Sirl v The Queen; The Queen v Sirl
[2020] ACTCA 37
•10 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Sirl v The Queen; The Queen v Sirl |
Citation: | [2020] ACTCA 37 |
Hearing Date: | 22 May 2020 |
DecisionDate: | 10 July 2020 |
Before: | Elkaim J, Robinson AJ and Crowe AJ |
Decision: | See [252] – [253] |
Catchwords: | APPEAL – CONVICTION – Unsafe or Unreasonable Having Regard to the Evidence – Examination of the record – whether the jury ought nonetheless to have entertained a reasonable doubt as to proof of guilt – objective evidence of phone records APPEAL – SENTENCE – Manifestly Inadequate Sentences – Degree of accumulation – inadequate extension of nonparole period |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5531 |
Cases Cited: | M v The Queen [1994] HCA 63; 181 CLR 487 |
Parties: | The Queen (Crown) Robert Glen Sirl (Appellant/Respondent) |
Representation: | Counsel A Williamson (Crown) J White SC (Appellant/Respondent) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Appellant/Respondent) | |
File Number: | ACTCA 44 of 2019; ACTCA 59 of 2019; ACTCA 60 of 2019; ACTCA 7 of 2020 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Burns J Date of Decision: 11 September 2019 Case Title: R v Sirl Citation: SCC 19 of 2019 |
| Court: Supreme Court of the ACT Before: Burns J Date of Decision: 12 December 2019 Case Title: R v Sirl (No 2) Citation: [2019] ACTSC 388 |
| Court: Supreme Court of the ACT Before: Mossop J Date of Decision: 12 December 2019 Case Title: R v Sirl (No 3) Citation: [2019] ACTSC 355 |
| Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 6 February 2020 Case Title: R v Sirl (No 4) Citation: [2020] ACTSC 23 |
THE COURT:
Introduction
On 3 September 2019 Mr Robert Sirl went to trial before a judge (Burns J) and a jury facing two counts, one of sexual intercourse without consent and one of recklessly inflicting grievous bodily harm.
It is important to note immediately that the two counts arose from the same act of sexual intercourse. It was alleged that sexual intercourse between Mr Sirl and the complainant took place without the complainant’s consent and that, during the sexual intercourse, the grievous bodily harm was inflicted.
On 11 September 2019 the jury found Mr Sirl guilty on both counts.
On 23 September 2019 Mr Sirl went to a separate trial before Mossop J and a jury, facing a charge of maintaining a sexual relationship with a young person. The jury convicted him of this charge on 26 September 2019. There is no appeal from this conviction.
On 12 December 2019 Mr Sirl was sentenced, separately, by Burns J and Mossop J in respect of the offences for which he had been convicted in the above trials.
On 6 February 2020 Mr Sirl pleaded guilty to a single offence of maintaining a sexual relationship with a young person. He was sentenced for this offence, by Murrell CJ, on the same day.
Mr Sirl has appealed against his conviction for the two offences for which he was found guilty on 11 September 2019. The Crown has appealed against the sentences imposed respectively by Burns J, Mossop J and Murrell CJ. Mr Sirl will be referred to as the appellant when discussing the conviction appeal and the respondent for the sentence appeals. To avoid confusion the Crown will always be referred to as the Crown.
The conviction appeal has only one ground; the two verdicts were “unsafe or unreasonable having regard to the evidence”. This ground corresponds with
s 37O(2)(a)(i) of the Supreme Court Act1933 (ACT): The verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.
Each of the sentence appeals shares the same ground; namely that the sentences imposed were manifestly inadequate.
The sentences were as follows:
(a)For the offence of sexual intercourse without consent (CC2018/13147) Burns J sentenced Mr Sirl to 6 years’ imprisonment commencing on 25 October 2018 and ending on 24 October 2024.
(b)For the offence of recklessly inflicting grievous bodily harm (CC2018/13146) Burns J sentenced Mr Sirl to 6 years and 9 months’ imprisonment commencing on 25 July 2020 and ending on 24 April 2027.
(c)Burns J also dealt with a breach of a Good Behaviour Order and a charge of being an unlicensed driver, but these are not relevant to the appeal.
(d)Burns J imposed a nonparole period of 5 years and 11 months commencing on 25 October 2018 and ending on 24 September 2024.
(e)For the offence of maintaining a sexual relationship with a young person (SCCAN2019/25) Mossop J sentenced Mr Sirl to 5 years’ imprisonment commencing on 25 October 2024 and ending on 24 October 2029.
(f)Mossop J, as he was obliged to do, amended the nonparole order made by Burns J so that it was for a period of 7 years and 8 months commencing on 25 October 2018 and ending on 24 June 2026.
(g)For the offence of maintaining a sexual relationship with the young person (CC2019/3129) Murrell CJ sentenced Mr Sirl to 5 years’ imprisonment commencing on 25 April 2027 and ending on 24 April 2032.
(h)The nonparole period was amended by Murrell CJ to a period of 8 years commencing on 25 October 2018 and ending on 24 October 2026.
The Crown has appealed against the sentence imposed by Burns J for recklessly inflicting grievous bodily harm and against the overall aggregate sentence of eight years and six months. The degree of concurrency between the sentences imposed by Mossop J and Murrell CJ and Mr Sirl’s existing sentence at each relevant time is also the subject of appeal. The Crown is also particularly concerned about the sentence imposed by Murrell CJ and the extension of the nonparole period by four months included in her Honour’s sentencing regime.
The conviction appeal
The appellant relied heavily on the recent High Court case of Pell v The Queen [2020] HCA 12; 94 ALJR 394. The appellant said this case has “changed the landscape”. The Crown disputed this assertion, saying Pell was consistent with existing law, for example as stated in M v The Queen [1994] HCA 63; 181 CLR 487.
The appellant, and not disputed by the Crown, said that the role of an appellate court was set out at [39] of Pell:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
(Footnotes omitted)
Thus it is necessary for this Court to “examine the record” to see if the test posed above has been established or not.
The appellant’s central argument was that the verdicts were unreasonable because of the following:
(a)The versions of what had occurred given by the complainant were permeated with “significant inconsistencies and unexplained discrepancies”;
(b)The Crown did not call witnesses that it should have called. This included a failure on the part of the police to carry out certain appropriate investigations; and
(c)Irrelevant and highly prejudicial material was admitted into evidence.
The Crown responded to all of the above points but emphasised, in respect of some of them, that they should not be considered because they had not been raised below. The Crown relied on an absence of leave under r 5531 of the Court Procedures Rules 2006 (ACT). The appellant responded that the points where leave was ostensibly required were not discrete grounds of appeal but rather added to the disquiet this Court should feel in examining the record.
The appellant emphasised that in reviewing the evidence it was necessary to see whether the Crown had excluded, as possibly raising a reasonable doubt, three hypotheses which were said to have arisen from the evidence. These hypotheses, in summary, were:
(a)The injuries suffered by the complainant were self-inflicted.
(b)The length of time between the alleged assault by the appellant and when the complainant called an ambulance was enough to allow for the assault to have been carried out by another person, as initially suggested by the complainant.
(c)The injuries suffered by the complainant were caused during consensual intercourse with the appellant. They were not the product of intentional or reckless behaviour on his part; they were the product of misadventure.
The Court agrees with the appellant that the appeal against conviction should be allowed. As will be seen below, and as occurred in Pell, the evidence of the complainant, no matter how favourably viewed, together with all of the other evidence supporting her version, simply cannot exclude the objective evidence led in the case which should have resulted in the jury having a reasonable doubt as to the guilt of the appellant.
The objective evidence is the phone records derived from the complainant’s mobile phone. As will be seen below these records are contained in Exhibits 5 and 19 of the trial.
As stipulated in Pell, it is first of all necessary to examine the evidence in the trial.
The course of the trial
The indictment contained one count of sexual intercourse without consent and one count of recklessly inflicting grievous bodily harm. It is clear from the narrative that the offending could have been the subject of different counts. For instance, on the Crown case, it appears that there was more than one act of penetration. The trial was conducted; however, on the basis that the complainant was not consenting to any act of penetration and that in the course of the transaction between the two actors the appellant had inflicted the grievous bodily harm to the complainant with the necessary mens rea.
A second feature of the trial, which continued in the appeal, was that there was no separate consideration of the sexual intercourse count from the grievous bodily harm count. The parties conducted the proceedings on the footing that the outcome for both offences would be the same.
A summary of the evidence
The complainant
The Crown case relied primarily on the evidence of the complainant. Her evidence in chief was largely pre-recorded, but then supplemented by further questions before the jury. Perhaps unusually, the evidence in chief interview was tendered as an exhibit.
This was the complainant’s version (summarising to a degree and initially based on an overall description given in answers to Questions 42 and 43 in Exhibit 1): The events occurred in the evening of 8 August 2018. The complainant lived in a cabin at a caravan park. The appellant lived in a different cabin in the same park. He had a cabin-mate called Adam McDougall. The complainant thought the appellant’s name was Glen Robert Chapman, referred to as ‘Chappo’.
The appellant was known to the complainant. He sometimes sold her marijuana. She thought he sold drugs to many people and frequently traded drugs for sex. The complainant had rejected such an arrangement saying “Look, Chappo, I would pay you double for a bit of weed before I would even consider having sex with you” (Exhibit 1, Question 43, page 6). The statement is important because later evidence showed that the appellant and the complainant had had sex from time to time in the past.
On the night of the alleged offences the appellant sent the complainant a text message, at about 11pm (Exhibit 1, Questions 64 and 134), saying that he had some marijuana for her. She went to his cabin. She paid $20 for the marijuana. The appellant also offered her some ‘ice’, which she had never previously used.
Mr McDougall was initially in the cabin, but he left as the complainant arrived. The complainant sat in a recliner which had weapons “down each side” (Exhibit 1, Question 43, page 7). These included machetes and swords. There was also a baseball bat in the premises.
At some stage the complainant consumed the ice. She also had a coffee and some orange juice. She thought the ice may have been put into either of these beverages.
A dispute arose about some missing money. The sum was significant, $68,000. The complainant denied any knowledge of it and invited the appellant to “frisk” her. The appellant began to look for the money and insisted the complainant accompany him as he moved through different rooms. She also assisted in the search.
The complainant was beginning to feel the effects of the ice. She was “wobbly”. In a bedroom of the cabin the complainant noticed sex toys, “vibrators and dildo things”. There was women’s underwear on the bed and dried blood under the doona cover.
The search for the money continued in the bedroom until the appellant said “But…We’re going to have some fun first” and pushed the complainant onto the bed. She protested stating “Look, please, Chappo, you know, I don’t do this. I don’t want” (Exhibit 1, Question 43, page 9).
The complainant said she was wearing tracksuit pants, a T-shirt and UGG boots (Exhibit 1, Question 43, page 10). This description of her apparel became important.
The appellant ripped off the tracksuit pants and pulled off the boots. He flipped the complainant onto her front. He was strong and she was slight. He held her neck down. Her face was buried in the pillow.
The complainant thought the appellant had inserted his penis into her vagina but she could not see that to be the case. She was in pain and asked him to stop. He did so “a couple of times” and then she felt she was being penetrated but not by his penis. She thought it was one of his sex toys. She begged him to stop. She was in pain. She felt that she was being penetrated by something that was “hard, plastic, and that was hurting too”.
Eventually the attack stopped and the complainant rose from the bed. She was bleeding. She pulled her track pants on and also the boots. She could feel her blood running.
The couple returned to the entrance room where the appellant sat down in his recliner. He found the missing money.
The complainant, still bleeding, ran from the cabin “as fast as I could” straight to the shower block because “that was closer than my house” (Exhibit 1, Question 43, page 11). This evidence also came to assume some significance.
The complainant went under the shower and realised the bleeding was profuse, “it was blocking the drains up so I sat under the shower, the water, for probably ten, fifteen minutes to see if it stopped”.
The bleeding did not stop. The complainant stayed under the shower but tried to ring the appellant. She rang him because “I was having trouble even seeing, because I’ve got bad eyes, but I knew, I – because “Chap” – it’s – it sort of stood out”. The appellant did not answer the phone.
The bleeding was so significant that the complainant could not remain standing up. She sent the appellant a text message “Please, come help me. I’m bleeding out”.
The extent of the bleeding was so great that the complainant observed to the police “I know the cleaning company would have to put a hazard report in about that” (Exhibit 1, Question 43, page 14).
Thirty to 40 minutes later the appellant arrived and went into the men’s showers where he had a shower. He then left. He returned sometime later and entered the women’s showers. He threw a bath mat at the complainant. She asked for his help. He said he had visitors and told her not to phone him again. She begged for help. She said “Chappo, I am bleeding”. He simply walked off.
The complainant’s clothes were soaked. She held the bath mat in front of her and ran home, leaving “a trail of blood” (Exhibit 1, Question 43, page 11). At this stage “it would have been three in the morning or four” (Exhibit 1, Question 43, page 12). As will be seen below the times that events occurred will be the subject of challenge.
Upon returning to her own cabin the complainant entered her shower and sat down, hoping the bleeding would stop. She nearly passed out. She tried to stem the bleeding with a makeshift pad. She lay on the couch. After perhaps an hour, she needed to go to the toilet. She was still bleeding. She thought “I can’t have much more blood left in me”. She rang an ambulance. Her estimate was reasonably correct. Later investigation revealed extensive blood loss.
The ambulance arrived. The complainant seems to have lost consciousness until she arrived in the Emergency Department of Canberra Hospital. The complainant was taken to surgery to repair the wounds that had been inflicted. The surgeon later told her that two blades had entered her vagina, one with a serrated edge and the other with a “different edged blade…like, a razor blade”.
After the wide-ranging description given to Questions 42 and 43, the interviewer sought some clarification and detail. At Question 68 Senior Constable Sharon Kube asked the complainant what clothes she put on to visit the appellant’s cabin. She replied “a brand new denim pair of jeans, that I’d just bought from Cotton On”. This answer is inconsistent with her earlier statement that she had been wearing tracksuit pants.
The complainant went on to give a description of the jeans. She confirmed that she was wearing UGG boots and a T-shirt.
When the complainant returned home from the hospital she noticed there was blood on her front steps. A neighbour cleaned up the blood in the hallway. The complainant told the neighbour that she was having a haemorrhage as she was “going through menopause” (Exhibit 1, Question 78).
At Question 94, the complainant was asked to describe the location of her house relative to the shower block and the appellant’s cabin. She responded:
Well, I’m – I’m the very last on the road which – my front door – I look at the oil farm which runs along Hindmarsh Drive – the oil farm. I’m the first road of the new development that that park is going to become.
Exhibit 4 is a plan showing the above three locations and marked by the complainant. The appellant lived at No 5, she lived at No 999 (an anonymised number). The shower block is marked with a capital A. It is immediately apparent that the shower block is not closer to the appellant’s cabin than the complainant’s residence. It is also in almost precisely the opposite direction.
At Question 230 the complainant was asked the time that she left the appellant’s cabin. She replied: “Three o’clock maybe? I don’t know”. She continued in the next answer:
It was a long time because by the time I got out of that women’s shower block, I got home just before and ran home just before the sun come up. So, I was in there for a while. But I remember thinking shit, another half an hour and it would have been daylight and people going to work, like, everyone would have seen – oh, people probably would have seen me.
The complainant was then asked if she made any telephone calls. She said yes, to the appellant. She also sent him a message as described above. She said she did not receive any telephone calls (Exhibit 1, Question 237).
At Question 244 the complainant was asked who was the first person that she had told about the events. She responded: “The first person I talked to that – told the truth, was my sons”.
The complainant gave additional evidence in chief before the jury. She said that in addition to telling her sons the truth she also told a girlfriend, Nicole.
The complainant said that after ringing the ambulance she also rang her daughter, TG, but she was unable to assist.
The complainant was asked what she told the ambulance officers who responded to her call. She said “I told them the truth, ‘Yes, there had been a sexual assault,’ yes”. She was then asked if she went into any detail. She replied:
I think I said to them, because I know I said it to the hospital staff that it had been someone that I’d met on Tinder who was responsible.
She was then asked why she had given this history. She replied:
Because I was rich. I’m not anymore, but I was too damn scared. Chappo wasn’t the sort of - I was terrified to have to say his name, the repercussions. That wasn’t because I didn’t want to have - I live alone. I lived alone. He’d been intimidating me for over 12 months and making me scared. Even with everything he does that’s how I’d been feeling for a long time. He was a very scary person. I was terrified to give his name, about what would happen to me when he found out I dobbed him in.
There is a logicality attached to the complainant making up a story because she was scared. Her opening words “Because I was rich. I am not anymore” are less easy to rationalise.
The complainant also spoke to a police officer at the hospital. She gave the Tinder version of the events to the officer. In addition she described this person, but matched the description to that of the appellant. She said:
I was asked to describe the person. I remember describing Chappo to a T, exactly like I said it to the ambulance.
The complainant also gave the ‘Tinder man’ a name: Pittman. She said:
I used Pittman because that’s their family members of his family - Pittman. Pitmans and Chapmans are – or related. It was the closest thing again - once again the same as describing him, describing everything that happened to me but without saying his name and number 5, the house.
The complainant also said that she had denied to the ambulance officers and the police officer that she had taken any alcohol or drugs. She said this was a mistake and she was “very ashamed” at the time. The complainant also said that she had not given any history about the search for the missing money.
Still at the hospital, the complainant was visited by some of her children including a son and his partner. She told them that she had suffered “ladies’ problems”. She said she eventually did tell her children the truth, this seems to have been shortly before the recorded evidence in chief interview.
The complainant said that the appellant had moved out of his cabin about five weeks after the attack.
The evidence of Ms Stone
Ms Jennifer Stone, a forensic biologist, was interposed during the evidence of the complainant. Her evidence concerned the DNA analysis of swabs taken from the vaginal and anal areas of the complainant. No conclusive evidence of the presence of semen was found. No male DNA was identified.
Continuation of the complainant’s evidence
The evidence in chief of the complainant then continued but was generally restricted to the identification of a map and some photographs. Cross-examination followed.
Cross-examination of the complainant was wide-ranging and plainly designed to highlight inconsistencies and untruths in her evidence in chief. She was first asked about the ‘000’ call which had been made at 10:27am.
The complainant agreed that she had told the operator the bleeding had started about two or three hours earlier. This would have placed it, suggested counsel, at about 7:30am or 8:30am. The suggestion was rejected. The complainant said “it started much earlier than that”. The estimate given to the operator was not correct.
The complainant agreed that she did not give the operator any history of a sexual assault. Her details went no further than a complaint of haemorrhaging. The history given to the ambulance officers was then discussed. The complainant agreed that she had told the ambulance officers that she had been on a date with a male person. They had had “rough sex”. The Tinder date had ended at about 4:00am or 5:00am and she had returned home about half an hour later. The complainant confirmed these times but related them to her leaving and returning from the shower block.
The complainant confirmed telling the officers that she had not taken any drugs or alcohol. She could not remember telling them that she had escaped through the front door and been dragged back in. She agreed she had told the officers that the incident had taken place at the ‘Tinder man’s’ house.
The cross-examination then moved to a conversation the complainant had with a Dr Knight, a gynaecologist. Some details were put about the manner of the rape but more importantly the complainant had told the doctor that the Tinder date had taken place in a motel.
The complainant was then asked about the details she had given to a police officer at the hospital about the Tinder date. She said that the man’s name was Glen Pittman. She had met him about 8 weeks earlier. He was about 6 foot 3 in height and 120 kilograms in weight. He was aged in his 50s. After the first date some 8 weeks previously there were text messages leading up to the final date.
She told the police officer that she wore a wedding ring although she was not actually married. This was a safety precaution. She agreed that she had described the location of the man’s residence including details of which floor his flat was located in a block on Jerrabomberra Avenue near the vet and the German club. She gave details to the officer about the use of martial arts and the manner in which she was attacked.
The complainant agreed she had given a detailed description of the flat but said she simply adopted the layout of a girlfriend’s unit. She said it took her “weeks and weeks to get the courage” to come forward and tell the truth.
The complainant was asked about a conversation with a social worker. She agreed that she had told the social worker that she was distressed and embarrassed as it was her first Tinder date.
Further details of the fabricated Tinder date were put to the complainant. She agreed that she had given the history but disagreed that it was true.
The complainant said she did not recall telling her sons and their partners that she had suffered an “egg dump”. This was said to relate to bleeding during menopause.
The complainant was then asked about the history she gave to a Dr Van Diemen. She told the doctor that she had “walked to house of person met on Tinder”. She could not recall telling the doctor that she had asked to go to the bathroom during the Tinder date. If she had said this it would not have been true.
The complainant agreed telling the doctor that there were “intermittent gaps” in her memory of what had occurred. She said there still were such gaps.
The complainant was cross-examined about the clothing and the distinction between tracksuit pants and jeans. She insisted she was wearing jeans. The complainant agreed that she told the police that she had never been alone in the house with the appellant on any earlier occasion. She had come across him in the laundry on the morning of the assault.
It was suggested to the complainant that she had told a former girlfriend of one of her sons that the appellant was “actually really nice and he’s really funny”. The complainant responded that the appellant did have “a very nice side”. He had “lots of sides”. She also agreed telling the girlfriend that “all the bullshit about him being a creep and freak are just rumours”.
The complainant then accepted that she had had a sexual relationship with the appellant, “a few times, just casual sex”. The assault occurred after she had told him that she only wanted to be friends with him. The complainant later said she had had sex with the appellant on three occasions; once in the lounge room and twice in the gazebo.
Counsel returned to the Tinder date and asked the complainant if she had told the officer at the hospital that she had walked to the date so that the man did not see her car registration. She agreed that she had given that evidence but then said that she did not actually have a car. She added, “The whole Tinder thing was rubbish”.
The complainant was then shown her Tinder page to contradict her evidence that she was a “homebody”. Despite the contents she continued to insist that she was not using Tinder to meet men but “just to have a look”.
Despite insisting on a number of occasions that her evidence in the evidence in chief interview was correct the complainant agreed that her answer about not previously using ice or methamphetamines was incorrect. She had used ice before.
The complainant was then told that her toxicology results from the day she was admitted to hospital revealed the presence of amphetamine and methamphetamine in her system. She then admitted that she had been purchasing both cannabis and ice from the appellant. She said she had previously injected ice at the appellant’s house, with the appellant sometimes administering the injection.
The cross-examination then turned to the layout of the appellant’s flat and the caravan park, in particular the path the complainant took following the assault. She said it would take about 90 seconds to go from her cabin to the appellant’s cabin and also about 90 seconds to go from the appellant’s cabin to the shower block.
The purpose of the cross-examination was to establish why she went to the shower block instead of going home. There was then this question and answer:
And I want to suggest to you that taking that shortcut from Chappo’s back to your house is a lot shorter than it is from running from Chappo’s house to the amenities block?---Yes, it probably would be. It probably would be, but I - that’s why I was - locked my door and leave my keys out because my son was coming home between midnight and 3.00. He was working late. I didn’t know if my son was there. I was running home. Keys were always left before.
The logic of the above answer is difficult to discern.
It was suggested to the complainant that she was not bleeding when she left the appellant’s residence. She said she was “bleeding everywhere”. It was then suggested that she did not run to the shower block. She rejected the suggestion.
The cross-examination then turned to the important issue of timing. She agreed that the appellant sent her a text message at around 11:00pm. She said she left the appellant’s house at “around 3.00 maybe”. She was then in the shower block for a long time and “ran home just before the sun came up”.
She said that she had exchanged text messages with the appellant on a regular basis. The complainant was then taken to the phone records. These are records produced by Vodafone and form a significant part of the basis for the appeal. It was first of all pointed out to the complainant that in the early hours of 8 August 2018 there were a number of text exchanges between her and the appellant. These can be seen coloured in red.
Other interposed witnesses
Another witness was then interposed, Ms Kai’. She was a neighbour of the complainant. She gave evidence about communications received from the complainant about being in hospital. Ms Kai’ checked on the complainant’s dogs. She went into the house and was asked what she saw. She said:
Actually not a lot of blood, there was some on the lounge and some in the bathroom. But with the two dogs in the house and I didn’t know how long it had been since she had left. The dogs probably cleaned up the rest of it.
Contrary to the evidence given by the complainant she said she did not do any cleaning.
Ms Kai’ said that when the complainant returned from hospital she told her that she had been raped and something had been used “to cut her”. Ms Kai’ said that she was told the person who had carried out the rape was: “A person that I knew as Chappo”. The complainant also told Ms Kai’ that she had not wanted to tell her family about the incident.
Under cross-examination Ms Kai’ was reminded that she had told the police that the appellant and complainant were friends. The complainant had “offered friendship to him”.
Another witness was then interposed, Mr Robert Wiggins, an intensive care paramedic employed by the ACT Ambulance Service. He was one of the officers who responded to the complainant’s ‘000’ call. When he arrived the complainant was behind the front door. “She had blood all through her pants”. Mr Wiggins walked her to the ambulance. She was wearing blue jeans. The blood was visible through her clothing.
In the ambulance, the complainant was put on a stretcher. Her blood pressure was high. Initially the complainant was not communicative. Mr Wiggins explained that it was necessary for her to give more detail. She initially gave some vague details about a sexual encounter. She told the officers that she had been bleeding for about three or four hours. She began crying and then “opened up” to the officers.
She said to Mr Wiggins:
That she’d met a bloke on Tinder; that she’d gone over to his place to hook up, but it started getting really aggressive. She tried to back out. She got forced back in. She described how she was - she’d left the house; she got dragged back in; pushed down onto a mattress or a bed or a pillow or something like that and then she felt something hard being shoved up inside her.
Mr Wiggins decided that it was necessary to attach a cannula to allow the injection of intravenous fluid. He was concerned to establish the amount of blood loss. He went into the house. He said:
There was blood spots up the - up the corridor. Walked around to - walked around the corner to where the toilet was. There was a - a bedroom straight in front, walked around the corner to her toilet and then there was a bathroom off to the side. Within the bathroom there was blood clots in the toilet, there was blood on the toilet bowl and then blood on the toilet floor and a little bit up the wall. And then in the bathroom there were larger blood clots on the shower floor and in the shower. There was a couple of towels that blood soaked and then there was a mop and bucket and there was blood in the mop and bucket as well. So, now all of a sudden this has gone from a, you know, a little bleed inside a pair of pants into a major bleed because this is a lot of significant bleeding on the floor.
The complainant was then driven to the hospital and handed over to the Emergency staff.
Under cross-examination Mr Wiggins said that the history about the Tinder date was given during the cannulation procedure.
Yet another witness was then interposed. This was Constable Robyn Carter. She spoke to the complainant at Canberra Hospital. She gave this description of what the complainant said to her:
From what I remember I spoke to [the complainant] who was lying in a bed at that stage and I asked her what had happened because ideally, we would like to have got as much detail as possible before she was taken away. She had told me that she had met him male on a dating app called Tinder about eight weeks earlier. They hadn’t met yet. They were just chatting over text message. The night before was the first time they had actually met face to face. She went to his house in Narrabundah. She couldn’t remember the address but she just remembered where to go. Described it to be a unit on Jerrabomberra Avenue, Narrabundah near the German Club. She described it to be a unit block nearby. It was about three doors down and she went there and met him that night. And they were talking in the living room together. She never consumed any alcohol or drugs and when she asked to go to the bathroom, he ushered her to the bedroom. He then flipped her up over his shoulder and she landed on her back. He then flipped her onto her stomach and inserted a cold object into her vagina. She did not think it was his penis and she believed it was an object. She was screaming and it hurt and later she was able to leave the residence and go back home.
The officer said that the complainant told her that the Tinder date’s name was Glen Pittman. She referred to him using “martial arts movements”. She said she had deleted her Tinder account because she was worried about her sons finding out what had happened. She told the officer that Mr Pittman was 57 years old, 6 foot 3 and 120 kilograms.
After the conversation Constable Carter briefed the sexual assault team to take over the investigation.
Under cross-examination Constable Carter said that the surname of the man referred to was spelt out by the complainant as Pitmond. It is not clear why this was not the subject of greater scrutiny. The complainant having specifically spelled out the name Pitmond was cross-examined about the name Pittman, which, as seen above, was a name she chose because of its connection to the name Chapman.
A recording of evidence given by the second ambulance officer, Ms Sarah Hickey, was then played to the jury, and tendered. Nothing significant arises from this evidence. It was not included in the Appeal Books.
It then appears that the complainant was unable, for a medical reason, to return to the witness box so that another four witnesses were interposed.
The first of these witnesses was TG, the complainant’s daughter. She first heard that her mother had been hospitalised about two weeks after the event. TG knew that the appellant lived at the caravan park. It appeared, initially, that he was friends with the complainant.
TG was told by her sister, LL, what had happened to her mother, a few weeks after the incident. TG also gave evidence about problems that her mother had had with her leg. She was constantly falling over and had required hospital attendances for this reason. Problems with the leg were long-standing.
TG was familiar with the appellant’s appearance. She thought he was quite tall, about 5 foot 11, and weighed about 90 kilograms.
The next witness was UM. She was the partner of one of the complainant’s sons. She found out that the complainant was in hospital and visited the complainant a couple of days after her discharge. The complainant told her about a build up of eggs during menopause and a subsequent haemorrhaging.
UM knew a little about menopause and had never heard of the condition described by the complainant. She probed a little further but did not, on that occasion, receive any more detail.
A few days later UM was able to read some discharge paperwork. She read that the complainant had suffered “quite a few lacerations to her vaginal area and one major one that was caused with a sharp object”. She asked the complainant about the medical documents. The complainant replied:
…that she had gone to see Chappo to buy some weed, and then at some point while she was up there, he had said that there was money missing, quite a large sum, and that she had to help him find it because she was the only one there so it must have been her that took it or moved it. So she was helping him look for it, and when she was in one of the rooms that he got closer to her and held her up against the wall. She said that she was feeling pretty groggy and a little bit out of it - like she wasn’t really sure if she’d been drugged. And then - she said, and then he raped her with what she thought was a blade.
The complainant also said that she was worried about retaliation from the appellant if she told people what had happened.
Under cross-examination the witness was asked about when she first heard the “menopause story”. She thought it was before October.
The next witness was LL, another daughter of the complainant. She did not become aware of her mother being in hospital for some weeks. She had recently had a baby and was being isolated from the information.
When she did speak to her mother she was told that she had been raped by Chappo. A few days later her mother expanded the story to include her running to the shower block. In a text message her mother told her that a knife had been used. LL was not cross-examined.
The next witness was a Constable Christine Walters. She took part in the execution of a search warrant of the appellant’s residence. This was not the residence at the caravan park but a place that he had moved to sometime later.
Constable Walters found a number of sex toys. In addition she said she saw knives, swords and “small things turned into sharp implements”. She took photographs of what she saw. The photographs were tendered and became Exhibit 9.
There was no objection to the tender of the photographs. Notwithstanding them going in by consent, it was submitted to this Court that they were unnecessarily and unfairly prejudicial and should not have gone before the jury. This is one of the matters the Crown raised in relation to r 5531 of the Court Procedures Rules.
The photographs do contain a good deal of irrelevant material which could be seen as prejudicial to the appellant in painting a picture of him as a sexual deviant. However objection should have been taken to the tender. Further reliance on the allegation of prejudice should have prompted an application under r 5531. The Court does not accept that their tender in these circumstances can be used in aid of the appeal.
The following morning counsel for the appellant sought an advance ruling that she was entitled to cross-examine the complainant about her criminal record. It contains a number of matters of dishonesty, largely relating to the presentation of cheques that could not be met. Permission was granted.
The complainant did not return to the witness box at this stage and SG was called to give evidence. He is a son of the complainant. He attended the hospital to visit his mother and was given access to some medical documentation. It mostly concerned details of the surgery and loss of blood.
Some days later the complainant told SG that there had been an incident with Chappo. He did not receive much more detail but did find out other facts from his siblings. One of the matters his mother did tell him, was that she had left Chappo’s residence and gone to the shower block because she was bleeding.
Dr Amanda Van Diemen was the next witness. She is a specialist in forensic medicine. She was working at the Canberra Hospital and attended upon the complainant. She took DNA swab samples. The doctor gave a detailed explanation of the procedures in taking samples and also described the injuries suffered by the complainant. It is not entirely clear why the extensive detail was necessary.
More important was the history the complainant gave to Dr Van Diemen about what had happened to her. This is the way it was described by the doctor:
So I paraphrased her but she said that she’d walked to the house of the person she’d met on Tinder and she’d not previously met them in person. So then these are her words. ‘He wasn’t what I expected. Wasn’t dressed to be going out for a meal’ and I clarified that this was at about 8.55 on 8 August. She said, ‘He put these freaky contacts in’. …
She said she needed to go to the bathroom. She said, ‘He shepherded me to the bedroom. There was a lot of mess. He pushed me onto the bed. He was so strong. When I was on my back, he’d already dragged my clothes off. I was on my back yelling, ‘No, get off me’ and screaming’ and I clarified this as his penis was in her vagina. She said, ‘He flicked me over. He pushed my head into a pillow or possibly a doona wrapped or rolled up’ and she said, ‘He was using something on me. It felt cold, plastic and it was really big and hurting’. Clarified as being in her vagina. She also then said - so this is paraphrasing - that she grabbed a towel and wrapped it on her bottom half and left to run home and she felt bleeding or clots coming out of her vagina and she described it as she left a trail of blood.
The reference to “contacts” is to contact lenses that the complainant had said her attacker had worn.
Dr Van Diemen then asked the complainant a number of specific questions. These included a description of the clothes the complainant had been wearing. The complainant told her that she was wearing “jeans, underpants, a bra, a singlet top and a jacket and she had said that the jeans, underwear, jacket and shoes were all left at the alleged offender’s house and that she left in the towel, singlet and bra”.
Although the wearing of jeans is consistent with the complainant’s evidence in chief, the description to the doctor added the extra piece of clothing, namely a jacket.
The doctor asked the complainant about her consumption of alcohol or drugs. The complainant told her that she had consumed “one glass of orange juice and drank possibly a few mouthfuls of coffee”. The complainant said that she had not taken any recreational drugs before the assault.
It is worth observing here that while fear of recriminations from the appellant might have led to the introduction of the ‘Tinder man’, there was no reason for the complainant to have lied about her consumption of ice.
Dr Van Diemen gave some evidence about her assessment of the age of injuries. In essence she said that she could not assess the age of the various injuries present on the complainant’s body. The doctor referred to “defensive injuries” in the sense that “the pattern that she has could be consistent with a defensive type assaultive process”.
The appellant suggested that the injuries were not necessarily defensive and could have been consistent with the complainant falling over. Whatever the case the inability to place the occurrence of the injuries at the time of the alleged assault significantly weakened their impact.
The doctor gave evidence in chief about the possibility that the internal injuries suffered by the complainant had been self-inflicted. She made this comment:
What we typically see with self-inflicted injuries is that people are limited in inflicting further injury because of pain. That’s the limiting factor and while we know that people can certainly inflict injuries to all different parts of their body themselves, what universally we see is that once they’re limited by pain then it tends to be - that’s the stopping mechanism. So that’s what stops someone from doing it. We tend to see hesitation. So, evidence of hesitation where there is some sort of hesitation about actually doing the self-infliction or creating that injury and these hesitation marks aren’t - don’t - they tend to be similar to the wound that they are inflicting but they don’t look the same…The likelihood that someone can sustain that level of pain and continue is - leads me to think that it’s less likely to be self-inflicted on the limiting factor there would’ve been pain.
The doctor was then asked for her opinion on whether the complainant could have “self‑guided” the instrument that caused the injury. She responded:
So, if it’s self-guided - because of the positioning - the difficulties in positioning and being able to do it I would expect to have seen more injury to the walls of the vagina associated with that. It’s relatively good aim to get all five of those injuries inside both of the vaginal fornices.
Under cross-examination Dr Van Diemen agreed that the use of illicit substances can increase a person’s pain threshold, meaning that “a patient can tolerate more pain”. The doctor said that amphetamine was a stimulant which tends “to give a relatively euphoric or dysphoric behaviours or feelings, and then as the drug dose increases within the body or as more drug is ingested, it can certainly lead to an increase in pain threshold”.
Dr Van Diemen said that methamphetamine was also a stimulant. She further stated that the effects of cannabinoids, which were indicated on the complainant’s toxicology report but not confirmed, could not be predicted. The doctor did not know if its consumption could increase a person’s pain threshold. The purpose of these questions was presumably to counter the doctor’s evidence that a self-inflicted wound would have been limited by the person’s pain threshold.
Dr Van Diemen confirmed that the complainant gave no history of pain in her neck and no sign of injury in that area was noticed. The complainant had said that part of the assault was to her neck. Under re-examination she said that the person might have “a pain in the neck without there being a mark there”.
The next witness was the informant, Senior Constable Sharon Kube. She attended the hospital on 9 August 2018. She spoke to Constable Carter who handed over the complainant’s clothing. The clothing was never forensically examined for DNA. This was because the clothing was different to that which had been worn by the complainant during the assault.
Senior Constable Kube spoke to the complainant the following day. The complainant told her that she had “met someone on Tinder; gone around to that address; been given a coffee. The coffee had something in it. She’d knocked the coffee over, I think from memory”.
The complainant then provided a description of the assailant:
…he was very tall, about 6 foot 2 in height, very muscly. Yes, he had dark-coloured curly hair, styled as a mullet; tattoos on the top of his arms and maybe on his back, and he is not shaven…The alleged offender offered a coffee, which she accepted. [The complainant] said she placed the coffee on the floor next the chair. She accidentally kicked it off - kicked it over, so the alleged offender made her another one and also gave her an orange juice. [The complainant] advised that she believes that the alleged offender’s surname was Pittman.
Senior Constable Kube went to the complainant’s residence on 13 August 2018. No one was home, but the officer noticed “what appeared to be a pool of blood on the porch, on the driveway”.
On 14 August 2018 the complainant told the Senior Constable that she was concerned about repercussions. She said the assailant lived at the caravan park. The complainant was not prepared to participate in a formal interview. Her attitude changed on 22 October 2018. The interview took place on 25 October 2018.
After the interview, the officer made enquiries of the caravan park cleaners to see if they had any recollection of a large amount of blood in the showers. They did not. It has already been noted above that the complainant said to the police: “I know the cleaning company would have to put a hazard report in about that” (referring to the amount of blood in the shower) (Exhibit 1, Question 43, page 14).
Also after the interview, and now armed with the identity of the alleged assailant, the officer and other police, went to the appellant’s address and arrested him on 25 October 2018. The appellant agreed to a record of interview which became Exhibit 16.
The contents of the interview will be examined below.
Cross-examination of the complainant about the phone records
On the following day of the trial the complainant returned for the continuation of her cross‑examination. The evidence of Senior Constable Kube was put on hold.
The cross-examination moved to the phone records. It was first of all pointed out to the complainant that there had not been a text message from the appellant at about 11:00pm on 8 August 2018. She responded that “I’m positive it was a text message not a phone call telling me to go over there”. Although she thought the message had been at about 11:00pm, she said it was “stuck in my head it was before midnight when I went there”.
The complainant was then taken to the phone records for 9 August 2018 and cross‑examined in detail over the entries. The summary of important entries contained in the appellant’s written submissions, at [28], is consistent with Exhibit 5. The cross‑examination however is not consistent with this exhibit and was clearly based on different material.
For example at Transcript 204.40 some questions commence about a voice call at 12:44am that lasts for 351 seconds. Turning to Exhibit 5 there is no such call. Another example is the question at Transcript 205.15 that suggests there was a phone call at 12:52am lasting for 539 seconds. There is no such entry in Exhibit 5. Clearly the complainant was being cross-examined from a different document. She appears to follow the entries that give rise to the questions. But it cannot be Exhibit 5. The issue is significant because Exhibit 5 is a central plank in the appellant’s argument.
There are a number of questions about text messages to and from a Ms Nicole Kociolek which, in Exhibit 5, commence at 1:26am. The cross-examination is consistent with the entries in Exhibit 5 but the detail is not.
It is overwhelmingly apparent that the documents referred to by the cross-examiner, and obviously placed before the complainant, were not those making up Exhibit 5. Access to the list of exhibits on the record reveals the presence of Exhibit 19, labelled “Electronic phone records from June-October 2018 (USB), and a paper copy of phone records from August‑October 2018”. Exhibit 19 was not included in the Appeal Books.
Because of the significance of the phone records to the appellant’s case the Court wrote to the parties pointing out the above inconsistency. The parties were asked whether they wished Exhibit 19 to be placed before the Court and, if so, whether they wished to make any further written submissions to the Court.
Both parties responded that the Court could have access to Exhibit 19 and both declined to make further submissions. The latter attitude was unfortunate because it left the Court in a position where the parties have made no comment about the inconsistency between the original submissions and the cross-examination of the complainant. In addition they have made no submissions as to the reasons behind the differences between the detail of the two exhibits.
Scrutiny of Exhibit 19 is consistent with it having been the document upon which the complainant was cross-examined.
The Court takes the view that as the cross-examination of the complainant was largely based on Exhibit 19 then it should, as far as possible, concentrate on this exhibit. However, as will be seen below, Exhibit 19 does not encompass the whole of the relevant period. It is necessary to refer to Exhibit 5 for the last hour of 8 August 2018.
The intent of the cross-examination, based on Exhibit 19, was apparently to show that the use of her mobile phone in the early hours of 9 August 2018 was entirely inconsistent with the complainant’s version. That version would have had her either being assaulted by the appellant, or in the shower block, or in the shower at her own home, but at whichever location, either under attack or in significant distress.
The complainant suggested that Ms Kociolek’s number may have been used by the appellant because “they used to swap phones”. She thought the appellant may have had Ms Kociolek’s phone on the night. She also suggested that the appellant may have put Ms Kociolek’s SIM card in his phone.
Consistent with Exhibit 5 is the entry at 2:34am being a text message to the appellant. This is the first communication.
The complainant also had no apparent explanation for the telephone calls, probably unanswered, to her daughter, TG, at 1:02am. The complainant was adamant she had not tried to contact any person that night besides the appellant:
I just know he was the only person that I contacted that night and spoke to after the assault happened, when he come to the women’s amenities. He was in the shower blocks. It should be the numbers matching…
There is some cross-examination about a message sent by the appellant to the complainant stating “I didn’t mean to do it to you”.
If there is any doubt that the document being referred to in cross-examination was not Exhibit 5 it is made certain by the cross-examination at Transcript 222 where the entry at 9.29.26 is referred to as being at the top of the page. There is then reference to the entry at 9.40.20. This is clearly inconsistent with Exhibit 5. In addition Exhibit 5 ends at 23.56.00 on 9 August 2018. The cross-examination proceeded well beyond this time and date.
The cross-examination concerning text messages and phone calls after 9 August 2018 and continuing through October 2018 between the appellant and the complainant was put to establish the proposition that the continuing contact was inconsistent with the complainant having been viciously sexually assaulted by the appellant. The complainant’s response was:
I didn’t want him to know how close I was to laying charges. I wanted him to think he had nothing to fear. I wanted him to still believe my message, ‘How are you going, mate’. He said, ‘No, no problems, good mate’. That would be my response. I didn’t want him to think that he must have because he ran away. He took off. He knew he was in trouble.
Other cross-examination of the complainant
It was next suggested to the complainant that she had resumed sexual intercourse with the appellant. She considered that suggestion “a load of rot”. She added the point, perhaps contrary to evidence given by Dr Van Diemen, that she had internal stitches for over a month and could not have engaged in sexual intercourse.
The complainant was asked about her apparel when she was being assaulted. She accepted that she had made a mistake and she had not been wearing tracksuit pants. The inconsistency concerning a jacket was unfortunately not pursued.
The complainant was asked about her statement to Senior Constable Kube that she would never have sex in exchange for drugs. This exchange occurred in cross‑examination:
It was the distinction there that you would pay him double for weed that you wouldn’t have sex with him for weed? ---Yes, if I had the choice of having sex with him for drugs or paying him double the money for – I’d prefer to give him double the money than have to have sex for a purchase of drugs. I would never do that. I could never do that. Never have in my life, never will. If I had sex with him, it was a mutual decision…
And so your decisions to have sex with him were conscious decisions, that’s correct?---They were after I’d got there and I used some drugs with him. It certainly wasn’t something I went there with on my mind. It was that’s what used it - that’s why I stopped using the stuff with him. That’s why I didn’t want to because I knew he took advantage as soon as - he was the one that injected me with the stuff.
Yes, but you asked him to?----Every time.
The importance of the above passage is that this scenario painted in these passages accords with the appellant’s case of the complainant coming to his cabin and having consensual sex with him after taking drugs.
The complainant was then cross-examined about the sexual relationship she had had with the appellant. She was asked about a text message in which she told the appellant that “he’d brought [her] pussy back to life”.
She was also asked about sex toys and in particular a photograph she had sent the appellant of “a large object that was covered in foil that may have been used as a sex toy”. The complainant said this stemmed from a previous relationship with a man who had “some very weird fantasies and fetishes”.
The complainant was asked why she had not told the police in her evidence in chief interview that she had had a casual sexual relationship with the appellant. She said that was because she was not asked that question. There is a clear inference to be drawn from the interview that the complainant had been fearful of the appellant and he was not someone with whom she had enjoyed any sort of relationship, let alone an intimate relationship.
The complainant was asked about her denial to the police that she had used ice previously. She said she was “ashamed” to tell the police this detail. Significantly her answer was not that she would have been fearful of the illegality of the use of ice.
The complainant was cross-examined about her use of the name Pittman and her spelling out of the name Pitmond to Constable Carter. She attributed any errors to being “under anaesthetic or something”. As pointed out by the cross-examiner, she was not under any anaesthetic when she spoke to Constable Carter.
Cross-examination then moved to the complainant’s criminal history. She was taken through her record of dishonesty. She generally admitted the history saying she was “in a bad space back then” and she had “accepted my punishment and moved on”.
The complainant then denied a number of suggestions put to her reflecting the appellant’s apparent instructions. These included, generally that he had not assaulted her, but specifically that the injury had been self-inflicted or caused by another person. It was suggested that the appellant had not thrown a bath mat at her but rather come to her assistance and given her a towel.
Under re-examination the complainant expanded on why she had continued contact with the appellant. Her reasons were somewhat wide-ranging including wanting to know “why he done what he done”, searching for a missing ring (which he found) and wanting to ascertain his thoughts as to whether he was suspicious that the complainant had been talking to the police.
The record of interview with DL
A record of interview with DL was then played to the jury. DL was the former partner of the complainant’s son, SG. She had visited the complainant in hospital and had been told the menopause and egg story. A week and a half later she received a text from the complainant attaching the hospital records which referred to lacerations in the vagina. She telephoned the complainant immediately and was told that the appellant was the culprit. DL told SG and then she and SG visited the complainant.
DL said that the complainant “was actually going over to Chappo’s house a lot prior to it” (Exhibit 17, Question 28). She was “dabbling a bit in meth” (Exhibit 17, Question 31). She continued, stating that on the night of the alleged assault the complainant said that:
…she went there to get some weed and, um, then the next second - she said, “The next second, that he had me face down and - or something, and then I’ve just felt pain and I’ve just took - like, blocked it out”. And, um, then, like, she had bruises on the back of her arms or her legs or something and she said that, “This is where he held me, but I”- she said, “I - I have blocked it out.” But, um, then she said something about how she ran out of there with no pants, but then later on, I was speaking to her and she said she ran out of there with no pants on.
A little later in the interview, DL was asked about her knowledge of the appellant. She replied at Question 69:
But I’ve seen him around the park, and, like, I’ve - like, at the start, when he first moved in, um, [the complainant] was pretty wary of him because [TG], which is her oldest daughter - back, back, back a long time ago, apparently, um, Chappo followed her, like, home. Apparently, he followed her home, like, in his car. Like, she was walking and he was, like, well, driving, like, two kilometres, like, an hour behind - really slowly behind. And, um - so she - she thought that he was a creep and then she had heard rumours that - about, like, you know, him having sex with underage girls and he - she told [the complainant], and so [the complainant] went - this was at the time when [the complainant] had a partner…
DL then gave evidence of a conversation with the complainant about the appellant. The complainant had said to her:
“Oh, he’s actually really nice. He’s actually really funny. Like, that’s all bullshit, all the creep and freak rumours. He’s actually really nice.” And then she actually did say to me at one point - she said, “If Chappo was to not be on drugs, I would make him my boyfriend”. (Exhibit 17, Question 70)
DL gave some further detail about what she been told by the complainant. She referred to there being missing money and being forced to look for it.
Further evidence from Senior Constable Kube
The final oral evidence in the case was the recall of Senior Constable Kube. Photographs of mobile phones were tendered by consent. They are Exhibit 18. Their inclusion in the evidence was referred to as another matter contributing to the overall unreasonableness of the verdict. However, again, no application was made under r 5531 of the Court Procedures Rules. The Court does not consider that any weight, in the appeal, should be given to the photographs. It is correct that they were not relevant because of the evidence that they did not work. Had they been working phones they might have corroborated some of the complainant’s evidence to the effect that she was using other numbers belonging to the appellant.
Senior Constable Kube said she had not checked any numbers possibly belonging to the appellant, other than the number recorded in the complainant’s phone. She did not conduct a door knock of any of the appellant’s neighbours at the time of the alleged assault. She was unable to obtain a statement from the appellant’s house mate.
Senior Constable Kube spoke to Ms Nicole Kociolek who claimed to have no knowledge of the events. This is to be contrasted with the significant amount of text interaction between the complainant and Ms Kociolek commencing at 1:26am on 9 August 2018 (Exhibit 19).
The officer said that she was unable to obtain text messages from the complainant’s phone because she knew that if the messages had been deleted, as stated by the complainant, there was only a three day window to obtain them from Vodafone. She did however obtain the call charge records which were placed on a USB stick. The records from June to October 2018 were made into a paper copy which became Exhibit 19. These are the records that were used in the cross-examination of the complainant.
The Senior Constable’s testimony then moved on to Exhibit 19. It was said to be based on the Vodafone records for 8 and 9 August 2018. There is no explanation as to why there are differences between the detail in Exhibits 5 and 19 respectively.
The Senior Constable said that an examination of the complainant’s Facebook facility on her phone revealed that the appellant and his cabin mate had been blocked.
The officer, under cross-examination, was referred to the photographs she had taken of blood spots outside the complainant’s home (Exhibit 20). She said she had looked for more blood markings but could not find a “trail of blood”.
The officer said she had gone to the scene meeting the description of the units where the Tinder date had occurred. There were a large number of units. The Abode Hotel was a short distance away. The complainant had said that there were no actual units at the location she had described.
The officer described the appellant as being of average height, about 5 foot 11 and weighing about 90 kilograms. The purpose of the cross-examination was to contrast these observations with the complainant’s description of the man who had attacked her, remembering that she said the description was actually of the appellant.
Senior Constable Kube made enquiries of neighbours around the appellant’s cabin in October. They did not reveal any information about the events or about a trail of blood from the appellant’s home to the amenities block, or from the block to the complainant’s home.
Other non-oral evidence in the Crown case
Some comments will now be made about the exhibits included in the Appeal Books. Exhibit 4 is a plan of the caravan park. The shower block is marked with a capital A. The appellant’s residence is No 5 and the complainant’s residence is No 999. The significance of the plan for the appeal is to highlight the improbability of the appellant’s version that it was shorter to go to the shower block than her own cabin. It also suggests an illogicality in not going straight to her own cabin. The appellant’s record of interview suggests that she may have been masturbating in the shower block. One wonders why she could not have done so in her own cabin, unless there were other people present there.
Exhibit 7 is a Patient Care Record prepared by the ambulance service. It contains this history:
Pt states that she went on a date with a male last night. Pt head sex with the person. Pt states it was rough. She states she was “screaming for it to stop” and it took her “10 or 15 minutes to get out”. She left at 4 or 5am and got home at 4.30 or 5.30am and PV bleeding started.
There are three notable features about the above history:
(a)The reference to a date with a male;
(b)The times quoted; and
(c)The bleeding started after she arrived home.
There is then a history of the actions of the attacker which is, in a general sense, consistent with her evidence in chief. However the history continues:
Pt managed to get out, and left her clothes at the scene of the incident, leaving in a towel.
This part of the history is inconsistent with her evidence in chief. She said that she pulled up her jeans before leaving the cabin and took them off in the shower (Exhibit 1, Question 70).
Exhibit 9 contains the photographs of the appellant’s room when he was arrested. As already mentioned the photographs display a good deal of irrelevant and prejudicial material but were not the subject of objection.
Exhibit 10 is an operation record which describes the injuries found under surgery. Exhibit 11 is the Emergency Department record. It contains this history:
Believes happened over 30 min then “he finished”.
[The complainant] then ran 15 minutes home.
Had shower at home. Clots, bleeding. Washed down drain.
The above history also contains inconsistencies as to running home after the assault (not via the shower block). Exhibit 12 is a confidential Medical Evidence Record. It was completed by Dr Van Diemen. There is a history of the attack which describes the Tinder date version. The form records that the complainant had one glass of orange juice and a few mouthfuls of coffee. She denied consuming alcohol or recreational drugs pre‑assault.
The clothing said to have been worn at the time of the assault was “jeans, undies, bra, singlet top, jacket”. The record goes on to state that the jeans, undies, jacket and shoes were left at the alleged offender’s house. The complainant left “in towel/singlet/bra”. This is yet another variation on the clothing history. The additional notes state that the complainant “left trail of blood”.
Exhibit 13 is the Confidential Medical Report prepared by Dr Van Diemen on the basis of the notes in Exhibit 12 and other documentation provided as listed on page 1 of the report. The report brings together information from independent sources, such as the ambulance service. The abrasions and bruises observed on the complainant are described from page 6 of the report.
Exhibit 14 contains photographs of the complainant showing the various cuts, bruises and abrasions present her when she was in the hospital.
The record of interview with the appellant
Exhibit 16 is the record of interview with the appellant on 25 October 2018. These are the notable features:
(a)The police officer put the allegation of the appellant causing grievous bodily harm to the complainant on 9 August 2018 at the caravan park in Narrabundah. Starting at Question 69, the appellant’s response was:
Um, well, earlier - earlier on, before she, um, was talking about - you know the public toilets there? In the ladies’ toilets. Um, it was at her place and we had sex there.
…
And it - it was all good then and then, um - um, we stopped and I went home and I don’t know what she’d done, I think she stayed at home or whatever. And, ah - and, ah, I was at home and I said I was going for a shower and, um, she was texting me to meet her in - meet her over there. And, like, I - I remember, ah, she sent me a few texts over a period of probably an hour. Probably she sent me half a dozen also over an hour. And she was over there waiting for me in the ladies’ toilets and I don’t go near the ladies’ toilets. I went straight to the men’s toilets, I had me shower and then I went back. And also I put on two loads of washing and heard her, um, in the ladies’ toilets because it’s right next to where the washing machines are. I could hear her in there going, ”Oh, oh, oh, oh,” like that. I didn’t go in there, I didn’t go near the - near her. And then, um, um, she said something about being in trouble or something so I went down there to see what - what was happening, you know. And there was this blood all over the floor, everywhere in there. I didn’t go in there besides that - when I seen all the blood everywhere. I didn’t go in there before that. And, um, I - I - I freak out and, um, I go back home and, um, she said she was fine, all right and that. And, ah I - I - I think I went back to my place and then she told me she went to the hospital, like, um, I think it was that night or the next night, maybe, I’m not sure, that she went to the hospital. She was also - I think it was the same night, she was caught in the bin there. She couldn’t get out of the bin. I think that was, - ah, it must have been - must have been earlier on. It might have been a different night but I think it was the same night. Um, I don’t know what she was doing in the bin that she couldn’t get back out when she got in there, you know
(b)At Questions 71 and 72 the appellant expanded on his answers about the item wrapped in foil and his encounter with the complainant in the shower block:
It takes about half an hour, I think, for a load (of washing) to go through. And plus, I had a shower as well and she was still going in there by herself. And I could hear her going, “Oh, oh, oh,” like that. And then by the time I got there, the “Oh, oh,” had stopped and there was blood everywhere. That’s all I can really say. I don’t know what happened in there. All I know is she was in there for a long time and she sent me (indistinct) that picture, I remember the big thing, it looked like it was covered in foil.
(c)The reference to a thing in foil is at the basis of the suggestion that the complainant’s injuries were self-inflicted by her use of a sex toy.
(d)The appellant said that not only had he had sex with the complainant earlier in the night but on “heaps” of other occasions, both before and after the night the complainant suffered injury. As confirmed by the complainant, on one occasion she wrote to the appellant that “I brought her pussy back to life”.
(e)At Question 96 the appellant, somewhat inconsistently, says that following sex with the complainant in her cabin he had a shower at her place, but then later arranged to meet the complainant in the shower block where he put on a load of washing and had another shower himself. He said that he did not go into the female shower but could hear the complainant. He said he was receiving text messages from her through the night and he returned to the shower block after a message about the complainant being in “trouble or something”.
(f)At Question 104, presumably having realised the inconsistency about his two closely spaced showers, he said he had not had the initial shower at the complainant’s residence.
(g)At Question 119 the appellant described the sounds he had heard coming from the complainant as “Sex - like - like, having a good time”.
(h)After seeing all of the blood, the appellant said he gave the complainant some towels and “she cleaned whatever up and I didn’t think anything of it, she said she was right. I made sure - like, I got her home and stuff like that” (Question 125).
(i)The appellant was asked for the details of the sex that had taken place between him and the complainant. He said it involved penile-vaginal sex and also “we had a couple of little toys…like, vibrators and that” (Questions 141 and 142). He said the vibrators belonged to the complainant (Question 156).
(j)The appellant said that he had “a couple” of his own vibrators but only “a little one you get from the chemist” (Question 165). This is in marked contrast to the photographs in Exhibit 9.
(k)The appellant said that he had known the complainant for about 12 months and they had been having sex since they met.
(l)The appellant estimated that the sex on the relevant night had lasted for half an hour to an hour (Question 196). He said no drugs had been used (Question 205). This answer was patently false.
(m)The appellant said he had changed phones since the incident but the number remained the same (Question 231).
(n)The appellant said that he had left the caravan park because Mr McDougall had been stealing his belongings (Question 249).
(o)The interviewing police officer then put the complainant’s version to the appellant. He denied the use of ice and he apparently reacted with surprise at the suggestion of the missing $68,000 (Question 289).
(p)The appellant denied giving the complainant orange juice. And he denied forcing the complainant to search for missing money. He accepted that he may have pulled the complainant’s pants down but denied the use of force (Question 317). He said their sexual encounters may have been a bit rough but he never caused any bruising (Question 323).
(q)The appellant denied that he had inserted a sharp object into the complainant. He said there was no blood present until the incident in the shower block (Questions 331 to 341).
(r)The appellant agreed that he sometimes wore contact lenses with a “freaky look” (Question 352).
(s)The appellant said that he and the complainant had had intercourse “probably three or four times” since the incident (Question 443), or definitely “at least twice” (Question 448).
(t)The appellant repeated his view that the injuries may have been self-inflicted. He thought the respondent may have got “carried away” with herself (Question 459).
Discussion about the conviction appeal
As in Pell the starting point is the acknowledgement that the jury found the complainant to be credible and reliable. This necessarily entails a recognition that although the complainant’s version was rife with inconsistencies, her allegations, to the extent that they met the elements of the offences alleged against the appellant, were accepted by the jury.
The appellant emphasised that, in Pell the complainant was consistent in his versions. This does not necessarily make the present case stronger for the appellant than was the situation in Pell. This is because, as stated in the previous paragraph, the jury found the complainant to be credible and reliable notwithstanding the assorted inconsistencies.
The appellant submitted that there were three hypotheses that had not been excluded by the Crown. They were:
(a)The complainant, following consensual sexual intercourse with the appellant, went to the shower block where she masturbated causing herself injury. This is said to be consistent with a photograph of an object covered in foil that was sent by the complainant to the appellant and the absence of blood at the appellant’s cabin. In addition, the complainant’s evidence had to be seen against the background of her use of ice and cannabis during the evening.
(b)The time between the alleged assault in the appellant’s cabin and the calling of an ambulance, viewed together with the inconsistent telephone records of activity in the interim, made allowance for the complainant to have had another sexual liaison before the ‘000’ call was made. This would explain the original version given by the complainant about the Tinder date.
(c)During consensual sexual intercourse a sex toy was used by the appellant with no intention to injure the complainant, but by misadventure did injure the complainant.
In her address to the jury, counsel then appearing for the appellant drew the jury’s attention to the matters which are relevant to the appellant’s three hypotheses. These are paraphrased below:
(a)The medical evidence established that the complainant obtained five internal injuries to her vagina of unknown size and depth but it was not possible to say what the causative object was.
(b)The toxicology evidence revealed amphetamine and methylamphetamine which can have the effect of increasing a person’s pain threshold or their ability to withstand pain.
(c)The sex was consensual and the appellant did not know how the complainant was hurt.
(d)There was no blood “until at the toilets”.
(e)It was not up to the appellant to come up with any alternative theories as to how the complainant was injured.
We start from the position that each of the above hypotheses must fall with the acceptance of the complainant as a credible and reliable witness unless the record shows by reason of inconsistencies, discrepancies, or other inadequacy or in the light of other evidence that the Court is satisfied that the jury, acting rationally, ought nevertheless to entertain a reasonable doubt as to the proof of guilt.
Here there is unchallenged, independent and objective evidence that must be taken into account in order to determine this question.
The impact of the phone records
It is necessary to return to the evidence of the complainant and to conduct an analysis of the phone records, as existing in Exhibit 19 (see conclusion as to use of Exhibits 5 and 19 at [156] above). There are also some other objective facts, such as the time when the ‘000’ call was made, which play their part.
The times of events relayed by the complainant fluctuated through her versions and evidence, in particular as cross-examination revealed their inconsistency with objective facts.
In her evidence in chief interview the complainant said:
(a)The appellant sent her a text message at about 11:00pm. At Transcript 204 she said “it’s stuck in my head it was before midnight when I went there”.
(b)She went to his cabin shortly thereafter.
(c)The complainant went directly and quickly from the appellant’s cabin to the shower block. (The respective locations were quite close together. At a fast pace the journey would not have taken more than a minute or two, as confirmed by the complainant, see [86] above.)
(d)The complainant said she left appellant’s cabin at about “Three o’clock maybe? I don’t know”.
(e)The complainant initially sat under the shower for 10 to 15 minutes. She then rang the appellant.
(f)The appellant arrived 30 to 40 minutes later and had a shower. He left but returned later when he threw a bath mat at the complainant.
(g)The complainant held the bath mat in front of her and ran home. This occurred at 3:00am or 4:00am. Later she said she arrived home “just before the sun come up”.
(h)The complainant went into the shower in her cabin and then lay on the couch. After about an hour she went to the toilet and found she was still bleeding. She rang an ambulance.
The ambulance was called at 10:27am. The complainant told the ‘000’ operator that the bleeding had started two or three hours before the call. The complainant rejected the mathematical result of this evidence under cross-examination and said the bleeding had “started much earlier than that”.
The complainant told the ambulance officers that the Tinder date had ended at about 4:00am or 5:00am and she had returned home about an hour later. She also told them she had been bleeding for about three or four hours. In addition, her history in Exhibit 12 that the Tinder date began at 8:55pm is inconsistent with both the version concerning the appellant and the Tinder date.
The Patient Care Record refers to the complainant stating that she left the Tinder date “at 4 or 5am and returned home at 4.30 or 5.30am and PV bleeding started”.
Care must be taken in scrutinising the times of events given by the complainant. She was under the influence of mind-altering drugs. Further the injuries were very serious and may well have influenced the complainant’s capacity to identify the timing of events.
Nevertheless, even allowing the complainant considerable latitude in her estimates of the time that events occurred, or the length over which they occurred, it would seem clear that the injuries were inflicted after 11:00pm on 8 August 2018 and before 10:27am (when the ambulance was called) on 9 August 2018.
Because Exhibit 19 commences on 9 August 2018, the last hour of 8 August 2018 must be derived from Exhibit 5. Using these exhibits, the use of the complainant’s phone from 11:00pm on 8 August 2018 to 10:27am on 9 August 2018 is depicted in Attachment A to these reasons. Attachment B (extracted from page 1 of Exhibit 5) has a legend for the “Event Type” column in Attachment A.
On examination of the attachment it can be seen that the complainant’s phone, whether through the use of the Internet, text messaging or phone calls is in almost constant use for the whole of the period covered by Attachment A.
There are some gaps during which, theoretically, the attack on the complainant could have occurred. These are the gaps of 20 minutes or longer:
(a)2:37am – 3:15am 38 minutes
(b)5:49am – 6:09am 20 minutes
(c)9:41am – 10:08am 27 minutes
It must be accepted that the injuries could have been inflicted during any of the above gaps. But that is not the only consideration. If one imagines the attack occurring in any of these gaps it seems quite extraordinary that interspersed between the gaps the complainant is making phone calls, for example to her daughter, or texting Ms Kociolek or being on the Internet, sometimes for extended periods of time.
At 12:35am the complainant goes on to the Internet and, according to the entry for this time period, she uses the Internet for 127 minutes. On the basis of her original version, namely that she went to the appellant’s cabin at around 11:00pm on the previous evening, or at least some time before midnight, then following her version through, 12.35am onwards should be about the time that she is in the appellant’s cabin searching for the money or being attacked by him.
The Crown submitted that:
It was entirely open to the jury to accept that the complainant was mistaken or confused with respect to some aspects of the phone record evidence (which they may well have considered to be something of a peripheral issue), whilst accepting the core of her evidence concerning the attack upon her by the appellant. (Written submissions at [38])
The Crown continued at [40] of their written submissions:
Although the complainant was clearly mistaken in her evidence that she received a text message from the appellant at about 11:00pm, the appellant accepted in his record of interview with police that the complainant came over to his residence late in the evening of 8 August 2019.
(Footnotes omitted)
The phone records cannot be considered a peripheral issue. As in Pell they constitute unchallenged evidence which is inconsistent with acceptance of the complainant’s evidence. No evidence was called by the Crown to suggest that the phone records were in any way unreliable. The Crown, like the appellant, specifically declined to make any further submissions on the records after the Court wrote to the parties, as described above.
Conclusion on the conviction appeal
Whatever assorted explanations were given by the complainant as to the details of the phone records, the records simply cannot sit within any of the versions given by the complainant to the jury. If the complainant was attacked it is equally consistent that the attack occurred some hours after she went to the appellant’s cabin thus giving credence to the second hypothesis, namely that the attack occurred during a Tinder date.
The ultimate conclusion on an examination of the record of the trial is that, quoting from Pell, “there is a significant possibility that an innocent person has been convicted”. It must be said that notwithstanding the credibility, in the eyes of the jury, of the complainant, the “jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”.
This Court’s conclusion does not allow for a retrial. The convictions must be set aside and verdicts of acquittal entered.
The sentence appeals
Because of the result of the conviction appeal Mr Sirl must be re-sentenced. The sentence appeal in ACTCA 59 of 2019 also falls away. Therefore, if only as a technicality, the appeals against sentence should be allowed. In essence the respondent must now be sentenced for those matters that were dealt with by Murrell CJ and Mossop J.
The Crown’s appeal on sentence, based on manifest inadequacy, is both an attack on the individual sentence imposed by Murrell CJ and also a submission that the overall sentence, viewed through the principles of totality, was not sufficient.
The Crown’s submissions concerning the sentence imposed by Mossop J was that there was “inappropriate accumulation between the sentence imposed in SCC 19 of 2019 [the trial before Burns J] and the sentence imposed for maintaining a sexual relationship with a young person” (written submissions at [67]).
The Crown submitted that the significant concurrency adopted by Mossop J “led to the imposition of an overall aggregate sentence that is not “just and appropriate” and does not adequately reflect the criminality of the offending in this matter” (written submissions at [69]).
There is therefore no complaint by the Crown about the sentence of five years imposed by Mossop J; rather the complaint is about the extent that the five years was concurrent with the sentences that had been imposed by Burns J. For this reason, noting there is no appeal on sentence by the respondent, the Court is of the view that the five year sentence should remain. It should however commence from 25 October 2018. This was the commencement date for the sentences imposed by Burns J.
Turning to the sentence imposed by Murrell CJ, the Crown has two complaints. Firstly, it is said that the sentence of five years’ imprisonment is manifestly inadequate and secondly that the accumulation was inappropriate, primarily because it resulted in an extension of the nonparole period by only four months.
The Crown has pointed out the aggravating features listed by Murrell CJ and her Honour’s observation that the “present offence is more objectively serious” than the offence for which the respondent was sentenced by Mossop J. It must follow, says the Crown, that the more serious offence should receive a significantly greater penalty than the less serious offence.
The first point to be noted is that the five years’ imprisonment imposed by the Chief Justice had a starting point of six years, but was reduced to reflect a discount for the plea of guilty. There is no complaint about the extent of the discount so that the inadequacy argument must be viewed against a sentence of six years’ imprisonment.
The principles concerning inadequacy are well-known and often stated. It is suffice for present purposes to quote from the recent decision of this Court in R v Lindsay [2020] ACTCA 25 at [28] and [29]:
28.The principles applying to a Crown sentence appeal alleging manifest inadequacy have been set out in many cases including, recently, R v Rappel [2019] ACTCA 11 at [10]–[12], R v Nicholas; R v Palmer [2019] ACTCA 36 at [66]–[68], and R v UG [2020] ACTCA 8 at [41]–[43].
29.These cases reinforce the proposition that an appeal court must respect that a sentencing judge exercises a wide sentencing discretion. A Crown appeal against the inadequacy of a sentence should be instituted sparingly but may be appropriate where a sentence is so manifestly inadequate as to demonstrate “error in principle” or for the purpose of providing “governance and guidance” to sentencing courts. In R v Duffy [2014] ACTCA 53, the Court said at [60]:
In prosecution appeals, the focus must remain firmly on the question of whether there has been an error of principle.
On sentence, Murrell CJ set out the facts of the matter before her from [3]:
3.On 29 August 2018, the offender (who was then 47 years old) met the complainant (who was then 14 years old). While the complainant was “couch surfing” with friends, she met the offender. The complainant was staying at a residence with girls of a similar age. The offender attended the residence from time to time, supplying methylamphetamine to the complainant.
4. The offender and the complainant exchanged phone numbers and began to spend time together. The complainant began to stay with the offender at a caravan park and elsewhere. The offender and the complainant often used cannabis and smoked methylamphetamine, which was supplied by the offender.
5.From mid-September 2018, the offender and the complainant had frequent sexual intercourse. No condom was used.
6.Initially, the complainant told the offender that she was 18 years old. Later, she said that she was about to turn 16 years old. On her birthday in mid- to late September 2018, the complainant told the offender that she was turning 15 years old. He became angry with her for misleading him. Nevertheless, until the offender was arrested for an on 25 October 2018, he continued to have frequent sexual intercourse with her.
7.Towards the end of the relationship, the offender used sex toys on the complainant in ways that caused her discomfort. According to the complainant, when she objected, the offender's response was to accuse her of cheating on him. Sometimes, the complainant felt uncomfortable about sexual interaction, but she continued because she felt affection for the offender.
8.At times during the relationship, the offender said things such as “this is wrong” and “you are too young” and encouraged the complainant to return to her family. The offender felt affection for the complainant.
9.The offender has been in custody since 25 October 2018, when he was arrested for a similar matter (see below).
10.On 29 October 2018, an officer of the Child Youth Protection Team interviewed the complainant, who disclosed her sexual relationship with the offender. Initially, she declined to make a police statement because of her feelings for the offender. However, on 15 February 2019, she participated in a police interview.
11.The offender was charged with this offence on 25 March 2019.
Her Honour assessed the objective seriousness of the offence from [12]:
12. An offence against s 56 of the Crimes Act occurs if an adult engages in “sexual acts” with a “young person … on 2 or more occasions and over any period”: s 56(2) of the Crimes Act. A “sexual act” is quite broadly defined and includes an attempt to commit a sexual offence. “Young person” is defined to mean a person who is under the age of 16 years.
13. The unsatisfactory aspects of s 56 were discussed in KN v The Queen [2019] ACTCA 37 (KN), but they are not relevant for present purposes. In this case, in addition to engaging in sexual acts on two or more occasions, there was a “sexual relationship” between the offender and the complainant.
14.In this case, the nature of the sexual acts in question (penile/vaginal intercourse) were more serious than many sexual acts that may be the subject of a s 56 offence. A s 56 offence occurs when there are two sexual acts; in this case, the offence involved many sexual acts. Those acts occurred over a relatively short, but not insignificant, period of time, five or six weeks (from mid-September to late October 2018).
15.Although the complainant was 14 and 15 years old at the time of the offence (at the upper end of the “young person” range covered by the offence), there was a large age difference between the complainant and the offender.
16.The offender was an adult who had the practical responsibility for the complainant; she was more or less living with him at the time when most of the sexual acts occurred and she lacked the protection of her parents or another responsible adult. At least in a de facto sense, the offender was in a position of trust or authority vis-à-vis the complainant. The offence was committed in the context that, wittingly or unwittingly, the offender exploited the complainant's vulnerability arising from her youth and homelessness and created a dependency by providing her with accommodation and drugs.
17.There is no suggestion that this was a sex for drugs arrangement or that the offender was responsible for introducing the complainant to drugs.
18.As I observed in R v Jones [2019] ACTSC 124 (Jones), a matter which involved maintaining a sexual relationship with a 15-year-old girl, at [31]:
The victim's lack of opposition to the sexual activity is not a mitigating factor. By virtue of age, any child lacks the capacity to give real consent. Further, it is presumed that a relationship between an adult and a child causes significant harm to the child: R v Horton-Hegarty [2018] ACTCA 22 at [46].
Clearly her Honour regarded the offending as objectively serious.
Her Honour examined the respondent’s criminal history. Notably, and appropriately, her Honour described the offences for which the respondent had been sentenced by Burns J, but which are now the subject of the successful conviction appeal. Accordingly the record is now not ‘quite as bad’ as when viewed by the Chief Justice.
In setting out the respondent’s subjective factors her Honour referred to his disadvantaged childhood, his history of illegal drug use and his limited insight into his wrongdoing. Her Honour noted that the Pre-Sentence Report assessed the respondent as having a medium to high risk of general re-offending.
Her Honour discussed some comparable cases. In doing so the distinctive features of each case were noted. Obviously each case must be decided on its own facts.
The Crown has submitted that “the starting point of 6 years imprisonment was too lenient having regard to the objective seriousness of the offending and the respondent’s criminal history of serious sexual offences”. The extent of the serious sexual offences has now been substantially reduced by the successful conviction appeal.
The sentence of 6 years might be seen as lenient. However, even if it might have been described as manifestly inadequate, the change to the respondent’s criminal history, a factor given some weight by the sentencing judge, would bring the sentence back into an appropriate range. There is no longer any scope for an “error of principle” as required in a Crown appeal.
Turning now to the second leg of the Crown’s complaints, the Court does view the limited extension of the nonparole period as susceptible to an assertion of manifest inadequacy. However the need to re-sentence the respondent renders it unnecessary to resolve that issue.
The next step is the new sentence to be imposed. Accepting the correctness of the two 5 year terms imposed by Mossop J and Murrell CJ respectively the only remaining questions are the degree of accumulation and concurrency which should be applied and the setting of a nonparole period.
The principles of totality must obviously be applied. The overall sentence must not be crushing nor stultify the respondent’s opportunity for rehabilitation. As pointed out by the Crown the principles of totality are well set out in O’Brien v The Queen [2015] ACTCA 47, at [26]:
26.The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
On the other hand the community, and especially the individual victims of the offences, must be able to recognise a decision of the Court which acknowledges that the crimes were different and were inflicted upon different underage victims.
The nonparole period assessed by Murrell CJ was just under 60% of the total sentence. Her Honour observed that her “approach differs from that of my brother judges”. Her Honour thought that the respondent’s rehabilitation prospects were “far from hopeless”. Burns J had described the prospects of rehabilitation as “guarded”. Mossop J thought the respondent was “capable of living lawfully” but adopted the same 70% calculation of the nonparole period as had been applied by Burns J.
Having regard to the above matters, this Court thinks there should be some, but not a great deal, of concurrency between the sentences.
As to the nonparole period, the assessment by Murrell CJ took into account “the very lengthy period” the respondent would be in custody, allowing him time to “demonstrate that he is suitable for release into the community”. The lengthy period has been reduced by the respondent’s success in the conviction appeal, consequently reducing the respondent’s prospects of rehabilitation. The Court thinks that the nonparole period should be 6 years and 3 months (equating to almost 70% of the total sentence).
Orders
On the conviction appeal:
(a)The appeal against conviction in ACTCA 44 of 2019 is allowed.
(b)The convictions in ACTCA 44 of 2019 are set aside.
(c)Verdicts of not guilty are entered in respect of CC2018/13147 (sexual intercourse without consent) and CC2018/13146 (recklessly inflicting grievous bodily harm).
On the sentence appeals:
(a)The appeals in ACTCA 60 of 2019 and ACTCA 7 of 2020 are allowed.
(b)The sentences imposed in ACTCA 60 of 2019 and ACTCA 7 of 2020 are set aside.
(c)Robert Glen Sirl is re-sentenced as follows:
(i)In relation to SCCAN2019/25 (maintaining a sexual relationship with a young person) the respondent is sentenced to 5 years’ imprisonment commencing on 25 October 2018 and ending on 24 October 2023.
(ii)In relation to CC2019/3129 (maintaining a sexual relationship with a young person) the respondent is sentenced to 5 years’ imprisonment commencing on 25 October 2022 and ending on 24 October 2027.
(iii)The total period of imprisonment is 9 years.
(iv)A nonparole period of 6 years and 3 months is set, commencing on 25 October 2018 and ending on 24 January 2025.
| I certify that the preceding two hundred and fifty-three [253] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Acting Justice Robinson and Acting Justice Crowe. Associate: Date: 10 July 2020 |
Attachment A
| Event Type | Network Start Date | Network Start Time | Duration | Originating Party | Terminating Party |
| PCDR | 08/08/2018 | 23:53:01 | 2484 | Complainant | live.vodafone.com |
| PCDR | 08/08/2018 | 23:53:01 | 121 | Complainant | live.vodafone.com |
| PCDR | 08/08/2018 | 23:58:07 | 0 | Complainant | live.vodafone.com |
| PCDR | 09/08/2018 | 00:35:19 | 7627 | Complainant | live.vodafone.com |
| PCDR | 09/08/2018 | 00:35:24 | 361 | Complainant | live.vodafone.com |
| MOC | 09/08/2018 | 00:44:49 | 351 | Nicole KOCIOLEK | Complainant |
| MTC | 09/08/2018 | 00:44:49 | 351 | Nicole KOCIOLEK | Complainant |
| MTC | 09/08/2018 | 00:44:49 | 352 | Nicole KOCIOLEK | Complainant |
| PCDR | 09/08/2018 | 00:44:51 | 1643 | Complainant | live.vodafone.com |
| MTC | 09/08/2018 | 00:52:16 | 539 | Nicole KOCIOLEK | Complainant |
| MOC | 09/08/2018 | 00:52:16 | 538 | Nicole KOCIOLEK | Complainant |
| MTC | 09/08/2018 | 00:52:17 | 538 | Nicole KOCIOLEK | Complainant |
| MOC | 09/08/2018 | 01:02:19 | 1 | Complainant | TG |
| PCDR | 09/08/2018 | 01:02:21 | 4 | Complainant | live.vodafone.com |
| PCDR | 09/08/2018 | 01:02:25 | 32 | Complainant | live.vodafone.com |
| MOC | 09/08/2018 | 01:02:25 | 0 | Complainant | TG |
| PCDR | 09/08/2018 | 01:14:05 | 1 | Complainant | live.vodafone.com |
| SMSMT | 09/08/2018 | 01:26:20 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:26:20 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:26:21 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:26:24 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:27:25 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:27:26 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:28:31 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:28:32 | Complainant | Nicole KOCIOLEK | |
| SMS-Submitted | 09/08/2018 | 01:28:55 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:28:55 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:28:56 | Nicole KOCIOLEK | Complainant | |
| SMS-Delivered | 09/08/2018 | 01:28:56 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:29:31 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:29:32 | Complainant | Nicole KOCIOLEK | |
| SMS-Delivered | 09/08/2018 | 01:29:46 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:29:46 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:29:46 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 01:29:46 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:30:44 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:30:45 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:31:35 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:31:36 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:32:13 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 01:32:13 | Nicole KOCIOLEK | Complainant | |
| SMS-Delivered | 09/08/2018 | 01:32:14 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:32:14 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:32:19 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:32:19 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:33:48 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:33:49 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:34:15 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:34:15 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:34:26 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:34:26 | Nicole KOCIOLEK | Complainant | |
| SMS-Delivered | 09/08/2018 | 01:34:26 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 01:34:26 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:34:51 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 01:34:51 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:34:51 | Nicole KOCIOLEK | Complainant | |
| SMS-Delivered | 09/08/2018 | 01:34:51 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:38:14 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:38:14 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:38:15 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:38:17 | Complainant | Nicole KOCIOLEK | |
| SMS-Submitted | 09/08/2018 | 01:38:46 | Nicole KOCIOLEK | Complainant | |
| SMS-Delivered | 09/08/2018 | 01:38:46 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:38:46 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:38:47 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:38:55 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 01:38:55 | Nicole KOCIOLEK | Complainant | |
| SMS-Delivered | 09/08/2018 | 01:38:56 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:38:56 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:39:01 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:39:01 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:40:59 | Nicole KOCIOLEK | Complainant | |
| SMS-Delivered | 09/08/2018 | 01:40:59 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:40:59 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 01:40:59 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:47:14 | Shane SEBBENS | Complainant | |
| SMSMO | 09/08/2018 | 01:49:44 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:49:45 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:49:45 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:49:46 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:49:46 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:49:47 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:49:50 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:51:18 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:51:19 | Complainant | Nicole KOCIOLEK | |
| SMS-Delivered | 09/08/2018 | 01:51:49 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 01:51:49 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:51:49 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:51:49 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:52:20 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:52:21 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 01:52:45 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:52:46 | Complainant | Nicole KOCIOLEK | |
| SMS-Delivered | 09/08/2018 | 01:53:05 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 01:53:05 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:53:05 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 01:53:05 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 01:54:08 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 01:54:09 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 02:09:55 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 02:09:56 | Complainant | Nicole KOCIOLEK | |
| SMS-ReportDeliveryAttempt | 09/08/2018 | 02:09:57 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 02:09:57 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 02:09:58 | Complainant | Nicole KOCIOLEK | |
| PCDR | 09/08/2018 | 02:16:17 | 1238 | Complainant | live.vodafone.com |
| SMSMO | 09/08/2018 | 02:27:17 | Nicole KOCIOLEK | Complainant | |
| SMS-Delivered | 09/08/2018 | 02:27:17 | Nicole KOCIOLEK | Complainant | |
| SMSMT | 09/08/2018 | 02:27:17 | Nicole KOCIOLEK | Complainant | |
| SMS-Submitted | 09/08/2018 | 02:27:17 | Nicole KOCIOLEK | Complainant | |
| SMSMO | 09/08/2018 | 02:30:01 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 02:30:01 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 02:30:02 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 02:30:04 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 02:32:01 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 02:32:02 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 02:32:05 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 02:34:30 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 02:34:31 | Complainant | Robert SIRL | |
| SMS-ReportDeliveryAttempt | 09/08/2018 | 02:34:32 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 02:34:32 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 02:34:34 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 02:35:10 | Robert SIRL | Complainant | |
| SMSMT | 09/08/2018 | 02:35:12 | Robert SIRL | Complainant | |
| SMSMO | 09/08/2018 | 02:35:50 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 02:35:50 | Complainant | Nicole KOCIOLEK | |
| SMSMT | 09/08/2018 | 02:35:51 | Complainant | Nicole KOCIOLEK | |
| SMS-ReportDeliveryAttempt | 09/08/2018 | 02:35:51 | Complainant | Nicole KOCIOLEK | |
| SMSMO | 09/08/2018 | 02:37:04 | Complainant | Robert SIRL | |
| SMS-ReportDeliveryAttempt | 09/08/2018 | 02:37:05 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 02:37:05 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 02:37:05 | Complainant | Robert SIRL | |
| PCDR | 09/08/2018 | 03:15:38 | 8194 | Complainant | live.vodafone.com |
| PCDR | 09/08/2018 | 04:08:44 | 1813 | Complainant | live.vodafone.com |
| MOC | 09/08/2018 | 05:16:00 | 0 | Complainant | Robert SIRL |
| MTC | 09/08/2018 | 05:16:00 | 0 | Complainant | Robert SIRL |
| SMSMO | 09/08/2018 | 05:16:30 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 05:16:31 | Complainant | Robert SIRL | |
| MTC | 09/08/2018 | 05:16:44 | 12 | Complainant | Robert SIRL |
| MOC | 09/08/2018 | 05:16:45 | 12 | Complainant | Robert SIRL |
| MOC | 09/08/2018 | 05:35:34 | 29 | Complainant | Robert SIRL |
| MTC | 09/08/2018 | 05:35:34 | 29 | Complainant | Robert SIRL |
| PCDR | 09/08/2018 | 05:36:09 | 805 | Complainant | live.vodafone.com |
| SMSMT | 09/08/2018 | 05:37:42 | Robert SIRL | Complainant | |
| SMSMO | 09/08/2018 | 05:37:42 | Robert SIRL | Complainant | |
| SMSMO | 09/08/2018 | 05:38:19 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 05:38:19 | Complainant | Robert SIRL | |
| MOC | 09/08/2018 | 05:39:08 | 0 | Complainant | Robert SIRL |
| MTC | 09/08/2018 | 05:39:09 | 0 | Complainant | Robert SIRL |
| SMSMO | 09/08/2018 | 05:39:35 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 05:39:35 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 05:40:02 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 05:40:02 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 05:40:35 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 05:40:36 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 05:40:49 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 05:40:50 | Complainant | Robert SIRL | |
| PCDR | 09/08/2018 | 05:41:26 | 6 | Complainant | live.vodafone.com |
| PCDR | 09/08/2018 | 06:09:46 | 7789 | Complainant | live.vodafone.com |
| SMSMO | 09/08/2018 | 06:13:25 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 06:13:29 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 06:13:29 | Complainant | Robert SIRL | |
| PCDR | 09/08/2018 | 06:14:20 | 6 | Complainant | live.vodafone.com |
| SMSMT | 09/08/2018 | 06:16:07 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 06:16:07 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 06:16:08 | Complainant | Robert SIRL | |
| SMS-ReportDeliveryAttempt | 09/08/2018 | 06:16:08 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 06:20:47 | Robert SIRL | Complainant | |
| SMSMT | 09/08/2018 | 06:20:48 | Robert SIRL | Complainant | |
| SMSMO | 09/08/2018 | 06:37:07 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 06:37:08 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 06:37:11 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 06:37:12 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 06:37:12 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 07:07:16 | Complainant | Unknown (2) | |
| PCDR | 09/08/2018 | 07:50:07 | 613 | Complainant | live.vodafone.com |
| PCDR | 09/08/2018 | 08:04:57 | 1867 | Complainant | live.vodafone.com |
| SMSMO | 09/08/2018 | 08:15:02 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 08:15:03 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 08:15:03 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 08:15:06 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 08:20:23 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 08:20:24 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 08:20:24 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 08:20:25 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 08:20:28 | Complainant | Robert SIRL | |
| MOC | 09/08/2018 | 08:21:41 | 640 | Complainant | TG |
| PCDR | 09/08/2018 | 08:32:23 | 24 | Complainant | live.vodafone.com |
| MOC | 09/08/2018 | 08:32:46 | 28 | Complainant | 13002363446 |
| PCDR | 09/08/2018 | 08:33:17 | 6628 | Complainant | live.vodafone.com |
| MOC | 09/08/2018 | 08:33:55 | 33 | Complainant | TG |
| SMSMT | 09/08/2018 | 08:38:21 | TG | Complainant | |
| PCDR | 09/08/2018 | 09:27:18 | 14 | Complainant | live.vodafone.com |
| MOC | 09/08/2018 | 9:28:30 | 0 | Complainant | Kai' |
| SMSMO | 09/08/2018 | 09:29:25 | Complainant | Kai' | |
| MTC | 09/08/2018 | 09:29:26 | 479 | TG | Complainant |
| MTC | 09/08/2018 | 09:29:26 | 480 | TG | Complainant |
| PTC | 09/08/2018 | 09:29:26 | 480 | TG | Complainant |
| MOC | 09/08/2018 | 09:38:28 | 0 | Complainant | Kai' |
| SMSMO | 09/08/2018 | 09:40:20 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 09:40:21 | Complainant | Robert SIRL | |
| SMSMT | 09/08/2018 | 09:40:21 | Complainant | Robert SIRL | |
| SMS-ReportDeliveryAttempt | 09/08/2018 | 09:40:21 | Complainant | Robert SIRL | |
| SMSMO | 09/08/2018 | 09:41:02 | Robert SIRL | Complainant | |
| SMSMT | 09/08/2018 | 09:41:02 | Robert SIRL | Complainant | |
| MMSR | 09/08/2018 | 10:08:29 | Complainant | Robert SIRL | |
| MMSS | 09/08/2018 | 10:08:29 | Complainant | Robert SIRL | |
| PCDR | 09/08/2018 | 10:08:30 | 1 | Complainant | live.vodafone.com |
| SMS-Submitted | 09/08/2018 | 10:08:35 | 900 | Complainant | |
| SMSMT | 09/08/2018 | 10:08:36 | 900 | Complainant | |
| MOC | 09/08/2018 | 10:10:33 | 23 | Complainant | Kai' |
| SMSMO | 09/08/2018 | 10:12:19 | Complainant | Kai' | |
| MOC | 09/08/2018 | 10:13:04 | 11 | Complainant | Kai' |
| SMSMT | 09/08/2018 | 10:15:04 | Huawei | Complainant | |
| SMSMT | 09/08/2018 | 10:15:06 | Huawei | Complainant | |
| MTC | 09/08/2018 | 10:15:55 | 323 | LL | Complainant |
| MTC | 09/08/2018 | 10:15:56 | 322 | LL | Complainant |
| PTC | 09/08/2018 | 10:15:56 | 323 | LL | Complainant |
| SMSMT | 09/08/2018 | 10:23:15 | Complainant | Kai' | |
| SMS-ReportDeliveryAttempt | 09/08/2018 | 10:23:15 | Complainant | Kai' | |
| MOC | 09/08/2018 | 10:26:12 | 3 | Complainant | TG |
| MOC | 09/08/2018 | 10:26:38 | 276 | Complainant | 000 |
Attachment B
Legend for ‘Event Type’ column in Attachment A (extracted from page 1 of Exhibit 5):
| Event Type | Explanation |
| MMSR | MMS – Received from another VF customer |
| MMSS | MMS – Sent to another VF customer |
| MOC | Voice call – Mobile originating |
| MTC | Voice call – Mobile terminating |
| PTC | Voice call – Call terminating on a PSTN connection |
| PCDR | Data session |
| SMSO | SMS – Mobile originating |
| SMST | SMS – Mobile terminating |
| SMS-Delivered | SMS event |
| SMS-Submitted | SMS event |
| SMS-ReportDeliveryAttempt | SMS event |
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Charge
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Sentencing
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4
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