made. They were certainly entitled to reach such satisfaction in view of the absence of any challenge to the existence of the conversation, any probing of the discrepancy between the two versions and the list of matters in common to the two versions which I have already recorded.

47    In the directions which the learned judge gave concerning the Walkowsky conversation, the jury were correctly instructed about their entitlement to use “the fact of the complaint to Ms Walkowsky” (emphasis added), a direction that left them with the task of working out the content of that complaint. Indeed, on the matter of present relevance (ie Ms Walkowsky’s attribution of the rape being said to have occurred in the car) the jury were thrice reminded of the discrepancy between the two versions and of the use which senior counsel for the appellant sought to make of that discrepancy. They were also reminded of the Crown’s submission seeking to explain how Ms Walkowsky could have been wrong on this point (see Summing up p16 17/4/00, p11 18/4/00, p14 18/4/00). The third of such directions also concluded with a direction that whether or not the jury used “the fact of the complainant’s complaint in the two ways indicated” was for the jury to decide “because you are the judges of the facts in this trial”.

48    I would also accept the Crown submission that this is not a proper case to grant leave in accordance with r4. The appellant’s counsel at trial embraced and sought to use the discrepancy between the two versions of the account, as the jury were repeatedly reminded. There was no application for a redirection, even though the first of the directions complained of occurred on 17 April 2000 and the summing-up continued on 18 April 2000.

49    I would reject this ground of appeal.

Unreasonable verdicts

50    The verdict on each count is challenged on the ground that it is unreasonable or cannot be supported, having regard to the evidence. M v The Queen (1994) 181 CLR 487 establishes that the test is whether the appellate court thinks that, upon the whole of the evidence, it was “open to the jury” to be satisfied beyond reasonable doubt that the accused was guilty. Commenting on M, Gaudron, McHugh and Gummow JJ said in Jones v The Queen (1997) 191 CLR 439 at 451:

The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that (29):
in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
The majority judges explained (30) the application of the test as follows:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal, that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
See also Knight v The Queen (1992) 175 CLR 495 at 511, where Brennan and Gaudron JJ said:
The deference which is due to a jury’s verdict, both by reason of the jury’s presence at the trial and by reason of its function as the constitutional arbiter of the facts, precludes an appellate court from simply substituting its view of the evidence for the view formed by the jury under proper direction. It is only when an appellate court, giving the verdict appropriate deference, concludes that it was not open to the jury to convict that it is right to set aside a verdict of guilty.

51    The appellant submits that the Court must assess the quality or probative value of the evidence taken as a whole. I agree. Eight matters of significance are raised as to the reliability of the complainant’s evidence upon which the Crown case necessarily depended.

52    Before addressing them, it bears recording that the mere fact that the Crown case depended upon the evidence of the complainant does not mean that the jury were incapable of being satisfied beyond reasonable doubt, or that this Court should overturn the verdict on the basis alleged.

53    A reading of the evidence as a whole does not convey to me that it was not open to the jury in the present case to be satisfied beyond reasonable doubt that the appellant was guilty of the two charges on which he was convicted.

54    The complainant was consistent in her evidence. There was no suggestion that it varied from that asserted in her detailed statement to the police given four days after the night in question.

55    Furthermore, the Crown case was supported by two bodies of additional material. First is the evidence of bruising and bodily injuries which are entirely consistent with the complainant’s evidence of the particular circumstances of the two assaults charged. The complainant swore that the injuries occurred in those assaults. There was no evidence, indeed no suggestion, to the contrary. Dr Warwick examined the complainant at Royal Prince Alfred Hospital on 3 November 1998. He observed bruising on the left wrist, right forearm, left thigh and right breast. Photos were taken. Bruising was also observed by Martha Walkowsky on the Monday and Constable Gregory on the Wednesday of the week in question. The appellant did not challenge this evidence. It is true that the evidence does not point incontrovertibly to guilt on the offences charged, but it does not need to do so before it can have probative effect. While the appellant bore no onus of proof on the matter, he did not at trial suggest any explanation for the injuries, which were real and significant.

56    Secondly, there is the evidence of distress and complaint. When the complainant got home in the early hours of Saturday morning she spoke briefly to her mother before going to the bathroom and vomiting and then going to bed. The mother corroborated her distressed state. The complainant swore that she told her mother that the appellant had “hurt” or “hit” her. Her mother’s evidence did not refer to this particular statement, but it is clear that the mother saw visible signs of distress and she was not challenged or questioned further about the discussion. I have already observed that defence counsel was content to embrace the complainant’s version in his address to the jury. The complainant gave a plausible reason for not telling her mother that she had been raped. She felt guilty about having disregarded the promise made to her mother that she not see the appellant again.

57    Dr Warwick, and the police officers to whom the complainant spoke at 4.45pm on 2 November and 9.15 on 4 November were given complaints consistent with the complainant’s sworn evidence. They observed her distress, interpreting it to be genuine. The jury were given proper directions about the assessment of this evidence.

58    Martha Walkowsky also attested to distress and complaint of rape. I have already explained why, in my view, the jury were entitled to regard that evidence as significant and probative, notwithstanding Ms Walkowsky’s understanding or recollection that she had been told that the rape had occurred in the car.

59    I consider the evidence of the ripped pantyhose to have probative value. It figured significantly in final addresses, with the Crown Prosecutor challenging the appellant’s “absolute” certainty that the complainant was wearing white stockings and not dark pantyhose. It is true that the complainant’s credibility was involved in acceptance that the ripped pantyhose that went into evidence was what she was wearing on the night in question. The jury were well positioned to make that assessment and they would have been assisted in it by the complainant’s mother’s evidence identifying the exhibit as having been that which she found with the complainant’s clothes on her bedroom floor and which she put in a garbage bag because of its then ripped state.

60    It is appropriate at this stage to address the eight features of the case relied upon by the appellant as bearing adversely upon the reliability of the complainant’s evidence. But before doing so, I reiterate that these need to be placed side by side with the totality of the evidence. Taken individually and as a whole they do not persuade me that the verdicts are unsafe.

61    The first point relates to the location of the rape as Ms Walkowsky understood or remembered it to have been reported to her by the complainant. I have already addressed this matter and sought to explain why elision or confusion could easily have occurred in the course of discussion taking place at the work place between a distressed complainant reluctant to go into details and a listener who on her own evidence was not concerned about details. To my mind the important thing is that there was a clear allegation of rape which resulted in the complainant being persuaded to report the charge to the police. It is also relevant in understanding the possible confusion that, on any version of the complainant’s case, the appellant “snapped” in the car. There was never any suggestion of sexual assault having taken place in the car and in those circumstances Ms Walkowsky’s confusion (however arising) does not undermine the general credibility of the Crown case.

62    The second and third points relate to discrepancy in detail about two matters of the complainant’s evidence. She said that Ms Walkowsky initiated the discussion at the workplace after having seen bruising, contrary to Ms Walkowsky’s recollection. The complainant also said that she rang the police immediately after her being advised by Ms Walkowsky to do so, whereas the police evidence was that the phone call occurred at about 4.45pm in the afternoon. These strike me as minor discrepancies. It is not clear who was in error as to the bruising. The complainant was wrong about the timing of the phone call to the police. But her errors do not undercut her credibility to any material degree.

63    The fourth point concerns the absence of complaint of rape to the complainant’s mother. I have indicated that there was a plausible reason for this which the jury were quite entitled to accept. The fact that the complainant’s mother did not give evidence of having been told that “he hit me” loses most of its significance in light of the complainant’s distressed condition and her conceded unwillingness to go into detail with her mother. The mother may have been mistaken on the point, rather than the complainant.

64    The fifth point seeks to draw out a discrepancy between the complainant’s evidence that her relationship with the appellant had broken down well before 30 October and the evidence that e-mails had been exchanged on 26 October 1998 leading up to the decision to have drinks on the Friday evening. The complainant never went beyond asserting that she had decided to break off the relationship. The fact that she would have agreed to go out for drinks at a hotel with other workmates tagging along undermines the Crown case in no way. It was always common ground that the couple went back to the appellant’s flat on the night in question. It was also common ground that the complainant had first intended to go directly home from the hotel by taxi.

65    The sixth point has no merit. The complainant always believed that the appellant had stolen her handbag. All that happened was that the complainant’s own evidence was unable to substantiate her allegation because it rose no higher than asserting that she may have left the bag in the appellant’s car or at his house.

66    The seventh point was that there was no evidence of any bruising to the head, ear or neck apart from the complainant’s own evidence. Dr Warwick referred to various bruises, but not to these parts of the body. There may not have been visible injuries there. The important matter is that those injuries which were visible were consistent with the Crown case.

67    The eighth point carries no weight. It is said that the fact that the complainant agreed to travel with the appellant in his car after the events in the granny flat as she recounted them was surprising. I content myself with saying that it was at least understandable, given that the complainant did not have the money for a taxi ride home and was not offered the fare. She may well have perceived that no further incident would occur in the circumstances.

68    I have already stated my conclusion based upon the evidence as a whole. These grounds of appeal fail.

69    The appeal should be dismissed.

70    WHEALY J: I agree.

71    HOWIE J: I agree.

72    MASON P: The appeal is dismissed.

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