TV v Regina

[2006] NSWCCA 174

CITATION:	TV v. REGINA [2006] NSWCCA 174 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 May 2006
JUDGMENT DATE:	5 June 2006
JUDGMENT OF:	Hodgson JA at 1; Grove J at 69; Adams J at 70
DECISION:	1. Appeal against conviction dismissed 2. Leave to appeal against sentences refused.
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - Whether verdict of jury unreasonable.
PARTIES:	TV - appellant Regina - respondent
FILE NUMBER(S):	CCA 2006/253
COUNSEL:	Appellant appeared in person Ms. V. Lydiard for the respondent Crown
SOLICITORS:	S. Kavanagh, Solicitor for Public Prosecutions for respondent Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 04/21/0178
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ
LOWER COURT DATE OF DECISION:	27 May 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	Not applicable

CCA 2006/253
DC 04/21/0178

HODGSON JA
GROVE J
ADAMS J

Monday 5 June 2006

TV V. REGINA

Judgment

1 HODGSON JA: On 22 November 2004, the appellant was indicted before Phegan DCJ at Parramatta District Court on the following charges:

(1) That he on 25 October 2003 at Smithfield in the State of New South Wales, did assault [the complainant], thereby occasioning actual bodily harm.

(2) That he on 6 November 2003 at Smithfield in the State of New South Wales, did have sexual intercourse with [the complainant], without her consent and knowing that she did not consent, and at the time of the commission of the offence, he maliciously inflicted actual bodily harm upon her.

(3) That he on 6 November 2003 at Smithfield in the State of New South Wales, did have sexual intercourse with [the complainant], without her consent and knowing that she did not consent.

2 The first count was under s.59 of the Crimes Act 1900, and carried a maximum penalty of 5 years’ imprisonment. The second count was under s.61J of the Crimes Act, and carried a maximum penalty of 20 years’ imprisonment. The third count was under s.61I of the Crimes Act, and carried a maximum penalty of 14 years’ imprisonment.

3 The appellant pleaded not guilty to each count, and was tried before his Honour and a jury. On 29 November 2004, the jury returned verdicts of not guilty to count 1, but guilty to counts 2 and 3.

4 On 27 May 2005, the appellant was sentenced as follows. On count 2, to a non-parole period of 4 years to commence on 29 August 2004 and to expire on 28 August 2008, with the balance of term of 2 years to expire on 28 August 2010. On count 3, to a non-parole period of 3 years’ imprisonment to commence on 29 August 2004 and to expire on 28 August 2007, with a balance of term of 1 year to expire on 28 August 2008.

5 The appellant appeals against his conviction and seeks leave to appeal against his sentences.

6 The appeal against conviction is brought on two grounds, namely (1) that the verdicts of guilty were against the evidence and the weight of the evidence, and (2) the verdicts of guilty were unsafe and unsatisfactory. The submissions in support of those grounds go extensively into detailed facts of the case, and in order to understand and consider those submissions, it is convenient to set out first the circumstances of the case that were either common ground or clearly proved and not the subject of substantial dispute.

CIRCUMSTANCES

7 The appellant and complainant were in a de facto relationship from 1980 onwards, and were married in 1992. There are two children of the relationship, namely a daughter F born 1981 and a son L born 1982.

8 The relationship of the appellant and the complainant deteriorated significantly in the period of about twelve months before the alleged offences.

9 In about July and August 2002, the complainant travelled alone to Poland to visit her family. The appellant objected to this and was upset about it, and this created tension between them.

10 In late 2002, the complainant moved out of the family home at Smithfield to a rented unit in Parramatta, taking her daughter with her. The son remained with the father in the family home. After about six months, the complainant moved back to the family home, and after this the daughter moved out. The complainant then used what had been the daughter’s bedroom as a study, and perhaps also for sleeping, although there is a dispute about this.

11 In the latter part of 2003, the complainant initiated counselling for herself and the appellant, going first to a family doctor, and then to a psychologist. An appointment was arranged with a psychiatrist, and on 23 October 2003, both attended at the rooms of this psychiatrist. Following that attendance, the complainant went to Fairfield police station in order to obtain an Apprehended Violence Order (AVO). Apparently, she was too late on that day, and she returned on the next day, when an interim AVO was made, which prohibited the appellant inter alia from engaging in conduct that intimidated the complainant, assaulting, molesting, harassing, threatening, or otherwise interfering with the complainant, and entering premises at which the complainant resided or worked. The complainant’s work address was specified in the order, but not her residential address; and according to the complainant, the reference to residence was a mistake.

12 The AVO was served on the appellant at the family home on the afternoon of Saturday 25 October, at a time when the complainant was absent. Their son L arrived home subsequently, and he gave some explanation of the AVO to the appellant, whose ability to read English is limited.

13 There is a dispute as to what happened after the complainant arrived home. However, it is common ground that at some time the complainant was inside the house with the appellant and L, the appellant was speaking angrily to the complainant, and the complainant wished to telephone the police. It is common ground that she was prevented from doing so on her own mobile phone (which was taken from her) or on the land line, after which the complainant ran out the back door of the house and was yelling loudly “Police, help, police”. The appellant caught up with her and put his hand over her mouth. L then pulled the appellant away from the complainant, and the appellant got into his truck and drove away.

14 The incident when the appellant put his hand over the complainant’s mouth was what was alleged to amount to assault occasioning actual bodily harm, the subject of count 1; and there was a dispute about the degree of force used and other aspects of this incident. There was also a dispute as to whether L went off in the truck with his father.

15 It is also common ground that at 6.52pm on 25 October 2003, Constables Kate Howes and Daniel Smith attended at the Smithfield house, and spoke to the complainant and L in the front yard of that house. However, there is a dispute as to whether this occurred before or after the incident involving the appellant putting his hand over the complainant’s mouth: the complainant said this occurred before that incident, and the appellant and L said it occurred after the incident.

16 In any event, it is common ground that Constable Howes took notes in her notebook, on the basis of which she prepared a statement dated 12 November 2003, a relevant part of which was read in the trial as follows:

On Saturday 25 October 2003 at 6.52pm I attended 1 Megan Avenue, Smithfield, with Constable Daniel Smith. I was greeted in the front yard by [the complainant] and her son [L]. [The complainant] handed me a copy of an interim apprehended violence order. I read over the document and I saw that [the complainant] had taken out the order against her husband [TV]. I spoke to [the complainant] and her son L about the order and made some notes in my notebook. [the complainant] looked very scared and was shaking. I said to [the complainant] "What has happened today?". [The complainant] said "My husband was served this paperwork today by police and when they left he threatened me. He said he would kill me and that I was a Polish slut and I deserved to die for going to the police". I said "Did you see the police serve this paperwork on your husband?". [The complainant] replied "Yes". I made further notes in my notebook and said to [the complainant] "I will have to go back to work and check that the order was served and that it is enforceable. If it is I will get a statement off you. Do you know where he has gone?". [The complainant] said "No. When he saw you coming he left in his truck”.

17 Later the same evening, the complainant went with her daughter to the Fairfield police station, where she again spoke to Constable Howes. Constable Howes read the following part of her statement of 12 November 2003 at the trial:

At about 11.30pm I was at the Fairfield Police Station. I was approached by Constable Smith who informed me [the complainant] had come into the station to see us. I walked to the front station area and I saw [the complainant] sitting with her daughter. I said to [the complainant] "What has happened?". She said "My husband was waiting for me when you left the house. He got me inside and tried to kill me, strangle me. He was so strong and I could not call police". I said "Have you got any injuries?". [The complainant] said "Yes, all around my neck is sore". Sorry. I had a look at [the complainant]'s neck and I could see redness right around the front and sides of her neck. I spoke with Constable Smith and he took a statement from [the complainant].

18 Constable Smith did not give evidence at the trial, and the statement that had been made by the complainant did not get into evidence at the trial. No photographs of the complainant were then taken at the police station; but according to the complainant, after she went home, her daughter took two photographs of her, which became Exhibit B at the trial. These photographs show some marks on the complainant’s upper lip.

19 There was little contact between the appellant and the complainant between 25 October 2003 and 5 November 2003.

20 On the evening of 5 November 2003, the complainant returned home, at which time the appellant was there, and L and his girlfriend were also there. A friend of the appellant, named Tony, was also there early that evening.

21 The appellant and Tony left the house for some time, and during their absence L and his girlfriend left the house at about 8.30pm. Between then and about 11pm, the complainant was in the house on her own, and she got into her nightdress.

22 The appellant returned to the house with Tony at about 11pm. The complainant asked the appellant to move his car so her car was not blocked, and this was done. After Tony left, there was a call made to 000. There is a dispute as to who made this call and in what circumstances. There was evidence from Vodaphone records to the effect that the line was then open for 28 seconds, and nothing was recorded.

23 It is common ground that for a time the appellant and complainant were then together in the smaller bedroom, used by the complainant as her study. According to the complainant, there was sexual activity in that room, without her consent, involving digital penetration. According to the appellant, there was no sexual activity at all in that room.

24 It is common ground that the complainant then went to the toilet, and that after this the appellant and the complainant were together for a time in the main bedroom. It is common ground that sexual activity occurred in that room involving both penile and digital penetration. According to the complainant, this was without her consent, and according to the appellant it was with her consent.

25 It is common ground that the complainant then showered and that the appellant subsequently went to sleep in the main bedroom.

26 At 1.52am on 6 November 2003, the complainant sent the following SMS message to her daughter:

Tusha call Fairfield police immediately. Tell them I sent you this SMS now. He raped me by terrorism force under repeated threat of killing me now. I can't talk. He is in the bed not sleeping. Tell them I said he'll escape to the back yard to be some of them there. Ask them if you could forward this SMS to them. Do not reply.

27 Also, at 1.55am, the complainant sent another SMS message to her friend in Poland.

28 At 2.18am on 6 November, Constable Howes and Senior Constable David Smith responded to a radio message, and the following material from Constable Howes’ statement dated 12 November 2003 was read at the trial:

We responded to a radio message for a domestic at Megan Avenue, Smithfield. We arrived at 2.24am. I walked to the front door, knocked on the flyscreen door. A short time later [the complainant] answered the door. She was whispering and said "He is in the bedroom, be quiet. If he hears you he will run away. Go through quietly, I think he is asleep". I noticed that [the complainant] was wearing pyjamas however they were shaggy in appearance and her breast was hanging out of it. She looked very distressed and was sweating. Senior Constable Smith and I walked through the front door down a small hallway and past a small bedroom. I saw another room with the door closed but with a small gap. I used my leg and opened the door. I saw a figure on the curtain getting up out of bed. I turned the light on to the bedroom and saw [TV] standing next to the bed. He was wearing only his underwear and he looked as though he had just woken up. The room also smelt strongly of alcohol. I said "[TV] you're under arrest". [TV] replied "What for? This is my house, don't listen to what she says". I said "[TV] you’re under arrest for assault and breaching your AVO last week. I have been looking for you for a while. You are not obliged to say or do anything unless you wish to do so. Do you understand that?". [TV] just looked at me and I said "Do you understand that?". [TV] just shook his head at me. I went on to say "Anything that you say or do will be recorded and may be used as evidence. Do you understand that?". [TV] said "Whatever, this is my home, how come you come into my home? Why can't I be here?". I said "[TV] get dressed and we will take you back to Fairfield Police Station". [TV] got dressed and a short time later Senior Constable Smith walked [TV] out of the bedroom and outside of the premises. As [TV] was walked out of the premises I heard [the complainant] sobbing and stating "Please, please, he has been terrorising me for the last three hours, he has had me in the bedroom raping me, sexually assaulting me, humiliating me, I have been a prisoner in my home. He tried to suffocate me". I could see that [the complainant] was extremely distressed and she was talking very fast. I said "[the complainant] calm down. He has gone now and will not come back. You need to slow down and tell me what has happened to you so l can understand it". I took [the complainant] to the bedroom area and said "Can you explain what has happened and where it has taken place?". [the complainant] pointed to the small bedroom and said "This is where he has raped me and terrorised me. He used a condom but in this bedroom he took me in here and he suffocated me, pushing my head into the pillow. This went on for hours and he would not let me call the police. When he went to sleep I sent an SMS to my daughter to call police and you came, thank God. I thought he was going to kill me. He would not let me go to the toilet and I wet the bed and other things on it. He made me go to the toilet while he watched and then he made me shower to get rid of the evidence. It even broke the bed, have a look at it, it's broken it's broken the bed". I looked into the main bedroom and I could see that the end of the bed was broken. I took [the complainant] into the loungeroom and told her to wait. I walked outside and spoke to Senior Constable Smith. He in turn contacted the supervisor, Sergeant Telfer(?) (sic), who attended shortly after. I went back into the house and sat with [the complainant]. I established a crime scene and made sure no further persons entered the hallway, bedrooms or bathroom. [the complainant]'s daughter, [F], also arrived at the premises. I spoke with her and she showed me an SMS message on her phone that she had received from her mother. This was the message that prompted her to contact police on behalf of her mum.

At about 3am staff from the ambulance attended and later took [the complainant] to Liverpool Hospital. I stayed at the scene and waited for crime scene to attend. Crime scene attended at about 3.45am. I went with crime scene back into the premises and explained to them what I had been told by the victim. About 4.30am Detective Senior Constable Hazell arrived at the premises and I spoke with him. Shortly after Senior Constable Smith and I left the location and resumed further duties.

29 At about 4.30am on the same morning, Detective Senior Constable Hazell attended at the house. Senior Constable Kendell, a crime scene examiner, was also there. Detective Senior Constable Hazell looked around the house with Senior Constable Kendell. The police did not then take possession of any condom or condom packet, or any item of bed clothes. However, a condom and condom packet was brought to the police by the complainant some days later, and DNA matching that of the appellant was recovered from the condom. Senior Constable Kendell did not give evidence at the trial.

30 Photographs taken on 6 November 2003 of the two bedrooms and of the bathroom were put into evidence at the trial. So also were 24 photographs of the complainant taken on 7 November 2003, showing bruising on her wrists and both arms, including what appear to be quite extensive bruises on her left arm.

ISSUES

31 The issues before the jury were essentially:

(1) Was the incident when the appellant placed his hand over the complainant’s mouth an assault occasioning actual bodily harm?

(2) Were there two separate occasions of sexual activity, one in each bedroom?

(3) In relation to the sexual activity, was it proved that the complainant did not consent and that the appellant did not believe she consented?

(4) If there was a separate occasion of sexual activity in the smaller bedroom, did the appellant at that time maliciously inflict actual bodily harm on the complainant?

32 Of course, the onus was on the Crown to establish an affirmative answer to each of these questions beyond reasonable doubt. Critical to all issues was the credibility of the complainant’s evidence and of the appellant’s evidence, and that in turn was affected by the credibility of L’s evidence.

33 The issues that have been raised on appeal in support of the first two grounds of appeal, to the effect that the verdict of the jury was unreasonable, may conveniently be considered under three headings:

1. The significance of L’s evidence.

2. Deficiencies of the complainant’s evidence and the Crown’s case generally.

3. The significance of the not guilty verdict on count 1.

I will deal with these issues in turn.

SIGNIFICANCE OF L’S EVIDENCE
Submissions

34 The appellant was unrepresented at the hearing of the appeal, and relied principally on written submissions, which, he informed the Court, had been prepared by the barrister who represented him at the trial.

35 In these submissions, it was put that L’s evidence was destructive of the complainant’s evidence and the Crown case generally, and it should have been accepted by the jury or at least raised a reasonable doubt.

36 It was put that L’s evidence showed that the alleged assault, on the occasion when the appellant put his hand over the complainant’s mouth, occurred before the police visit, and that the complainant’s evidence to the contrary was false. It also showed that important aspects of her account of the alleged assault were false, especially her evidence that, when she arrived home, the appellant stormed out of the house to confront her, her evidence that the appellant stomped on the land line telephone (L’s evidence was that he did this), and her evidence that the appellant, when he put his hand over her mouth, squeezed her mouth hard, lifted her up, and attempted to snap her neck.

37 It was submitted that L was a witness concerned to tell the truth, and not to assist either the appellant or the complainant; and that his evidence destroyed the complainant’s credibility, so as to make it unreasonable to accept her evidence concerning the alleged sexual assaults, or at least to raise a reasonable doubt about that evidence.

38 In relation to the injuries alleged to have been caused by the alleged assault, it was submitted that it could be inferred from the circumstances that the police noted only redness of the neck at 11pm, and that the photographs suggesting injuries to the mouth were taken later than that, that the complainant “manufactured” her injuries.

Disposition

39 In my opinion, it was open to the jury to consider L a partisan and unreliable witness.

40 Although he professed to love his father and mother equally, his admitted actions at the time of the incident when the appellant’s hand was placed over the complainant’s mouth could be taken as indicating otherwise. L’s evidence was that, during 2003, the appellant would scream out and yell names at the complainant, getting angry and using rude words like “bitch” and “you slut” and words like that; and that the complainant would ask the appellant to leave her alone. The complainant had then obtained an AVO, and, when the complainant came to the house after it had been served, the appellant said to the complainant “What’s this bullshit? Why put this on for me?”, to which the complainant replied “I don’t want to talk to you. Leave me alone”; and then the appellant kept asking her “Why did you get this for on me. What did I do for you to put an AVO on me”, using an angry voice. Then, when the complainant went to telephone the police, L joined with the appellant in physically preventing her from using a telephone to call the police, on L’s own account stomping on the land line telephone to prevent this, and then physically preventing her from going out the front door of the house. In all the circumstances, these actions of L could be considered as showing disregard for his mother’s interests and concerns, and support for his father against those interests and concerns.

41 L also gave evidence in relation to the bruises on the complainant shown in the photographs to which I have referred, which could be regarded as contrived, and in one instance could be regarded as having been made up on the spot to damage the prosecution case. On being asked about the bruises, L said that the complainant bruised easily, supporting this by reference to something that happened to her when water-skiing, said she “always had bruises”, and also said there were bruises on her hands on 5 November 2003 before the incidents complained of in the second and third counts. There had been no suggestion of this last matter to the police earlier, and the jury could well have taken the view, as submitted by the Crown Prosecutor, that it was something made up on the spot to damage the prosecution case.

42 Next, there was L’s evidence that the complainant just wanted to get the appellant arrested in relation to incidents concerning the AVO; and his statement to the police that he believed his parents had consensual sex, and that the complainant made up a story about sexual assault “so she can get half the house and get Dad put in jail”. Having regard to L’s own account of what happened on 25 October, and his inability to know what happened on 6 November, this could be taken as showing significant bias against the complainant.

43 Next, L’s evidence that the police visit on 25 October occurred after the incident when the appellant put his hand over the complainant’s mouth could have been considered unbelievable. According to L’s account, after the complainant had been physically prevented by himself and the appellant from using her mobile phone or the land line phone to telephone the police, had fled from the house screaming “Help police”, and had the appellant’s hand put over her mouth to stop screaming, the complainant said not one word about this sequence of events to the police when they subsequently arrived at the house; and this, according to L, when the complainant was attempting to use the AVO to have the appellant arrested and get rid of him. I myself find this highly implausible, and the jury could well have considered it unbelievable, and could have considered that this order of events was invented to give support to the appellant’s version that nothing seriously untoward happened on the occasion when he put his hand over the complainant’s mouth.

44 Further, L gave evidence that “there was no force at all” when the appellant placed his hand over the complainant’s mouth in attempting to stop her screaming. This could be considered highly implausible, in circumstances where the complainant was fleeing from the appellant and screaming for the police. To stop the complainant fleeing and to stop her screaming would, it would seem, inevitably require an appreciable degree of force.

45 For those reasons, I do not think it can be said that L should have been treated by the jury as an independent and impartial witness whose evidence could be confidently accepted. On the contrary, I think the jury could properly have regarded L as a highly partisan and unreliable witness.

DEFICIENCIES OF COMPLAINANT’S EVIDENCE AND CROWN CASE GENERALLY
Submissions

46 It was put on behalf of the appellant that the complainant’s behaviour indicated that she planned to set up the appellant for the sexual assault allegation. At the very least, there were deficiencies in her evidence and the Crown case that should have left the jury with a reasonable doubt. The submissions relied on the following matters.

(1) While the complainant claimed to be working on a university assignment between 8.30pm and 11pm on 5 November, in fact she spent long periods on the telephone to her daughter, and sending SMS messages to her friend in Poland.

(2) Although she claimed to be frightened of the appellant, she made no attempt to leave the house or contact the police at any time during the evening of 5 November.

(3) When the appellant arrived back at 11pm, she asked him to move his car and moved her own car without taking the opportunity either to leave or to contact the police.

(4) Immediately afterwards, she claimed that she tried to dial 000 and was stopped; and yet the line was open for 28 seconds and nothing was recorded. The timing and lack of recording was far more consistent with the appellant’s version that it was he that called 000 to give the appellant an opportunity to speak to the police if she so wished, an opportunity which she did not take.

(5) There were important conflicts between the complainant’s statements to the police concerning the alleged sexual assaults and her evidence at the trial. In particular, in her statement she said a condom was used in the small bedroom, whereas in her evidence she said it was used in the main bedroom; and in her statement, she said the attempt to smother her was by pushing her head into a pillow, whereas in her evidence she said it was by way of a blanket being pushed on to her face.

(6) When confronted in the witness box with the inconsistency between the appearance of the blanket in the photograph put into evidence, and her evidence as to what had happened, she invented on the spot a theory that the appellant had made up the blanket.

(7) The appellant gave bizarre evidence that when she could not control herself, and did “wee and poo”, and she knew the appellant “was licking it”.

(8) Despite forensic inspection of the scene, there was no evidence in support of her evidence about “wee and poo”.

(9) It was highly implausible that, having raped her, the appellant would have allowed her to have her mobile phone; and highly implausible that, in her allegedly terrified state, she would have sent a long SMS message to her daughter and another SMS message to her friend in Poland.

(10) The injuries shown in the photographs gave little support to her case, having regard to the evidence of L and the appellant that she bruises easily and having regard to her capacity for deception.

(11) The complainant’s evidence that, when he was woken by Constable Howes on the morning of 6 November 2003, the appellant swore profusely conflicted with Constable Howes’ account of what the appellant said on that occasion.

(12) There was no basis on which the jury could find malicious infliction of actual bodily harm in the events that occurred in the small bedroom, the subject of the second count: even accepting that bodily harm occurred, it was not shown beyond reasonable doubt when that bodily harm occurred.

Disposition

47 I will deal in turn with the particular contentions I have identified.

48 I do not think there is any force in the submission numbered (1): the complainant could well have been working on her assignment but at times been on the telephone or sending SMS messages. As regards (2), (3) and (4), the complainant gave explanations for these matters which were not implausible, and which the jury could have accepted. The circumstance that the 000 line was open for 28 seconds, with nothing being recorded, could be considered a little odd, on either the complainant’s or the appellant’s account of what happened. I do not think it counts strongly against the complainant’s version.

49 As regards (5) and (6), we were not referred to any cross-examination that explored these possible inconsistencies, and I have not been able to find such cross-examination in my reading of the evidence. It is not clear that the two versions in each case are inconsistent, and in the absence of cross-examination, I do not think these points count strongly against the complainant’s evidence. Nor do I think the explanation offered by the complainant concerning the appearance of the blanket in the photograph, which the complainant saw for the first time in the witness box, is a matter that counts strongly against her credibility.

50 As regards (7), in relation to the complainant’s evidence that the appellant was “licking it”, it was not entirely clear what was the “it” being referred to. Conceivably, it could have been the “wee” or the “poo”, but also it could have referred to the complainant’s genital region. Again, we have not been referred to any cross-examination of the complainant on this matter, and I have not been able to locate any. I do not think this is a matter that counts strongly against the complainant’s evidence.

51 As regards the absence in the Crown case of any evidence concerning bed clothes or night attire showing evidence of “wee” or “poo”, I do not think this is damaging to the complainant’s credibility. There was no cross-examination as to its quantity or where it went. The complainant’s evidence was that her night attire was bundled up in the bathroom. The police did not locate a condom used on the occasion, and the complainant’s evidence was that she found the condom later on in a less than obvious place in the garden. On the complainant’s evidence, she was compelled to shower, so as to remove evidence. The lack of evidence concerning bed clothes and night attire is an absence of something that could have made the Crown case stronger, but in my opinion it does not count heavily against the complainant’s evidence.

52 As regards (9), the appellant went to sleep, and short of some kind of physical imprisonment of the complainant, he could not then prevent the complainant contacting the police. In those circumstances, to ensure that she did not have a mobile phone would not have made an enormous difference. The actual message sent by the complainant to her daughter could have been considered by the jury entirely consistent with the complainant’s evidence as to her state of mind at the time.

53 As regards (10), in my opinion the injuries displayed in the photographs could be regarded as giving substantial support to the complainant’s case. The jury could properly have regarded the evidence of the appellant and L, as to the complainant bruising easily, as an implausible attempt to explain what, on the face of it, seemed quite strong evidence supporting the complainant’s version.

54 As regards the absence of expletives from Constable Howes’ version of what the appellant said when he was woken up on 6 November, Constable Howes was not asked any questions as to her practice as to the inclusion or exclusion of expletives that did not significantly relate to the substance of what was being said. The jury could have taken the view that proper practice would be to record expletives if expletives were used; but in circumstances where that matter was not explored in cross-examination, again this does not seem to me to be something that counts strongly against the complainant’s credibility.

55 As regards (12), the complainant’s evidence that, on the occasion of sexual activity in the small bedroom, her head was rammed repeatedly against the wall, coupled with the evidence of redness on the top of her head after the incident, was enough to support a finding that the appellant maliciously caused the complainant actual bodily harm at the time of the sexual activity in the small bedroom.

56 Generally, in my opinion, the complainant’s case did receive further support from the evidence of a broken bed, and by her physical state and her distress observed by Constable Howes when she first came to the house in the morning of 6 November 2003. Subject to what I say in relation to the significance of the not guilty verdict on count 1, in my opinion no case is made out that the verdict of the jury was unreasonable.

SIGNIFICANCE OF NOT GUILTY VERDICT ON COUNT 1
Submissions

57 The submission here was that the verdict of not guilty on count 1 must mean that the jury found the complainant to be an unreliable witness on this matter. This, coupled with the other submissions, means that the jury should at least have had a reasonable doubt on counts 2 and 3.

Disposition

58 The not guilty verdict on count 1 does not necessarily mean that the jury considered the complainant’s evidence unreliable on this matter. The jury could have accepted that the complainant’s evidence as to her own observations and experiences was reliable, and yet not been satisfied beyond reasonable doubt that the appellant meant to do any more than to stop her screaming, and might not have been satisfied beyond reasonable doubt that any injury that did occur to her was other than entirely accidental.

59 Although as a matter of strict law, such a view may not justify a finding of not guilty to a charge of assault, or even assault occasioning actual bodily harm, if actual bodily harm resulted, this could give a reasonable explanation of the jury verdict. Certainly, the trial judge did not direct the jury that, even if they were not satisfied beyond reasonable doubt that the appellant intended to do more than stop the complainant screaming or that he applied any more force than necessary to do this, and were not satisfied beyond reasonable doubt that any injury to the complainant was other than accidental, nevertheless they could still convict the appellant of assault occasioning actual bodily harm.

60 In my opinion, all the submissions advanced on behalf of the appellant, considered individually and cumulatively, are insufficient to show that the jury’s verdict was unreasonable. There is no complaint as to how the matter was left to the jury by the primary judge. The kind of issues raised on the appeal were put to the jury by Counsel for the appellant and fairly left to the jury by the judge. The jury was in a position to make an assessment of the complainant, and of the appellant and L, and in that respect had a substantial advantage over this Court. It may be commented that, in some respects, the complainant gave evidence in a melodramatic fashion, but this too was fairly before the jury.

61 For all these reasons, in my opinion the appeal against conviction fails.

SENTENCE

62 The appellant seeks leave to appeal against the severity of the sentences on the ground that the sentences are manifestly excessive.

63 However, the submissions focused on an alleged inconsistency in the trial judge’s reasons between, on the one hand, a finding that the “risk of re-offending is extremely remote” and, on the other hand, a finding that this was a case where the sentences imposed “must reflect a very real element of special deterrence”.

64 The trial judge gave very lengthy and very careful reasons for the sentences he imposed. There is some tension between the two statements referred to in the appellant’s submissions. However, they can be reconciled on the basis that the latter was stated in the context of a statement that the appellant was committed to refraining from any further contact with the complainant or from asserting any claim to any sort of ongoing relationship with her, making the risk of re-offending against her extremely remote; whereas the former was stated in the context of a finding that the appellant had not shed attitudes towards women conducive to the conduct that occurred of the general kind in these offences, and that it was necessary to bring home to the appellant the reality and seriousness of the offences.

65 In those circumstances, in my opinion the apparent tension between the two statements is insufficient to vitiate the primary judge’s reasons for the sentences.

66 In my opinion, the totality of the sentences, namely a non-parole period of 4 years and an additional term of 2 years, could not possibly be regarded as excessive.

67 I would refuse leave to appeal from the sentences.

ORDERS

68 For those reasons, I propose the following orders:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentences refused.

69 GROVE J: I agree with Hodgson JA.

70 ADAMS J: I agree with Hodgson JA.

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