Regina v Khan

[2000] NSWCCA 428

CITATION:	REGINA v KHAN [2000] NSWCCA 428
FILE NUMBER(S):	CCA 60656/98
HEARING DATE(S):	8 May 2000
JUDGMENT DATE:	23 October 2000
PARTIES :	REGINA v Rahiman KHAN
JUDGMENT OF:	Grove J at 1; Adams J at 57; Smart AJ at 58

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0171
LOWER COURT JUDICIAL OFFICER :	Howie DCJ

COUNSEL :	Mr J C Papayanni (Appellant) Mr C K Maxwell (Crown)
SOLICITORS:	Malelbing Mednis & Associates (Appellant) S E O'Connor (Crown)
CASES CITED:	Liberato v The Queen 1985 159 CLR 507 Longman v The Queen 1989 168 CLR 79 R v DJK 1997 A Crim R 450 R v Murray 1987 11 NSWLR 12 R v Robinson 1999 165 ALR 226
DECISION:	Appeal against conviction dismissed; Leave to appeal against sentence granted but appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60656/98

GROVE J
ADAMS J
SMART AJ

MONDAY 23 OCTOBER 2000

REGINA v RAHIMAN KHAN

JUDGMENT

1    GROVE J : The appellant was arraigned before Howie DCJ and a jury at Parramatta District Court upon four counts of common assault, four counts of having sexual intercourse without consent, one count of indecent assault and a count of abduction with an alternative to the lastmentioned of kidnapping. He pleaded guilty to one count of common assault and not guilty to all other counts. Verdicts of guilty were found by the jury on all outstanding counts, it was unnecessary to return a verdict on the count charged in the alternative. The overall effect of sentences was to imprison the appellant for eight years and three months before eligibility for parole during an additional term of two years and nine months.

2    In November 1997 the appellant resided in a house at Punchbowl with his wife and their two children aged about eight and five. Although not divorced, the appellant referred to his spouse as an “ex-wife” as she did herself when giving evidence. The complainant, who was known as Dolly as well as by her formal names, was a student who had arrived in Australia from India at the end of July 1997. She resided at Dulwich Hill. She had part time employment which involved approaching people in the Roselands Shopping Centre (which is in a suburb near to Punchbowl) seeking to interest them in contracting with a carrier which provided an overseas telephone service.

3    On 27 November the complainant approached the appellant for this purpose. The appellant is of Indian ancestry but was born in Fiji. At the time he was approached by the complainant he was accompanied by another Indian man, Daniel Walsh, who is sight impaired. The complainant noticed these men, Mr Walsh walking with his hand on the appellant’s shoulder. There was some discussion about the appellant making calls to Fiji. He signed a form which the complainant had filled in and then departed but returned about ten minutes later when he asserted that he incurred a telephone expenditure of about $500 per month. This was of commercial interest to the complainant on behalf of her employer. Another form was completed and the complainant asked for production of an account which would verify the level of telephone use mentioned by the appellant.

4    In the event the complainant supplied him with a business card and her own mobile telephone number. There followed contacts which it is unnecessary to detail completely. Included were messages left on the telephone system. Eventually arrangements were made to meet (some days after 27 November) at 2 pm at Burwood Railway Station. The offices of the complainant’s employer were at Burwood. The complainant had originally thought that the appellant seemed a potentially good customer but after these contacts she began to suspect that his interest was rather directed towards her. Nevertheless she met him and they went to a coffee shop. The appellant was again accompanied by Daniel Walsh.

5    During the meeting the complainant received a phone call. It was in fact from her boyfriend but in answer to enquiries she told the appellant that it was her brother in law and that she had to leave “early” because he had called. English is not the complainant’s first language and it is plain that she meant that she had to leave soon and was using the call as a pretext for polite but prompt departure.

6    This provoked an extraordinary response from the appellant, a stranger, that he would physically damage the brother in law if he was disturbing her. She asked him to come and meet her boss as she was new to the business and the boss could explain what was being offered.

7    They met again some days later and sat in a car in Dulwich Hill. The appellant, inter alia, claimed that he was able to deport people. Still later they met again at Dulwich Hill and the appellant drove to Wiley Park. They sat in the car for four or five hours. The appellant questioned her about her family, her past, her boyfriends and her religion. She disclosed that she was a Sikh. The appellant said that he was a Muslim. He proposed marriage, remarking that he was thirty eight years old and because he was so old his mother wanted him to marry now. He did not at that point mention his wife and children.

8    The next day the appellant picked up the complainant from Dulwich Hill and drove her to what she described as “the beaches”. The appellant received a phone call from his wife, Ferial. He told the complainant that she was a girl living with him whom he was assisting to obtain permanent residency. This call was terminated and the appellant then rang and asked the complainant to speak to the woman Ferial. They had a short conversation in which Ferial told the complainant that she had upset her life. The phone was handed back to the appellant. He then told her that he would drive her to his home to meet Ferial. The complainant declined and asked to be taken to her own house but she was taken to Punchbowl where she met Ferial, two children and Daniel Walsh.

9    The complainant again asked to be taken home but the appellant said they would go for a drive first. All of them went in the car but returned to Punchbowl where the appellant announced that the complainant was to live with them and he would pick up her luggage and would provide her with a bedroom. Ferial was present at this announcement. She was crying and said that if he (the appellant) wanted Dolly to live there, he had to divorce her first. At this point the complainant ran from the front door but was caught and dragged back into the house.

10    The appellant, Ferial and the complainant talked in the lounge room for most of the night. The next day the appellant dropped the complainant at her home. She left and went to her brother in law’s home at Ashfield. It was reported to her that the appellant, while she was away, had called at her flat. She received messages from him including a protestation that he intended to kill himself and his children. This provoked her to call him and she asked him to forget her and to do nothing to the children. The appellant was crying. The complainant also rang Ferial. Later she saw the appellant sitting in his car at Dulwich Hill; he was still crying and produced some rope which he said he was going to use to hang himself.

11    She entered the car and they drove around the beaches finally going to Punchbowl. She made a call to her brother in law. They spoke in Punjabi. Conversations other than those in English with the appellant and his family were in Hindi.

12    The complainant again asked to go home saying that she wanted to celebrate her sister’s birthday but the appellant reacted by dragging her into the master bedroom and locking the door from the inside. He told the complainant that he wished to marry her and he pushed her to the floor and lay on top of her and started kissing her. There were sheets spread on the floor. Ferial opened the door to the bedroom by use of a key. She said that she had not known that there was a sexual relationship between her husband and the complainant and that she was going to leave. She reminded the appellant that he had to divorce her if he wanted to marry Dolly. The complainant asked Ferial not to leave but the appellant pushed her out of the room and relocked the door.

13    The appellant started to undress the complainant. When she resisted, he slapped her face. He told her that he wanted her to have a baby and proceeded to have sexual intercourse. The next morning there was a repeat of intercourse. The complainant was crying but she did not on this second occasion physically resist.

14    The complainant located these events as the 11 and 12 December. On the latter morning the appellant dropped her back home. She again went to Ashfield but returned to Dulwich Hill on 14 December. While she was there Ferial arrived and spoke to the complainant’s boyfriend who was also one of her flatmates at the premises at Dulwich Hill.

15    On 15 December the complainant and her brother in law were walking in Dulwich Hill when the appellant arrived and persuaded them to sit in his car. He drove to Lakemba and dropped the brother in law at his boss’s place where he was asked to wait for five minutes but the appellant drove to Punchbowl and then told the complainant that he had decided to kill himself by hanging and that she was “free from today”.

16    The brother in law rang and the appellant and complainant returned to collect him after which they proceeded back to Punchbowl where they all dined together with Ferial and the children. Afterwards Ferial drove back to Dulwich Hill. She and the complainant went inside and talked for about half an hour. The appellant and Harpreet (the complainant’s brother in law) remained in the car. Later Anurag (the complainant’s boyfriend/flatmate) was driven to his place of work at Earlwood. He left the car there accompanied by Harpreet. The appellant, the complainant and Ferial returned to Punchbowl. At the house the appellant manhandled the complainant into the bedroom. He abused her with remonstrations such as “You silly bitch” and “You slept with another guy and you deceived me”. He punched her about the face and body. She called to Ferial for help and Ferial came into the room from the shower, wrapped in a towel. The appellant pushed her out of the room. Then the complainant was threatened by him with a kitchen knife. She called again to Ferial who eventually re-entered and told the complainant to “just sit and talk nicely”. She told the appellant that she had spoken to Anurag and that he and the complainant were just friends. The appellant pushed Ferial out of the room.

17    The complainant asked to make a telephone call but the appellant refused. She said that she thought she would die so she asked if she would be allowed to pray. The appellant permitted this and left the room. He left the knife behind. The complainant hid it. Upon return the appellant bound the complainant’s mouth with tape but then removed it. The complainant asked and was permitted to go to the toilet. She locked the door. The appellant broke it down. She ran to the master bedroom and locked it. She called to Ferial that he was going to kill her but Ferial replied that he was not going to do that and she said “Believe me”.

18    The appellant was allowed into the room by Ferial. He was equipped with blue and brown rope and he tied the complainant’s hands and feet. He put her in the boot of the car and opened a hatch to allow some air in and then got into the driving seat. The complainant was able to free herself, in part by use of a sharp instrument which was in the boot.

19    The appellant had noticed the complainant’s first escape from her bonds and he retied her more tightly. The complainant told him that she loved him and wanted to marry him. She was not sincere and said so only in the hope that she might make her escape. Thereafter the appellant again applied tape around the complainant’s head area. He then opened her undergarment and began kissing her breasts.

20    Next the appellant said that they would go to Brisbane on the following day. He untied the ropes and led the complainant back to the bedroom. Ferial was in the house but she ignored the complainant.

21    Later Ferial came to the door and the appellant told her to go to Dulwich Hill and pick up the complainant’s luggage but she said that it was too late. The appellant assented to a request to telephone the complainant’s brother in law on condition that she spoke in Hindi and not in Punjabi. She asked that some medicine and luggage be brought. Ferial departed and returned with these things about three quarters of an hour later.

22    The complainant said that she was feeling suffocated and was again taken for a drive around the beaches. Upon return the appellant started to undress her again. He engaged in digital penetration and cunnilingus. They remained in the bedroom and on the next morning the complainant heard Ferial depart in one of the two cars which were located at the premises.

23    The appellant and the complainant dressed and had breakfast with the children. There was a confrontation during the meal over the complainant’s refusal to eat an egg which she declined to do for religious reasons. She was crying. The children were taken to school and upon return the appellant and the complainant again had sexual intercourse. The complainant did not resist but continued the pretence of affection in the hope of effecting an escape.

24    Afterwards they showered and dressed. The appellant made a call to the complainant’s parents in India. She had provided the telephone number. Each of them spoke with her father and sister. The complainant described him as speaking gently to her family members. The conversations were in English. The appellant had again warned the complainant not to speak in Punjabi. She told her father that the appellant was a very nice man.

25    At the end of the call there was further mention of going to Brisbane and the complainant said that she would need to collect her pay from Burwood. The appellant took her there. She went in and talked to her boss and called her brother in law and also Ferial. She was concerned that if she was in there too long that the appellant would follow her. She also spoke to Parminder Singh who was her sales team leader. He went downstairs with the complainant and she started to walk to the station whereupon the appellant came to her and pulled her into the back seat of the car. She called through the window for help and asked Parminder Singh and passers-by to call the police. The appellant grabbed her but she got away although her shirt and jacket were torn off. The appellant recaptured her asserting to the gathering people that she was his wife. He drove the car away but halted at a red traffic light and several people came and assisted the complainant out of the car. She was by this time clad only in her bra and trousers. She was taken to police and later to Westmead Hospital.

26    The foregoing, although lengthy, does not repeat all of the detail in the complainant’s evidence. It sketches a series of events in which the conduct of both principal participants is difficult to comprehend. Nevertheless it is plain that the jury accepted the substantial truth of the complainant’s evidence and their advantage in being able to assess her was of great importance particularly as even reading the transcript reveals the difficulties which the complainant had with many expressions of the English language and its nuances. For example, her affirmative answer to a leading question whether she was attracted to the accused clearly in the light of all of the evidence showed that she did not understand the word “attracted”. The complainant was aged twenty two when she gave evidence and was therefore twenty or twenty one at the time of the events giving rise to the charges.

27    Many of the actions testified to by the complainant and her own descriptions of submissive behaviour could mystify anyone whose cultural experience was limited to current western society and it is important not to overlook the appreciation of the complainant’s situation which was reflected by the verdicts of the cross section of the community constituting the jury.

28    I turn the grounds of appeal. I shall set them out as expressed.

Ground 1

(a) His Honour misdirected and/or failed to direct the jury adequately or properly as to the plea of guilty to the 9th count (Pp 17,7, 29, 30 of S.U.)

(b) His Honour erred in law in directing that this evidence could be treated as ‘tendency’ evidence (P29 of S.U.)

29    As mentioned before the appellant pleaded guilty to the 9th count. In his summing up the learned trial judge made the following references to the matter. He said:

“The unlawful touching of one person by another in law amounts to an assault. Now that is what the accused says he did in respect of the ninth count in the car at Burwood. He is really saying I think that he was not acting in a hostile manner but he was restraining her, he was keeping her back into the car, even though she wanted to leave. The Crown says well really it was more than that but that is what the accused accepts was an assault and that is why he pleaded guilty to the ninth count. He interfered, if you like, with her and accepts that that amounted to an unlawful touching of the complainant.”

30    And later:

“Similarly, you can take into account the facts surrounding the ninth count. That is, the assault in the car in Burwood, even though the accused has pleaded guilty and even though you are not to bring in a verdict in respect of that matter, you can use the facts of that particular matter that have been led before you, including the accused’s admission that he assaulted the complainant, when assessing her evidence and the evidence of the accused in relation to their relationship.”

31    His Honour reminded the jury of the respective contentions of the Crown and the defence concerning the significance of the evidence and told them that the facts (as the jury found them to be) could be weighed in consideration of all of the charges notwithstanding that they were not required to give a verdict on the particular count.

32    I find no fault in his Honour’s directions. Despite the plea, there was a contest about the significance of the actions constituting the admitted assault and the jury’s view was capable of contributing to their ultimate conclusion on issues of consent which had been raised.

33    The jury were not invited to treat the evidence on the basis that it manifested tendency and ground 1(b) mis-states the situation.

Ground 2

(a) His Honour erred in law in misdirecting and failing to direct the jury as to consent in each of the sexual charges 3 46, 7, 8 including honest belief in consent by the appellant.

(b) His Honour erred in law in failing to direct the jury as to the facts supporting the defence case in respect of each count as to consent and honest belief in consent (Pp 20, 21, 22, 24, 25, 26)

(c) His Honour erred in law in directing the jury ‘…you might fairly easily find ….not consenting’ (P26 of S.U.)

34    The context of the reference in ground 2(c) is that his Honour was discussing the lack of physical resistance by the complainant to an act of sexual intercourse (charged as count 7) and the knowledge of the appellant that the complainant was not consenting if the jury found that she was not so consenting. He said:

“Again this will depend to a large extent as to what you accept as to the account of what led up to this incident which, of course, includes her allegations that she had been tied up and placed in the boot of the car and threatened with death. These, of course, are matters which are also involved in your consideration of the last two charges upon the indictment but again, if you accepted her account generally of what she says happened on 15 and 16 December, then you might fairly easily find that her failure to resist the accused was not inconsistent with a lack of consent or with the accused knowing that she was not consenting.”

35    The argument by the appellant makes a somewhat artificial severance of the facts. This was not a case where some acts of sexual congress were consented to and others were not. The Crown case was that there was no relevant consent at all and the complainant’s evidence was that any apparent demonstration of affection or statement to that effect was made out of fear for herself and for her brother in law whose deportation had been threatened. The case was that by a combination of actual violence and threats the appellant had developed a substantial control and power over the complainant.

36    I would reject this ground.

Ground 3

(a) His Honour erred in law in misdirecting and/or failing to direct the jury in respect of the versions by the complainant and or appellant (Pp 16.17 of S.U.)

(b) His Honour erred in law in directing the jury that ‘the Crown will prove its case if you accept the complainant’s version beyond reasonable doubt (P17 of S.U.)

37    It has frequently been emphasized that a criminal trial cannot involve a contest between versions of a complainant and an accused without recognition that the prosecution must establish its version beyond reasonable doubt: see for example Liberato v The Queen 1985 159 CLR 507. Not only did his Honour not make the asserted error, I consider that his directions on this aspect were impeccable, namely:

“Now in this case you have two completely different versions of the relationship between the accused and the complainant. You might at first think that one way that you can resolve this case and the charges is by weighing up those two versions and seeing which one you think is more likely to be true or which one you might prefer. It is no doubt important for you to compare the different versions that have been given, those versions by the accused and his wife, as opposed to the version given by the complainant and her two friends, Mr Sharma and Mr Sodhi. But a proper application of the onus of proof means that you cannot decide this matter simply by making such a simplistic decision, you cannot simply decide this case by weighing up the two competing versions and say well I prefer his or I prefer hers; that is because the Crown is obliged to prove that the complainant’s version is the one that is to be accepted beyond reasonable doubt. If you thought that the accused’s version might possibly be correct and that might possibly be the true relationship between himself and the complainant, then he is entitled to be acquitted.”

38    The direction complained of in ground 3(b) needs to be read in context. His Honour said:

“Let me indicate to you fairly briefly what the Crown has to prove for each of these charges. I can be brief because as I understand it it has not been suggested by the defence that if you accepted the complainant’s account of the incidents giving rise to these charges that you would not find the offence proved. In other words, the Crown will prove its case if you accept the complainant’s version beyond reasonable doubt.”

39    The direction was entirely appropriate particularly in the light of the conduct of the trial in the manner described by his Honour which description provoked neither complaint nor dissent from counsel appearing at trial.

Ground 4

His Honour erred in law in misdirecting and/or failing to direct the jury as to the facts in relation to the intent in count 10 (Pp26-27 of S.U.)

40    This ground and the submissions in support of it were somewhat cryptic. Count 10 related to the forcible detention at Punchbowl with intent by the appellant to have carnal knowledge of the complainant. His Honour told the jury:

“The words of the charge that you have there in the copy of the indictment really indicate what it is that the Crown has to prove in respect of that particular charge. As I have told you, carnal knowledge means penile/vaginal sexual intercourse. The intention of the accused to have intercourse with the complainant does not have to be his only or his principal intention in detaining her against her will in order that that charge is made out but before you convict him on this charge you have to be satisfied that one of his purposes, at least in keeping the complainant in his home was to have sexual intercourse with her.”

41    There is no error in that direction.

Ground 5

His Honour misdirected the jury as to the findings on the charges and the way in which those findings could be used in relation to the other charges (Pp28, 29, 30 of S.U.)

42    The relevant part of his Honour’s direction was as follows:

“You can appreciate from what I have just said in trying to explain the different charges to you that although the various charges are to some extent independent matters and require your individual consideration as Mr Galluzzo pointed out to you, you have got to look at each charge and say to yourself in respect of each one ‘Am I satisfied beyond reasonable doubt that the Crown has proved that charge?’, they are very much bound up together and what you determine on one charge may well depend upon what you decide upon one of the other charges. I do not mean by that comment to say that it would be appropriate for you to say ‘Well if he is guilty of one charge he must be guilty of another’. That would be quite illogical and irrational an approach to take. The proof of the charges is to a varying degree part and parcel of the relationship that you find existed between the accused and the complainant and therefore the charges are interrelated to some extent. So for example, if you found that the Crown had proved the tenth count beyond reasonable doubt, that finding would no doubt have significant bearing on what you found in relation to the seventh and eighth counts.”

43    His Honour continued with the directions concerning count 9 which I have extracted in part in dealing with ground 1.

44    It is complained that no notice of tendency evidence pursuant to the Evidence Act was given. No doubt that was because the Crown was not seeking to adduce tendency evidence. His Honour was doing no more than observing that satisfaction on factual matters was capable of being germane to more than one count. The implication of the appellant’s submission that findings of fact are available only for single use cannot be sustained.

Ground 6

(a) His Honour erred in law in failing to direct the jury adequately and properly as to reliability and credit of the complainant (Pp 34,35)

(b) His Honour erred in law in directing the jury that the independent evidence of the finding of the tape, knife and machete etc. was relevant to support the complainant as to the sexual charges (Pp 35, 36, 37 of S.U.)

(c) His Honour erred in law in not giving a direction as in Longman 168C.L.R. 79 and/or as in DJK (1997) A Crim R 442 and Murray 30 A Crim R 315 at 322.

45    The credibility of the complainant was obviously the critical issue and, as already observed, his Honour had told the jury that the mere possibility of the truth of its contradiction by the appellant entitled him to acquittal.

46    The account of the complainant was not uncorroborated. His Honour correctly identified as available matters the plaster tape found in the appellant’s home with adherent strands of long black hair; the tape in the car boot; the machete in the same location; the knife in the bedroom and the torn t-shirt of the complainant.

47    In any event his Honour gave the jury forceful directions particularly concerning the absence of complaint and the return of the complainant into the company of the appellant. It is noted that his Honour also warned the jury of the need for caution in deciding whether to accept the evidence along the lines of the requirements of s165(2) of the Evidence Act even though the evidence was not in one of the specific categories to which that provision was applicable.

48    The cases cited on behalf of the appellant: Longman v The Queen 1989 168 CLR 79; R v DJK 1997 96 A Crim R 450; R v Murray 1987 11 NSWLR 12 and R v Robinson 1999 165 ALR 226 are not authorities revealing any departure by his Honour from binding requirements to give a direction in the nature suggested.

49    I would reject this ground.

Ground 7

His Honour erred in law in not giving an overall and comprehensive view of the defence case in respect of each count in the indictment.

50    Nothing could be plainer than what the issues being raised were. The position of the defence was put clearly and forcefully. Although in contrast to an earlier denial, the appellant’s case was that the complainant was in fact consenting to sexual congress between them and, even if he was mistaken about this, he believed that she was consenting. It was not his Honour’s function or obligation to recapitulate every argument and every detail of argument raised by the defence.

Ground 8

There was a miscarriage of justice in that the verdicts were unsafe and unsatisfactory.

51    This ground was re-expressed to assert that the verdict(s) was unreasonable and not supported by the evidence.

52    I have already sketched a summary of the evidence which was capable of being accepted by the jury. As was observed by the learned trial judge, correctly in my view, it was important for the jury to take into account their experiences of human behaviour with particular reference to the assessment of the complainant, her cultural background and her knowledge of Australian culture and society. An important clue was available in her evidence regarding her failure to complain when she referred to Indian police and society where complaints such as those being made by her were rarely accepted and, in effect, the female was always blamed. Although, as I have intimated, the complainant’s description of events might strain credulity from a western perceptive, I do not conclude that the joint judgment of the jury ought not be supported. Recognizing that the complainant’s version must discharge the burden of proof, it is nonetheless instructive to observe that the version of the appellant can be categorized as equally extraordinary as that of the complainant.

53    No point would be served by extraction and repetition of the evidence called in an attempt to contradict the complainant. A reading of the whole of the evidence does not lead me to the conclusion that the jury ought to have had a doubt about the guilt of the appellant.

54    I would dismiss the appeal against conviction.

55    Leave to appeal against sentence was alternatively sought. Counsel in the appeal (who did not appear at trial) was content to rely substantially upon the written submissions which are reproduced:

“The circumstances in this case are unusual in the sense that charges of assault have been included in respect of any violence alleged for which the applicant has received determinate sentences.
The sentences for the sexual intercourse charges where only the first count alleged any force and took place on two occasions on a totality basis would not incur a penalty of 11 years as generally the reasons for submitting and the actual acts did not in themselves warrant the penalties imposed having regard to the separate penalties for any violence.
The penalties for the third and fourth counts of 4 years make the penalties of 8 years on seventh, eight, and tent count appear to be well outside the range in the circumstances. The facts supporting the actual charges in all cases do not support on a totality basis or on an individual basis that they are other than towards the bottom of the range of these charges and accordingly the sentences are excessive.”

56    I do not accept those submissions. The appellant’s depredations upon a girl only slightly more than half his age were of objectively high criminality. That he did so with the apparent knowledge of, in the near presence of and without appropriate intervention by his “ex-wife” offers powerful suggestion that the appellant engaged in bullying vulnerable women. His treatment of the complainant was brutal. No remorse or contrition was apparent. I would respectfully endorse, without reproducing them, the remarks on sentence of the learned trial judge. No error in law or fact finding in relation to sentence was contended. In my view the sentences imposed were within the range of the sound exercise of his Honour’s discretion. I would grant leave to appeal against sentence but dismiss that appeal.

57    ADAMS J: I agree with the orders proposed by Grove J and with his Honour’s reasons.

58    SMART AJ: I agree with the orders proposed by Grove J and generally with his reasons. He has set out the facts and the background and dealt with all the grounds of appeal.

59    The summing up of Howie DCJ correctly stated the elements of the various offences, sufficiently related the law to the facts, contained all necessary directions and fairly and adequately placed the respective cases of the Crown and the accused before the jury. At the conclusion of the summing up except for one presently immaterial matter which received attention and correction counsel for the accused sought no further directions of law and fact and for good reasons. The unusual features of the Crown case and the complainant’s evidence had been cogently pointed out by the judge. The jury had been told, amongst other things, that the Crown case depended substantially on her evidence and that, in effect, on all essential matters they had to be satisfied of the truth of her evidence beyond reasonable doubt. The judge gave a forceful warning about the absence of complaint by her after the accused allegedly sexually assaulted her on 11 and 12 December 1997 and her return to the company of the appellant. The defence was at its strongest when concentrating on the weaknesses in the Crown case.

60    The version of events propounded by the appellant was far more extraordinary than that given by the complainant. Indeed, the version of the appellant was incredible. His defence could be described as a “sliding defence.” He told the police of how she pursued him and made amorous moves towards him. He said that in the period since he had met her she had slept at his place overnight about eight or nine times and that there was no sexual relationship. They had slept together in the second bedroom. He denied that he had sexually assaulted her at any stage. He had not touched her private part. The only time he had held her against her will was when he grabbed her and restrained her from jumping out of the car which he was driving.

61    At the trial, by contrast, there appeared to be no issue that the accused had sexual intercourse with the complainant on a number of occasions. The real dispute was as to the nature of that intercourse and as to the circumstances in which intercourse took place. Neither the account given by the appellant to the police nor that in his evidence was credible.

62    The jury were told that it was not a case of weighing up two competing versions and preferring one of them. They were instructed that if they thought that the accused’s version might possibly be correct and that might possibly be the true relationship between him and the complainant he should be acquitted. The judge avoided expressing any view on the facts and left it to the jury to decide them, emphasising that before the jury could convict of any offence the Crown had to satisfy them of each of the elements of the offence beyond reasonable doubt.

63    As Grove J has pointed out, there was significant evidence supporting the Crown case.

64    The appellant’s main submission seemed to be that the judge should have dealt with his defences in greater detail. I am unable to accept that submission. The judge adequately put his defence to the jury. The judge was not required to go into every detail. The principal issue in the trial was the complainant’s credibility. The judge stressed this and pointed to the weaknesses in her evidence and in the Crown case and then summarised the defence case. That was not skimped. The questions which arose were essentially jury questions and there was ample material on which they could reach the conclusions which they did. I would have been surprised if the jury had reached different conclusions. The verdicts were not unreasonable.

65    The judge gave careful and detailed consideration to the sentences imposed. They were stern but they had to be given the grave criminality revealed. It continued over a number of days. The judge’s findings were well supported by the evidence and his view that the criminality was very substantial cannot reasonably be disputed. The judge did not err in the sentences imposed. They were within the permissible range.

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