Taleb v R

[2015] NSWCCA 105

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Taleb v R [2015] NSWCCA 105
Hearing dates:	26 November 2014
Date of orders:	20 May 2015
Decision date:	20 May 2015
Before:	Price J at [1] Davies J at [2] Schmidt J at [143]
Decision:	(1) Leave to appeal in respect of Ground 2 and in respect of the sentence. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sexual intercourse without consent –indecent assault - multiple charges from same incident - pre-trial rulings – application to cross-examine complainant about other sexual activity – whether other activity at time of and connected to alleged assaults – injuries sustained by complainant – proper construction of s 293 (4)(c) Criminal Procedure Act – whether material disclosed by prosecution - unreasonable verdicts – inconsistency of verdicts – sentence – whether sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Dimian v R (1995) 83 A Crim R 358 JWM v R [2014] NSWCCA 248 Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Poniris v R [2014] NSWCCA 100 R v Baden Cram [2008] NSWDC 225 R v Burton [2013] NSWCCA 335 R v Morgan (1993) 30 NSWLR 543 R v Mosegaard [2005] NSWCCA 361 R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 R v Tubou [2001] NSWCCA 243 Rolfe v R [2007] NSWCCA 155 Shepherd v R [2011] NSWCCA 245 Spratt v Director of Public Prosecutions [2010] NSWSC 355 Sulaeman v R [2013] NSWCCA 283 Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195
Category:	Principal judgment
Parties:	Rabih Taleb (Appellant) Crown
Representation:	Counsel: G James QC and I Todd (Appellant) Natalie Adams SC and S Palaniappan (Crown) Solicitors: Zahr & Zahr Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/135215
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 February 2014 Before: Huggett DCJ File Number(s): 2012/135215

Judgment

1. PRICE J:   I agree with Davies J.

2. DAVIES J:   On 9 September 2013 the Appellant stood trial before her Honour Judge Huggett DCJ and a jury on six counts as follows:

Counts 1– 4:   Indecent assault. The maximum penalty is five years’ imprisonment;

Court 5:   Sexual intercourse without consent. The maximum penalty is 14 years’ imprisonment and there is a standard non-parole period of seven years;

Count 6:   Commit an act of indecency towards a person over 16 years. The maximum penalty is imprisonment for 18 months.

3. The Appellant was convicted in respect of counts 1, 4 and 5 but was found not guilty in relation to counts 2, 3 and 6.

4. On 14 February 2014 he was sentenced by Judge Huggett as follows:

Count 1:   A fixed term of imprisonment for 12 months commencing 14 February 2014 and expiring 13 February 2015;

Count 4:   A fixed term of imprisonment for 20 months commencing 14 February 2014 and expiring 13 October 2015.

Count 5:   A non-parole period of three years' imprisonment commencing 14 February 2014 and expiring 13 February 2017 with an additional term of three years expiring 13 February 2020.

5. The Appellant now appeals against his conviction and sentence on the following grounds:

(1)   The trial judge erred by excluding questioning of the Complainant, Ms Wedervang and Dr Houston that showed the presence of male DNA in the bra and low vaginal swab and erred in disallowing questions on prior sexual experience and the content of text messages that showed sexual contact or experience.

(2)   The verdict is unreasonable and cannot be supported on the evidence.

(3)   The sentence imposed was manifestly excessive.

Facts associated with the offending

6. Both the Complainant and the Appellant gave evidence. The evidence of the Complainant was as follows.

7. The Complainant was born on 14 July 1994. At the time of the offences, April 2012, she was 17 years old living with her family in Panania.

8. The Complainant first met the Appellant when she visited the Fitness First gym in Granville with a friend on 6 April 2012. When she went to the reception area she met the Appellant for the first time. The Appellant worked at the gym. He was wearing the Fitness First uniform and she had a conversation with him. He asked if he could mind her handbag while she worked out at the gym. She allowed him to do that.

9. Two days later the Complainant located a note in her handbag that said "Fitness First" with the message "Call me" and a mobile telephone number on it. The Complainant did not know who owned the number. She sent a text message.

10. On 14 April 2012 the Appellant sent a text message to the Complainant asking her if she wanted to go for a drive. She agreed. The Appellant asked if it was okay if he brought a friend and again she agreed. The Appellant and his friend picked her up from near her house somewhere between 9:30pm and 10pm on that day. The Appellant introduced his friend as "Carlos" who was driving a small four door car. They drove to the wharf side of the Georges River in the Georges River National Park on River Rd, Revesby.

11. They parked the car and the three of them sat in the car listening to music and smoking cigarettes. There were no other cars in the car park. After a while the Appellant invited the Complainant to walk with him down to the wharf. Carlos remained in the car. As they walked to the wharf the Complainant noticed that the Appellant was limping and using a pair of crutches. He told her that he had had a motorcycle accident.

12. The Complainant and the Appellant sat down on the wharf and after some small talk the Appellant moved closer and started to kiss the Complainant on her neck. She moved away and told him not to do that. The Appellant smiled and laughed and told the Complainant to relax.

13. He then pushed the Complainant onto her back and began to kiss and lick the left side of her neck and suck very hard. This caused the Complainant pain. She tried to move away from the Appellant, saying "Don't do that". In a subsequent medical examination conducted on 15 April 2012 Dr Houston observed that the Complainant had a bruise to the left side of her neck which the Complainant said she did not have prior to 14 April. This conduct formed the basis of Count 1 in respect of which the Appellant was found guilty.

14. The Appellant then moved one of his hands and squeezed the Complainant’s left breast firmly from outside of her clothing. It caused her discomfort. The Complainant told him to stop and she bit one of his wrists. This formed the basis of Count 2 in respect of which the Appellant was found not guilty.

15. The Appellant then rang Carlos to ask him to come down to the wharf. When he arrived, the Appellant told Carlos to stay at the wharf whilst he and the Complainant walked back to the car.

16. Both the Appellant and the Complainant got into the back seat of the vehicle. The Appellant removed his t-shirt and asked the Complainant to sit on his lap. When she did so the Appellant started to kiss her again and lick around her neck. He had his hands firmly around her waist. The Complainant tried to move her head to get away from him. However, he kept kissing and licking her neck. This formed the basis of Count 3 in respect of which the Appellant was found not guilty.

17. The Appellant then pulled down the Complainant’s bra and exposed her breasts. He commenced to suck and lick the right breast with what she described as “a lot of force, it hurt, it caused pain”. She tried to move her torso away from the Appellant and said loudly, “Stop, no, don’t do that”. Dr Houston observed that the Complainant had a bruise or bite mark to her right breast. The Complainant said that she had no such bruise or mark prior to that evening. That conduct formed the basis of Count 4 in respect of which the Appellant was found guilty.

18. The Appellant then pushed the Complainant onto her back and lay on top of her with his chest against her chest. He unzipped her jeans and, as she struggled, he inserted a finger into her vagina which caused pain. The Complainant told the Appellant to stop and said “No”. After a period of struggling, she desisted, saying in evidence that “He wouldn’t stop so I kind of gave up”. She estimated that the Appellant’s finger remained inside her vagina for approximately ten minutes. Dr Houston observed that the Complainant had a bruise on her left thigh which the Complainant said was not present prior to that evening. This conduct formed the basis of Count 5 in respect of which the Appellant was found guilty.

19. After the Appellant removed his finger from the Complainant’s vagina, he sat up, pulled down his pants and revealed his penis which was in a semi-erect state. He asked the Complainant whether he would get anything in return to which she replied "No." The Appellant then got out of the car, went to the back of it and commenced to masturbate until ejaculation. This conduct formed the basis of Count 6 in respect of which the Appellant was found not guilty.

20. Shortly afterwards Carlos returned to the car. The Complainant was in the back seat of the car. Carlos sat in the front passenger seat and the Appellant drove the vehicle from the park to a place near the Complainant’s home where she got out of the car.

21. Soon after arriving home the Complainant initiated a series of text messages with a family friend, Mr Islam Omar, who was a police officer. In those messages she made complaint regarding the actions of the Appellant.

22. On 15 April 2014, after urging by Mr Omar, the Complainant made a formal report to the police and participated in a medical examination by Dr Houston.

23. On 29 April 2012 police spoke to the Appellant because a van he was driving was parked in the middle of the street at an intersection in Auburn. When they checked his licence they ascertained there was a notification in relation to the Appellant arising out of the allegations that the Complainant had made against him. The Appellant was invited to attend Auburn Police Station and agreed to do so.

24. At the police station he was asked if he knew a girl by the name of Dina and he said that he did not. He was placed under arrest and agreed to participate in an ERISP. During the ERISP he denied knowing a girl with the Complainant’s name and said that he did not know what the police officers were talking about when they referred to an incident of a sexual nature that took place at about 10pm on 14 April at Georges River National Park on Henry Lawson Drive, Revesby. He also denied that he had any friends by the name of Carlos.

25. The police officers then put to him the details of the complaint and the Appellant said that he did not know what they were talking about, that he did not know the girl concerned, that he had never been to Revesby and that he had not put his phone number in her bag.

26. The police identified the Complainant’s phone number as being in the Appellant’s phone and they read the texts that had passed between the Complainant and the Appellant. The Appellant claimed that none of those texts refreshed his memory about the matter. He denied the allegations that were put to him.

27. When he gave evidence at the trial the Appellant admitted that he did not tell the police the truth in the ERISP and said that he did so because he was scared.

28. The true position, according to the Appellant in his evidence, was that the sexual interactions that took place on the night concerned were all consensual. In fact, on the Appellant’s account of the events, the Complainant had initiated the contact almost from the moment she got into the car when she pulled down his hoodie and tickled him with her nails on his neck.

29. The Appellant called evidence from the person he had introduced to the Complainant as Carlos whose name was Kahled Raad. Mr Raad was not present at the time the sexual interaction took place, either at the wharf or in the car. The significance of his evidence for the Appellant was that he said that everything between the Appellant and the Complainant appeared normal. They were laughing and talking. Nothing stood out as being unusual.

Subjective matters

30. The Appellant was born in Lebanon in 1992 and at the date of sentence was aged 21. He was one of six children. He was born with a form of cerebral palsy known as cerebral diplegia which required the use of crutches. The Appellant had received treatment from the Children's Hospital at Westmead from the age of five and had undergone many operations. He had metal plates in his hips but he still experiences a great deal of pain.

31. The Sentencing Judge found that he was raised in a loving environment with significant support from his parents and siblings who assisted him with his needs at home.

32. The Appellant completed his Higher School Certificate in 2010 and subsequently completed an Advanced Diploma of Information Technology at the Australian Careers Business College in Parramatta. Following the completion of his Diploma he worked as a receptionist at Fitness First, Granville.

33. He was single at the time of the sentence hearing but previously had been in a couple of intimate relationships.

34. There was no history of alcohol or illegal drug abuse, mental health problems nor antisocial behaviour. He had no criminal convictions.

35. Although he maintained his innocence and had tended to minimise his offending behaviour and showed no empathy towards the Complainant, as the Sentencing Judge found, he indicated a willingness to engage in counselling to address his offending behaviour.

36. The pre-sentence report said that his risk of re-offending was low to medium. The Sentencing Judge found that his prospects of rehabilitation were reasonable to good.

Appeal against conviction

Ground 1:   Exclusion of evidence

Ground 2:   Unreasonable verdict

37. The Appellant submitted that the verdicts of not guilty on counts 2, 3 and 6 called into question the guilty verdicts on counts 1, 4 and 5. The principles have been comprehensively analysed in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 especially at [23] and [34]. Subsequently, in R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 Simpson J (with whom McClellan CJ at CL and Latham J agreed) said:

[135] …But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open “upon the whole of the evidence”. It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris).

[136] In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations: …

38. The Appellant submitted that grounds 1 and 2 were not entirely discrete from each other. This was because of the Crown’s suggested reason for the guilty verdicts on counts 1, 4 and 5 and the not guilty verdicts on counts 2, 3 and 6, being that they could only be explained by the presence of bruising related to the events that gave rise to counts 1, 4 and 5. In other words, the most obvious reason that the jury distinguished between the counts was that there was some other objective evidence (bruising) that supported counts 1, 4 and 5.

39. The Appellant accepted that the rationale for the distinction made by the jury in the counts in respect of which there was conviction and those for which he was acquitted was the presence of bruising. In that way, the Appellant submitted, the possible causes of the bruising was a highly relevant matter and ought to have resulted in the Trial Judge permitting questioning about other sexual activity engaged in by the Complainant. Without that other evidence the jury’s verdict was unreasonable. I shall, accordingly, consider the grounds together.

40. A voir dire was held at the commencement of the trial on a Notice of Motion filed by the Appellant which sought the following order:

Pursuant to s 293 of the Criminal Procedure Act 1986 (NSW) the Defendant seeks Orders that:

Leave be granted to cross-examine the complainant in relation to:

(a)   the history taken by Dr Houston;

(b)   the finding made by Ms Wedervang;

(c)   the communications sent and received by the complainant at or around the time of the alleged offence.

(a)   Report of Dr Houston

41. The report of Dr Houston was in the form of an expert certificate pursuant to s 177 of the Evidence Act 1995 (NSW). The examination of the Complainant was carried out on 15 April 2012. In the report Dr Houston recited the history given including that after she arrived home the Complainant had a long shower. The report also noted that she complained of pain in her genital area which had settled and pain for bruises on her thigh from the struggle.

42. Under the heading “7. Answers to direct questions” the following appeared:

Since the incident she had changed her clothing and showered. Her last menstrual periods started about 23/3/2012. She had not had sexual intercourse within 7 days of the examination.

43. The report then went on to note the bruising apparent on clinical examination. Dr Houston also took a buccal sample and both a vulval and a low vaginal swab.

44. In the last paragraph headed “Opinion, based wholly or substantially on the above knowledge” Dr Houston relevantly said:

She has bruises on her left neck and right breast consistent with a human bite. She also had small bruises, whose pattern was consistent with ‘fingertip’ bruising on her left thigh, in keeping with a struggle.

(b)   Report of Lisa-Ann Wedervang

45. Ms Wedervang examined the swabs taken by Dr Houston and also the Complainant’s bra to see if DNA was present. Her Certificate disclosed the following:

1b	Low vaginal swab	The DNA recovered (using the Y-filer System originates from an unknown male and could not have originated from Rabih Taleb (Barcode No XPS00200318).
…
2i	Bra inside right cup	The DNA recovered is a mixture that originates from at least three individuals. Due to the complexity of the mixture, the profiles of the individual contributors could not be determined.
2ii	Inside left cup	The DNA recovered is a mixture that originates from at least three individuals. The major component of the mixture has the same profile as [the Complainant]. The minor component is too complex to determine the profiles of the individual contributors.
2iii	Inside lower right cup	The DNA recovered originates from an unknown male and could not have originated from Rabih Taleb (Barcode No XPS00200318). This profile has been entered onto the DNA database.

(c)   Text messages

46. The SMS messages on the Complainant’s phone were reproduced.

47. The events complained of took place in the period 9.30pm to 10.45pm on 14 April 2012. The first of the messages sent by the Complainant is recorded at 10:49pm to a friend Youseff Nader. The message said:

I need to meet up with u ASAP just got sexual assaulted...Dnt call now coz his dropping me off now

It seems likely that this message was sent by the Complainant from the back of the car as she was being driven home.

48. At 11:10pm she sent a message to another friend Alec Cohen saying:

Um just got sexual assaulted

That was followed at 11:19pm by another message to Alec Cohen which described briefly what had happened in the back of the car that constituted counts 3, 4 and 5.

49. Thereafter, commencing at 11:30pm there are a large number of messages between the Complainant and Mr Omar until 1:26am the following day, 15 April.

50. At 3:43am on 15 April the Complainant sent a description to Mr Nader of what happened that was similar to what had been sent to Mr Cohen the night before.

51. From 12:51pm on 15 April until 3:30pm on that day there are numerous messages exchanged between the Complainant and a person known as Jason Samman who appears to be someone the Complainant communicated with through Facebook. Those messages make no reference to the sexual assault and can be regarded as very flirtatious messages involving discussions about sexual matters and perhaps included the sending of sexual images to or from the complainant.

52. Thereafter, there are text messages to and from Mr Omar until 7.06pm on 15 April interspersed with text messages to and from Jason Samman of a similar kind to those referred to in the previous paragraph. They are followed by messages with Mr Nader that suggested he was coming to the Complainant’s house. The last of those messages on 15 April was at 8.51pm. They resumed at 3.53am on 16 April and continued until 6.17am. The messages to and from Jason Samman resumed at 4.51am and continued through 16, 17 and 18 April. There were a few further messages with Mr Omar on the afternoon and evening of 16 April.

The legislation

53. Section 293 of the Criminal Procedure Act 1986 (NSW) provides:

293 Admissibility of evidence relating to sexual experience

(1)   This section applies to proceedings in respect of a prescribed sexual offence.

(2)   Evidence relating to the sexual reputation of the complainant is inadmissible.

(3)   Evidence that discloses or implies:

(a)   that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b)   has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4)   Subsection (3) does not apply:

(a)   if the evidence:

(i)   is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii)   is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b)   if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(c)    if:

(i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and

(ii)   the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

(d)   if the evidence is relevant to:

(i)   whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or

(ii)   whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,

(e)   if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),

(f)   if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission

(5) A witness must not be asked:

(a)   to give evidence that is inadmissible under subsection (2) or (3), or

(b)   by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6)   If the court is satisfied:

(a)   that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:

(i)   had sexual experience, or a lack of sexual experience, of a general or specified nature, or

(ii)   had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b)   the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

(7)   On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8)   If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.

(9)   (Repealed)

The trial judge’s rulings

54. The Sentencing Judge’s reasons for the ruling on the voir dire were as follows (at T31, 9/9/13)

My ruling will be that I would not allow questions pursuant to 293 about, at this stage anyway, about presence of another male person's DNA on the bra or the low vaginal swab and I would not allow questions to be asked of the complainant about text messages that might suggest sexual content or sexual activity between her and another person, because in my view pursuant to 293, this isn't a formal ruling, I'll give you a formal ruling, pursuant to 293(6). Even if it has been disclosed or implied in the case for the prosecution the matters referred to in subs (a) I do not consider that the accused would be unfairly prejudiced by you not being permitted to ask about those matters because you would still be able to place evidence before the jury about her demeanour and behaviour after the alleged offences and you would be able to have evidence placed before the jury that there was nothing inculpatory insofar as DNA is concerned, relevant to your client and that there can be a number of ways in which the injuries that the doctor describes seeing could be occasioned.

And as far as 293(4) the evidence firstly does not conclusively confirm that any sexual activity that she may have taken part in was at or about the time of the commission of the prescribed sexual offence because there is the DNA, it's not clear what the DNA was from, when it was placed there, the circumstances in which it was placed there and it could be up to five days old. The DNA on the bra, the bra wasn't taken until three or four days after the alleged offence and to come within subs 4 the events have to form part of a connected set of circumstances and that these other events in my view do not form part of a connected set of circumstances in which the alleged sexual offence was committed there of another male person at some other time and some other occasion and in my view the probative value of that evidence is low and would not outweigh the distress, humiliation or embarrassment the complainant might suffer as a result of its admission and I would allow you to ask her questions related to her behaviour after the alleged offences that she was engaging in messaging many people.

The messages were about all sorts of things that it would be inconsistent with her being sexually assaulted, about what she might want to eat, inviting people to her place, catching up with people, seeing other people perhaps exchanging photographs with people which behaviour would be perhaps inconsistent with a person who had been sexually assaulted in the manner in which she said she had.

So that at this stage is what the rulings will be but as I said that could well change depending on what the complainant says. (emphasis added)

55. Thereafter, further debate ensued particularly with regard to Dr Houston’s report and the injuries that had been noted. Her Honour then said (at T 42):

And in my view I maintain what I said earlier that at the present state of the evidence I would not allow questions to be asked about DNA on low vaginal swabs, DNA on the bra, the right cup of the bra, but pursuant to subs 6 and I take into account the difference of opinion in Tubou [R v Tubou [2001] NSWCCA 243] and Rahme [R v Rahme [2004] NSWCCA 233] - the accused is entitled to a fair trial and in my view where the Crown is - or evidence will be placed before the jury of injuries, the accused is entitled to explore those injuries and to ask the complainant whether those injuries could have been caused in some other way, including whether they could have been caused by sexual contact with another person. If she says no, then that is - as far as the evidence goes subject to there being a further application - if she says yes, well we will deal with that if and when that occurs.

But Mr Todd, I would allow you to ask her whether - she saw the doctor on that night, the Sunday night wasn't it?

TODD: Yes your Honour.

HER HONOUR: Had she in the preceding several days, and I don't know, three or four days or several - I don't know Mr Crown whether you have a view on whether it be 3 days, 4 days, several days, some days - but perhaps more specific, then she will understand what you are asking her-

TRIAL ADVOCATE: Yes.

HER HONOUR: -had she engaged in any activity with another person that, to her knowledge, caused her a mark to her neck, bite mark to her breast, and bruises to her left thigh. And at this stage I would not permit questions about whether she had the - well I suppose we will need to see what she says. If she says no she hadn't - and what she is being asked is not 'have you engaged in sexual activity with people' but 'have you engaged in sexual activity that caused bruising to occur, or caused bite marks.'

56. However, there were a few other exchanges relevant to those rulings. Shortly after what appears at [54] above her Honour said this (at T 33.1):

In relation to Dr Houston I don’t necessarily agree that that final paragraph in its complete form is admissible where she talks about it being the result of a struggle and things of that nature. I think she can say I observed certain things, namely para 9 and the picture perhaps over the page, para 10 and that in my opinion what I observed on my examination is consistent with what the complainant alleged. Do you wish Mr Crown that it goes further that --

TRIAL ADVOCATE:   No your Honour.

57. Shortly afterwards, the trial advocate said (at T 34):

In cross-examination it would be made clear that the doctor is not suggesting that she can say these injuries must have been occasioned by that sexual act.

58. Despite her Honour saying that she was not giving a formal ruling at that stage but that she would give a formal ruling, she did not ultimately do so. It may be regarded as unfortunate that a formal ruling was not given on so significant a matter. It seems to have been overlooked in the desire not to delay the trial. Nevertheless, a reading of the trial transcript discloses that the parties largely worked on the basis that what was set out in [54] and [55] above constituted her Honour’s rulings with respect to the three areas of evidence argued at the voir dire.

1. The bruising

59. Counsel for the Appellant at the trial was permitted to ask the Complainant and Dr Houston about the bruising. Consistently with her Honour’s ruling about Dr Houston’s evidence the Complainant was asked this question in cross-examination:

I suggest to you that any bruising or marks that you displayed to Dr Houston may have been the result of consensual, vigorous sexual activity in the days leading up to 15 April 2012.

The Complainant answered “No”.

60. In cross-examination Dr Houston gave the following evidence:

Q:   …and could it be that of course, these bruises were present prior to 14 April 2012?

A:   It’s possible, yes.

Q:   From some possibly consensual vigorous sexual activity?

A:   Well, I couldn’t say.

Q:   One way or the other?

A:   All I can say, it’s possible.

61. Notwithstanding what the trial judge and the trial advocate had said in the passages set out in [56] and [57] above, when Dr Houston was being examined by the trial advocate the transcript discloses the following:

Q:   You’ve given evidence of having taken a history of the complaint from Ms Serry. You’ve given evidence of having observed these three areas on her body which appear to show bruising.

A:   Yes.

Q:   Are you able to say, based on your training, your qualification and experience, as to whether or not those injuries are consistent or inconsistent with such --

HER HONOUR:   Mr Crown, I won’t allow that question.

62. At the conclusion of Dr Houston’s evidence the trial advocate raised with her Honour in the absence of the jury the fact that her Honour had indicated earlier that she would allow a question along the lines of whether or not what she observed was consistent or not with what the complainant alleged. The Trial Judge said that she thought the Crown was going to ask something along the lines of the final paragraph of the report (at [44] above) but she thought, in any event, that the jury could draw its own inferences from the injuries.

63. Her Honour’s disallowance of the trial advocate’s question was favourable to the Appellant.

64. Counsel for the Appellant addressed the jury about the evidence of bruising. He said this (at T 31-32, 17/9/13):

After this alleged physical assault on at least two occasions, wharf and car, we have Dr Houston’s evidence that an analysis is done and bruising, as you will see, there is only a photograph of the neck, but there is a suggestion of bruising in other parts, not bruising consistent with what we say you’ll expect to see, in someone that has been forcibly assaulted in that way.

…

Dr Houston’s evidence is, again, important because bruising relied on by the Crown is not in the places you would expect to see, and it is not of the type that is immediately or can only be seen as having occurred the night before. You can’t date them. That’s the evidence of the prosecution. You don’t know where they have come from. I say to you, ladies and gentleman, that they could have come from anything, anywhere and anytime. It is inconsistent with the Crown case, because as I said and keep saying, you would expect far more bruising on far more parts of the complainant’s body.

65. It is to be noted that counsel for the Appellant did not make reference specifically to Dr Houston’s evidence during cross-examination that the bruising could have been caused by consensual sexual activity at another time.

(b)   The DNA evidence

66. In addition, evidence was permitted that any DNA found was not the Appellant’s DNA.

67. When Ms Wedervang gave her evidence the Crown Advocate obtained from her that the Accused’s DNA profile was not able to be identified on the low vaginal swab, that she would not expect DNA from the finger of a person who had digitally penetrated the vagina of the Complainant still to be present and detectable 24 hours after an incident and that she was not able to find a DNA profile matching the Accused on any of the areas of the bra which had been tested.

68. She was asked about the way DNA is deposited and on which surfaces it is more likely to be detected. There was then a question and answer as follows:

Q:   In this particular case, the bra was collected by the police four days after the alleged incident. Does the condition and the way in which the bra was kept in the period of time before it was collected by the police – could that affect whether or not you could detect a person’s DNA four days later?

A:   It would, especially, for instance, if the bra had been worn during those four days. You have a higher chance of any foreign DNA being removed, especially if it was by – it was placed there by touch, the chance of being removed by being worn will affect – any obvious recovery of that foreign DNA.

69. In the absence of the jury the Appellant’s counsel complained about that question and answer which it was said suggested that the absence of the Appellant’s DNA on the bra could be explained away by some means. That led her Honour to tell the jury when they returned:

You have evidence from her that the accused's DNA was not detected on the three areas of the bra she tested, one on the left cup, I think, and two areas on the right cup. There is no evidence before you as to what happened to the bra after it was put on by Ms Serry. She said it was pulled down in the car. Certain things occurred. She put her clothes back on. You have no evidence as to what happened to the bra, essentially once she got home and in the four days between getting home and when it was picked up and provided to the police. So there is no evidence before you as to whether it was worn, as to the condition in which it was kept, and you must not speculate as to that and I direct you to disregard that part of Ms Wedervang's evidence where she talks about whether it has been worn or the condition. That's just guesswork because you have no evidence before you as to whether it had been worn or the condition in which it was kept or what happened to it for that four days.

You will remember I said to you that you determine the case only upon the evidence and in a sense, Ms Wedervang there has speculated. She doesn't know if it has worn. So to say wearing could remove it would be an unfair assumption to make, because there is no evidence of that. So you must disregard that final answer. Don't disregard though, of course, the evidence she gave that she tested the bra and the accused's profile was not detected on. (sic)

70. Counsel for the Appellant addressed about the DNA evidence including the fact that the Appellant’s DNA was not found on the bra notwithstanding that it was alleged that he sucked and licked on the Complainant’s breast.

(c)   The text messages

71. The text messages that the jury saw were contained in exhibit D. They were the text messages that passed between the Complainant and Islam Omar commencing at 11:30pm on 14 April 2012 (Number 2119) and concluding on 16 April 2012 at 7:37pm (Number 2241).

72. On the third day of the trial prior to the Complainant giving her evidence counsel for the Appellant raised with her Honour matters concerning the text messages about which he was entitled to cross-examine the Complainant. He produced a document that became MFI 2 which identified the text messages by number, with a statement of what it was he wished to establish by cross-examination.

73. When counsel for the Appellant cross-examined the Complainant about the text messages the following evidence was given:

Q.    Ma'am, do you have now before you a document that has got D1 on the outside of the yellow envelope?

A.    Yeah.

Q.    Can you open it up for me. I want you to turn the pages over until you get on the left-hand side a number that's 2144.

A.    Yes.

Q.    Do you see that that seems to be, if you look along the columns, an outgoing message?

A.    Yes.

Q.    Without sounding it out aloud, just read that to yourself if you wouldn't mind.

A.    Yeah.

Q.    If you look back across at the columns, the third one along has a time and date. Do you see that?

A.    Yes.

Q.    Which would suggest it's 15 April 2012 at around 12.53pm. Is that right?

A.    Yes.

Q.    So this is the afternoon after the events you say took place on 14 April 2012. Is that right?

A.    Yes.

Q.    Is it correct to say that you had been to the gym that day or not, do you know?

A.    Probably, if I said I was at the gym, then I was at the gym.

Q.    You have no independent recollection today.

A.    What do you mean by that?

Q.    I mean, you don't remember today whether you went or not.

A.    No, I don't remember.

Q.    Below that, if you could just look at those messages and read them just to yourself all the way down to 2166 over the page.

A.    Okay. Do you want me to read them?

Q.    Just to yourself. Don't read them aloud.

A.    Yes.

Q.    Those messages would appear to end at 3.30pm on 15 April, that is the ones I've asked you to look at. Is that right?

A.    Yes.

Q.    In general, do you agree with me that it seems that the messages convey you talking about daily usual matters such as buying chocolate, for example?

A.    Yes.

Q.    Just joking with your friend.

A.    Yes.

Q.    I suggest to you that that's inconsistent with you having just the night before been subject to a sexual assault or an attack.

A.    Can you please repeat that.

Q.    Yes. The content of those messages would appear to be you just acting, if you like - I withdraw that. The content of the messages seem to suggest you were just talking and joking with a friend about chocolate and talking about the gym and things like that. Do you agree with that?

A.    Yes.

Q.    And that that would be inconsistent with you having just the night before been sexually assaulted.

A.    Why would it be inconsistent?

Q.    You're just talking normally about normal everyday things. You had been to the gym.

A.    Yes, but why should I tell this person, I don't - I don't know who this number is. Maybe I wanted to keep it personal, you can't just say something happened to you, like, out there to, you know, maybe it was a person I didn't want to tell.

Q.    Can I ask you to go over the page now to 2177. Do you see that?

A.    It's - is it highlighted in red?

Q.    Yes.

A.    Yes.

Q.    If you just read that to yourself and on to 2182.

A.    Yes.

Q.    Do you see that, for example, 2177 is around about 6.40pm on 15 April?

A.    Yes.

Q.    Then there's, it would appear, another message 2178. Is that right? 6.44pm.

A.    Yes.

Q.    Then other messages between 6.45 and 6.46. Do you see that?

A. Which ones?

Q.    2179 to 2182.

A.    Yeah.

Q.    Which I suggest to you is sharing some images and other sort of friendly texts. Would you agree with that?

A.    Yes.

Q.    But at the same time you're also messaging Islam Omar. Is that right?

A.    Yes.

…

HER HONOUR:    I think she agreed that at the same time as those friendly texts and sharing images, you sent a message to Islam Omar.

WITNESS: Yes.

TODD

Q.    Which again I suggest shows that you are just speaking to someone else and speaking what seems to be a normal way to this person, but at the same time speaking to Islam Omar about a complaint. Is that right?

A.    Yes.

Q.    Which would again suggest that you, I submit to you, madam, have not been recently sexually assaulted. Do you agree or disagree with that?

A.    I disagree.

Q.    If I can just ask you finally to look at 2188 to 2195. Again, without reading them aloud, just look at them again, please.

A.   Yeah.

Q.    Which takes us from 6.53pm on 15 April to 7.05pm on 15 April, doesn't it?

A.    Yes.

Q.    Where I suggest again the messages show that you're engaged in essentially joking, playful banter with a friend. Is that right?

A.    I guess so.

Q.    But then shortly after that you're again receiving some messages from Islam Omar. Is that right?

A.    Yes.

TODD: There's nothing further, your Honour.

74. The jury did not have the document that was ultimately MFI 3 that contained the details of all of the text messages including those that had been cross-examined about. Consistently with Her Honour’s ruling on the voir dire counsel for the Appellant did not ask any questions about the texts suggesting they involved sexual banter or sexual related matters, although they did in fact suggest those things.

75. It is, perhaps, noteworthy that the Appellant’s counsel did not seek to tender a table including all the text messages except the ones colour-coded red (those which the trial judge excluded by virtue of s 293). It seems likely that this was a tactical decision because such a tender would have disclosed complaints to a number of people apart from Mr Omar.

76. In his final address to the jury counsel for the Appellant said only this about the text messages:

The next relevant thing that happens is on the Crown case there is these text messages sent, and they are before you. You will have your opportunity to look at those. But if I may, ladies and gentlemen, note the cross-examination that while text messaging the following day, there is a number of occasions when the text messaging is – and she accepts this – about things that are of a friendly nature, with her friends about chocolate and the like, going to the gym, and even at one stage while she is texting with Islam Omar, sharing some joking images with a friend, which we say you will find is inconsistent with her having been recently sexually assaulted.

The Appellant’s submissions

77. The Appellant submitted that he should have been permitted to go further than simply asking if the bruising was explicable by other consensual activity, and to put that it was not caused by the matters alleged.

78. In his written submissions the Appellant argued that sub-paragraphs (4)(a)(i) and (ii) of s 293 were satisfied in relation to the text messages together with the history taken by Dr Houston and the findings of Ms Wedervang, in that the temporal connection was established given the continuation of reliance by the Crown of the Complainant’s evidence beyond the initial contact with Islam Omar. The suggestion of continued sexual activity satisfied sub-para (i) and was “connected” under sub-para (ii) by the evidence of the Complainant being in the form of text messages. The Appellant submitted that no narrow approach should be given to the required connection in accordance with R v Morgan (1993) 30 NSWLR 543 at 544.

79. The Appellant further submitted that it would be open for a jury to find that a woman who had been sexually assaulted would be unlikely to have engaged in further consensual sexual activity shortly thereafter.

80. The link between the three matters (the bruising, the DNA evidence and the text messages) was identified by the Appellant in his reply to the Crown’s supplementary written submissions on the appeal. The Appellant sought to put evidence before the jury by cross-examination that the bruises did not relate to the circumstances in which the complainant said they were caused. The evidence of the DNA and the text messages were sought to be put before the jury since the bruises were said to be relevant to sexual activity and to show that they were relevant to sexual activity other than the sexual activity charged.

81. In his oral submissions, Mr James QC argued that it was sub-s (4)(c) that was engaged. This was because the issue was said to be whether or not the injury was attributable to the sexual intercourse alleged to have been had by the accused person. The question which arises from this reliance on sub-s(4)(c) is whether it was relied upon before the trial judge and, therefore, whether Rule 4 applies.

82. An examination of the transcript makes it clear that paragraph (4)(c) was not only not relied upon by the Appellant at the trial but was expressly abjured. The transcript records the following:

HER HONOUR: …So I don’t, insofar as the bra and the vaginal swab is concerned, I don’t see how, when you get the benefit that your client’s DNA is not in areas where it might be, to lead evidence of that is directly contrary to s 293 and you either have to come within sub-section – somewhere there within subs (4) and it can’t be (b) because it’s not to do with the relationship between your client. It can’t be (c) because even though there is injury your client does concede sexual intercourse. It can’t be (d), it can’t be (e).

TODD:         No. We don’t know about (f).

HER HONOUR:   No and I can’t rule on (f) at this stage.

TODD:         No.

HER HONOUR:   So therefore it’s either 4(a) or 6(a).

TODD:         Yes.

TRIAL ADVOCATE:   Yes your Honour. So it would seem your Honour that the provision was designed to --

HER HONOUR:   Some of these exceptions, they are not mutually exclusive because they overlap with one another because equally sexual intercourse could form part of subs (a) or (b) or – sexual activity includes sexual intercourse and if each was – there’s obviously some overlap and the other sections in (a), (b) and (d) talk more generally about sexual experience or sexual activity.

TRIAL ADVOCATE:   But (c) deals with injuries.

HER HONOUR:   Yes it does.

TRIAL ADVOCATE:   And my submission about (c) is that it would seem that provision was designed to allow cross-examination about injuries where the identity of the accused was in issue and where the accused is saying, well I wasn’t even there, or it didn’t occur, so a live issue is, well could it have occurred by some other reason.

HER HONOUR:   What do you say to that Mr Todd.

TODD:   Sexual intercourse your Honour as defined, it’s got nothing to do with the sucking on breast, as defined, 61H(1) in para (c)(i) is all about sexual intercourse and the repetition of the words in (ii) is clearly attributable to some penile, vaginal, or some other insertion because it is talking about injuries in that context. Semen, pregnancy, disease or injury attributable to the sexual intercourse as defined therefore it has no application here.

83. The Appellant submitted that it was enough that the exceptions to s 293 were invoked and that for Rule 4 purposes it was not necessary that all bases be articulated. I do not agree.

84. In Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195 Simpson J said (speaking of various sections of the Evidence Act 1995 (NSW):

[70] What happened in the present case, as I have earlier outlined, was that counsel for the appellant objected, on discretionary grounds, to the admission of the whole of Mr Gould’s statement. He did not at any stage argue that it, or any part of it, was not admissible under s165(2); he argued, presumably invoking the judicial discretions conferred either by s67(4) or s135, that the evidence ought to be excluded. He also appears obliquely to have relied upon s137. Neither s67(4) nor s135 is a section directed to admissibility – each is a section reserving a discretion to the court to exclude evidence of the character identified. S137 is, properly characterised, a section directed to admissibility. The nearest counsel could be said to have come to an argument that the evidence was inadmissible was to put to the trial judge matters that might be construed as raising s137, pursuant to which (in a criminal case), if a court is of the view that the probative value of a particular piece of evidence is outweighed by the danger of unfair prejudice to the defendants, then the court is obliged to exclude that evidence – that is, once the judgment is made that the probative value of the evidence is outweighed by the danger of unfair prejudice, then s137 renders the evidence inadmissible.

[71]   In fact, counsel never drew attention to, or even mentioned, any of these sections. The legal foundation on which he put his objection has to be divined from the rather cryptic submissions he made.

[72]   Once the decision had been made that those objections failed, he made no further objection as to the admissibility of any individual part of Mr Gould’s statement.

[73]   Nevertheless, counsel for the appellant argued in this Court that, once objection is taken, rule 4 has no further application. That is, that once objection – that is, objection of any kind, and on any basis - is taken on any ground to a particular piece of evidence, then rule 4 will not operate to prevent the raising of an entirely different objection to the same piece of evidence.

[74]   To accept the appellant’s contention would be to cast an extraordinary burden upon trial judges. It not infrequently happens that evidence, whether oral or documentary, is tendered, and objection is taken to the whole of the evidence of a witness, or of a document. An obvious example is an electronically recorded interview with the person subsequently charged. These frequently are extremely lengthy documents. On the appellant’s argument, if objection were taken to the whole of such an interview, on the ground, for example, that it was not voluntary, and, if that objection were resolved against the accused, and no subsequent objection taken to any individual part of the interview, it would, nevertheless, be incumbent upon the trial judge (at the risk of falling into appellable error) to determine the admissibility of every individual answer given in the interview. The judge would be required to take that course without knowing the contents of the brief (at least of counsel for the accused), and frequently without having been enlightened as to the true issues in the proceedings. The proposition only needs to be stated to be seen as untenable.

[75]   There are, however, some passages in the authorities said to support the contention of counsel for the appellant. One such is R v Plevac (1995) 84 A Crim R 570, a decision to which I was a party. There, in a joint judgment, this Court said:

“If an objection was indeed taken, although counsel may not have formulated the basis thereof as precisely as might have been expected, leave to argue this ground is not required. If, on the other hand, and as appears more likely, no objection was taken, leave is required: Criminal Appeal Rules, r4.”

The Court in that case did not find it necessary to determine the application of rule 4, holding that the error there identified was fundamental and of such potential significance that, if necessary, leave ought to be (and was) granted to argue the point.

[76] I cannot accept the appellant’s proposition. S6 of the Criminal Appeal Act 1912 provides for a number of grounds of appeal, including, relevantly “the wrong decision of any question of law”, and “that on any other ground whatsoever there was a miscarriage of justice”. The contention of the appellant is that the evidence was wrongly admitted. Admission of evidence involves a question of law. The appellant must be taken to be raising a ground that the decision to admit the evidence involved the wrong decision of a question of law. Judges decide questions that are put before them by the parties for determination. In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, with reference to rule 4, McHugh J commented that, where objection has not been taken at trial, the trial judge cannot be said to have made an error of law, because he or she has not been asked for a ruling. That reasoning is equally apposite where, as here, a relevant ruling has not been sought. The question that was put before Blackmore DCJ for determination was whether, in the exercise of his discretion, he should reject the whole of Mr Gould’s statement. Since the questions under s165(4) and s135 involved discretionary determinations, those determinations may only be reviewed on appeal on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The question under s137 involves an evaluation, the result of which dictates whether the evidence is or is not admissible. That evaluation too, may only be reviewed on the principles stated in House. If the grounds established that (and they obviously do not), it would be open to the appellant here to argue error of law in the determination not to reject the whole of the statement under ss67(4), 135 or 137. Yet the appellant now seeks to argue, not that there was any House-type error in the exercise of discretion, or in the s137 evaluation, but that two parts of the statement were not admissible by reason of the provisions of the Evidence Act. This is a far cry from the objection that was taken at the trial. The judge has made no error of law in that respect, because is was never put before him for determination.

[77]   I recognise that on one very literal construction of the words in rule 4, the appellant might draw some comfort. However, closer analysis of the rule strips that comfort away. The “decision” in question was not a decision (made over objection) that the two passages now in contention were admissible evidence; such a decision was never made, because the judge was never called upon to make such a decision. The decision he made was a decision, made after consideration of discretionary matters, and evaluation, that Mr Gould’s statement, in its entirety, would be admitted.

[78]   In my opinion, the appellant requires leave under rule 4 if he is to be permitted to argue this ground.

85. Although James J and Hall J in Vickers reserved their opinion on the point, the passage was approved in this Court in Shepherd v R [2011] NSWCCA 245 at [26], Sulaeman v R [2013] NSWCCA 283 at [129]-[130] and Poniris v R [2014] NSWCCA 100 at [54]-[55]. I consider that those passages in Simpson J’s judgment correctly state the law with regard to rule 4.

86. If it was not argued below that the evidence should be admitted by reason of the exception in paragraph (4)(c), and where counsel for the Appellant agreed that paragraph (4)(c) did not apply, it must be concluded that the point was not taken below. It is not enough to say that reliance was placed generally on s 293: Vickers at [76]. Ordinarily a party is bound by his or her counsel’s conduct of a case. The Appellant would need to demonstrate that the approach by the Appellant’s counsel at the trial has resulted in a miscarriage of justice.

87. For reasons which will become apparent, counsel’s agreement with the trial judge that paragraph (4)(c) had no application was correct. In those circumstances, reliance now by the Appellant on para (4)(c) means that rule 4 applies.

Section 293(4)(c)

88. To bring himself within this exception the Appellant needed to show (i) that he did not concede the “sexual intercourse so alleged” and (ii) that the evidence was relevant to whether the presence of (relevantly) injury was attributable to the sexual intercourse alleged against him. In addition, the tailpiece to the subsection needed to be satisfied.

89. The relevance was said to be that the injury being the bruising could have come from other vigorous sexual intercourse or sexual activity. The DNA evidence and the text messages suggested other sexual activity and the Appellant ought to have been allowed to explore in cross-examination that other sexual activity. The Appellant submitted that if Dr Houston had known of the DNA evidence and the evidence of the text messages suggesting further sexual activity her opinion about the cause of the thigh bruising might have been different.

90. Although the Crown made oral submissions at the hearing of the appeal that the bruising to the thigh was not attributable to the sexual intercourse that submission was abandoned in subsequently filed submissions dealing with paragraph (4)(c). That abandonment was properly made: Dimian v R (1995) 83 A Crim R 358.

91. The injury is therefore a relevant one for paragraph (4)(c).

92. However, the Appellant is unable to satisfy the requirements of sub-paragraph (4)(c)(i) because he does concede that sexual intercourse took place. The sexual intercourse was digital penetration of the complainant’s vagina. The Appellant submitted that he did not concede the “sexual intercourse alleged” because that sexual intercourse was intercourse without the consent of the complainant.

93. The question is, therefore, whether “sexual intercourse alleged” is a reference only to the physical act or whether it includes the issue of consent in its description or classification. There are a number of reasons why the Appellant’s construction of the paragraph should be rejected.

88. First, “sexual intercourse” is defined in s 61H(1) of the Crimes Act 1900 (NSW). Section 293 applies to prescribed sexual offences, a number of which are offences involving sexual intercourse. Section 293 was originally enacted as s 409B of the Crimes Act. It may be taken, therefore, that when s 293 uses the term “sexual intercourse” it means the same thing as the definition in s 61H of the Crimes Act because that Act creates the offences which the Criminal Procedure Act declares to be prescribed sexual offences. That definition deals only with the physical acts that constitute sexual intercourse. Matters touching consent are found in the individual sections which create the offences.

89. The Crown submitted that the present offence charged under s 61I had three elements, being (1) that the Appellant had sexual intercourse with the complainant, (2) that the complainant did not consent to that sexual intercourse, and (3) that the Appellant knew that the complainant was not consenting. In that way, it can be seen that the issue of consent is not contained within the “sexual intercourse” itself. The Appellant admitted (1) so that element was made out. In that way, and because consent was a separate element, the sexual intercourse alleged was conceded. The Crown’s submission should be accepted.

90. Secondly, resort may be had under s 34 of the Interpretation Act 1987 (NSW) to the Second Reading Speech whether to confirm the ordinary meaning of a provision or to determine the meaning of an ambiguous provision in legislation. When the predecessor of s 293 was introduced as s 409B of the Crimes Act the Second Reading Speech in the Legislative Assembly relevantly said:

For example, the complainant alleges that the sexual assault caused certain injuries, perhaps bruising or cuts. If the accused denies that intercourse occurred at all, and says that the offence must have been committed by someone else, it would not be fair to deprive him of the right to cross-examine the complainant as to whether the complainant had, at around the relevant time, been having intercourse with another person or other persons. Such another relationship might, of course, explain the true identity of the attacker. However, where the accused is not denying that he had intercourse, and his defence is that the complainant consented to intercourse, he should not be entitled to cross-examine about the complainant's sexual behaviour with other

persons, unless such cross-examination would be permitted under another sub-section of new section 409B. [emphasis added]

97. Thirdly, the cases which have considered paragraph (4)(c) have tended to the view that the paragraph is speaking of the physical act of sexual intercourse.

98. In R v Tubou [2001] NSWCCA 243 Heydon JA (with whom Wood CJ at CL and Sully J agreed) said:

[67] Since the argument fails because of the tailpiece to s105(4), it is not necessary to decide whether, even if s105(4)(c)(ii) is satisfied, the construction advanced by the appellant of s105(4)(c)(i) is wrong. If it were correct, then any divergence between the account offered by a complainant and the account offered by an accused person would mean that the exception created by s105(4)(c) to the rule of exclusion created by s105(3) would cease to exist in all cases in which s105(4)(c)(ii) was satisfied. S105 is not a provision the policy or drafting of which excites universal applause, but it is unlikely that its correct construction would cause it to have virtually no application over significant areas. A person accused of sexual intercourse without consent has three choices: to plead guilty; to plead not guilty and contend that intercourse carried out by the accused was not proved; or to plead not guilty and contend that lack of consent is not proved. The appellant's construction would mean that in all contested cases where s105(4)(c)(ii) was satisfied, the s105(4) exception would apply because s105(4)(c)(i) was satisfied by reason of either a denial of intercourse or a denial of consent. However, in the circumstances it is not necessary, and therefore it is undesirable, to reach a final view on the construction of s105(4)(c)(i).

99. In R v Mosegaard [2005] NSWCCA 361 the appellant was charged with three counts of sexual intercourse without consent. He conceded that those acts of sexual intercourse took place but said they were by consent. The complainant alleged other acts of sexual intercourse during the relevant events but those acts were neither charged nor conceded by the appellant. He sought to cross-examine the complainant in relation to earlier acts of sexual activity with other people on the basis of various injuries said to have been sustained by the complainant.

100. McClelland CJ at CL (with whom Grove J and Smart AJ agreed), having first noted at [148] that Tubou had not resolved problems associated with s 293(4)(c), said:

[149] It was not made plain which acts of intercourse were denied. Furthermore, as I understand the position the issue at the trial was not whether the complainant had consented to the relevant acts of intercourse (they were not denied) but whether injuries to the complainant, which were said to support the allegation of lack of consent, could have been due to the earlier acts of sexual activity with other people.

[150] In these circumstances there are two primary questions which must be resolved. Firstly, is the exception limited to the acts of sexual intercourse the subject of the charges and secondly, the meaning of injury in s 4(c)(ii).

…

[153] To my mind subs (4) should be confined to the acts of sexual intercourse the subject of the charge. Unless construed in this manner there could be many cases where the evident purpose of the prohibition intended by this section would incidentally be overcome.

[154] In the present case the complainant gave evidence of sexual intercourse beyond the matters charged, being part of the complete sequence of events. The appellant accepts that the intercourse charged occurred and accordingly accepts one aspect of the central issue in the proceedings. The other acts of intercourse are relevant because they reveal the sexual relationship between the appellant and the complainant together with the complete sequence of events and accordingly, the Crown was obliged to tender that evidence. However, by putting the “secondary” sexual conduct with the complainant in issue the accused says that he is able to explore the sexual activity of the complainant with other persons.

[155] The matter can be tested in this way. If in the present case only the three acts of intercourse had been alleged and the appellant accepted that they occurred, but says they were consensual, s 4(c) could have no work to do. There would simply be no issue on which the subsection would provide that the evidence could be tendered. It would be a surprising result if because other acts of intercourse are alleged, but not charged, and denied, the accused has the opportunity to introduce evidence of prior sexual activity. (emphasis added)

101. In R v Baden Cram [2008] NSWDC 225 Hulme DCJ (as his Honour then was) said:

[14] Next it was contended that the exception in s293(4)(c) was made out. In view of what I have said earlier about the equivocal nature of the injuries, I do not accept this. Moreover paragraph (c) does not apply in any event because this is not a case in which the accused "does not concede the sexual intercourse so alleged".

102. If “sexual intercourse so alleged” means sexual intercourse without consent, it is difficult to see what work there is for s 293(4)(c)(i) to do, because every person accused of such an offence would satisfy the sub-paragraph. The views expressed by McClellan CJ at CL, Heydon JA and Hulme DCJ should be followed. The reference in the sub-paragraph to “sexual intercourse” is a reference to the physical act. In the present case that act is conceded. The Appellant does not fall within s 293(4)(c). There was no miscarriage of justice.

Section 293(4)(a)

103. To bring himself within this exception the Appellant needed to demonstrate that the relevant other sexual activity (i) took place “at or about the time of the commission” of the offence charged, and (ii) the evidence of such sexual activity formed part of a “connected set of circumstances” in which the offence charged was committed. In addition, the tailpiece to the subsection needed to be satisfied.

104. Section 293(4)(a) has been discussed in a number of cases in this Court. A fairly broad and liberal approach was taken in R v Morgan (1993) 30 NSWLR 543 in a somewhat unusual case where the complainant alleged three acts of sexual intercourse against the appellant. The complainant had been drinking with the appellant, the complainant’s boyfriend and another woman. Within an hour of the alleged sexual assaults by the appellant the complainant had consensual sexual intercourse with her boyfriend. It was held that both limbs of paragraph (4)(a) were satisfied in the circumstances.

105. In JWM v R [2014] NSWCCA 248 Hall J (with whom RA Hulme and Davies JJ agreed) said:

[63] The following matters, in my opinion, are relevant in determining the scope and application of the second limb contained in s 293(4)(a):

(1) The legislative purpose behind s 293(3), as earlier discussed.

(2) The fact that the exceptions to s 293(3), including in particular s 293(4), are expressed in restrictive terms. In other words, they are not broadly expressed.

(3) The provisions of s 293(4)(a)(ii) require consideration of:

(a) The full circumstances in which the alleged prescribed    sexual offence or offences was/were committed must be    identified;

(b) The relevant “events“ are those that “ … form part of a    connected set of circumstances“ in which the alleged    prescribed sexual offence was committed. Such “events“    includes occurrences, and (on the approach of Basten JA in    GEH [GEH v R [2012] NSWCCA 150]) “non-events“;

(c) A “connected“ set of circumstances includes a related set of    circumstances, that is, that have a relationship or association    with other circumstances.

[64] As Basten JA observed in GEH, supra, there must exist a particular association between an “event“ (which must be taken to include a non-event) and the specified circumstances in which the alleged prescribed sexual offence(s) was/were committed.

106. By contrast with Morgan, in R v Burton [2013] NSWCCA 335 Simpson J (RA Hulme J and Barr AJ agreeing) held that evidence of a complainant’s sexual interest in another man in a bar on the evening she alleged a later sexual assault by the accused was not relevant, with the result that s 293 was never engaged. However, even if the evidence was relevant it satisfied neither limb of paragraph (4)(a).

107. Simpson J said:

[67] First, the evidence was not, and was not capable of being, relevant. The issue in the trial, as declared by counsel for the respondent, was whether, in the early hours of 18 May 2012, the complainant had in fact consented to sexual connection (by cunnilingus) with the respondent. …

[68] That the complainant had exhibited sexual interest in another man (whether or not at or near the time the offence is alleged to have been committed) is irrelevant to any question concerning her consent to sexual engagement with the respondent.

[69] … The issue is a simple one: it is now clearly understood that the willingness of a person (whether male or female) to participate in sexual activity with one person does not, and cannot be taken to, connote willingness to participate in sexual activity with another. For the same reason, the evidence is not relevant either to the respondent's knowledge (or lack thereof) of the absence of consent by the complainant, or any belief in her consent that he might assert.

[70] The judge's conclusions that the evidence indicated "a general sexual willingness on the part of the complainant", and that it "might act as some sort of antidote to the evidence that the complainant had, in the past expressly disavowed any interest in intimacy with the [respondent]" betrays an impermissible approach to the question of consent in the prosecution of allegations of sexual offences. The reasoning contains an unstated premise. The unstated premise is that a person who engages sexually with another person will, or is likely to, engage sexually with any other person. It is a patently false premise. Section 293 was introduced into the legislation (originally as s 409B of the Crimes Act 1900) for the specific purpose of putting an end to offensive and demeaning cross-examination that proceeded on the basis that evidence of consent by a person (then invariably female) to sexual engagement with one person (person A) provided the foundation for an inference that that person also consented to sexual engagement with another person (person B). That process of reasoning has been banned from the criminal courts, first by s 409B of the Crimes Act, and subsequently by s 293 of the Criminal Procedure Act. Yet that is precisely the process of reasoning disclosed in the passages of the judgment set out above, and the inference that was explicitly drawn. That inference was the basis for the decision to admit the evidence of the complainant's sexual interest in the stranger at Kings Cross.

[71] The submissions made on behalf of the respondent, that the proposed evidence "needs to be seen in the wider context in which the complainant was showing particular interest in the respondent" perpetuates the erroneous approach. Potential evidence that the complainant exhibited an interest in the respondent was not in issue on the appeal. Such evidence (if in proper form) would almost certainly be admissible, supposing that the respondent asserted that the complainant consented, that he did not know that she did not consent, or that he believed that she did consent. It was the inferences to be drawn from her apparent interest in another man that were in issue. Those inferences - as sought on behalf of the respondent - were that, because of her apparent interest in the stranger, she was "sexually available", or that it signified "general sexual willingness", or that her sexual interest (availability) was "general". Those inferences were simply not permissible. Evidence that the complainant showed signs of sexual interest in the respondent could not be strengthened by evidence that she showed signs of sexual interest in another man.

[72] The evidence was not relevant and ought to have been excluded on that basis. The finding that the evidence was relevant was erroneous.

…

[78] The third error lay in the application of sub-s (4)(a)(i), that is, in the finding that the evidence related to sexual experience or sexual activity "at or about the time of the commission of the offence".

[79] The proposed evidence was that the encounter with the stranger had taken place at some time in the early hours of the morning at Kings Cross. Much occurred in between that encounter and the events giving rise to the charge against the respondent. The party had returned to the boat, had settled on a sofa, and the complainant had fallen asleep. Mr McManus had left the area to sleep elsewhere. The complainant's encounter with the man in the bar (the subject of the evidence sought to be adduced) did not take place "at or about the time" of the events giving rise to the charge. Several hours intervened.

[80] The fourth error concerned the application of sub-s (4)(a)(ii). It lay in the conclusion that the two events (that is, the meeting with the stranger and the complainant's sexual interest in him, and the alleged offence) "form[ed] part of a connected set of circumstances". The only connection between the events was the presence of the respondent, the complainant, and Mr McManus throughout the evening. There was no relevant connection between the complainant's asserted interest in the stranger and the circumstances in which the offence allegedly was committed by the respondent.

108. What is relied on in the present case are text messages showing the complainant engaging in sexual banter the day after the alleged assaults, and DNA evidence suggesting other sexual activity within days of the assault alleged. It is difficult to see, in view of Simpson J’s analysis in Burton how the evidence could be relevant in the first instance. It is precisely the sort of evidence that s 293 was designed to exclude. Even if the evidence of Dr Houston is additionally considered to provide some other explanation for the bruising, arguably making the evidence relevant, neither limb of paragraph (4)(a) is satisfied. In a similar analysis to the position in Burton at [79], much occurred between the events complained of and the subsequent text messages.

109. More particularly, even allowing for what Basten JA said in GEH at [13] that in some circumstances the temporal element in (a)(i) and the relationship element in (a) (ii) should be read together, it cannot be said that there is any connection between the events complained of and the matters sought to be introduced by the appellant to enable (a)(ii) to be satisfied in the present case.

110. In Baden Cram the complainant had consensual sex with another man earlier on the same night at the same party. The accused sought to introduce that evidence in reliance (inter alia) on s 293(4)(a) to provide an alternative explanation for an injury alleged by the complainant to have resulted from the non-consensual intercourse. Hulme DCJ said:

[12] He first contends that the evidence of the sexual activity with N forms "part of a connected set of circumstances in which the prescribed sexual offence was committed". That is the exception in s293(4)(a). In my view the only relevant connection between the two circumstances is that they occurred on the same night. It is more a matter of coincidence than relevant connection.

111. In the present case, what the Appellant relies upon is the presence of the DNA and text messages on the day following the assaults which are said to suggest that the complainant may have been visited by a person with whom she was communicating by text messages and who might have been a boyfriend or someone with whom she was having some sort of sexual relationship.

112. As the trial judge noted in her reasons for her ruling, it was not clear what the DNA was from (it was not from the Appellant), the bra was not taken to be examined for three or four days after the assaults and the DNA could have been present for up to five days. Further, it is pure speculation from the text messages 2202 to 2217 that anyone in fact visited the complainant, let alone had sex with her. Those messages were exchanged between 8.46pm on 15 April and 9.23 am on 16 April. The evidence was that the complainant went that night, somewhere between 9.30 and 10.30 pm to the hospital to be examined.

113. Unlike some other cases where s 293 has been considered (Morgan, GEH, Tubou and even Baden Cram) where other sexual intercourse was admitted by the Complainant, there was no such admission in the present case. All that can be said here is that it is likely there was some sexual activity within about 4 to 5 days because of the presence of the DNA. The evidence that it occurred the following night was pure speculation. In those circumstances, the temporal element in (4)(a)(i) is not established.

114. The submissions that the relationship element in (a)(ii) is established because the text messages continued over a few days must be rejected. In the first place, it is not established that the sexual activity suggested by the DNA was related to the text messages or took place at some point in the midst of them. Secondly, the mere fact that the Complainant was continuing to send text messages does not make any later sexual activity connected to the events associated with the assault. The relationship element in (a)(ii) is not established.

115. If I am wrong about these matters, it is necessary to consider the tailpiece to the subsection.

111. The trial judge’s rulings were, if anything, favourable to the Appellant. He was permitted to cross-examine the complainant about other vigorous sexual activity and about certain text messages suggesting that she had not been sexually assaulted, without the full context of those messages being before the jury which would show multiple early complaints. DNA evidence suggesting sexual activity with a person or persons other than the Appellant was before the jury. The trial advocate was not permitted to ask the doctor if the bruising was consistent with the sexual assaults alleged. On the other hand Dr Houston was asked by the Appellant if the bruising could have come from consensual vigorous sexual activity and she said that it was possible.

112. All of these matters meant that the probative value of what was sought to be asked was slight indeed. It was suggested that Dr Houston’s evidence might have been different if she had been provided with the other evidence in circumstances where the complainant had denied any other vigorous sexual activity. However, she had already admitted that it was possible the bruising could have come from consensual vigorous sexual activity.

113. Mr James QC submitted that the Appellant should have been able to put to the complainant that the bruising arose from other consensual sexual activity in which she engaged at or about the time of the alleged assaults and that the bruising had not been caused by the Appellant. However, the complainant denied the former proposition which was allowed to be put to her. Further she gave evidence that the bruising was not present before the assaults.

114. Where the probative value was so slight, it was easily outweighed by any distress, humiliation or embarrassment that the complainant might suffer. The tailpiece to the subsection is not satisfied.

Section 293(6)

120. For this subsection to apply it would need to be shown that it had been disclosed or implied in the prosecution case that the complainant had or had not taken part in sexual activity, and that the accused might be unfairly prejudiced if the complainant could not be cross-examined in relation to the disclosure.

121. The Appellant relied upon what was contained in Dr Houston’s report under the heading “7. Answers to direct questions” where the complainant told Dr Houston that she had not had sexual intercourse within 7 days of the examination (see [42] above). The Crown had notified the solicitors for the accused on 30 August 2013 that the Crown would not be relying on that statement.

122. In circumstances where the Crown stated that it did not intend to rely on the statement it cannot be said the information was (or would be, since this was a motion prior to the trial) disclosed in the case for the prosecution. In Spratt v Director of Public Prosecutions [2010] NSWSC 355 part of the complainant’s statement provided evidence of her relationship and sexual experience with a person (not the accused) prior to the alleged sexual offence committed by the accused. Sometime after the statement was served the DPP notified the defence that the Crown would not rely on those parts of the statement dealing with that sexual experience of the complainant. The accused argued that the evidence had been disclosed in the case for the prosecution and that it, therefore fell within the exception in s 293(6).

123. Hidden J said:

[15] …Section 293(6) is concerned with the case presented by the prosecution at a hearing, whether in committal proceedings or at trial. Regardless of the nature of the case, it is not uncommon for the prosecution, in discharge of its duty of disclosure to the defence, to serve material which is not admissible in its case and upon which it does not propose to rely. That material does not become part of the prosecution case simply because it was served.

124. A similar view was reached by Giles JA (with whom James and Harrison JJ agreed) in Rolfe v R [2007] NSWCCA 155 at [55] and by Hulme DCJ in Baden Cram at [19].

125. I agree with the view expressed in these cases. The Crown has an obligation to disclose relevant evidence. However, not all of that evidence may be led by the Crown. The concern about unfair prejudice to the accused if not permitted to cross-examine on the material disclosed or implied in sub-s(5)(b) points strongly to the conclusion that “case for the prosecution” is a reference to the case presented or to be presented in court and not a reference to anything referred to in material provided by the prosecution. Where, as here, the Crown has said that material will not be relied upon, s 296(6) is not engaged.

126. Despite those matters the jury distinguished amongst the counts charged in a way that is explicable by bruising in relation to each of the three counts that resulted in guilty verdicts. The acquittal in relation to Count 6 is explicable by the nature of what was alleged. The Appellant engaged in an act of masturbation outside the car in which the complainant was seated. The jury could easily have concluded that there was no act of indecency “towards a person” being the complainant. The other two counts where not guilty verdicts were recorded involved word against word with no supporting evidence.

127. I am satisfied from examining the evidence and the summing up that there was evidence on which the jury could reasonably have convicted the Appellant whilst at the same time acquitting him on counts 2, 3 and 6. The trial judge was not in error in excluding the evidence sought to be admitted by the Appellant involving cross-examination of Dr Houston regarding her history taking, Ms Wedervang about her findings, and of the Complainant regarding the text messages concerning sexual banter and other sexual activity involving her.

128. I would grant leave to appeal in relation to Ground 2 but dismiss the appeal on grounds 1 and 2.

Appeal against sentence

Ground 3 – The sentence was manifestly excessive

129. The overall sentence was a non-parole period of three years with an additional term of three years. That was in fact the sentence imposed for count 5 with the sentences for counts 1 and 4 being fixed terms of imprisonment that were made wholly concurrent with the sentence for count 5. The appeal against sentence was, as senior counsel for the Appellant acknowledged, really a complaint against the sentence for count 5 although he suggested that the imposition of the two fixed terms for counts 1 and 4 might have had the effect of increasing the sentence on count 5.

130. No complaint was made about the Sentencing Judge’s approach in principle either to her factual findings, her assessment of the medical evidence concerning the Appellant, or her approach to the sentencing in principle.

131. The Appellant submitted that, while there was no hierarchy of offences covered by the sections the offending was at a reasonably low level. The Appellant further submitted that an examination of other cases raised the equal justice principle of consistency in sentencing.

132. The Sentencing Judge found that while the Appellant did not cause substantial harm to the complainant bruises were occasioned in the course of the commission of counts 1, 4 and 5. Furthermore, a degree of force was used. The Sentencing Judge accepted that there was no gratuitous violence nor acts of degradation nor humiliation. However, the evidence established beyond reasonable doubt that the complainant expressed her lack of consent both by words and action until such time as she ceased struggling because the Appellant would not stop. Her Honour said that actual knowledge as to lack of consent was objectively more serious than a reckless state of mind.

133. Her Honour noted that there was no hierarchy as to the seriousness of the various kinds of intercourse recognised by the law but said that the nature of the intercourse and its duration were relevant to a consideration of objective seriousness.

134. Her Honour noted that the pre-sentence report stated that the Appellant’s risk of re-offending was low to medium. Her Honour thought that his age, his lack of record and considerable family support meant that his prospects of rehabilitation were reasonable to good.

135. Although general deterrence was an important factor in sentencing for sexual offences, her Honour did not consider that specific deterrence had any significant role to play given her finding that the offending by the Appellant was an aberration.

136. Her Honour noted the standard non-parole period but said that she had determined that there were reasons for the imposition of a non-parole period less than was the standard non-parole period prescribed. These matters related primarily to the nature of the sexual intercourse and the absence of gratuitous violence. Count 5 was not, however, properly characterised as being at the very bottom of the scale of relative seriousness given that the Appellant had actual knowledge of her lack of consent and the fact the act of intercourse was of a relatively long duration.

137. Her Honour found that special circumstances were present.

138. As I have said, the Appellant effectively received a non-parole period of three years with an additional term of three years for two indecent assaults and an act of sexual intercourse without consent that was not at the bottom of the scale of relative seriousness. As noted earlier, the maximum penalty for the offence of sexual intercourse without consent was 14 years’ imprisonment and there was a standard non-parole period of 7 years.

139. Although the offending was opportunistic the guilty verdicts encompassed two separate occasions on the night concerned. The first was down near the wharf and the second was some little time later in the car. The complainant had made it clear to the Appellant at the wharf that his advances were unwelcome. Despite that, he acted a second time when they were in the car and notwithstanding the complainant’s protests about what constituted an indecent assault the Appellant persisted in his actions resulting in sexual intercourse over a period of ten minutes during which the Complainant again protested.

140. The Appellant drew attention to a number of cases which were said to be comparable and provided a schedule of other cases involving offences against s 61I. There is a wide variation, as one would expect, in the sentences imposed, with the sentences tending to show an increase after a standard non-parole period was provided for the offence concerned. It cannot, however, be said that the sentence imposed even for count 5 alone is out of the range of sentences shown in the schedule. Even if it could be said to be on the high side it is within the appropriate range. If any adjustment were made to the sentence for count 5 there would need to be an adjustment in terms of concurrency and accumulation for one or more of the indecent assault offences: s 7(1A) of the Criminal Appeal Act 1912 (NSW).

141. In my opinion, it cannot be said that the sentence is unreasonable or plainly unjust (Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357) and is not therefore manifestly excessive.

142. I propose the following orders:

(1)   Leave to appeal in respect of Ground 2 and in respect of the sentence.

(2)   Appeal dismissed.

143. SCHMIDT J:    I agree with Davies J.   

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Amendments

20 May 2015 - Cover sheet amended to include Junior Counsel for the Crown.

Decision last updated: 20 May 2015