Sudath v The Queen

[2008] NSWCCA 207

New South Wales
Court of Criminal Appeal

CITATION:	Sudath v R [2008] NSWCCA 207 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 July 2008
JUDGMENT DATE:	9 September 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hidden J at 79; Fullerton J at 80
DECISION:	1. Appeal against conviction dismissed 2. Leave to appeal sentence granted 3. Appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – Common assault – Sexual assault – Domestic violence – Prescribed sexual offence proceedings – Whether judge erred in allowing alternative arrangements for giving of evidence by complainant – Whether judge erred in declining to give a direction on circumstantial evidence – Whether verdict of jury unreasonable in the circumstances – Whether fresh evidence obtained after proceedings evinced a miscarriage of justice – CRIMINAL LAW – Appeal against sentence – Whether sentence in respect of common assault count excessive – Whether accumulation of sentences inappropriate considering Pearce v R
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Craig v The King (1933) 49 CLR 429 House v The King (1936) 55 CLR 499 at 504-505 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 Plomp v The Queen (1963) 110 CLR 234 R v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69
PARTIES:	Kondasinghe Aron Sudath (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/2978
COUNSEL:	G D Wendler (Appellant) P G Ingram (Crown)
SOLICITORS:	Van Houten Law (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/0266
LOWER COURT JUDICIAL OFFICER:	Nicholson DCJ
LOWER COURT DATE OF DECISION:	21 September 2007

2007/2978

McCLELLAN CJ at CL
HIDDEN J
FULLERTON J

TUESDAY, 9 SEPTEMBER 2008

SUDATH, Kondasinghe Aron v R

Judgment

1 McCLELLAN CJ at CL: The appellant was tried and convicted by a jury of two counts as follows:

Count 1: On or about 29 April 2005 at Baulkham Hills in the State of New South Wales, did have sexual intercourse with LAA without her consent, knowing she was not consenting.

This count alleged a contravention of s 61 I of the Crimes Act 1900 and carries a maximum penalty of imprisonment for a term of 14 years. A standard non-parole period of 7 years is provided by Item 7 of the Table in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999.

Count 2: On 30 April 2005 at Baulkham Hills in the State of New South Wales, did assault LAA.

This count alleged a contravention of s 61 of the Crimes Act 1900 and carries a maximum penalty of imprisonment for a term of 2 years.

2 The appellant was sentenced to the following terms of imprisonment:

In respect of count 1: to a non-parole period of 3 years to commence on 14 March 2008 and expire on 13 March 2011 with a balance of term of 2 years to commence on 14 March 2011 and expire on 13 March 2013.

In respect of count 2: to a non-parole period of 6 months to commence on 14 September 2007 and expire on 13 March 2008 with a balance of term of 9 months to commence on 14 March 2008 and expire on 13 December 2008.

Accordingly, the aggregate non-parole period imposed was 3 years and 6 months with an aggregate balance of term of 2 years.

Grounds of appeal

3 The appellant filed four grounds of appeal against his conviction. They read as follows:

Ground 1: The trial judge erred in law by holding that he was “satisfied” within the meaning of s 294B(6) of the Criminal Procedure Act 1986 that the complainant was “entitled” to give her evidence pursuant to the provisions of s 294B(3) of the Act.

Ground 2: The trial judge erred in law by declining to give a specific circumstantial evidence direction to the jury concerning the expert medical evidence given in the trial by Doctors Brennan and Sharp relevant to the offence of sexual intercourse without consent.

Ground 3: That in all the circumstances the verdicts of the jury were unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912.

Ground 4: That in all the circumstances there has been a miscarriage of justice by reason of a post trial pleading by the complainant contained in para 22.3 of her Statement of Claim dated 31 January 2008 alleging the complainant was the driver of the car on 29 April 2005 from Bega to Sydney and was assaulted by the appellant “by driving his fingernails into her neck and then grabbing her hair at the back and pushing her face into the steering wheel of the car.”

4 In relation to ground 4 the appellant seeks to introduce fresh evidence on the appeal.

5 The appellant also seeks leave to appeal against his sentence. I shall deal with that matter separately.

The facts

6 Both the appellant and the complainant are originally from Sri Lanka. The complainant came to Australia in 1989. She attended schooling in NSW and gained post school qualifications at Melbourne TAFE in the area of accountancy. In 1999 she commenced living with the appellant in Melbourne. During this period the appellant was employed as a doctor. There was one child of the relationship, a son, who was born on 25 January 2004.

7 The events the subject of the charges were alleged to have taken place on the evening of 29 April 2005 with the assault allegedly occurring the following morning. By this time the relationship between the appellant and the complainant was troubled. The complainant alleged that the appellant had become abusive and violent towards her.

8 The complainant said that on the evening of 29 April 2005 the family had returned after a short stay in Bega. The complainant was readying herself and her son for bed. The son, aged 15 months, was still being breast fed and slept in a cot on the left side of the couple’s bed. As the complainant was lying on the bed breast feeding her son the appellant lay down beside her and started pulling up her nightie. He was wearing a sarong. The complainant was not wearing underwear. The complainant said “No” and she pulled her nightie down. At this time the child started crying so the complainant got to her knees and tried to calm him. The appellant then demanded the complainant find a bottle of sorbolene. It was not immediately located and the complainant went into another room to look for it but it could not be found. She returned to the bedroom and located the sorbolene under the bed.

9 The complainant gave evidence that she had hoped the appellant would use the sorbolene to masturbate himself rather than seek to have sexual intercourse with her. There was a contradiction between the evidence she gave at the committal hearing and the evidence she gave at the trial. At the committal hearing the complainant said that the sorbolene was located in another room. At the trial she said she did not recall giving this evidence and maintained that it was found under the bed. After returning to the bed the complainant returned to her position on her knees and was crawling towards her son to pick him up as she prepared to leave the bedroom with him. He was still crying.

10 While she was still kneeling the appellant came behind the complainant and held her leg. He then forced his penis into her anus. She did not consent to the intercourse. She said it was very painful and she felt that her anus had been ripped. Although she screamed “No” the appellant continued. After he ejaculated she went to the bathroom and spent half an hour in the shower. She said she was bleeding from the anus at this time and also saw semen. She then returned to the bed where she slept next to the appellant.

11 The next day the complainant was still suffering from discomfort from the sexual encounter the previous evening. She gave evidence that she avoided the appellant until sometime between 9.30 and 10.00 am when she was confronted by him on the upper floor of their duplex. The appellant was now demanding that she hand over her passport so that he could open a bank account in her name. When the complainant did not hand over her passport the appellant began screaming and yelling. He then started hitting her head into a doorframe. The Crown alleged that the appellant did this in a way that did not leave injuries by only striking the crown of her head on the doorframe and not her face. After hitting her head about three times the complainant fell to the floor. Shortly afterwards she went down the stairs carrying her son. As she did this the appellant grabbed her hair and pushed and pulled her so that she fell on the stairs landing on her bottom. The appellant then pushed her into a lounge in the lounge room and began striking her. She was holding her son on her lap. He again avoided striking her on the face but struck her on the head above the hairline using the bottom portion of his hand. The striking went on for some time with the appellant yelling at the complainant. When she began screaming for help the appellant placed a pillow over her face. This happened on three occasions causing her difficulty in breathing.

12 The appellant stopped his assault and told the complainant to get their son a bottle of milk. The complainant then picked up the child and her handbag and ran out of the house. She went to a neighbour’s house and rang 000. The police and an ambulance arrived at the scene.

13 The constable who gave evidence described the complainant as being very upset, crying and shaking at times. He could not see any injuries on her. He took a three page statement from her in his police notebook which the complainant signed. The complainant told Constable Chaplin that she had been assaulted, that her partner had got angry and grabbed her by the back of her head and slammed her head against a door frame. The complainant did not make any complaint to Constable Chaplin about being sexually assaulted. She was taken by ambulance to Westmead Hospital.

14 At the hospital the complainant spoke to a doctor about the sexual assault. She was released from the hospital that day but was given a referral to the Sexual Assault Unit at Liverpool Hospital. On this night the complainant went to live at a women’s refuge.

15 On the evening of 2 May 2005 she attended Liverpool Hospital and was examined by Dr Patricia Brennan. At that time Dr Brennan found approximately 17 skin breaks or lacerations in the area of the complainant’s anus. This included two breaks, which could be fissures, at 5 and 7 o’clock on the anal verge. Dr Brennan’s conclusion was that the injuries were consistent with the allegations made by the complainant. She took a history from the complainant and wrote it in the protocol provided by the Health Department. She recorded the complainant as saying the appellant “forced his penis into my anus repeatedly. I hate it. It feels like he’s putting a broom up me. I screamed but he kept on doing it. My anus was bleeding when he finished and is still bleeding now.”

16 Dr Brennan examined the complainant’s head and neck and noted a crescent shaped scab measuring 0.5 cm on the mid upper neck below the angle of the mandible surrounded by a small blue/yellow bruise. There was an old scar on her left shoulder blade that the complainant claimed was caused by previous violent acts of the appellant. There were bruises on her thighs and her left hand was injured; there were deep blue bruises of the distal and proximal interphalangeal joints. There was deep bruising to one of her hands.

17 The complainant gave evidence of the history of an abusive physical relationship. Amongst other matters she said that she was assaulted by the appellant on 25 January 2005, her son’s first birthday, after which she rang 000. On the recording of that conversation the complainant is heard to say that she had a fall after which she said “don’t worry” and that she would go to her local doctor. At that point the phone call ended. She said in evidence that the appellant had entered the room and had hung up the phone. The complainant did not have a local doctor because the appellant is a qualified medical practitioner.

18 Of significance to this appeal is evidence which the complainant gave of an incident when they were driving back from Bega on 29 April 2005. She said that the appellant was driving the car when they had an argument during which the appellant accused the complainant of hiding her passport. She said that the appellant kept putting his fingernails into her neck which caused her pain. She said he also grabbed her at the back of her head and pushed her head towards the dashboard of the car. She said she kept putting her hand in front of her head to stop it from hitting the dash.

The appellant’s case

19 The appellant’s case was that he had been in a happy relationship with the complainant which was confirmed by family photographs. However, the relationship changed when he said the complainant became angry because she suspected the appellant was having an affair with a female doctor in Melbourne. He said that the allegations of assault and sexual assault were fabricated after they had separated. The appellant’s sister Dammica Ford gave evidence in which she said that the complainant had said she would destroy the appellant and make him a beggar. Ms Ford said she tried to persuade the complainant not to do anything silly but the complainant was apparently intent on destroying the appellant because if she could not have him, no one else could.

20 When the complainant was cross-examined it was suggested to her that anal sex was a normal part of her and the appellant’s sex life and that the events of 29 April 2005 were consensual. It was suggested to her that she had initiated the anal sex with the appellant and using his hands, had held her buttocks apart.

21 Dr Philip Sharp was called by the appellant. He was of the opinion that the skin marks in the complainant’s anal area may have been caused by fingernails and were not from a blunt object like an erect penis. He identified two to three curved markings consistent with fingernails. He was also of the opinion that there were four breaks on the anal verge. His opinion was that the photographs contained evidence of eight skin breaks radiating from the anus.

22 Dr Sharp did not examine the complainant but relied upon an examination of photographs tendered in the Crown case. He was asked about the appellant’s version as put to the complainant, being of consensual anal intercourse with the penis in the anus and the complainant’s fingers also present. Dr Sharp agreed this would be an unusual presentation. However, Dr Sharp was of the view that anal intercourse does not normally lead to injury and accordingly the complainant’s injuries must have been caused in some other way. He did not agree with Dr Brennan’s opinion that the likely cause of the injuries was a forceful penile penetration in the area of the anus.

Ground 1

23 In this ground of appeal the appellant asserts that the trial judge erred by holding that he was satisfied within the meaning of s 294B(6) of the Criminal Procedure Act 1986 (NSW) that the complainant was “entitled” to give her evidence pursuant to the provisions of the Act.

24 At the relevant time (the Act has since been amended) s 294B of the Criminal Procedure Act 1986 provided as follows:

“Giving of evidence by complainant in prescribed sexual offence proceedings—alternative arrangements
(1) This section applies to evidence given in proceedings (including a new trial) in respect of a prescribed sexual offence.
(2) This section does not apply to or in respect of the giving of evidence by a child if Part 4 of the Evidence (Children) Act 1997 applies to the giving of that evidence.
(3) A complainant who gives evidence to which this section applies is entitled (but may choose not):
(a) to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom, or
(b) to give that evidence by use of alternative arrangements made to restrict contact (including visual contact) between the complainant and the accused person or any other person or persons in the courtroom, including the following:
(i) use of screens,
(ii) planned seating arrangements for people who have an interest in the proceedings (including the level at which they are seated and the people in the complainant’s line of vision).
(4) If, to enable evidence to be given as referred to in subsection (3), the court considers it appropriate to do so, the court may adjourn the proceeding or any part of the proceeding from the courtroom to another court or place.
(5) Despite subsection (3) (a), a complainant must not give evidence as referred to in that paragraph if a court, on its own initiative or on application by a party to the proceeding, orders that such means not be used.
(6) A court may make an order under subsection (5) only if it is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given by such means.
(7) In any proceedings in which evidence is given as referred to in subsection (3), the judge must:
(a) inform the jury that it is standard procedure for complainants’ evidence in such cases to be given by those means or use of those arrangements, and
(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements.
(8) Any place outside the courtroom from which a complainant gives evidence under this section is taken to be part of the courtroom in which the proceeding is being held.
(9) If a complainant gives evidence as referred to in subsection (3) in a place other than a courtroom, the court may order that a court officer be present at that place.
(10) This section extends to evidence given in proceedings instituted before the commencement of this section, including a new trial that was ordered to take place before that commencement and proceedings that have been partly heard.
(11) (Repealed)”

25 Count 1 on the indictment is a “prescribed sexual offence” within the meaning of the definition of that term provided in s 3 of the Act. Accordingly, s 294B applied. That section creates a statutory entitlement in a complainant to prescribed sexual assault proceedings to chose to give evidence by various prescribed means including, as occurred in the present trial, by closed-circuit-television.

26 That statutory entitlement may only be removed by the exercise by the trial judge of the discretion provided by s 294B(5). An application pursuant to the subsection was made on behalf of the appellant at the trial but refused.

27 The parties are agreed (there is no transcript available) that when announcing his ruling, his Honour said “I don’t regard myself as being satisfied there are special reasons, in the interests of justice, for the complainant’s evidence not to be given by such means.” That finding was in conformity with the section.

28 The appellant contended before this Court that the ruling which his Honour made was not open. It was submitted that having regard to the allegation of a relationship of continuing violence and the fact that the complainant had given evidence previously in court the application which he made should have been granted. It was submitted that, by the complainant giving her evidence from a remote location, the jury would inevitably form the impression that the appellant was a violent person which would prejudice his prospects of acquittal.

29 The submission which the appellant made could of course be made in any case where there is an allegation of sexual intercourse without consent in a relationship of ongoing violence. There are many cases of this character. It was because of the personal trauma likely to be experienced by a complainant when giving evidence that s 294B was enacted. If the submission was accepted a substantial purpose of the legislative provision would be defeated. It may be that in an unusual case a submission in these terms may be accepted by a trial judge. However, the discretion is to be exercised in the individual circumstances of each case.

30 I am satisfied that in the present case the ruling which his Honour made was correct. Although the allegation against the appellant involved non-consensual sex and assault there was nothing in the circumstances which could have justified “special reasons” within the meaning of the section. No relevant error has been demonstrated (see House v The King (1936) 55 CLR 499 at 504-505).

Ground 2

31 In my opinion this ground of appeal is misconceived. Both the doctors gave evidence as to their observations. Dr Brennan who practiced as a Staff Specialist in Forensic Medicine in the Emergency Department of Royal Prince Alfred Hospital and who was the Medical Director of four sexual assault clinics in the South-West Area Health Service has very considerable experience in the examination and assessment of the anatomy of victims of sexual assault. She was well qualified to express opinions in relation to the injuries observed in the perianal and anal areas of the complainant.

32 Dr Sharp was confined to an examination of magnified photographs of the injuries. Although it was open to the jury to accept the opinion of Dr Sharp, this was a matter for the jury. It could, as it must have done, accept the evidence of Dr Brennan that the injuries were consistent with non-consensual penile-anal intercourse and accordingly consistent with the account of the events given by the complainant.

33 This was not a Crown case based solely or even in large part on circumstantial evidence. The Crown case relied upon the evidence of the complainant to establish the essential ingredients of the first count. The evidence of Dr Brennan was called by the Crown to establish that there was expert opinion that the injuries observed on the complainant’s perianal and anal structures were consistent with her allegations. However, Dr Brennan’s evidence alone could not have established the Crown case which was dependent upon the complainant’s evidence.

34 In these circumstances the appellant’s submission that “the jury could only convict the appellant of the first count if they were satisfied beyond reasonable doubt [that] there was no other reasonable inference to be drawn from the evidence of Dr Brennan other than the act of intercourse was non-consensual” is not correct. There were a number of possible expert interpretations of the injuries, some, as the evidence of Dr Brennan indicates, being consistent with the appellant’s guilt. Dr Sharp was of the opinion that some of the injuries were likely to have been caused by the accidental infliction by either the complainant or the appellant of fingernail scratches to her anal region. Although Dr Brennan said this was possible she believed it was “an unlikely possibility.”

35 In these circumstances the jury was required to consider the expert evidence and determine whether it had the consequence of undermining the reliability of the complainant. If, after considering the evidence of the experts, in particular the evidence of Dr Sharp, the jury believed that there was a reasonable alternative explanation for the identified injuries leaving a reasonable doubt that the injuries may have been inflicted as alleged by the complainant, then the Crown would not have established the sexual assault charge.

36 The appellant further submitted that “the jury could only convict the appellant if they were convinced beyond reasonable doubt [that] the complainant’s ano-genital injuries were caused by blunt force friction as not only a rational inference but the only rational inference indicative of non-consensual sexual intercourse”. The appellant referred to Plomp v The Queen (1963) 110 CLR 234 and R v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69 in support of this submission.

37 In my opinion this submission must also be rejected.

38 The Crown case in Plomp was entirely circumstantial and accordingly the inference of guilt was to be drawn from all of the relevant circumstances. In Taouk the Crown case, apart from some disputed elements of no materiality, was also entirely circumstantial.

39 Both cases are quite different to the present. The present case was not circumstantial and a direction necessary in such a case was not required.

40 The directions given by the trial judge included the following:

“The evidence of Dr Sharp serves three purposes in the defence case to the sexual intercourse charge. Firstly it seeks to undermine, indeed overturn the evidence of Dr Brennan and thereby weaken the prosecution case. Secondly the defence argued that the evidence of Dr Sharp provides an explanation for the injuries sustained by the complainant inconsistent with her account thereby undermining her credibility. If you were to find she was dishonest or inaccurate in her account of how this happened, you could not then be satisfied beyond a reasonable doubt as to the guilt of the accused on the sexual assault case.
Finally the evidence of Dr Sharp, says the defence, creates a reasonable possibility that the injuries to the anal and perianal area did not occur in a way that the complainant’s evidence can account for and thereby creates a reasonable possibility the injuries she received occurred in consensual sexual activity. So that is the use it seeks to make of Dr Sharp’s evidence. I went through that evidence in detail earlier. I do not intend to repeat it. Clearly you would associate it with the defence case.”

41 Having earlier directed the jury that the Crown case could not succeed “unless you are prepared to accept evidence coming from the complainant which proves the basic or fundamental elements of the offence beyond reasonable doubt.” His Honour later said:

“I do remind you at the outset that although there is no direct evidence which contradicts or competes with the complainant’s evidence, bearing in mind that her evidence has been challenged, and seriously challenged, in cross-examination, before you can be satisfied beyond a reasonable doubt the crown has proved either of the two charges, that the accused had sexual intercourse with the complainant without her consent or that the accused assaulted the complainant the following day, you will have to be satisfied beyond reasonable doubt that the complainant’s evidence on the essential propositions contained in the indictment is not only honest, but is also accurate.”

42 When summarising the directions in relation to the expert evidence the trial judge said:

“The final direction I want to give you on expert evidence is this, when taken in conjunction with all of the other evidence in this case that you have accepted, if you think, having considered Dr Sharp’s evidence carefully, that there is a reasonable possibility that the complainant’s injuries were sustained as Dr Sharp has said, that is by fingernails, then you should proceed on that basis. In other words, if the expert opinion of Dr Sharp leaves open the reasonable possibility that the complainant was injured by the accused’s hands gripping the complainant during sexual connection, you would acquit the accused because the Crown would have failed to prove the guilt of the accused in that the explanation it gives for the injuries does not account for fingernails.”

43 In my opinion no other direction was required. This ground of appeal fails.

Grounds 3 and 4

44 The appellant submitted that the verdicts of guilty on both counts on the indictment were in all the circumstances unreasonable. It was submitted that the evidence of the complaint was unreliable and her credit compromised. In support of this submission the appellant emphasised that in an affidavit sworn in the Federal Magistrate’s Court the complainant said she was aware by the first week of March that her husband was having an affair with a Melbourne doctor. When cross-examined at the trial she maintained that it was mid April when she became aware of the affair. It was submitted that the desire of the complainant to obtain revenge against the appellant for this affair was supported by evidence from the appellant’s sister that the complainant had said to her on two occasions “I play my best shot and I will destroy him, I will make him a beggar and if I can’t have him no one can have him. I will make him a de-registered doctor.”

45 The appellant also emphasised that the prosecution had been permitted to introduce evidence of the tempestuous relationship between the appellant and the complainant. This disclosed previous occasions of violence. Emphasis was also placed on the call to 000 which the complainant said was interrupted when the appellant took the phone from her and hung up. However, the appellant’s voice cannot be heard on the recording and the complainant does not complain in the telephone conversation that she was assaulted.

46 The appellant also submitted that the Crown case was weakened by the complainant’s evidence as to the events during their journey from Bega to Sydney on the afternoon of 29 April. In her evidence in chief the complainant said that during the trip the appellant kept poking her on the neck while he was talking to her and “to get his point across then he start grabbing my hair from one hand and try to smash it on the car, I was sitting in the passenger seat, in the car, and hit my head on the dashboard.” She was asked:

“Q: Did your head actually hit the dashboard?
A: No.
Q: Was there anything stopping your head hitting the dashboard?
A: Yes, my hand, I kept my hand and tried to pull away from the dashboard.”

47 The appellant submitted that when cross-examined the complainant gave inconsistent evidence. The submission is misconceived. Although she initially said that her head hit the dashboard the complainant immediately said otherwise. She made plain that she had used her hand and placed it between her head and the dashboard to provide protection. Her evidence in cross-examination was consistent with her corrected account of the relevant events.

48 When asked how it was that the seat belt did not restrain her from being pushed forward she said that the car was “a very old Mercedes car.” The defence case was that this was incorrect. Irrespective of the age of the car it would not follow that the act of forcing the complainant’s head forward would necessarily trigger the restraining force of the belt.

49 It was the complainant’s account of the journey from Bega which gave rise to ground 4. Following the appellant’s conviction the complainant initiated proceedings against the appellant in the District Court claiming damages. A statement of claim commencing these proceedings was drawn by counsel who did not have the benefit of a conference with the complainant. Rather he relied upon a police statement which was provided to him by his instructing solicitor.

50 The statement of claim pleads in relation to the particulars of assault that “On 29th April 2005 the defendant whilst the plaintiff was driving the defendant and their child back to Sydney from Bega, the defendant assaulted her first by driving his fingernails into her neck and then grabbing her hair at the back and pushing her face into the steering wheel of the car causing her pain and injury.”

51 The complainant has given evidence in these proceedings that although she completed an affidavit verifying the allegations in the statement of claim this particular is not correct. She said that she was distressed at the time, due to the death of her father and signed the affidavit without paying sufficient attention to the contents of the statement of claim. The essential error is the allegation that the complainant was driving the car rather than the appellant.

52 I have no hesitation in accepting the complainant’s account. The police statement provided to counsel when he was asked to draw the statement of claim contains the following paragraphs:

“65. It was not a pattern when Aruna would hit. He would mostly do it when he was stressed out or when there was nothing else to pick on me about, he would abuse me for my grammar. Other things Aruna would make me do is drive the car until it would run out of petrol, then he would make me walk no matter where we were and make me walk to a petrol station to get a can of petrol. He would drive past petrol stations and not fill up knowing he would make me walk to get petrol.
66. On Friday the 29th of April, 2005 Aruna, Zanuka and myself arrived home after driving straight from Bega which took us about 6 hours. We got home about 5.30 to 6.00pm. We had driven in Aruna’s car, which is the red Mercedes Benz. On the way in the car, we had a big fight and Aruna accused me of hiding my passport. Aruna said I was hiding things from him. Aruna kept putting his fingernails into my neck which would cause me pain. He also grabbed my hair at the back of my head and pushed my head forward with a lot of force trying to make me hit my head on the dashboard of the car. He did this about 3 or 4 times. I kept putting my hand in front of my head to stop Aruna from making my head hit the dash. I saw there was a lot of my hair around where the gear stick is after Aruna had done this to my head. It was like a bunch of hair that had been pulled out of my head.”

53 Unless these paragraphs are read carefully it is possible to confuse the statement in [65] that the appellant would make the complainant drive the car with the events on 29 April.

54 In [66] the complainant does not actually state who was driving the car and it would appear that counsel has assumed that it was the complainant. I am entirely satisfied that the particular drafted by counsel was in error.

55 Counsel for the appellant submitted that if this evidence had been available at the trial “the defence would have been entitled to cross-examine the complainant on this paragraph”. It was submitted that evidence of the incident in the car could have affected the prosecution case by rebutting the complainant’s evidence that the relationship between the complainant and the appellant was violent. Furthermore, the evidence was said to be relevant in determining the reliability of the complainant’s account of the circumstances of the assault on 30 April. It was submitted that “inevitably, if the jury believed the complainant about the car incident they would have been likely to accept her as reliable in respect of both the sexual and non-sexual assaults.”

56 The complainant and her solicitor gave evidence and were cross-examined in these proceedings. For the reasons I have given at paragraphs [52] and [53] above, I am satisfied that the complainant failed to properly check the District Court affidavit prior to signing it. In Craig v The King (1933) 49 CLR 429, Rich and Dixon JJ said that the fresh evidence must be of such a character that “if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance” (at 439).

57 I have reviewed the evidence given at the trial. I am completely satisfied that this evidence does not raise any doubt as to the complainant’s credibility. The evidence does not cause me any doubt that the appellant was properly convicted.

58 The appellant also pointed to other suggested inconsistencies in the complainant’s evidence. One suggested inconsistency was as to the location of the sorbolene cream. The complainant said she found it under the bed. During the committal she gave evidence that she found it in the “visitor’s room.” At the trial she insisted that this evidence was wrong.

59 The appellant further submitted that the complainant’s evidence in relation to the way she was being held by the appellant when he penetrated her was inconsistent. It was submitted that at the committal she had said that the appellant was holding her ankles but at the trial said this was not the case.

60 The appellant further submitted that the complainant’s account of the way she was allegedly assaulted by the appellant on 30 April was unreliable. The complainant testified that following an argument concerning her passport the appellant grabbed her hair and repeatedly banged her head against the door frame of an upstairs study room. The complainant then said the appellant dragged her by the hair down a flight of stairs. When she fell to the bottom of the stairs she said that the appellant pushed her to a couch and then hit her about the head for “5 to 10 minutes.” She was then pushed to another couch and the blows continued.

61 It was submitted that when the police arrived the complainant did not indicate to them that there had been a continuing course of violent behaviour. Rather she said that her head had been only once pushed into a doorframe. Constable Chaplin did not observe injuries to her head. Dr Brennan examined her scalp but did not detect any bruising. It was submitted that the evidence of the doctor did not support a vicious beating of the type alleged by the complainant.

62 The appellant also introduced into evidence the body of documents comprising many photographs and written material composed by the complainant. This evidence was tendered to rebut the prosecution case that the relationship was episodically violent. The photographs indicate a happy and comfortable family situation. A card written by the complainant commemorating five years of the relationship was read onto the record. In that card the complainant wrote, inter alia, “Every day I thank God for giving someone like you to me. …Aron you are my life and my love … I hope and pray the next fifty years will be filled with lots of love like the past five years.”

63 The appellant also emphasised the evidence of Dr Sharp and said this should have left the jury with a reasonable doubt as to the appellant’s guilt of the sexual offence. It was submitted that his evidence created a reasonable possibility that the injuries were caused by a sharp object such as the complainant’s fingernails.

64 On 11 May 2005 the appellant sent the complainant a mobile phone text message which said, inter alia, “I still dream of Friday night.” It was suggested that this communication, although coming from the appellant, was capable of suggesting a consensual amorous encounter as put by the appellant to the complainant in cross-examination. There was no evidence that by 11 May the appellant realised that the complainant had reported him to the police for rape. The complainant was only interviewed on 12 May 2005 and her police statement is dated on that day.

65 The appellant also emphasised the fact that the complainant did not mention that she had been sexually assaulted to the police when initially interviewed. Her explanation was that she was embarrassed when speaking to a male police officer. In cross-examination she was reminded that at the committal the reason she gave was that she did not think the police would do anything about it.

66 Each of the issues raised by the appellant, with the exception of the pleading in the statement of claim, were issues at the trial. I have read the complete transcript of the trial. Although there are some inconsistencies in the complainant’s evidence in my opinion these are minor. It must not be overlooked that the jury accepted her evidence. To my mind her account of the relevant events is convincing. I am satisfied beyond reasonable doubt of the guilt of the appellant. No miscarriage of justice has occurred.

67 I would reject grounds 3 and 4.

The sentence

68 The appellant seeks to agitate two issues in relation to his sentence. Firstly, he submitted that the sentence imposed for the common assault count was excessive. He further submitted that the partial accumulation of the overall sentence was inappropriate being contrary to the High Court’s approach in Pearce v R [1998] HCA 57; (1998) 194 CLR 610.

69 The trial judge imposed a sentence of 15 months in relation to count 2, the common assault. The maximum penalty was a term of imprisonment for 2 years. Having regard to the fact that the appellant had no prior convictions this sentence was severe.

70 In his remarks on sentence the judge found the objective criminality of the assault was high. He found it to be a sustained assault with violence being inflicted at three locations, the upstairs landing, the foot of the stairs and the couch. It involved the repeated and continual use of force. It also involved the use of objects such as the door jamb and the cushion to inflict trauma to the complainant. Occurring in a domestic situation his Honour found there “was a clear power imbalance between the attacker and his victim.” His Honour found that the assault was occasioned by the appellant’s inability to find or secure the complainant’s passport. His Honour found that he sought the passport “in the hope or expectation that he could use it as a bargaining chip on the question of if and when and how separation was to be achieved.”

71 The appellant denied his guilt and continues to do so. Accordingly his Honour found no remorse or contrition. However, his Honour found that there were positive indications of prospects of rehabilitation. There are no prior occasions of violence on his record.

72 The relationship between the appellant and the complainant was not formalised with marriage. The appellant was already married. At the time of his sentence he was 40 years of age and had qualified as a medical practitioner. He practiced medicine in Australia. He has been involved in research and has practiced medicine in remote areas serving aboriginal communities as a general practitioner and surgeon.

73 There is no doubt that the assault committed by the appellant was serious. I am satisfied that his Honour was correct in describing it as an assault with a high degree of objective criminality. Although the penalty imposed was severe I am not persuaded that it was beyond the appropriate range.

74 In relation to the first count I am completely satisfied that the sentence imposed was within the range. Indeed, having regard to the serious nature of the sexual assault a non-parole period greater than that which was imposed would not have been inappropriate.

75 The appellant complained in relation to the overall sentence that his Honour did not follow the approach required by Pearce. It was submitted that his Honour did not sentence individually for each offence and then consider questions of cumulation, concurrence and totality.

76 It is true that when sentencing his Honour identified the sentence for each offence separately and defined the dates of commencement when announcing each sentence. He did not expressly acknowledge that those dates had been identified as appropriate having regard to issues of totality. Faithful adherence to the requirements in Pearce would have required the sentences to be imposed and subsequently the extent of accumulation defined by reference to issues of totality.

77 Notwithstanding the manner in which his Honour pronounced the sentences I am not persuaded this Court should intervene. In my opinion the sentence for each offence was justified and the total sentence appropriate in the circumstances of this case.

78 In my opinion the Court should make the following orders:

1. Appeal against conviction dismissed.
2. Leave to appeal sentence granted.
3. Appeal against sentence dismissed.

79 HIDDEN J: I agree with McClellan CJ at CL.

80 FULLERTON J: I agree with McClellan CJ at CL.

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22/09/2008 - (1A) has been deleted and (2) has been amended to reflect the correct sections of the Act at the relevant time. - Paragraph(s) [24]