Smith v The King

[2025] NSWCCA 104

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Smith v R [2025] NSWCCA 104

Hearing dates:

28 May 2025

Date of orders:

11 July 2025

Decision date:

11 July 2025

Before:

Bell CJ at [1];
Harrison CJ at CL at [89];
Hamill J at [94].

Decision:

1.   Leave to appeal granted.

2.   Appeal dismissed.

Catchwords:

CRIME – Appeal – unreasonable verdict – applicant convicted on two counts of detaining and occasioning actual bodily harm – where two complainants – when second complainant was herself involved in detention and assault of first complainant – whether any inconsistency between evidence of complainants incapable of resolution by a properly instructed jury – jury’s advantage when both complainants cross-examined at length – whether any material inconsistency between evidence of complainants – whether verdicts in respect of both complaints were open to the jury.

Legislation Cited:

Crimes Act 1900 (NSW) ss 86(3), 192E(1)(b)

Evidence Act 1995 (NSW) s 165

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:

AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Gould v R [2023] NSWCCA 103

Gray v R [2020] NSWCCA 240

Hamilton (a pseudonym) v R [2020] NSWCCA 80

Hanna v R [2023] NSWCCA 182

Holt v R [2021] NSWCCA 140

Kim v R [2020] NSWCCA 288

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Nguyen v R [2017] NSWCCA 145

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Murray (1987) 11 NSWLR 12

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v ZT [2025] HCA 9; (2025) 88 ALJR 656

RW v R [2023] NSWCCA 2

RA v R [2020] NSWCCA 356

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Category:

Principal judgment

Parties:

Trent Steven Smith (Applicant)
The Crown (Respondent)

Representation:

Counsel:
D Carroll (Applicant)
A Brown (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/66840

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

21 July 2023

Before:

Culver DCJ

File Number(s):

2021/66840

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 22 November 2022, following an 18-day trial, Trent Steven Smith (the Applicant) and his co-accused, and uncle, Malak Fahmy Bishay (Mr Bishay), were found guilty by a jury of two counts of specially aggravated kidnapping in the company of another person and occasioning actual bodily harm, contrary to s 86(3) of the Crimes Act 1900 (NSW) (the Act). Count 1 related to the detention and assault of Vanessa Paull (Ms Paull), and Count 2 related to the detention and assault of Annika Finlay (Ms Finlay). The Applicant was also found guilty of dishonestly obtaining a financial advantage contrary to s 192E(1)(b) of the Act.

The offences arose out of events taking place primarily in a one-bedroom unit located at 15/66 Wellington Street, Waterloo (the unit). The regular tenant of the unit was Ms Finlay. The Applicant also took up residence at the unit following his release from custody for a shoplifting charge on 10 February 2021. Mr Bishay was a regular presence at the unit and Ms Paull stayed there from some time in February 2021.

Police were called to the unit at 8:00PM on 8 March 2021 following the report of an occupant of a neighbouring unit of hearing a woman’s increasingly desperate cries for help. The police attended the unit shortly after, and Ms Paull, having called out for help, emerged from the unit, according to Constable Hyde, “shaking, scared, and not wearing any shoes”. Ms Paull later gave evidence of having been assaulted on numerous occasions in the unit by the Applicant, Mr Bishay and Ms Finlay, including being struck repeatedly by a metal pole to her hands and feet, and hit with the blunt side of a meat cleaver.

Ms Finlay was originally arrested with the Applicant but was subsequently released and never relevantly charged. She also reported being detained and assaulted by the Applicant and Mr Bishay, and presented with bruising to the face, a fractured cheekbone, and other injuries. At trial, Ms Finlay provided a detailed recollection of what later became known as the “porridge incident”, in the aftermath of which she claimed to have been assaulted by both Mr Bishay and the Applicant. Ms Paull gave evidence that she also punched Ms Finlay during the “porridge incident”, though Ms Finlay had no recollection of that.

The Applicant sought leave to appeal out of time on the sole ground that the verdicts were unreasonable and could not be supported having regard to the evidence. The Applicant relied substantially on asserted “marked inconsistencies” in the complainants’ evidence, particularly in relation to: (i) Ms Finlay being both a party to the detaining and assault of Ms Paull, and a complainant; and (ii) the different recollections provided by Ms Finlay and Ms Paull in relation to the “porridge incident”.

The Court (Bell CJ, Harrison CJ at CL and Hamill J agreeing) held, dismissing the appeal:

1. Consideration of the forensic advantages of juries in evaluating the credibility and reliability of witnesses, and any inconsistencies or imperfections within or between witnesses’ evidence: [32]-[40] (Bell CJ); [89], [92] (Harrison CJ at CL); [94]-[95] (Hamill J).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; R v ZT [2025] HCA 9; (2025) 88 ALJR 656; Kim v R [2020] NSWCCA 288; Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; Nguyen v R [2017] NSWCCA 145; Holt v R [2021] NSWCCA 140; Abdallah Hanna v R [20203] NSWCCA 182; RA v R [2020] NSWCCA 356; Gray v R [2020] NSWCCA 240; AJ v R (2022) 110 NSWLR 339; [2022] 110 NSWCCA 136; Hamilton (a pseudonym) v R [2020] NSWCCA 80; RW v R [2023] NSWCCA 2; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited.

2. It was open to the jury to convict the Applicant in respect of Count 1 for detaining and assaulting Ms Paull, having regard to the whole of the evidence and given that Ms Finlay’s evidence, rather than contradicting Ms Paull’s complaint, in fact corroborated it: [47]-[59], [88] (Bell CJ); [89]-[93] (Harrison CJ at CL); [94], [96]-[98] (Hamill J).

3. It was open to the jury to convict the Applicant in respect of Count 2 for detaining and assaulting Ms Finlay, particularly in light of: (i) the directions given to the jury regarding the reliability of Ms Finlay’s evidence; (ii) that any inconsistency in relation to the porridge incident was overstated and capable of being resolved by the jury; and (iii) that Ms Finlay’s participation in the detention and assault of Ms Paull did not preclude the possibility that she had herself been the victim of detention and assault: [60]-[88] (Bell CJ); [89]-[93] (Harrison CJ at CL) [94], [99]-[117] (Hamill J).

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15; R v Murray (1987) 11 NSWLR 12; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited.

Gould v R [2023] NSWCCA 103, referenced.

JUDGMENT

Introduction

1. BELL CJ: On 22 November 2022, after a trial of 18 days, Trent Steven Smith (the Applicant) and his co-accused, Malak Fahmy Bishay (Mr Bishay), were found guilty by a jury on the following two counts:

“Count 1: For that between 13 February 2021 and 9 March 2021 at Waterloo and elsewhere in the State of New South Wales did while in company of another person detain Vanessa Paull without her consent and with intention of obtaining an advantage, namely psychological gratification, and at the time of the detaining actual bodily harm was occasioned to Vanessa Paull

Contrary to s.86(3) Crimes Act 1900 (NSW)

Count 2: For that between 26 February 2021 and 9 March 2021 at Waterloo and elsewhere in the State of New South Wales did while in company of another person detain Annika Finlay without her consent and with intention of obtaining an advantage, namely psychological gratification, and at the time of the detaining actual bodily harm was occasioned to Annika Finlay

Contrary to s.86(3) Crimes Act 1900 (NSW)”.

2. The Applicant was also found guilty of the following count:

“Count 3: Further that Trent Steven Smith on 18 February 2021 at Sydney in the State of New South Wales did by deception, that is by using the Commonwealth Bank card of Vanessa Paull to make an ATM withdrawal without authority or consent, dishonestly obtained a financial advantage, namely $400 cash

Contrary to s.192E(1)(b) Crimes Act 1900 (NSW)”.

3. Mr Bishay, who was the uncle of the Applicant, was found guilty of two further counts.

4. Both complainants, Ms Paull and Ms Finlay, gave evidence and were extensively cross examined at the trial. The jury deliberated on its verdicts for two days.

5. On 28 July 2023, in respect of counts 1 and 2, the Applicant was sentenced to an aggregate term of imprisonment of 8 years that commenced on 1 June 2021 and which will expire on 31 May 2029 with a non-parole period of 5 years. He is first eligible for parole on 31 May 2026. The judge gave indicative sentences of 6 years for Count 1, and 5 years for Count 2. It will be apparent that the Applicant has already served just over 4 years of his sentence.

6. A community corrections order for 12 months was imposed in respect of Count 3.

7. The Applicant now seeks leave to appeal out of time on a single ground, namely that the verdicts are unreasonable and cannot be supported having regard to the evidence.

8. Leave to appeal out of time should be granted but the appeal must be dismissed. The verdicts of the jury were not unreasonable and were supported by the evidence which I have reviewed closely for the purpose of these reasons.

Background

9. The second complainant, Ms Finlay, was the tenant of a housing commission unit at 15/66 Wellington Street, Waterloo (the unit).

10. On 10 February 2021, the Applicant was released from custody following the conclusion of a sentence in respect of a shoplifting charge. He took up residence at the unit. Mr Bishay was also a regular presence at the unit. He and the Applicant came and went from it from time to time.

11. From some time in February 2021, the first complainant, Ms Paull, also resided at the unit other than for a small number of days when, in the company and, according to Ms Paull, under the control of the Applicant and Mr Bishay, she stayed at a hotel with them.

12. Ms Paull was at all material times on bail. She complied with her police reporting obligations on 14 February 2021 but did not comply with them between 15 February 2021 and 8 March 2021.

13. On 8 March 2021, at about 8.00 pm, an occupant of another unit, Ms Bourke, heard a woman crying out for help, saying “Help me, somebody help me”. These cries continued for about 10 minutes or so, with the neighbour describing them as “more insistent, more desperate”. The neighbour contacted Redfern Police. (When subsequently interviewed by police, the neighbour indicated that “probably for a couple of weeks beforehand”, she had “heard noises and other people. You know, bangs and thuds and things and arguing”).

14. Constables Hyde and Walker attended the unit at about 8.30pm on 8 March 2021. Body worn videos recorded the following events (what follows draws on the sentencing judge’s description in her remarks on sentence):

“They had their chest worn body worn video devices recording the events. The police knocked on the locked security door of the unit. Mr Smith opened the internal solid door, that is there was a locked security screen and a solid front door, and upon seeing it was the police he quickly shut the door. The police continued to knock on the security screen door with both doors still closed.

The police said, ‘It’s the police. We had reports of yelling and screaming from this apartment. We’re just here to check that everyone is alright’. Ms Annika Finlay the second victim, that is the victim the subject of count 2, eventually answered the door and advised police that there was nothing going on and that she thought one of the other units in the complex may have been the source of the disturbance. Police then queried her as to who else was in the unit. Ms Finlay clearly indicated there was only the male who had opened and closed the door a few minutes before, namely Mr Smith. But Ms Finlay did not respond to the officer’s request for the name of the male occupant. Ms Finlay turned and spoke to Mr Smith who then appeared at the door. The wooden door was only partially open at this time, the security screen door remained locked. Mr Smith denied there being any domestic incident and told police they had the wrong unit. Mr Smith denied there had been any yelling and screaming. Ms Vanessa Paull, the victim of count 1 and counts 3, 4 and 5, then yelled out from inside the unit, ‘Yes there has help me please, help me officers’.

The wooden door immediately shut and Constable Hyde grabbed the screen door and attempted to open it but it was still locked. Mr Smith then opened the solid door again and told Ms Paull she could leave. He then unlocked the screen door with a key and pushed Ms Paull outside the unit. Mr Smith then quickly closed the door and locked the solid door again.”

15. Constable Hyde described Ms Paull on her emergence from the unit as “shaking, scared, and not wearing any shoes”. That description accords with her presentation on the footage from the constables’ body worn video which also showed her struggling to walk even a few paces, and is consistent with her account of having been struck with a metal bar on her feet and hands.

16. The interaction between Constable Hyde and Ms Paull on the video was as follows:

“Cst Hyde:   What's happened?

Ms Paull:     I don't wanna say. I just want to go.

Cst Hyde:    Huh?

Ms Paull:     I want to go.

Cst Hyde:    You want to go?

Ms Paull:     I wanna leave.

Cst Hyde:    Do you live here?

Ms Paull:     No.

Cst Hyde:    Where do you live?

Ms Paull:     I've been staying at um, by um, Northcott.

Cst Hyde:    So what's happened?

Ms Paull:     Um.

Cst Hyde:    I'll just let you know that my body worn camera is on, so it's recording our conversation. Okay?

Ms Paull:     Okay.

Cst Hyde:    So what's happened tonight?

Ms Paull:     I, I fell (sic), I [fell] out the door. I was trying to go home.

Cst Hyde:   You fell out the door?

Ms Paull:    Yeah. And that's when I screamed.

Cst Hyde:   Why did you come to this place?

Ms Paull:    I came to see somebody, but they weren't here. And then they let me in.

Cst Hyde:   Do you have any belongings on you or anything like that?

Ms Paull:    Yes, they're in there.

Cst Hyde:   What's in there?

Ms Paull:    I got my jacket and I've got my shoes in there.

Cst Hyde:   Okay. Do you know these people that live in there?

Ms Paull:    I know Annika. Yes.

Cst Hyde:   Yeah, and do you know the bloke in there as well?

Ms Paull:    I know him too. Trent.

Cst Hyde:   Okay. And what? They done anything to you tonight?

Ms Paull:    No [shook head], not tonight.

PC Walker:  So why did you scream out then?

Cst Hyde:    So why were you screaming out, ‘Help’?

Ms Paull:     Because I slipped over out here. [she then pointed to the entrance of the unit.]

Cst Hyde:    No, no, you were in there, [pointing to the hallway], you were in there, the unit.

Ms Paull:     When I went to go out the door, I slipped over.

Cst Hyde:    No, you didn't. You were in the lounge room.

Ms Paull:     I was in the lounge room?

Cst Hyde:    That's correct. Yeah and you were yelling out ‘help’ to us.

Ms Paull:     Yes, because I wanted to leave.

Cst Hyde:    Cause you wanted to leave and what? They were preventing you from leaving?

Ms Paull:     They're not now.

PC Walker:  They were trying to say that there was no one else in their unit other than those two, so why wouldn’t they tell us you were in there?

Ms Paull:      I don’t know why they’d say that.

PC Walker:   Why are you shaking?

Ms Paull:      Because my hands are sore.

Cst Hyde:     Show me your hands. [Cst Hyde observed her hands and fingers to be noticeably swollen]. Why are your hands like that?

Ms Paull:      Cause I knocked them.

PC Walker:   Are they burnt or are you having a reaction to something?

Ms Paull:     No.

Cst Hyde:    Are they swollen?

Ms Paull:     Yeah, they’re swollen.

Cst Hyde:    We might need an ambo here.

PC Walker:  How old are you?

Ms Paull:     52.

PC Walker:  And what’s your name?

Ms Paull:     Vanessa Paull.

Cst Hyde:    So what time did you come here?

Ms Paull:     I’ve been here for a while.

Cst Hyde:    What, and you wanted to leave, and they prevented you from leaving?

Ms Paull:     They let me go now.

Cst Hyde:    Yeah, because we showed up. That’s why.

Ms Paull:     Yes.

Cst Hyde:     If we never turned up -

Ms Paull:      I would have still been in there

Cst Hyde:     Exactly.

Ms Paull:      Yes.

Cst Hyde:     So why are they preventing you from leaving?

Ms Paull:      I’m not sure.

PC Walker:   How long have you been in there for?

Ms Paull:      Over a month. I’m supposed to report to Redfern Police Station.

Cst Hyde:     And they’ve been holding you?

Ms Paull:      I haven’t been able to report.

Cst Hyde:    Because you’ve been - they’ve been holding you in there for a month?

Ms Paull:     And I haven’t been able to get out the door.

PC Walker:  Is that woman in any danger right now because of him?

Ms Paull:     Um, because of him, I’d say no.

17. Of principal significance, it may be observed from this extensive passage that Ms Paull reiterated her desire but inability to leave the unit: “I want to go”; I wanna leave”; “I wanted to leave”; “they’re not now” [preventing her from leaving]; “they let me go now”; “I would have still been in there”; and “I haven’t been able to get out the door”.

18. Constable Walker gave the following account of his interaction with Ms Paull shortly after this exchange:

“A short time later I asked, ‘What's happened with your hands? What’s happened? It is for the ambulance so they can help you. We Just need to know.’ Vanessa said, ‘They are swollen, my feet as well. From being hit.’ I said, ‘From being heated?’ Vanessa said, 'Hit’ and then gestured to hitting each hand with the other hand multiple times. I said, ‘Hit, Hit with what?’ Vanessa said, ‘A bar’. I said, ‘A bar. What type of bar? Metal?’ Vanessa nodded.”

19. Ms Paull was then taken to hospital. A metal bar with traces of the Applicant’s DNA was subsequently located in the unit.

20. A paramedic, Mr Nathan Beencke who attended Ms Paull and accompanied her to hospital, made the following contemporaneous note:

“Assault, 8 March 2021. Assaulted by three people, with two main individuals, a male and a female. The male is the ringleader, who believe that Vanessa had been organising people to conspire against him. They had been beating Vanessa, attempting to make her tell them what they wanted to hear. Vanessa had been beaten with a metal pole, side of a meat cleaver, and punched, and slapped.

Both the main male and female had assaulted her. Denies any sexual assault. She had not drunk any water all day. One had tried to make her use heroin. She had sex with one male, who also tried to make her have sex with other people. That person also tried to scare her by telling her he had HIV. Vanessa had tried to leave, but they would not let her.

They had told her they were going to stab her and burn her tonight. They had made her sign a contract saying that she would get burnt tonight if she didn’t tell the truth. They told her when the, when they were finished, they would drop her at the police station, because no one would believe her. The female said, ‘No one will believe you over me’. She said she had been locked in the house since the last time she reported to the police station under her bail conditions.”

21. The so called “contract” was later located in the house. It was consistent with what Ms Paull had told Mr Beencke, and what she later told Detective Senior Constable Poole and Senior Constable Trask during an interview conducted at approximately 12.45 am the next morning at St Vincent’s Hospital.

22. Ms Paull’s lengthy hospital interview included her:

• recounting an atmosphere of what she described as “mind games” being played with or on her by the Applicant, Mr Bishay and Ms Finlay with Mr Bishay as the dominant participant;

• saying that she was told that “until she told the truth”, she would be slapped, punched or headbutted;

• explaining how, after an early period, she was prevented from leaving the unit (with one exception when she went with the Applicant and Mr Bishay, to a hotel room for a number of days);

• stating that two days before, she had been hit with an iron bar on both her feet and hands. Later, in the interview, she said that:

“But last night I had to sit on the couch had my hands out like this, they were hitting, hitting. Then because I started to make too much noise cause it was hurting, I had to go to the room, lay on the bed, on my stomach, and they took turns at doing my feet. To stop me from making any noise was biting into the bed, the mattress, the blanket, begging them to stop. They didn't. Just tell us what we want to hear. I don't know what you want to hear.”

• saying that Ms Finlay had hit her but that “probably say last week, she actually got slapped hard too”;

• claiming that every day she and Ms Finlay would have to put on hirudoid cream to make bruising go away;

• stating that she had tried to escape once before but that Ms Finlay “got beaten for that”;

• indicating that earlier on the previous day when the police had come to the unit, she had tried to wedge open the screen door with a meat cleaver but that:

“Trent jumped up, he came running trying to drag me inside. I was screaming, he’s kicking me, still screaming help help help and I'm thinking why aren't the neighbours coming out. And he ended up punching me, the door, the front door shut so we couldn't get inside at all then. But he's screaming, she could hear me screaming, Annika comes out opens the door they’re both trying to pull me inside. And I'm going no, he's still screaming. He punches me tell me to shut up. Eventually they both drag me in and I get hit with the, he goes and picks up a little short iron bar probably about this long. Hit me with it. But had a meat cleaver in his hand, hit me on the side over here with the blunt side of the meat cleaver. And then I was actually scared coz I was mad for me, because of me trying to escape. He said to me, what, you want us to get into trouble. I said no I don't. He goes yes you do because if Alex had come back and he had actually seen that I wasn't there I believe that he would have hurt them and I've actually seen him slap Trent a couple of times like hard on the face but not as much as what he's done to me. He could have done it in the past but whilst I've been there nobody got what I got.”

• recalling with surprising precision the police’s first attempt to access the unit on the previous day and what Ms Finlay had initially said and done when the police knocked at the door, and then what the Applicant had said and done, and then repeating in a consistent manner what she had told Constable Hyde, as recounted in [16] above;

• giving a strikingly accurate description of the “contract” she said that she was made to sign (and which went into evidence as Exhibit D):

“They, I was made to write out a contract to state I, Vanessa, am doing this contract of my free, my, my own will, and I'm not being made to do it and that should I lie in the future about anything that to in, to any of the campaign or people that are associated with the campaign, coz they are the campaign, that I must be punished in one way or the other. And then I had to write punishment as follows, there was one to five. One of them was like, okay, to, it was to be burnt. They said like on the legs, the things, I turned around and said, I changed it, I put the fingers. The fingers or the feet. The other one was to, the, these are the things that they conjured up. One of them was to be fucked by Annika with a strap-on. The other one was too, maybe drink my piss and eat my shit. And the other 2 I can't remember, but like and if this occur again where I'm caught lying, that I would have to do step one through to four. Step one to five, I can't remember. I'm pretty sure it was 5 steps, but, yeah, but they said wonderful. I don't even remember all the punishments but those one[s] that l've just said they were definitely.”

23. A crime scene was established at the unit after Ms Paull had been taken away by the ambulance, and the Applicant and Ms Finlay were arrested, although Ms Finlay was subsequently released and never relevantly charged. Ms Finlay presented with bruising to her face. A written statement of Dr David Murphy recorded that:

“She described the preceding events to nursing, medical and social work staff. In summary, she reported being held against her will and assaulted on multiple occasions, along with another person named Vanessa, over 4 days. She named her partner Malek Bishay and Malek’s nephew Trent as both having being involved. She described being hit on multiple occasions with hand/fist.

She also described not having been able to obtain her usual methadone doses for 4 days due to this confinement, resulting in physical symptoms of withdrawal …”

24. Dr Murphy identified Ms Finlay’s principal injury as follows:

“Fracture of the RIGHT zygomatic complex (cheek-bone), involving the floor and lateral walls of the right orbit (eye-socket), maxillary sinus, and zygomatic arch. A minimally displaced lamina papyracea (medial orbit) fracture was also noted. Clinically findings included flattening of the RIGHT malar (cheek) eminence, and reduced sensation consistent with RIGHT infra-orbital [nerve] involvement. Vision and eye muscles were intact.”

He also identified other injuries clinically consistent with soft tissue injury as being:

“i.   Bruising beneath both eyelids.

ii.   Tenderness to LEFT foot across 3^rd, 4^th and 5th metatarsals. Foot Xray did not reveal any acute bony injuries. The report notes an unrelated fusion defect or possible old injury to the 3^rd toe.

iii.   Tenderness to RIGHT flank. The Chest Xray report describes an irregularity of the RIGHT 7^th rib which may represent a previous healed fracture.”

25. Ms Finlay also participated in two interviews on the morning of 9 March 2021, one between 5:04 am and 5:26 am, and another from 5:40 am until 5:50 am. There was no scope for collusion between Ms Finlay and Ms Paull as the former was under arrest at all material times and the latter’s interview was conducted at St Vincent’s Hospital. The first interview included the following:

“PCSC BIRD: Okay. So, we've been told about an assault against Vanessa, numerous, two, we'll say a few assaults over the last few days at unit 15 of 66 Wellington St in Waterloo. So, she’s indicated that during one of those, during one assault, you were involved, and you assaulted her. Can you tell me about that?

FINLAY: Umm, I think, I think it was last night.

PCSC BIRD: Okay. What happened?

FINLAY: Vanessa and I were both being held against our will in my house.

PCSC BIRD: Yeah

FINLAY: She'd been there for longer than I have been.

PCSC BIRD: Yeah

FINLAY: This time around, l, and, um, a couple of nights previously l was assaulted very badly, and, basically told that if I didn't do things that I was directed that I will continue to be assaulted.

PCSC BIRD: By who?

FINLAY: By Malak and Trent

PCSC BIRD: Can you tell me the full name of those two?

FINLAY: Malak BISHAY and I don't know Trent's surname.

PCSC BIRD: Yeah

FINLAY: Um, so in the course of Vanessa of being assaulted, which horrified me, a stick was placed in my hand and I was told that I had to hit her...

PCSC BIRD: Hmm...

FINLAY: …and I was told that if I didn't, I would be hit more.

PCSC BIRD: Who told you that?

FINLAY: Malak

PCSC BIRD: What did he say?

FINLAY: Exactly what l just said.

PCSC BIRD: Hmm

FINLAY: I had (inaudible) and I did what I did as minimally as l could.

PCSC BIRD: Where did you hit her?

FINLAY: On the hands

PCSC BIRD: And you indicated there are two different assaults, was this the one that happened last night?

FINLAY: Yeah, yeah, I'm pretty sure it was last night, but then, ah, as it does, it, it was then taken to a way further extreme. I was not the only one that hit her on the hands with the stick.

PCSC BIRD: Who else did?

FINLAY: I did not (inaudible) on the injuries. Trent and Malak did it as well. But they also attacked her feet too.

PCSC BIRD: Okay

FINLAY: Which is really painful, I've got broken toes...

PCSC BIRD: Okay

FINLAY: …In the same fashion.

PCSC BIRD: How many times did you hit her?

FINLAY: I don't know, maybe 8 times.

PCSC BIRD: And what about the other two, the other two people?

FINLAY: Last night?

PCSC BIRD: Yeah

FINLAY: I don't know, maybe 30 or 40 times.

PCSC BIRD: Okay, um, can you tell me exactly what he said to you to make you hit her? Can remember the words?

FINLAY: ‘Don't you want to see her get her punishment?’ I sort of went, and he looked at me with this nasty look, which I knew meant if I didn't I would get it, but I still froze and he said, he whispers like this, everything, he said ‘if you don't do it you're gonna get it again over and over and over’.

PCSC BIRD: When he said ‘you're gonna get it’ what did you think he meant by that?

FINLAY: I thought that I was gonna get the stick, and, um, I, I copped it worse than Vanessa in the past and I didn't really wanna know what the next step was. I was terrified of what he actually meant by that. I knew it meant, this here on my head, that was the last time I got the stick because I wouldn't hold my hands up, and then I got a crack over the top of my head.

PCSC BIRD: And I can see you've got two black eyes. Who's that from?

FINLAY: That's from Malak and Trent.”

26. In her 5.40 am interview, Ms Finlay gave evidence about what became known in the trial as the “porridge incident” which she estimated to have occurred some 4 days earlier:

“… So very quickly it was known whenever either one of them, Malek or Trent went out Vanessa and l were locked in. And then about, I think it was 4 days ago or something, it was during the night time, there was the most silly, most trivial and most un, misunderstood incident about porridge which ended up with me being viciously assaulted and having my face broken.

PCSC Emily BIRD: Can you explain who [did] that and what happened?

Annika FINLAY: Umm, Malek was upset because he thought that I had not making his superior bowl of porridge. That I had made only 3 bowls of porridge, one for Vanessa, one for myself and one for Trent. And his ego is massive and he’s very upset about that. It wasn't actually even the case and I'd made one for him too because l just want everybody to eat, but I was, umm convicted of being guilty of not making the supreme superior bowl of porridge for Malek, and the punishment was to be sitting on the stool and umm, first of all actually it was, it wasn't like, ok now punch, first of all he just snapped. He said ‘agh...make me...’, I didn't know where it was coming from, he just launched across the room and started going smash, smash, smash, and I'm ‘my face...’

PCSC Emily BIRD: What do you mean by that? Can you just...

Annika FINLAY: I think he was using his open hand, I think, and I think he also hit me with his fist, he did. He hit me with his fist as well.

PCSC Emily BIRD: Where did he hit you?

Annika FINLAY: Around the head.

PCSC Emily BIRD: Can you show us where?

Annika FINLAY: Like all over the head. That night I copped so many in the head and in the body. I can’t remember.

PCSC Emily BIRD: Can you estimate at all?

Annika FINLAY: It was, as far as I can remember there was 3 times the assault, in that night. One when he first launched, upset because I didn't make the porridge right. That was when he just attacked me, I think that was more of just a fist and open hand, whatever...l don't really know...

PCSC Emily BIRD: How many times was it that time?

Annika FINLAY: Ten or fifteen

PCSC Emily BIRD: Yep

Annika FINLAY: Then I was put on the stool and question time happened and...

PCSC Emily BIRD: Where in the house is that?

Annika FINLAY: In the lounge room, and um, under the direction of Malek everybody else found guilty of whatever, not making the porridge for him(?). So then Trent was to administer the punishment, and Trent hit me with force across my head and I think he's actually the one who’s fractured my eye socket.

PCSC Emily BIRD: Where on your head? Can you just indicate?

Annika FINLAY: It was, it was, when I was on the stool it was only open slap. It was Trent at that stage, I can't remember if it was Malek as well, but definitely Trent, and he hit me like 20 times or maybe 15. Each time he’d push me off the stool and I'd go flying. And then I was taking into the bedroom and there was some more discussion and Malek attacked me again.

PCSC Emily BIRD: What, can you explain what you did when he attacked you?

Annika FINLAY: I can't even remember, by that stage he was upset and I was trying to say, deny whatever had happened, you know that it wasn't such the case.”

27. Later in the interview, the following exchange occurred:

“PCSC Emily BIRD: So were you free to leave when this was occurring?

Annika FINLAY: No, not whatsoever.

PCSC Emily BIRD: And can you just explain to us why you know you were you weren’t free to leave, what was…

Annika FINLAY: I had no access to leave because the house was locked and I was locked in.

PCSC Emily BIRD: Yep and who had the keys?”

28. Mr Bishay, who was not present at the unit at the time of the police visit on
    8 March 2021 and the establishment of the crime scene, was arrested on 21 March 2021.

29. As noted above, both Ms Paull and Ms Finlay gave evidence at the trial and were cross examined at length. Aspects of that cross examination will be considered in the context of assessing the arguments advanced on appeal on behalf of the Applicant.

30. Neither the Applicant nor Mr Bishay gave evidence at the trial.

31. Before turning to consider the contentions advanced on behalf of the Applicant, the principles relevant to an appeal against a jury verdict on the grounds that it was unreasonable should be identified.

Applicable principles

32. The applicable principles, derived from a number of decisions of the High Court (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell); Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; R v ZT [2025] HCA 9; (2025) 99 ALJR 676 (ZT)), were not in doubt.

33. In M, the High Court stated at 493 that:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (footnotes omitted).

34. The Court must have due regard to the advantage of the jury in hearing and seeing witnesses, as held in M at 494-5:

“…In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above. (footnotes omitted).

35. Generally speaking, the lengthier the cross examination, the greater the jury’s advantage. The jury’s advantage is, however, “not limited to its capacity to see and hear the witnesses give their evidence”: Kim v R [2020] NSWCCA 288 at [58]. The High Court held in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]:

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’… is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.” (footnotes omitted)

36. The advantages of the jury, including (as in this case) where the evidence consists of recorded conversations or interviews, were recently summarised in ZT:

“[9]    First, although another passage of M v R refers to the advantage the jury has in “seeing and hearing the witnesses”, the passage above confirms that the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors' collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial. For example, in Dansie v R the advantage possessed by the trial judge as arbiter of fact was assessed as “slight” because the prosecution case was circumstantial, consisting mostly of transcripts of unchallenged testimony, and the appellant did not give evidence. 

[10]    Second, in applying M v R the appellate court is required to give “full allowance” to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant’s guilt. Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have. 

[11] Third, M v R requires that the appellate court undertake an “independent assessment” of the sufficiency and quality of the “whole of the evidence”. However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.” (footnotes omitted)

37. A court of criminal appeal, in a case where a jury verdict is challenged on the basis that it is unreasonable or cannot be supported having regard to the evidence, proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell at [38]. The Court is required to examine the record to see whether, notwithstanding the jury’s assumed assessment of the credibility and reliability of the complainant, it is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt, “either by reason of inconsistencies” discrepancies, or other inadequacy, or in light of other evidence”: Pell at [39].

38. Inconsistencies or discrepancies may exist at several levels. They may be internal inconsistencies or discrepancies within a complainant’s evidence, as between a complainant’s evidence and other testimonial or documentary evidence, or, where there are two (or more) complainants (such as in the present case), as between those complainants. Inconsistency may also arise in the case of a jury’s verdict on multiple charges: see MacKenzie v The Queen (1996) 190 CLR 348 at 366-7; [1996] HCA 35; Nguyen v R [2017] NSWCCA 145 at [34]-[48]; Holt v R [2021] NSWCCA 140 at [103]-[112].

39. The “mere existence of discrepancies or inconsistencies” in witnesses’ evidence is “scarcely surprising or unusual” and does not necessarily compel a conclusion that a jury’s verdict is unreasonable: Hanna v R [2023] NSWCCA 182 at [24], [85]. Far from it. As was held in RA v R [2020] NSWCCA 356 at [15]:

“It is not the law that the establishment of inconsistencies in the evidence in a criminal trial of itself establishes that the jury ought to have entertained a doubt. The resolution of such matters is their quintessential role.”

40. A court of criminal appeal, in affording a measure of deference to the jury, must also bear in mind that juries are “well able to evaluate conflicts and imperfections of evidence”: MFA at [96]; see also Gray v R [2020] NSWCCA 240 at [100]; AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [101]. By way of example, this Court in Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [69] concluded that:

“Whilst there were, unsurprisingly, inconsistencies and imperfections in the evidence, none of them, whether taken individually or as a whole, suggest that the jury misused its very considerable advantage over this Court in having seen and heard the witnesses give their evidence and that it should have had a reasonable doubt concerning the applicant’s guilt.”

Applicant’s contentions

41. Mr Carroll, who appeared for the Applicant in this Court, developed his written argument under three broad headings. First, he relied upon what he described as “the implausibility attached to Ms Paull’s version of events”; second, he referred to “the improbable, and the exculpatory, evidence of Ms Finlay”; and, thirdly, by reference to a heading “Circumvention of conflict in the prosecution case”, Mr Carroll criticised aspects of the prosecutor’s address to the jury.

42. As to this last point, it was common ground that no complaint was made in closing before the trial judge about the Crown’s address to the jury, including in relation to what the Crown had submitted about the need to establish all elements of the counts at the one point in time ie the complainants’ being assaulted while being detained against their will.

43. The overall thrust of Mr Carroll’s written submissions was reflected in the following three paragraphs:

“… even if proceeding upon the assumption that Ms Paull was credible and reliable in relation to her detention, the marked inconsistencies created by the evidence of Ms Finlay, and aspects of implausibility, would leave the court satisfied that acting rationally the jury ought nonetheless have entertained a reasonable doubt as to the proof of guilt.

Equally, the inconsistency created by the evidence of Ms Paull, ought to have left a rational jury with doubt about the charges relating to Ms Finlay. Alternatively, if Ms Finlay’s version was accepted to be an accurate and reliable description of the actions of the applicant, there was insufficient evidence to convict him.

Due to the marked differences in relation to the narrative of the two main witnesses, the appeal cannot be resolved by reference the superior position of the jury to assess matters pertaining to credibility. If it is assumed that they are both credible and reliable, there is irreconcilable differences upon the critical incidents which grounded the Crown case.”

44. In his oral argument, without abandoning his attack on the conviction on Count 1, Mr Carroll focussed on the Applicant’s conviction on Count 2. This was no doubt forensically motivated by the fact that the Applicant had already served 4 years of his aggregate sentence (with its non-parole period of 5 years), and that the indicative sentence for Count 1 was 6 years, and the indicative sentence for Count 2 was 5 years. Although one cannot disaggregate an aggregate sentence by reference to indicative sentences, Mr Carroll’s forensic aspiration was no doubt that, if successful in his attack on the conviction for Count 2, any resentence for Count 1 would be likely to be significantly less than the existing aggregate sentence and, taking into account time already served, would result in the Applicant’s release. His oral submission was as follows:

“Without being so bold, in terms of potential orders, should I fail in relation to count 1, but be successful in count 2, this is a case where there were indicative sentences and the Crown has put forward the sentencing remarks on sentence for the applicant. And in relation to, if there is a surviving count, being count 1, the indicative sentence was six years. The finding of special circumstances was 62.5 per cent and, doing arithmetic, that would sound in a sentence of three years nine months in relation to count 1.

Again, all I am suggesting is that the applicant has been in custody for a significant time. If we are successful obviously in relation to both grounds [scil. Counts], the matter is resolved. If there is only a success in relation to count 2, this is a matter that can be resolved by the Court and the orders in terms of imposing a sentence.”

45. In his oral submissions, Mr Carroll acknowledged that there was “a qualitative difference between the evidence in relation to Ms Paull's allegation and Ms Finlay's allegation.” What I took him to mean by this was that Ms Finlay accepted that she was a party to the beating of Ms Paull, while at the same time claiming that she was herself a victim of detention and assault by the Applicant and Mr Bishay, and the tension in Ms Finlay’s position created a potential internal inconsistency in her evidence. This potential internal inconsistency is addressed later in these reasons.

Challenge to conviction in respect of Count 1

46. Although not the focus of his oral submissions, it is convenient to commence with the appeal in relation to the Applicant’s conviction on Count 1, namely that the conviction in relation to the detention and assault of Ms Paull was unreasonable and cannot be supported having regard to the evidence.

47. As earlier noted, Ms Paull was at all material times on bail and failed to comply with her bail reporting obligations between 15 February and 8 March 2021. It was squarely put to her in cross examination (and rebuffed) that her claim to have been detained by the Applicant and Mr Bishay was a pretext invented to justify her non-compliance with these reporting obligations and that she was worried that she would be in trouble for non-compliance them. Her response was that:

“I was more concerned about getting treated worse than what I had already been treated. Like, all I wanted to do was get out. I didn’t know how far they would have gone with what they had done.”

48. She also gave the following evidence:

“Q.  I suggest to you, Ms Paull, that that's you who didn't want to go because you were scared. You were scared because you hadn't reported for so long?

A.   I was scared but I would have preferred to have left that unit [than] stayed there and endure that.

Q.   You were not being tied up in that unit, weren't [sic ‘were’] you?

A.   No, I was made to sit on the floor or in a room.”

49. It was open to the jury to accept Ms Paull’s strong denial of this thesis as to the reasons for her claim to have been detained against her will. Not only had the jury observed her being cross examined over some 5 days but they also had the benefit of the body-worn camera footage following her exit from the unit. That footage shows an obviously severely injured woman, barely able to walk, whose first words to the police, moments after being released from the unit, were entirely consistent with being scared and having been detained against her will:

“Cst Hyde:   Umm, what's happened?

Ms Paull:     I don't wanna say. I just [wanna] go.

Cst Hyde:    Huh?

Ms Paull:     I [wanna] go.

Cst Hyde:    You [wanna] go?

Ms Paull:     I wanna leave.”

50. The lengthy exchange between Constable Hyde and Ms Paull immediately after her release was replete with such references: see [17] above. These, in turn, were reinforced in the recorded interview of Ms Paull from St Vincent’s Hospital in the early hours of 9 March 2021 (see [22] above).

51. In addition to these important records of evidence, the jury had the benefit of the note of the paramedic, Mr Beencke, who took Ms Paull to the hospital, and of his record of her account to him on that occasion: see [20] above.

52. Other evidence consistent with the jury’s verdict on Count 1 included the unchallenged evidence of Ms Bourke from a neighbouring unit of hearing a woman’s increasingly desperate calls for help from the unit: see [13] above. The tone of desperation in the cries for help as recalled by Ms Bourke were consistent with a woman wanting but unable to escape the unit. It was comfortably open to the jury to conclude that that woman was Ms Paull. Ms Bourke’s report to the police had led the police attending on the unit. Body worn footage of the police knocking on the unit door also recorded desperate cries for assistance and help from within the unit, immediately prior to the Applicant letting Ms Paull outside the unit. As put by Mr Brown for the Crown in the course of oral submissions on the appeal, the attempted escape on 8 March said a lot about what had been going on in the unit.

53. That Ms Paull was detained against her will and viciously assaulted by the Applicant and Mr Bishay was also strongly supported by the evidence of Ms Finlay, both in her two statements made in the early hours of 9 March 2021 (see [25]-[27] above) and in her evidence in the proceedings. In this context, it is necessary to deal with the Applicant’s written submission that:

“The most absurd of consequences was what flowed from Ms Paull’s persistent claim that she was detained, abused and assaulted by Ms Finlay. The prosecutor did not challenge this, and then called Ms Finlay, who, if criminally concerned, would have been expected to have given an induced statement and benefitted from the assistance that she gave. Instead, she, too, contradicted Ms Paull. And the prosecutor did not challenge that either. Ms Paull either mistook the identity of her captor, or, Ms Finlay managed to be victim instead of offender, and neither outcome seemed to matter in the prosecution case.” (emphasis added)

54. Far from relevantly contradicting Ms Paull, Ms Finlay candidly accepted, indeed volunteered, that she had been party to detaining and assaulting Ms Paull (albeit giving evidence that she felt she had no option to do so because of Mr Bishay’s sway over her). Thus, as noted at [25] above, she volunteered that she had used the bar to strike Ms Paull’s hands:

“FINLAY: Um, so in the course of Vanessa of being assaulted, which horrified me, a stick was placed in my hand and I was told that I had to hit her... and I was told that if I didn’t, I would be hit more.

PCSC BIRD: Who told you that?

FINLAY: Malak.

PCSC BIRD: What did he say?

FINLAY: Exactly what l just said…I had (inaudible) and I did what I did as minimally as l could.

PCSC BIRD: Where did you hit her?

FINLAY: On the hands.”

Later in her interview, Ms Finlay, when asked how many times she had hit Ms Paull, said:

“FINLAY: I don't know, maybe 8 times.

PCSC BIRD: And what about the other two, the other two people?

FINLAY: Last night?

PCSC BIRD: Yeah.

FINLAY: I don't know, maybe 30 or 40 times.”

55. It is relevant to note that Ms Finlay was under arrest at the time of this interview, and her volunteering that she had participated in the beating of Ms Paull was against her interest. The jury was entitled to pay particular regard to this fact, in addition to the fact that, as earlier observed, there was no scope for collusion between Ms Paull and Ms Finlay in terms of what each told the police.

56. Ms Finlay also gave evidence that she had been lectured by Mr Bishay not to permit Ms Paull to leave the unit when he was not there:

“FINLAY: Yeah. He gave me a big speech before he went out about, be staunch towards me, and all this stuff.

PCSC BIRD: Why, did he explain why he wanted you to look, to watch her?

FINLAY: I guess because he didn't want her to escape but I was also locked In there as well.

PCSC BIRD: Yeah

FINLAY: I didn't have keys to get out. My keys were taken off me.”

57. Ms Finlay also gave evidence that Ms Paull had been held in the unit against her free will. One example of such evidence was as follows:

“Q.   And Ms Paull was not detained either, I suggest to you. Ms Paull was just having one, a good time because she was given drugs. And she was on a high most of the time. Do you agree?

A.   She certainly wasn’t given the drug that she wanted. But she was taking ice. And she was high a lot of the time, yes. But I don’t agree with you, no, at all that she wasn’t detained. She was definitely detained. She - she wanted to get out of there.”

58. To draw attention to these references is not to demonstrate that there were no points of inconsistency in the evidence of Ms Paull and Ms Finlay (there was at least one which I deal with under Count 2) but it is to demonstrate that on the central elements of Count 1, Ms Finlay’s evidence not only corroborated that of Ms Paull but also corroborated that aspect of Ms Paull’s evidence to the effect that Ms Finlay had herself been involved in the detention and assaults of her. The Applicant’s written submission extracted at [53] above was quite contrary to the evidence.

59. For the reasons given above, and having regard to the entirety of the evidence, it was well open to the jury to convict the Applicant in respect of Count 1. The verdict was not unreasonable.

Challenge to conviction in respect of Count 2

60. As noted above, it was in respect of the Applicant’s conviction on Count 2 that Mr Carroll focussed his oral submissions.

61. The starting point, of course, is again to note the jury’s advantage in observing Ms Finlay give her evidence over the course of some five days with cross examination by two experienced counsel. The next point arises from the assumption that juries act on the evidence and the judge’s directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]. In this context, several important directions were given to the jury as to the reliability of Ms Finlay’s evidence and the need to analyse and assess it with particular care.

62. At one stage of the summing up, the trial judge gave the following Murray direction (R v Murray (1987) 11 NSWLR 12) (with my emphasis added):

“Ladies and gentlemen, the Crown seeks to prove the guilt of Mr Bishay and Mr Smith in respect of count 2 based largely on the evidence of Ms Finlay. She is an important Crown witness. There are some pieces of evidence that the Crown has turned to and referred to in his closing address that the Crown would invite you to consider are supportive of Ms Finlay in some detail or another. On behalf of the accused's position, that is for each accused, they both say to you that Ms Finlay's evidence is unreliable, and I will be returning to those submissions later. Because of the fact that Ms Finlay is relied upon heavily in the Crown's case for count 2 in respect of each of the two accused, unless you are satisfied beyond reasonable doubt that Ms Finlay was giving both honest and accurate evidence in her account, you cannot find the accused Mr Bishay or Mr Smith guilty of count 2. Before you can find either accused guilty of count 2, you should examine the evidence of Ms Finlay very carefully to satisfy yourselves you can safely act upon that evidence to the high standard required in a criminal trial. You can look at the surrounding evidence to see if there are matters that support her by which you could determine her reliability, or whether they do not support her, by which you would then maintain caution about her evidence.

I am not telling you to be cautious because of any personal view I have of Ms Finlay. I told you at the outset of this summing up that I would not in any way express any personal opinion on the evidence, but in a criminal trial where the Crown case relies substantially on the evidence of a single witness - this is for count 2 - a jury must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown. I am not suggesting that you cannot find an accused guilty upon the evidence of Ms Finlay.

Clearly you are entitled to do so, but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt. In considering Ms Finlay's evidence and whether it does satisfy you of an accused's guilt in respect of count 2, you should, as I said, look to see if it is supported by other evidence. It is the position of the Crown that it is supported. It is the position on behalf of each accused that her evidence is so unreliable that you would not be satisfied beyond reasonable doubt of count 2.”

The instruction to the jury continued:

“You may recall that it was submitted to you that Ms Finlay had lied in various parts of her evidence. That submission was made to you on behalf of each accused. It was said that she lied because in fact she was the one who had assaulted Ms Paull and inflicted injuries upon her. It was also said that Ms Paull was lying in her allegations about each accused because she was on bail and had missed her reporting to the police. Neither accused bears any onus to prove a motive to lie or that in fact Ms Paull or Ms Finlay told a lie.

Rejection of a motive suggested by defence counsel does not necessarily justify a conclusion that the evidence of Ms Finlay or Ms Paull respectively is truthful. You must consider whether what has been said is a lie, and, if so, you consider then the reliability of that witness's evidence.”

63. Later in the summing up, the jury received a further warning pursuant to s 165 of the Evidence Act 1995 (NSW) in respect of the reliability of Ms Finlay’s evidence in these terms (with my emphasis added):

“I want to turn to another direction and this is concerning a topic that you have heard from all of the lawyers, and that is, whether Ms Finlay is reasonably supposed to have been criminally concerned in the events in count 1.

You have heard evidence to the effect that Ms Finlay also assaulted Ms Paull, so this is what I am turning to now.

The position of the Crown is that to the extent that Ms Finlay assaulted Ms Paull, Ms Finlay was under fear and did so because she felt effectively, she had no other option. She was under an act of self-preservation, so to speak, that she felt she had to do that. That is contested in the facts before you because the position of each accused is that Ms Finlay in fact was the very willing aggressor against Ms Paull and that she in fact inflicted the injuries on Ms Paull out of some sense of jealousy and frustration.

The accused do not have to prove their position. They do not have to disprove any matter, but that is the issue before you. The Crown relies upon the evidence of Ms Finlay. The Crown also asserts that Ms Finlay is a person who was, or might have been, involved in the way in which I have just explained, in the commission of count 1. She said she acted on the instructions of Mr Bishay and she was scared of the consequences if she did not obey those instructions and both accused have cross-examined her about that, to the effect that instead, Ms Finlay was the willing aggressor against Ms Paull and very willingly assaulted Ms Paull.

The law requires me to give you certain warnings and directions concerning this evidence. They are given in every case in which the Crown relies upon the evidence of a witness who was, or might have been, involved in the alleged crimes. They are not given in this case because of any view which have formed concerning the evidence of Ms Finlay. The need to give such directions arises because the courts have, over the years, a great deal of experience concerning the reliability of evidence given by a witness who was or might have been, involved in the alleged crime. That experience has shown that the evidence given by such a witness, may be unreliable. I do not intend to suggest, however, that such evidence is always unreliable. My purpose in giving you these directions is only to warn you that the evidence of such a witness may be unreliable and for that reason, you must approach that evidence with considerable caution in the way in which I will outline shortly.

There are many reasons why the evidence of such a person may be unreliable. Possible reasons were suggested to you by each defence counsel. It is only natural, you may think, that a witness who was or might have been involved in the alleged crime, may want to shift the blame from herself onto others and to justify her own conduct. In the process, the witness may construct untruthful stories which tend to play down her own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people.

Persons who are or might have been involved in the alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility or frustration. There may be other reasons or motives why false evidence has been given by such a witness. As I have told you, it is not for an accused to establish what such motives might be. Remember the Crown has to prove the essential aspects of its case and the accused does not have to prove anything.

Experience has shown that once such a witness has given a version to the police, which incriminates an accused, he or she may feel locked into that version even if it contained inaccuracies or even if it were substantially untrue.

In relation to the evidence of Ms Finlay, it was put to her that she was lying and that therefore her evidence is unreliable. These are matters, ladies and gentlemen, for your consideration. When assessing the evidence of Ms Finlay, you must remember the warnings and directions I have just given you.”

64. When summarising the Crown case, the trial judge returned to this theme, saying the following:

“The Crown then turned to Ms Finlay. The Crown invited you to exercise greater care and caution in your analysis of Ms Finlay in the interests of justice. The Crown acknowledged that she was potentially criminally concerned in these events and had past convictions for dishonesty offences.”

65. Ms Finlay’s claims to having herself been detained and assaulted were supported by her statements to the police in the early morning of 9 March 2021 (see [25]-[27] above) and to hospital staff, as recorded in Dr Murphy’s note: see at [23] above. It was not suggested that the evidence that she gave both in chief and under cross examination was inconsistent with her statements made immediately after her arrest and when in hospital. Her injuries, as described by Dr Murphy, were entirely consistent with her having been struck forcefully across the face. As to her detention, there was force in the submission made on appeal that the fact that Ms Finlay, with the obvious serious injuries to her face at the time police came to the unit on 8 March, had not sought treatment gave rise to two possibilities, that she did not want treatment or that she was not in a position to seek it because of her detention. The latter accorded with common sense.

66. Ms Finlay’s accounts of having been both bashed and detained by the Applicant and Mr Bishay were also supported by the evidence of Ms Paull.

67. There were two important aspects to Ms Paull’s support which were likely to have impressed the jury and rendered a conviction on Count 2 plainly open to it beyond the mere fact of consistency or corroboration.

68. The first was that, by reason of the circumstances of Ms Paull leaving the unit, the subsequent arrest of Ms Finlay (likely to have been unbeknown to Ms Paull because she had been taken to hospital), and the detailed recorded evidence of both Ms Paull and Ms Finlay taken in the early hours of 9 March 2021, there was no scope for collusion between the two of them in terms of those near contemporaneous interviews.

69. Second, Ms Paull had (uncontroversially) herself been attacked by Ms Finlay and, for this reason, Ms Paull might well have been thought less likely to give evidence that Ms Finlay, too, had been the victim of detention and assaults by the Applicant and Mr Bishay. But she gave such evidence, in unequivocal terms. That evidence included her statement made at St Vincent’s Hospital that “probably say last week, she [Ms Finlay] actually got slapped hard too” and that she [Ms Paull] had tried to escape once before but that Ms Finlay “got beaten for that”: see [22] above.

70. Under cross examination, Ms Paull said the following:

“Q.  What I'm suggesting to you is that when you said you were being assaulted by a Ms [Finlay] at that time or just before that, for instance, Ms [Finlay] was free to come and go in the unit; correct?

A.   She was able to go out prior to that occasionally but when she got hit herself she wasn't able to go nowhere.

Q.   And when did you that Ms [Finlay] was hit?

A.   I can't remember exactly when she was actually hit but she was hit around the face.

Q.   And who do you say hit her across the face?

A.   I think Alex may have done it once but most of it was done by Trent.” (emphasis added)

71. Ms Paull’s second answer in this passage was consistent with Ms Finlay’s evidence in chief:

“Q.  Were you able to freely leave the apartment, if I can put it this way after the porridge incident, where you able to freely leave the apartment?

A.   No. I wasn’t.”

72. Later in her cross examination, in the context of the so-called porridge incident, the following evidence was given by Ms Paull:

“Q.  You claim that Trent hit Anika that night, or during that event, is that right?

A.   I remember him slapping her; what day it was, I don’t know.

Q.   Are you saying it might have been some other occasion?

A.   I know she did get slapped after the porridge incident, like, pretty hard, yeah.

Q.   Sorry, why was she being slapped?

A.   Because she was being accused of lying.

Q.   But I thought a moment ago you said that they were holding you, so that Anika could attack you?

A.   Yes, because I attacked her first, after, like, us having a disagreement, and her, like, I can’t remember who actually hit who first, but I did hit her, and she was hitting me, and they pulled me back. But Malak, I heard - Malak got Trent to hit her, slap her.

Q.   I’m putting to you that Trent didn’t hit her, I’m putting a proposition, you can agree, or disagree that Trent didn’t hit her?

A.   I disagree. I, I know that Trent hit her.”

73. Assuming that the jury turned to consider Count 2 after it had reached its verdict in relation to Count 1 (an assumption that necessarily is incapable of verification given that the verdicts were delivered at the same time), the jury’s verdict in respect of Count 2 was also capable of being supported by cross admissible tendency evidence arising from its verdict on Count 1. The trial judge ruled that such tendency evidence was admissible and directed the jury in a manner that attracted no criticism from either defence counsel at the trial. In oral submissions, Mr Carroll contended that the tendency direction was used “in the extremely basic sense, he has got a tendency to assault and detain Ms Paull without any clarification of when or what you can use that to convict in relation to Ms Finlay”. He submitted that the tendency direction “is meaningless, unhelpful”. This was not advanced as a ground of appeal and, had it been, leave to raise any challenge would have been required under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): see, for example, Gould v R [2023] NSWCCA 103 at [62], [82]-[90].

74. To the extent that the tendency direction was relied upon by the Crown, the Court must proceed on the basis that it was part of the matrix of circumstances that the jury had to consider and, in the absence of challenge, the tendency evidence identified was entitled to be relied upon by the jury. A review in accordance with M and Pell should proceed on the same basis.

75. Mr Carroll’s two principal arguments in respect of Count 2 revolved around, first, the circumstance that Ms Finlay was both an assailant (on both Ms Paull’s evidence and indeed on her own admission) and a complainant, and secondly, that there was such a stark inconsistency between Ms Paull’s evidence and Ms Finlay’s evidence in respect of the porridge incident that, on the assumption that the jury must have accepted Ms Paull as a witness of truth and a reliable historian, the jury should have had a sufficiently serious doubt as to Ms Finlay’s reliability generally so as to render their verdict on Count 2 unreasonable.

76. Dealing with the first of these matters, it was open to the jury to accept Ms Finlay’s explanation that her participation in the assaults on Ms Paull were motivated by her fear of Mr Bishay. Her evidence in this regard included what she said in the early hours of 9 March in the immediate aftermath of being arrested and taken to hospital, namely that “I was told that if I didn't, I would be hit more”: see at [25] above.

77. Even if Ms Finlay participated freely in the assaults on Ms Paull, it would not inexorably follow that, in the period of time to which the charge related, she was not also herself detained and assaulted. The evidence set out at [68]-[72] above, coupled with her serious injuries as detailed in Dr Murphy’s notes, supported the jury’s conclusion. I accept the Crown’s submission (and it was open to the jury to accept) that:

“It is not an inherently unlikely scenario in the context of the evidence of both Ms Paull and Ms Finlay that Ms Finlay was subjected to violence at the hands of the applicant and Bishay. It is not inherently unlikely in the context of Ms Finlay’s admissions on the morning of 9 March 2021 that she had – at the direction of Bishay – struck Ms Paull multiple times to the hands with a metal pole, nor her evidence that she had tried to grab Ms Paull when she attempted to escape on 8 March 2021. The likelihood or otherwise of the scenario also falls to be assessed in the context of both Ms Paull and Ms Finlay presenting with obvious and significant injuries on the evening of 8 March 2021… It was not a binary position. Ms Finlay was simultaneously capable of being a victim who, out of fear or self-interest, acted out against Ms Paull in the manner she alleged.”

78. In relation to the so-called “porridge” incident, this occurred a couple of days before the bashing of Ms Paull with the metal bar(s) on the 6^th or 7^th of March. It was put to Ms Finlay in cross examination, and she agreed, that she was assaulted probably on the night of the day she attended the methodone clinic on 3 March 2021. The cross examiner continued:

“Q.  Your evidence was that during that period where you say you were detained, the first time you were assaulted is about this porridge thing, and you said that’s when you were assaulted really badly.

A.   Yes.”

79. Ms Finlay’s recollection of the porridge incident has been reproduced at [26] above.

80. The point of inconsistency upon which Mr Carroll put a great deal of store was that, on the one hand, Ms Paull accepted that she had had an altercation with Ms Finlay on the night of the porridge incident and that she punched Ms Finlay but that Ms Finlay, on the other hand, denied that Ms Paull had hit her, and maintained only that she was hit by the Applicant and Mr Bishay in the course of the porridge incident. In fact, as shall be seen, Ms Finlay’s evidence was not as clear cut as Mr Carroll submitted.

81. After the cross examiner had asked some background questions about the porridge incident, the cross examination of Ms Paull continued:

“Q.  Okay. Now, I want to - and do you agree that you and Anika had a physical altercation on that occasion?

A.   Yes, we did.

Q.   And that included you punching Anika?

A.   Yes, I did.

Q.   And that was to the head?

A.   I don't know where I hit her, but I hit her. She - it was the same, she was hitting me, and then the two boys intervened, and they held me so she could hit.

Q.   They held you?

A.   Yes.

Q.   All right.

A.   They - they pulled me back so - in order for me not to carry on and to prevent us fighting, but yet allowed her to still carry on.

Q.   All right. Well, you haven't said that before, have you?

A.   I turned around and told the police that I had had an argument and fought with her.” (emphasis added)

82. Ms Finlay’s relevant evidence under cross examination by Ms Ellis initially was that Ms Paull had never punched her and that there was never any physical violence by Ms Paull towards her. A short time later in the cross examination, however, she qualified this evidence as follows:

“Q.  When Mr Bishay came back, you were whinging about Vanessa and you said something along the lines, this fucking dog, babe, this fucking dog lying cunt. She makes story up. Did you complain to Mr Bishay about Vanessa when Mr Bishay came back?

A.   Once it was established that she was saying that she - that I had made porridge for her when she so many times refused to take porridge to - to take any porridge from me. Yes, I was complaining to him about her. I don’t know if I was saying those words, perhaps I was, but it’s because I was very, very frustrated, in that sense there.

Q.   There was some altercation between you and Vanessa about that porridge, what she said, what you said? Something along those lines?

A.   There was an altercation before he got back, you mean?

Q.   Yes.

A.   There wasn’t an altercation, what it was, was I was trying to get her to eat porridge because I was saying to her, you have to keep your strength up. I was saying it also to Trent. That was all we had to eat in the house. And, she kept saying, no, no, no. And I kept saying, what’s wrong with you? Like, porridge isn't good enough. And she said, “No, I really don’t like porridge”. And many times I tried to get her to take some, and she wouldn't. So, then when she did take some and then that became the problem, I was very angry that she had basically lied. Yes. But there was no actual altercation. No physical altercation between us at that point. Because there was no reason to be. All she had done was refuse my porridge.

Q.   So, you said she had lied?

A.   Yes, she lied.

Q.   Then I suggest to you that as a result of this altercation where you told her that she had lied, there was some physical fight. She punched you.

A.   No.

Q.   Do you accept that?

A.   No.

Q.   She didn’t punch you?

A.   No. At no stage did she punch me.

Q.   So, there was no physical altercation between you and Vanessa Paull?

A.   I think there was a physical altercation, whether or not it was that night, I’m not sure. But, yes, there was a physical altercation between Vanessa and I.

Q.   When do you say there was a physical altercation with Ms Paull.

A.   It was one time when - I don’t know if it was that night, or not. That - it’s all very confusing. But it was one time where there was some incident about whether or not Mr Bishay had been running to - to front some danger, where Vanessa was present. And he wasn’t happy with her response. And after much backwards and forth - forth, he started to assault her and insisted - insisted that I did it also.

Q.   Are you talking about the night before police came - is that what you’re saying

A.   No, I think they were on different nights.

Q.   But what you’re saying is that the physical altercation between you and Vanessa is the one where you assaulted Vanessa, on the instructions of Mr Bishay?

A.   There was twice when I assaulted her, on the instructions of Mr Bishay.” (emphasis added)

83. On the following day of her cross examination, on this occasion by Mr Johnson, Ms Finlay’s evidence (again with emphasis added) was relevantly as follows:

“Q.  I know you can't speak for Vanessa, but wouldn't the safest place to be to say that’s your bowl of porridge?

A.   No, not really the safest place to be would be to - what’s the word for it? Agree with whatever Malak is saying. So, if that’s what he believed, she’s going to agree with what he things.

Q.   She gave evidence that she, in effect, attacked you that evening.

A.   I don’t recall her attacking me.

Q.   And that one of the men, Malak perhaps, pulled you apart.

A.   I don’t recall that.”

84. A number of points should be made about the inconsistency between the evidence of Ms Paull and Ms Finlay relied upon by the Applicant in relation to the porridge incident. First, Ms Finlay’s denial of an altercation was equivocal. Thus, in the above passages, she said:

“But there was no actual altercation. No physical altercation between us at that point. Because there was no reason to be. All she had done was refuse my porridge.” (emphasis added)

Later in that passage, while she said she had not been punched by Ms Paull, Ms Finlay went on to say “I think there was a physical altercation, whether or not it was that night, I’m not sure.” In relation to the second passage of evidence set out in the paragraph immediately above, Ms Finlay’s evidence was not of denial but a lack of recollection. She was also responding to a paraphrase of Ms Paull’s evidence that overstated what that evidence had been – “She gave evidence that she, in effect, attacked you that evening”.

85. On the appeal, Mr Brown, appearing for the Crown, made two broad submissions. First, that Ms Finlay’s evidence, read as a whole, was not as flat or unqualified a denial as Mr Carroll contended. For the reasons given above, there was force to that submission. Second, Mr Brown submitted that it was not unusual for two witnesses to have different recollections of the same event with different emphases and different things assuming significance to different witnesses, and that any differences in accounts were:

“Capable of being resolved by the jury as a difference in recollection based on the perspective and priorities of the two witnesses in the moment. Understandably, Ms Finlay may have been more focused on the repeated blows to her head. Ms Paull was more interested in her own role in those events. Her account reflected her own role in those events.”

Mr Brown emphasised that what was important was that it was common to the accounts of both Ms Paull and Ms Finlay that the latter had been forcefully hit by the Applicant and Mr Bishay in the aftermath of the porridge incident.

86. Very similar observations were put to the jury in the Crown’s closing address:

“If one person says one thing about the porridge incident and someone else’s take on it is a little bit different, if one person’s getting assaulted at the time, and they have a recollection, because they’re getting assaulted, and the other person’s just in the room. Well, you’re entitled to take that into account. You’re entitled to say of an individual witness, look I don’t accept that witness, in relation to the porridge incident conversation, but I don’t throw everything else that the person say[s] out, just because I don’t accept them on the porridge incident conversation. You’re entitled to say well, I accept this part of the evidence, I reject that part of the evidence. It’s classic weighing up in this environment.

Was it important to the person at the time? They’re getting beaten at the time. They might have a different account. Somebody else mightn’t even remember somebody else getting beaten, but the person getting beaten, you might say, well, of those two accounts, someone has a vague memory of it, and the person getting beaten, on that same incident, I’ll accept what the person who’s getting beaten is saying on that particular incident.

So, in my submission to you, there is an overriding consistency between the major events that are the subject of these allegations. Of both Vanessa Paull and Anika Finlay’s account of events. There’s an overriding consistency with the broader evidence in the case. They were detained. They were assaulted.”

87. Having reviewed the record, including watching and listening to the recorded police interviews of Ms Paull and Ms Finlay, I am unable to conclude that the jury’s verdict in respect of Count 2 was unreasonable and not open to it. In particular, any inconsistency in relation to the evidence concerning the porridge incident was overstated and well capable of being resolved by the jury. Ms Paull’s evidence corroborated Ms Finlay’s evidence to the effect that she was seriously assaulted and detained by the Applicant and Mr Bishay. It did not follow from the possibility that Ms Finlay herself detained and assaulted Ms Paull (either willingly or because she did not want to disobey or displease Mr Bishay) that it was not open to the jury to find that she herself had been the victim of detention and assault.

Conclusion

88. For the foregoing reasons, I would grant leave to appeal but dismiss the appeal.

89. HARRISON CJ at CL: I have had the considerable advantage of reading in draft the judgment of the Chief Justice. I agree with his Honour’s analysis and with the orders he proposes.

90. The record of the trial is extensive. As his Honour has observed, both Ms Paull and Ms Finlay gave evidence and were cross examined at some length.

91. The facts and circumstances that give rise to the charges are undoubtedly unusual, if not on one view quite bizarre. It was for this reason, among others, that counsel for the applicant understandably emphasized the details of what took place in the apartment in aid of his contention that the complainants’ evidence was not only contradictory but also implausible and inherently unlikely.

92. However, I am not satisfied that the evidence of either complainant lacks credibility for reasons associated with its arguably extravagant content or for reasons that are not explained by the manner in which it was given. I am also not satisfied that the complainants’ evidence contains discrepancies, or displays inadequacies, that ought to have led the jury to doubt it or that the evidence is somehow tainted or otherwise lacking in probative force: see, for example, RW v R [2023] NSWCCA 2 at [161] – [164].

93. In my opinion, upon an independent assessment of the whole of the evidence in the trial, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

94. HAMILL J: I have had the benefit of reading the judgment of Bell CJ circulated in draft. I agree with the Chief Justice that the appeal should be dismissed. I can add little to his Honour’s analysis of the principles and issues that arise in this appeal and agree essentially with his Honour’s reasons for concluding that the single ground of appeal cannot be upheld. It is unnecessary to repeat the analysis of the critical parts of the evidence which can be found in the leading judgment.

95. On an independent review of the whole of the record of the trial, including observing and listening to the electronic exhibits, I am satisfied that it was open to the jury to reach a verdict of guilty in relation to each of the offences of which the applicant was convicted. I use the phrase “open to the jury” in the sense explained by the High Court in cases such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and those referred to by Bell CJ at [32]-[37]. For example, in SKA v The Queen French CJ, Gummow and Kiefel JJ said at [20]:

“The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task. The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence. The applicant submitted in this Court that this reasoning demonstrated an ‘inverting of the process’ required to be undertaken by the Court of Criminal Appeal. The reasons of Simpson J indicate that her Honour considered what should have been the central question – whether on the evidence the Court was satisfied that the applicant was guilty of the offences – as rather an ancillary question to the question whether there was a sufficiency of evidence to sustain the conviction. As Deane, Toohey and Gaudron JJ made clear in Morris v The Queen, such an inquiry is not what is required by s 6(1) of the Criminal Appeal Act.”

Count 1

96. In relation to the first count, the specially aggravated kidnapping of Vanessa Paull, the prosecution case was extremely strong. Rather than setting out the evidence, or repeating his Honour’s reasoning with which I agree, I refer to the reasons of Bell CJ at [13]-[27] and [47]-[57].

97. Ms Paull’s evidence at the trial received support in (i) the police officer’s body worn footage of her emerging from the flat in distress, (ii) the evidence of the neighbour, Sarah Bourke, who heard cries for help earlier in the evening, (iii) the contemporaneous (or near contemporaneous) accounts that Ms Paull provided to police, paramedics and hospital staff, (iv) Ms Paull’s injuries, (v) the “contract” which she described with accuracy and which was located by investigators and became an exhibit at the trial, (vi) the applicant’s conduct at the front door when first confronted by police, and (vii) the evidence of the second complainant, Annika Finlay.

98. While not all of this evidence implicated the applicant (as opposed to his uncle, Mr Bishay) directly, a substantial amount of it did so. In any event, the jury was entitled to accept Ms Paull’s evidence that the applicant assisted his uncle in her detention over several days and during that time assaulted her at various times and in various ways. It was also open to the jury to reject beyond reasonable doubt the suggestion that Ms Paull was motivated to lie, and to assert falsely that she was detained against her will, because she failed to report to police in accordance with her bail conditions for the period of the detention. While there was a strong attack on Ms Paull’s credibility, the issues raised in that regard were patently before the jury, which was in a far better position to assess her evidence than the judges of this Court.

Count 2

99. The second count, alleging the specially aggravated kidnapping of Annika Finlay, is more problematic, largely because, as Mr Carroll submitted, parts of her evidence could not be reconciled with the evidence of Ms Paull and because she – that is, Ms Finlay – was almost certainly complicit in the detention of Ms Paull. However, being the victim of count two and, potentially, part of the criminal enterprise giving rise to count 1, were not mutually exclusive.

100. It must also be said, as Mr Carroll submitted, that there were some peculiarities in the way in which the prosecution case was presented at trial. As Bell CJ has emphasised, no complaint about the conduct of the Prosecutor was raised at the trial and there was no ground of appeal specifically directed to the issue of the Prosecutor’s conduct. However, as counsel submitted, some of these matters highlighted the issues in the prosecution case on count 2 upon which the applicant relies in submitting that the verdict on that count was unreasonable and unable to be supported having regard to the evidence. In particular, it is necessary to weigh the “competing evidence” relating to occasions during the period covered by the indictment which established that Ms Finlay seemed to be free to leave her flat and undertake other tasks: cf SKA v The Queen at [21], [23]-[24].

101. The applicant’s submissions in relation to count 2 focused on the inconsistencies between the evidence of the two complainants and on the Prosecutor’s “ecliptical address” by which the prosecution’s case on count 2 was narrowed in point of time to the day of the so called “porridge incident”, the evidence of which is dealt with in some detail by the Chief Justice (for example, at [26] and [77]-[84]).

102. Some of the inconsistencies in the versions given by the two complainants was stark. These were highlighted in the cross-examination undertaken at the trial, in counsels’ addresses and, in summary form, in the summing up. I agree with Bell CJ that these matters were able to be resolved, in a logical and rational way, by the jury which saw and heard the evidence and which received conventional directions about fact finding and instructions that it could accept some but not all of the evidence given by particular witnesses. The assessment of the evidence at the trial was to be made in the clear knowledge that the two complainants, at the time of the relevant events, were taking drugs or withdrawing from drugs, and that the four participants in the events giving rise to the charges were part of a section of the community whose lifestyle was likely to impact on the quality of their evidence.

103. I have considered the criticisms of Ms Finlay’s honesty and reliability made at the trial and on appeal. The detention took place at premises which were leased in her name and, like the applicant, she stood at the front door and told the police that there was nobody else inside. That this was blatant lie was established graphically when Ms Paull called for help from inside and then ran from the premises. Ms Finlay’s account of being the second victim of an unlawful detention only emerged later, albeit a relatively short time later, and after she had been arrested for the kidnapping of Ms Paull.

104. Based on the evidence adduced at the trial, I am satisfied that Ms Finlay was involved in the detention of Ms Paull. In particular, she was a party to forcing Ms Paull to sign the “contract” which is a distressing document to consider and betrayed a callousness and indifference to Ms Paull’s plight. Ms Finlay’s complicity was such that her evidence must be approached with caution and is of a kind that the law recognises may be unreliable: Evidence Act 1995 (NSW), s 165(1)(d). I have taken into account that she had a motive to lie, to minimise her own involvement in the events and to implicate others – in particular the applicant – in the detention of Ms Paull. She also had inside knowledge of the events that put her in a good position to tailor her account around what she knew to be the true facts. However, as the Chief Justice shows, there was no opportunity for the two complainants to collude before providing their first accounts to the investigating police. In any event, if there was any attempt at collusion, the inconsistencies in their accounts show they did not do a very good job of it.

105. The warning provided to the jury under s 165(1)(d) of the Evidence Act is set out by Bell CJ at [63]. It was a firm direction, and no complaint was made about it at trial. The issue of Ms Finlay’s criminal involvement in the events giving rise to the charges was clearly before the jury which observed Ms Finlay give evidence over 5 days. Even so, in undertaking an independent review of the evidence, this Court should also act on the basis of a putative warning that Ms Finlay’s testimony fell into a category of evidence which the law has long recognised may be unreliable. I have done this and am satisfied that she did, in fact, seek to minimise her own involvement and may have exaggerated the role of the applicant. However, like the jury, this Court undertaking its independent review of the evidence may reject parts of a witness’s evidence and accept other parts. I will return to evidence that had a capacity to support Ms Finlay’s version but her facial injuries alone provided powerful evidence that she was subject to a vicious assault at some time in the hours or days before she was arrested.

106. Another issue upon which reliance was placed on appeal related to the way in which the Prosecutor at trial appeared to shift his case as to the dates of Ms Finlay’s detention in order to suit evidence that suggested she was either out in the community, clearly free to go about her affairs, or involved in the assaults and detention of Ms Paull.

107. The indictment alleged Ms Finlay was detained between 26 February 2021 and 9 March 2021.

108. However, there was evidence in the form of hospital records which proved that Ms Finlay was at the methadone clinic at Royal Prince Alfred Hospital (RPA) at 2.13pm on 26 February 2021. There were also CCTV images of Ms Finlay at RPA on 3 March 2021 and the records showed she received a dose of methadone at 3.28pm on that date. Ms Finlay said she travelled to and from the methadone clinic by herself and agreed that she was not “detained” during those trips.

109. Ms Paull gave evidence that on one occasion before the porridge incident (estimated to be a few days before the applicant’s arrest on 8 March 2021) Ms Finlay went to the shops to buy a cream for Ms Paull to cover the marks on her face. There was body worn video footage (Ex W) in which a neighbour, Nicholas Logarzo, told police that he saw Ms Finlay going to the shops with either the applicant or Mr Bishay. He said that he asked if she was okay and she told him that everything was fine. Under cross-examination based on telephone messages, Ms Finlay conceded that on either 3 March 2021 or a Friday during the charged period she left the flat to purchase heroin from a person called Taylor.

110. That body of evidence established that Ms Finlay was not detained during the whole of the period covered by the indictment. The Prosecutor addressed the jury by narrowing the timeframe during which the offence was committed. He argued that there was a particular point in time at which all the elements of the offence could be proved beyond reasonable doubt. That period was identified as commencing when Ms Finlay returned from the methadone clinic on 3 March 2021. The Prosecutor suggested that Ms Finlay’s liberty may have been “interfered with before then”, but submitted that the moment in time at which the “eclipse” of all elements occurred – as it was put in the Prosecutor’s address – was during the porridge incident. Mr Carroll criticised the Prosecutor for this shift in the case but no complaint was made at trial and no ground asserted that it occasioned a miscarriage of justice.

111. There is force in the argument that these periods of liberty raised questions about whether Ms Finlay was detained or whether she was free to come and go as she pleased. Even so, it was open to the jury as a matter of law to find that during the charged period Ms Finlay was detained against her will and the aggravating circumstances alleged in the indictment – that is, that the offence was committed in company and that actual bodily harm was occasioned – coincided in point of time with that detention. It was not incumbent on the prosecution to establish that the offence was ongoing throughout the whole of the time period covered by the indictment.

112. However, I considered this evidence in considering whether the prosecution case as a whole established count 2 beyond reasonable doubt.

113. I have also considered the support that Ms Finlay’s testimony received in other evidence adduced at the trial. Her version of events received support in (i) the evidence of Ms Paull that Ms Finlay was at times physically assaulted and detained by the applicant and Mr Bishay, (ii) Ms Finlay’s relatively contemporaneous accounts to police and hospital staff, (iii) the evidence of Constable Hyde, who observed “significant bruising around her eyes” when she was first confronted at the front door, (iv) the photographs of Ms Finlay’s injuries (Ex K), (v) the statement of Dr Murphy documenting Ms Finlay’s injuries (Ex X), (vi) the evidence of Associate Professor Raftos who was of the opinion that the bruising was “consistent with her being struck in the face by a blunt object”, and (vii) the evidence of Ms Finlay’s parole officer, Siobhan McGrath, regarding Ms Finlay’s sudden and unexplained change in demeanour.

114. The photographs of Ms Finlay’s facial injuries were particularly graphic and provided strong support that she was assaulted with some force. While those injuries did not, directly or of themselves, establish a detention, they are consistent with that allegation and available as part of the circumstantial case supporting the direct evidence of Ms Finlay and, in parts, Ms Paull that Ms Finlay was detained against her will.

115. Considering the evidence as a whole, I am not left with a reasonable doubt as to the applicant’s guilt in relation to count 2 or with the feelings of “anxiety or discomfort” of which Sully J spoke in M v The Queen: see the judgment of Mason CJ, Deane, Dawson and Toohey JJ at 495. I do not find Ms Finlay’s account to be implausible or consider that the inconsistencies between her evidence and that of Ms Paull mean that the jury ought to have entertained a reasonable doubt.

116. Furthermore, as Bell CJ has demonstrated, this was a case where the jury had a very significant advantage over this Court in making evaluations of the credibility and reliability of the witnesses. Like Ms Paull, Ms Finlay was in the witness box for many days and subject to careful and thorough cross-examination. The jury had the benefit of collective and private discussions and were constrained by the requirement of unanimity.

117. For those additional reasons, I agree with the Chief Justice that neither verdict was unreasonable and unable to be supported having regard to the evidence.

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Decision last updated: 11 July 2025