New South Wales Court of Criminal Appeal CITATION : R v Tubou [2001] NSWCCA 243 revised - 09/07/2001 FILE NUMBER(S) : CCA 60809/00 HEARING DATE(S) : 24 May 2001 JUDGMENT DATE : 28 June 2001 PARTIES : Regina v Jonacani Tubou JUDGMENT OF : Heydon JA at 1; Wood CJ at CL at 81; Sully J at 82 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 00/21/0159 LOWER COURT JUDICIAL Phegan DCJ OFFICER : COUNSEL : Mr S J Odgers SC (Appellant) Ms D M L M Woodburne (Respondent) SOLICITORS : D J Humphreys (Appellant) S E O'Connor (Respondent) CATCHWORDS : Criminal Law - Appeal against conviction - Sexual Assault - Whether conviction unreasonable - Whether miscarriage of justice - Whether combination of matters created unreasonable conviction - Sufficiency of corroboration - Significance of inconsistencies between testimony of complainant and other evidence - Criminal Appeal Act 1912 (NSW), s 6(1) - Criminal Law and Procedure - Judicial directions to jury - Sexual Assault - Whether directions to jury on delay of complaint regarding sexual assault satisfactory - Whether miscarriage of justice - Effect of delay on credit - Whether relevant "delay" occurred - Where no objection taken to directions at trial - Whether leave should be granted to allow ground of appeal - Criminal Appeal Rules (NSW), r 4. - Evidence - Sexual Assault - Admissibility of evidence of prior sexual activity of complainant with person other than accused - Whether evidence should have been admitted - Whether probative value of evidence outweighed potential distress, humiliation and embarrassment - Whether exclusion of evidence rendered conviction unsafe and caused miscarriage of justice - Criminal Procedure Act 1986 (NSW), s 105 - D Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 Berrigan v R (unreported, 23 November 1995, High Court of Australia) Browne v Dunn (1893) 6 R 67 M v R (1994) 184 CLR 487 CASES CITED: R v Flannery [1969] VR 586 R v DJK (1997) 96 A Crim R 443 R v Kalajzich (1989) 39 A Crim R 415 R v Wayne (1984) 14 A Crim R 391 R v Zorad (1990) 47 A Crim R 211 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60809/00 HEYDON JA WOOD CJ at CL SULLY J 28 June 2001 REGINA v Jonacani TUBOU Criminal Law - Appeal against conviction - Sexual Assault - Whether conviction unreasonable - Whether miscarriage of justice - Whether combination of matters created unreasonable conviction - Sufficiency of corroboration - Significance of inconsistencies between testimony of complainant and other evidence - Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Law and Procedure - Judicial directions to jury - Sexual Assault - Whether directions to jury on delay of complaint regarding sexual assault satisfactory - Whether miscarriage of justice - Effect of delay on credit - Whether relevant "delay" occurred - Where no objection taken to directions at trial - Whether leave should be granted to allow ground of appeal - Criminal Appeal Rules (NSW), r 4. Evidence - Sexual Assault - Admissibility of evidence of prior sexual activity of complainant with person other than accused - Whether evidence should have been admitted - Whether probative value of evidence outweighed potential distress, humiliation and embarrassment - Whether exclusion of evidence rendered conviction unsafe and caused miscarriage of justice - Criminal Procedure Act 1986 (NSW), s 105 The appellant was tried before Phegan DCJ and a jury for having had sexual intercourse without consent in circumstances of aggravation (malicious infliction of actual bodily harm immediately before the intercourse) in contravention of s 61J(1) of the Crimes Act 1900 (NSW). The appellant was convicted on 14 May 2000. In brief, the circumstances surrounding the commission of the crime were as follows. The appellant and the complainant met at a rugby club and made only limited contact after their first meeting. On a Saturday afternoon, approximately one month later, the complainant returned from a rugby match to the club where she joined a group of persons including the appellant. At closing time (about 12.30am) the complainant travelled with the appellant in a car to the Albion Hotel. The complainant drank heavily throughout the afternoon and evening testifying to having consumed approximately 25 alcoholic drinks between 4pm and 5.30am. At about 5.30am the complainant was driven by the appellant to his home. During the journey she fell asleep in the back seat of the car. The events immediately following their arrival at the appellant's home were controversial. The complainant gave evidence that after she woke up in his room he made unwelcome sexual advances towards her, physically attacked her and then had sexual intercourse with her without her consent. The appellant testified that the complainant walked to his room and had consensual sexual intercourse with him, after which he refused to drive her home. On his evidence she then insulted him and his family and he punched and kicked her. It was uncontested that the appellant then drove the complainant to the rugby club and left her there. Witnesses at the club assisted her and she complained of batteries and later of sexual assault. During a subsequent examination in hospital, the complainant told a doctor that she had had consensual intercourse with a man other than the appellant approximately two days prior to the examination. Held by Heydon JA (Wood CJ at CL and Sully J concurring), dismissing the appeal: 1. The conviction was not "unreasonable". Therefore there is no ground for allowing the appeal under s 6(1) of the Criminal Appeal Act 1912 (NSW). a. Since the enactment of s 164 of the Evidence Act 1995 (NSW), common law corroboration requirements have in general been abolished. The real issue here was whether the complainant's injuries, distress and complaints tend to support a sexual assault following a physical assault, or a physical assault after consensual intercourse. There existed independent evidence of the complainant's injuries, which demonstrated injuries greater than those that would be consistent with the appellant's version of his physical attack upon her. The evidence of the complainant's distress was compelling and she had little opportunity to fabricate her version of events. b. It was open to the jury to accept the complaint's version of events despite some inconsistencies between her testimony and other evidence. The inconsistencies might be explained by her intoxication and fatigue on the night of the attack and during the following day. c. The complainant's drunkenness was inconclusive as it was capable of supporting both the complainant's version of events and the appellant's version. The lack of damage to the complainant's clothing was explicable, as was her acceptance of a cigarette, sunglasses and a lift after the attack. d. The delay in complaint of sexual assault was explicable since the first two persons the complainant encountered were men and were of a different ethnic background to herself. The complainant also slept for a number of hours before encountering a female with whom to discuss the attack. The reluctance to contact relatives was understandable. 2. The trial judge did not err by excluding under s 105 of the Criminal Procedure Act 1986 (NSW) evidence relating to the complainant's sexual activities with a man other than the appellant approximately thirty-four hours prior to the appellant's attack upon her. The exclusion did not render the conviction unsafe nor cause a miscarriage of justice. a. In relation to s 105(4)(c), the tailpiece of the s 105(4) inclusion test was not satisfied. That is, the probative value of the evidence was not shown to outweigh the distress, humiliation or embarrassment that the complainant might suffer from its admission. Therefore, it was not necessary to decide whether the trial judge erred in holding that s 105(4)(c)(i) was not satisfied. b. In relation to s 105(6), s 105(6)(b) was not satisfied. That is, the appellant did not demonstrate that he was unfairly prejudiced by any implied suggestion that the complainant had not engaged in recent sexual activity with another man which might have caused her vaginal tenderness. Therefore, it was not necessary to decide whether s 105(6)(a) was satisfied. c. Section 105(4)(a) was not satisfied because the complainant's sexual activity about thirty-four hours before the sexual assault was not part of the "connected set of circumstances" in which the sexual assault occurred. In addition, the tailpiece to s 105(4) was not satisfied. d. The lack of probative value of the evidence, and the fact that its exclusion did not unfairly prejudice the appellant mean that its exclusion did not prevent the appellant from receiving a fair trial. 3. The trial judge did not fail to properly direct the jury in relation to the delay in complaint regarding sexual assault. No miscarriage of justice resulted from the direction. a. There was no relevant delay in relation to the complaint regarding sexual assault, which was made at the earliest reasonable opportunity. b. There is no evidentiary foundation for the theory that the complainant concocted the allegation of sexual assault after realising that consensual intercourse would be revealed as a result of her complaints of physical assault. c. The direction to the jury adequately dealt with the issues of the complainant's credit and the significance of any "delay" in complaint. d. Since no objection was made to the direction at trial, leave was required under rule 4 of the Criminal Appeal Rules for this ground of appeal. Such leave should be refused since any error in the direction was minor and caused no miscarriage of justice. ORDER Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60809/00 HEYDON JA WOOD CJ at CL SULLY J 28 June 2001 REGINA v Jonacani TUBOU JUDGMENT 1 HEYDON JA: This is an appeal against the appellant's conviction after a trial before Phegan DCJ and a jury of having had sexual intercourse without consent on 14 May 2000 in circumstances of aggravation, namely the malicious infliction of actual bodily harm immediately before the commencement of the offence, contrary to s 61J(1) of the Crimes Act 1900. THE FACTUAL BACKGROUND 2 The complainant was an Australian of Fijian background. The appellant was a Fijian national and resident. At the time of the events in issue, she was 19 and he was 30. The appellant, a married man, arrived alone in Australia on 5 April 2000 for the purpose of a three month visit to his grandmother. He came to a training session conducted by the Drummoyne Rugby Club one evening in early April 2000 and was introduced to the complainant, who played for one of the women's teams run by that Club. She knew Alfred Batimala, a man who played for the Club, and she found out that the appellant was Mr Batimala's cousin. She had some limited contacts with the appellant thereafter, though their precise extent was controversial. 3 On Saturday 13 May 2000 her team played an away game and enjoyed its largest ever win. Her team returned on the bus and during the journey she drank three types of alcohol - beer, a mixture of vodka and lemon, and another mixture of spirits and soft drink. She then celebrated at a clubhouse at Drummoyne used by the Drummoyne Rugby Club from 5.30pm. After some time she joined a group of men including the appellant. She drank a substantial amount of beer and some bourbon and coke. At closing time, about 12.30am, she accompanied Mr Batimala and the appellant in a car to the Albion Hotel, Parramatta. There she consumed more bourbon and coke. She accepted in cross-examination that she consumed between 4pm and 5.30am twenty-five drinks which she could remember and describe. The precise figure may be questioned, but she ended up very drunk. The complainant left the Albion at about 5.30am and fell asleep in the back seat of a car which the appellant was driving and which for a time had another passenger. The complainant and the appellant ended up in a room at his house. 4 On her evidence, the complainant woke up in the room. The appellant made repeated and persistent sexual advances to her over her objections, slapped her, punched her twice in both the right and left eye, punched her again, threw her against the wall, caused her to become frightened, made her cry and had sexual intercourse without her consent. On his evidence, she walked from the car to the room. They kissed repeatedly. Consensual sexual intercourse took place, but after he refused to drive her home, she insulted him, his mother and his family in an extremely hurtful way, and he punched and kicked her. 5 It was common ground that after the events at the appellant's house had concluded, he drove her to the clubhouse where he left her. 6 Her battered condition was observed by several witnesses, including witnesses connected with the Drummoyne Rugby Club. Initially she complained of batteries and later of rape as well. 7 The Drummoyne Rugby Club witnesses assisted her in a humane and decent way which reflects credit on them. For example, two of them took her to hospital and stayed there with her for over eight hours until after midnight. It is, however, a matter for regret that the officials of the Drummoyne Rugby Club or of the organisation which ran the clubhouse either did not have a system in place to prevent a person as young as the complainant consuming as much alcohol as she did, or did not ensure that it worked effectively on that particular night. GROUND 1: UNREASONABLE CONVICTION? 8 The first ground of appeal was: "The conviction is unreasonable". The Criminal Appeal Act 1912, s 6(1), provides that this Court must allow an appeal if of opinion that the jury verdict should be set aside as "unreasonable", unless it considers that no substantial miscarriage of justice has actually occurred. 9 The appellant referred to the following passage in the reasons for judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v R (1994) 181 CLR 487 at 494-5: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by a court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." The last four sentences were said at 495 to have been motivated by the purpose of providing authoritative guidance to courts of criminal appeal. 10 The appellant submitted that though the complainant's evidence could not be said to lack credibility by reason of the manner in which it was given, on the record itself it could be seen that it contained discrepancies, inadequacies, taints and a lack of probative force to a degree sufficient to conclude that there was a significant possibility that the appellant was innocent. 11 The appellant relied on nine matters. It was said that none by itself made the verdict unreasonable. But it was submitted that a combination of all or some of them did. Lack of corroboration 12 The appellant submitted: "The fact that the complainant was assaulted has little or no corroborative force in the circumstances of this case, where the appellant at no stage denied assaulting the complainant and has offered an explanation for it which cannot be dismissed as implausible. It is a matter of common experience that non-sexual violence is more prevalent in relationships than sexual violence. It follows that the allegations of sexual assault were not corroborated. In these circumstances, it was necessary for the jury, and it is necessary on appeal, to carefully scrutinise the complainant's account(s)". 13 The Crown said that there was corroboration, in the form of "injury, distress and fresh complaint". It went into the evidence on these topics in considerable detail. It dealt with the contention that the injuries could not corroborate the complainant because the appellant had admitted assaulting the complainant and had offered a not "implausible" explanation by submitting that the fact that the evidence might be "consistent with the appellant's case does not render it incapable of amounting to corroboration": it referred to such cases as R v Kalajzich (1989) 39 A Crim R 415 at 429-433 and R v Zorad (1990) 47 A Crim R 211 at 223. 14 Before going to the details of the evidence, it is convenient to deal with a point which the appellant took in reply: "The respondent's contention … that the complainant's distress and 'fresh complaint' corroborated her account should be rejected. Of course, the matter should not be approached technically but the basic point is that her distress and complaint was hardly independent evidence tending to prove the sexual assault. The respondent's reliance on pre-Evidence Act cases … is misconceived. The issue is not whether the evidence was capable of being left as possible corroboration at common law but rather whether the evidence of injuries tends in any significant way to confirm a sexual assault, bearing in mind the appellant's version of events." 15 At common law, a complaint could not "corroborate" a complainant's testimony because it did not come from a source independent of her. On the other hand, the physical condition of the complainant could corroborate her. So could distress, though whether it did in a particular case was a matter calling for the exercise of caution: R v Flannery [1969] VR 586 at 591; R v Waye (1984) 14 A Crim R 391 at 393. Section 164 of the Evidence Act 1995 has, in general, abolished requirements for corroboration or corroboration warnings, and has hence made obsolete the technicalities of the former law on corroboration. It follows that even though it was the appellant who in chief couched his submissions in the language of corroboration, it was strictly speaking correct for him in reply to rebuke the Crown for using that language. The real issue is whether the complainant's injuries, distress and complaints tend to support a sexual assault after a physical assault, or a physical assault after consensual intercourse. This they can admissibly do under the Evidence Act even though they could not all do this before 1995. 16 The complainant's evidence in chief was that though she went into the game on 13 May 2000 with a right shoulder injury and though she had some bruises to her legs, she received no injuries during the game. In particular, she had no facial injuries. She said, first, that the appellant slapped the right side of her face with an open palm, and this hurt her. Secondly, she said he punched her "a couple of times": both the right eye and the left eye were punched. Thirdly, while he was attempting to undress her, he "punched me again a couple of times" on the face: she could not remember how many times she was punched. Fourthly, at one point during her struggle with the appellant, "he chucked me onto the wall"; the right hand rear corner of her head hit the wall, causing a lump. 17 There was independent evidence of the complainant's injuries from seven witnesses who saw the complainant on 14 May and a witness who saw her on 17 May. There was also evidence from police photographs, taken on 18 May, of the complainant's injuries. That evidence tended to indicate that the appellant had given, if anything, an incomplete and underplayed account of the injuries to her head, however they were inflicted. 18 Mr Neil McDonald, one of the Drummoyne Rugby Club coaches, ran into the complainant at about 8am at the clubhouse. He noticed "a bit of blood on her left cheek". He lifted up her sunglasses and noticed that "her left eye was closed up a fair bit" and "it looked like there was a slight cut on her cheekbone". 19 Mr Mark O'Brien, who lived in a flat opposite the clubhouse, was then awakened by the complainant banging on his door in order to collect some of her possessions left there the previous day after she had returned from the game. He observed: "She'd been badly beaten, she had bruising around the face and one of her eyes was closed and the other very badly swollen". He gave her ice and told her to lie down and take a rest: she slept. 20 Ms Marnie Hobbs, who played in the complainant's team the previous day, then rang Mr O'Brien at about 2.15pm, came to his flat, and went into the room where the complainant was asleep. She woke her. "[When] she woke up and looked at me she had two very black eyes. … I think it was her right eye was closed up and I was very shocked by her appearance. It took her a while to kind of come round and recognise who I was …". The following further evidence in chief was given: "Q. Did you do anything to assist her in any way? A. Yes, she was touching the back of her head and rubbing her jaw and she said she was - like she was just touching the back of her head and had her head down and she was rubbing her jaw so I took her to the kitchen of the flat and I gave her some aspro and Mark got some ice for head and jaw. Q. Did you touch any part of her head? A. Yeah, but not until I got into the lounge room. Q. And when you were in the lounge room what did you do? A. I was in the lounge room with her and she was still wearing the clothing from the night before when I'd seen her at the rugby club and she was very cold, she was shivering, she continued to touch her jaw and the back of her head. I went and got her a jumper of Mark's and she put this on and when I put it on she had the ice on the back of her head and I felt the back of her head and she had two very large lumps, one on the lower right side and one further up here. Q. Further up? A. In the left hand side of the back of her head. Q. One down the right hand back of the head and one up the top? A. Yeah, they were quite large." The complainant said her head was very sore. Ms Hobbs said the complainant had not had her facial injuries on 13 May 2000. In cross-examination she said the two bumps on the complainant's head were distinct and quite large. 21 Ms Hobbs, while at Mr O'Brien's flat, made a phone call which caused Ms Karol Blackley to come to Mr O'Brien's flat with Mr Peter Swanson. Ms Blackley was the captain of the complainant's team. She was a police officer. She arrived at about 3.40pm. She noticed that the complainant's right eye and lip area were very swollen and purple. She was holding a tea towel to her head. At 4.20pm she and Mr Swanson accompanied the complainant to Royal Prince Alfred Hospital. 22 Mr Swanson was coach of the women's team. He saw the complainant, and "noticed her face, her eyes, the swollen black eyes she had". She was holding an ice pack to her eye; she had difficulty in speaking and was speaking "really softly"; "her face seemed swollen". 23 Dr Simon Chapman examined the complainant at about 6pm in the Emergency Department of Royal Prince Alfred Hospital. His notes stated: "Evidence of bruising and swelling around the right orbit, tender right temporal region of head, orbital x-rays normal. Sexual assault counsellor review, head injury advice given." 24 Dr Ann Sneddon examined the complainant at about 11pm. She noticed bruising around the right and left eyes. The bruising was consistent with being struck by a closed fist, but not a slap. She said separate blows would have been necessary to produce the bruising. 25 The photographs of the complainant, taken at a time when the complainant's condition had improved, show both eyes to be clearly blackened. They show the right eye to be badly bloodshot. The photographs were taken by Constable Smith on Thursday 18 May. She first met the complainant on Wednesday 17 May. She then observed that the complainant had bruising to both of her eyes. The right eye was bloodshot and slightly closed. 26 A detailed explanation for the physical condition of the complainant was first offered by the appellant when the police conducted an electronically recorded interview with him on 22 May 2000. He said that after consensual intercourse, a quarrel broke out. He said the complainant told him she wanted to go home and told him to drop her there, while he wanted to sleep for a while. He said she swore at him and used obscene language about his mother. He said he "slapped" her once on the face, punched her once on the face, and kicked her twice. The "slap" was aimed at her mouth, but she ducked and he hit her in the eye. He was not wearing shoes. When he left her she had just one black eye; it was swollen, but she could open it. He said he did not hurt his hand when he "slapped" her. 27 In evidence in chief the appellant said that after the complainant began swearing about his mother he "slapped" the complainant and "touched" her. He denied any violence before intercourse. He denied ever throwing the complainant against the wall. (This was a detail to which the complainant referred in the first complaint she made of rape to Ms Hobbs.) In cross-examination the appellant said he administered one slap, one punch and two kicks. He said he wanted to slap her mouth, but hit her eye. He then punched her once, but he did not remember whether the punch hit her hands or her face. He then kicked her twice in the hands. 28 One difficulty with the appellant's explanation is that the extent of the complainant's injuries was too great to be accounted for by one slap with the open hand directed to the complainant while ducking and one punch which may have hit her hands and not her face. Dr Sneddon said that two punches with a closed fist would be needed to cause the two black eyes. The appellant's oral argument suggested that the appellant's lack of proficiency in English had to be remembered, and that by "slap" he may have meant "punch". However, he used the two words in contrast to each other several times, and the assessment of what a witness who is not proficient in English means is a matter in respect of which a jury has a peculiar advantage over an appellate court, because it depends in part on an assessment of demeanour and body language. The appellant's oral argument also said that the appellant may have been in so emotional a state as not to have a good memory of what he did, or may consciously or unconsciously have minimised the extent of the beating he administered because of the natural human reaction to play down a vicious assault on a relatively defenceless young girl. These are possibilities, but the actual evidence does not support the appellant's version sufficiently to raise a reasonable doubt. 29 A second difficulty with the appellant's explanation is that according to him, when he left the complainant she had only one black eye, which was not closed; yet there were unquestionably two, and one was very nearly closed or completely closed. 30 A third difficulty relates to the injuries to the back of the complainant's head. The appellant submitted that in the ERISP the appellant said after he had hit her on the face she fell to the ground, and submitted that she could have hit her head in that process even though the appellant did not notice it. However, she said she was thrown against a wall, and this was confirmed by the terms of her complaints: he denied this. Thus the complainant's version accounts for the injuries to the back of her head better than the appellant's version does. 31 The Crown submitted, in relation to the appellant's argument that the evidence of a physical assault had little or no corroborative force on the issue of whether a sexual assault occurred, that there was further corroboration in the form of the complainant's distress and the complainant's complaints. It is convenient to examine this evidence in relation to a later head of the appellant's argument. However, as will be seen, it will be concluded that the evidence of the witnesses who observed the complainant's distress and heard her complaints is compelling. She had virtually no opportunity to contrive a story. Contradictions between the evidence of the complainant and other evidence in relation to pre-crime events 32 The next group of arguments advanced by the appellant point to various respects in which the complainant's evidence about events before the alleged crime was contradicted by other witnesses or by her own prior statements. 33 (a) Pre 13 May contacts with appellant. The complainant said she did not speak to the appellant until the night of 13-14 May, and denied dancing with the appellant at the Albion Hotel. However, Alfred Batimala, who knew some members of her family and was a cousin of the appellant, said she had spoken to the appellant on earlier occasions. He also saw her dancing with the appellant, thereby confirming the appellant's evidence to that effect. 34 The Crown pointed out that on no view were the pre 13 May contacts extensive. The complainant said that he had once bought her a beer without being asked to. Their only contacts were at or after training sessions. On his version, they talked on these occasions, but he did not claim they talked much, or in private. The evidence of Alfred Batimala that the appellant and the complainant were dancing at the Albion Hotel depended on an identification at some distance, and proceeded from a witness whose evidence in other respects caused confusion at the trial. Even if Mr Batimala was right about the dancing, the appellant's evidence about it was strange: he whispered into her ear that he wished to take her to his house; she replied "You're the one who is delaying"; he did not immediately ask her to leave; they finished the dance and went their separate ways; he did not look for her inside and encountered her outside. Further, the Crown submitted that the lack of familiarity between the appellant and the complainant which the complainant asserted was supported by the appellant's answers during the ERISP: "Q. Can you describe this person ... to me, please? A. … I can't describe her to you because I just met her and we just playing together and I just met here, I don't know … . Q. What does she look like? INTERPRETER: Physical? DETECTIVE SENIOR CONSTABLE HEYSMAND Q. Mmm. A. She was just sex for me, like, not very big lady, small. Q. How old is she? A. I didn't ask her, I don't, I say she maybe around 20. Q. About 20? A. … around 20, something like that." The failure to describe her and the statement "She was just sex for me" suggest that the appellant had virtually no contact with the complainant before the night of 13-14 May. 35 (b) Mr Batimala's presence in the car. The complainant said that when she left the Albion Hotel by car, both the appellant and Mr Batimala were in it, and she accompanied them after Mr Batimala told her they would drop her at home. Mr Batimala said he had no such conversation and went home by taxi. If the complainant was wrong about this, it is explicable by the effects of her intoxication on her memory. Further, she may have confused the journey from the Albion Hotel with the journey to the Albion Hotel, during which she, Mr Batimala and the appellant agreed that both Mr Batimala and the appellant were present. This confusion was the more explicable in that according to the appellant there was a third person in the car during the journey from the Albion Hotel who was dropped at a railway station. That circumstance suggests that it is a matter of little importance whether Mr Batimala or someone else was in the car. 36 (c) The purpose of the journey. The appellant pointed out that the complainant testified that when she got into the appellant's car, she believed she would be dropped at home. The Crown submits that she denied that she told Dr Sneddon that she got into the car "to go to assailant's house". (In fact what the complainant actually denied was that she did so "to go to the accused's house".) Yet Dr Sneddon's notes said: "At the Albion Hotel during Saturday night, left at approximately 5.30am with alleged assailant and his cousin to go to assailant's house in Campsie via a car driven by the assailant." However, the Crown points out that Dr Sneddon said that when actual words uttered by the complainant were recorded by her, she placed quotation marks around them, and where she did not she was employing "shorthand" of what was said. The Crown submitted that the words "to go to the assailant's house" were not the actual words used by the complainant. The information could equally well be a summary of what turned out to be the case. The complainant was not a sophisticated or articulate person. It is highly questionable whether she has ever used the word "assailant" in her life. Indeed, Dr Sneddon agreed with the proposition that the use of the word "assailant" was her word. Dr Sneddon's language is ambiguous, and could easily, as the Crown said, be intended to state the result of the journey rather than its purpose. 37 (d) Inconsistencies with Dr Sneddon's notes. The appellant submitted: "The complainant asserted at trial a complete lack of memory between getting into the appellant's car at the Albion Hotel and then finding herself in his bed with the appellant standing beside the bed …. She denied telling Dr Sneddon that she had arrived at the appellant's house at 6am …. She denied telling Dr Sneddon that the appellant asked her to sleep with him …. She did not remember telling Dr Sneddon that it was about an hour between arrival at the appellant's house and the beginning of the assaults …. She denied telling Dr Sneddon that the appellant [pushed] her into the bedroom …. She denied telling Dr Sneddon that the appellant asked her to lie on the bed next to him …. However, Dr Sneddon's notes were as follows …: 'Arrived [at assailant's house] at approximately 6am. Alleged assailant asks [the complainant] to sleep with him. Cousin in the house but asleep. Approximately an hour between arrival and beginning of events leading to alleged assault. The assault took place in assailant's bedroom. The assailant called victim to bedroom. Assailant on bed and requested victim to lie next to him …' Dr Sneddon states that this was 'shorthand' of what she was told … but she was careful in taking the account …." 38 It was open to the jury to accept the complainant's account of the physical and sexual assaults despite these inconsistencies, and to conclude that the differences between what she said on 14 May and what she said at the trial were due to the effects of her alcohol consumption on her memory. A further matter which they could bear in mind was that at the time she spoke to Dr Sneddon from 11pm on 14 May, she must have been extremely tired as a result of playing a rugby game the day before, staying up all night, getting very little sleep, being beaten up, and getting only about five hours of sleep in the middle of 14 May before going through the stress of telling her story several times. She gave the following evidence: "Q. Now when you spoke to the doctor straight after, how were you feeling? A. Tired and my face was hurting. Q. How were you feeling emotional? (No verbal reply) Q. Do you understand what I mean by the word 'emotionally'? A. Yeah, just. Q. Do you remember how you felt? A. I was feeling everything, I was just." 39 The appellant then submitted in relation to the four categories of evidence just discussed: "This evidence suggests that the complainant at trial was deliberately and untruthfully attempting to minimise her involvement with the appellant in the days and hours leading up to the sexual assault. The evidence of Batimala strongly suggests that she was more interested in the appellant than she was prepared to concede. The account which she gave to Dr Sneddon tends to establish that she agreed to go to the appellant's home late at night, spent an hour socialising with him before the alleged sexual assault and voluntarily went into the appellant's bedroom. Of course, even on that account a sexual assault could have occurred. However, the different account is very significant because of its implications for the credibility, and particularly the truthfulness, of the complainant. The asserted absence of memory (apparently based on sleeping in the car and intoxication thereafter), does not ring true, given her account to Dr Sneddon. Rather, a more plausible explanation is that, at some time after speaking to Dr Sneddon, the complainant realised that her conduct up to the point of entry to the bedroom appeared to be more consistent with consensual than non-consensual sexual activity. In order to support her account of 'rape' she asserted a convenient loss of memory and, more importantly, thereby implicitly asserted that the journey from the Albion Hotel to the appellant's bed was entirely involuntary." 40 The Crown submitted that these arguments: "are rather undermined by the appellant's own account of events. Even the appellant does not claim that he spent an hour 'socialising' with the complainant at his home. The complainant did not assert 'a convenient loss of memory', rather her account of sleeping in the car for the entire journey is consistent with the appellant's own account." His account was that on arrival at his grandmother's house he woke the complainant up. They went inside, went straight to his room, kissed for some time, and then had intercourse. The Crown also submitted: "Even if the complainant had agreed at some time earlier in the night to go to the appellant's house it does not mean that she was not physically and sexually assaulted in the manner described." However, the basic difficulty in the appellant's submission quoted above is that the "more plausible explanation" advanced wholly lacks evidentiary support. It is dealt with in detail below: paragraphs [44] and [49]-[50]. The complainant's drunkenness 41 The appellant submitted: "There was no dispute at the trial that the complainant consumed a considerable amount of alcohol in the period leading up to the alleged sexual assault … and she was 'drunk' …. Of course, on the prosecution case, this made her more vulnerable and provided an explanation for how she ended up in the appellant's bed without her consent. However, it also created the possibility that she would be more willing to engage in sexual activity with an acquaintance, which she might thereafter come quickly to regret." The Crown submitted: "The possibility postulated by the appellant that she would have been more likely to engage in sexual intercourse with him and thereafter regret it does not mean that the complainant must have fabricated the allegation of sexual assault." The Crown also submitted that the role of alcohol in the case was pre-eminently an issue with which the jury were peculiarly well-equipped to deal. The submissions of both parties are sound; by itself the complainant's drunkenness points in no particular direction. The condition of the complainant's clothing 42 The appellant submitted that there was a contradiction between the complainant's account of the struggle between her and the appellant and the fact that her clothes were not damaged in any way. The absence of the damage was said to be "curious". However, though the struggle lasted five or ten minutes, there is no reason to suppose that the appellant was trying to tear her clothing off as distinct from pulling it off. The jury saw the actual clothes. The photographs of them tendered to the jury and shown to this Court do not suggest that they were fragile, but rather were made of sturdy fabric capable of being stretched. The absence of damage is thus wholly explicable. The complainant's acceptance of a cigarette, sunglasses and a lift 43 The appellant submitted: "The complainant agreed that, after the alleged physical and sexual assault, she accepted a cigarette from the appellant …. She asked him to take her to the Rugby Club …. She also accepted an offer of sunglasses from him to hide the injuries to her eyes …. This behaviour was somewhat surprising if her account of violent rape was true (although this point has less force given the fact that she was undoubtedly physically assaulted)." The Crown submitted that the behaviour was not "surprising": rather, the complainant might "be commended for getting herself out of what must be conceded as a dangerous situation". The appellant's concession and the Crown's point are both sound. Running or walking away from the appellant 44 The appellant submitted that the complainant asserted that she "ran" towards the clubhouse after she got out of the appellant's car and "ran into" Mr McDonald, which, if correct, would have added credibility to the claim of sexual assault. However, the appellant submitted that Mr McDonald said she was walking not running. The Crown, on the other hand, pointed out that Mr McDonald's evidence was that when he saw the complainant she was in a laneway, not the car park. That is one fair point. Another is that to some degree distinguishing between fast walking and running is a matter of opinion. A third is that whether or not there was a sexual assault, the appellant's physical assault on the complainant would be enough to cause her to want to leave his presence quickly. A fourth is that to "run into" someone does not imply that one is running as opposed to walking. Delay in complaint? 45 A very important part of the appellant's argument was put in writing in the following way: "The complainant delayed in making a complaint of sexual assault. The evidence is as follows: (a) The complainant testified that, when she arrived at the Drummoyne Rugby Club, she spoke to a man named Neil McDonald (who she knew as 'ET'). He asked her 'what happened to your face' and she 'told him I ran into a door' …. Then she said that, in effect, the appellant 'did it to me' …. McDonald testified that, when he spoke to her, he asked her where she'd been and she said she'd 'been to a party' …. He asked her about her injuries and she said 'she'd been bashed' … by the appellant …. (b) The complainant testified that, after speaking to Mr McDonald, she walked over to the house of Mark O'Brien (to obtain her football gear). He asked her 'what happened to your face' and she said 'I ran into a door' … He said 'tell me the truth' and she said that the appellant 'did it' …. She then lay down on a bed in Mr O'Brien's home and went to sleep. O'Brien testified that she knocked on his door at about 9am. When he asked her what had happened, she 'didn't want to talk about it' …. She went to sleep …. Later Marnie Hobbs telephoned and he asked her to come over …. She arrived at about 1.30pm …. (c) The complainant testified that she was woken up by Marnie Hobbs and she told her she was 'bashed and raped' …. Marnie Hobbs testified that the telephone conversation with O'Brien was around 2pm … She went into the bedroom where the complainant was sleeping. She asked 'what's happened to you' and the complainant said that the appellant 'tried to sleep with me and I said no. He beat me up' …. The complainant was cross-examined by defence counsel regarding her failure to tell McDonald and O'Brien about the sexual assault …. In re-examination she stated that she did not tell them 'because I didn't feel comfortable telling them' …. They were 'close friends' but she 'wanted to tell a female about what happened' …. It may be conceded that the explanation given by the complainant could be regarded as plausible. On the other hand, if she was able to say to Marnie Hobbs in the afternoon of 14 May that she had been 'bashed and raped', it might be regarded as significant that she had only said to McDonald that she had been 'bashed'. The explanation advanced by her does not convincingly explain why she did not add the two words she later added. It is submitted that an alternative explanation is, at least, equally plausible. That explanation is that the complainant's interaction with McDonald and O'Brien made it obvious to her that the circumstances leading up to the assault by the appellant would inevitably emerge. Her initial action had been to deny any assault. However, her injuries made that impossible and, in any event, she would have had a legitimate grudge against the appellant for the physical assault. Once she nominated the appellant as the basher, though, she would have known (on the defence case) that he would say that the assault occurred during an argument after consensual sexual intercourse. That may well have been a source of considerable embarrassment to her. It may be postulated that, once she had had an opportunity to think about the situation and decide what to do, she determined to make a false allegation of rape." 46 As far as it goes, the appellant's summary of the complaint evidence is accurate. But it does not go nearly far enough. It omits very convincing evidence of complaints made at very early stages. And it overlooks difficulties in the theory advanced to support the view that the complaints were lies. 47 First, it gives a somewhat misleading account of the first complaint of sexual assault, that made to Ms Hobbs. After waking the complainant up and being shocked by her appearance as described in [19] above, Ms Hobbs asked the complainant what happened to her: "Q. What did you say? A. I said, 'What's happened to you?' And she said to me, 'Alfred's cousin he tried to sleep with me and I said no. He beat me up, threw me against the wall'. Q. Did she say all of that in one go, or was it -- A. Her first part of the conversation was she said to me, 'Alfred's cousin tried to sleep with me and I said no.' That was the first part of the conversation. And then she took a moment and she was pretty upset and then she said to me, 'He beat me up and he threw me against the wall.' Q. When you say she was pretty upset, how did she appear to you to be? What were the signs that led you to believe she was upset? A. Led me to believe she was upset? At that stage she was - she couldn't really look me in the eye and she began to cry when she started talking about it. I didn't really want to push her because she was visually upset and after about - I'd say about ten minutes of just being with her, I asked her if anything else happened. Q. What did you say, what were the words you used? A. I asked - I said, 'Did anything else happen?' Q. And did she say anything? A. She said, 'He fuckin raped me'. Q. What did she do after that? A. She began crying and so I just comforted her and we stayed in the room for a while. Q. When you were in the room having that conversation was there anyone else present? A. No." Ms Hobbs was not cross-examined on this evidence. 48 Secondly, the appellant's summary completely omits Ms Blackley's evidence of the complaint to her, made not long after the complaint to Ms Hobbs. After relating her observations of the complainant's condition referred to in paragraph [20] above, Ms Blackley gave the following evidence: "Q. Did you speak to [the complainant] about what had happened? A. Just briefly in the lounge room we just sort of - you know, briefly, and then I spoke to her further in a bedroom area. Q. What did you ask her? A. In the bedroom area? Q. Well, first out in the lounge room? A. I just - if she knew who it was that had assaulted her in relation to the eye injury and things like that, and she said yes, she did. Q. Did she tell you anything? A. She said it was Alfred's friend, Georgie. Q. You said you then went into the bedroom? A. That's correct. Q. Who was with you when you went in there? A. Just me and Miss Delana. Q. When you went in there did you speak to her? A. Yes, I did. Q. What did you say? A. I said, 'Why did - why did he hit - why did he bash you', or something like that. Q. Did she reply? A. Yes, she did, Q. What did she say? A. She said, 'He wanted to sleep with me and I told him that I wouldn't, so he did it anyway'. Q. How did she appear to you when she said that? A. She was very upset, she started to cry after she said that." Ms Blackley was not cross-examined on this evidence. 49 Thirdly, the complainant's summary omits Dr Sneddon's contemporaneous record of the complaint to her: "Slapped in the face a couple of times and then got angry and 'pushed me onto the bed'. Pinned to the bed by weight of assailant. Repeatedly said 'no'. Said 'I want to go to the toilet' in an attempt to get away and then was punched in the right eye and again a couple of times in the face. Nil loss of consciousness. Thrown against the wall and hit head. Again no loss of consciousness. Started to cry. Assailant said 'sorry, sorry' and then victim sat on bed. Attempt to take the clothes off by the assailant. Victim said 'no'. Attempt to unzip pants. Victim kicked assailant in the stomach by 2. Punched in chest two to three times and screamed. Clothing taken completely off but not damaged. One act of intercourse … . Forcible vaginal penetration with penis by one act of intercourse." Dr Sneddon was not cross-examined to suggest that her record was wrong. 50 Fourthly, a basic problem about the appellant's contention that there was delay in complaint is that there was in truth no realistic opportunity to complain until the first complaint was made. It is totally understandable that a 19 year old woman of Fijian background would, very soon after the stress of the events complained of, not be completely frank with the first two people she met, namely men of non-Fijian background. She then fell asleep in Mr O'Brien's flat. It is quite probable that, after having played a rugby game, after having had twenty-five drinks, after having had no sleep apart from sleep in the car in the short journey from the Albion Hotel to the appellant's house and during whatever period immediately followed the journey, and after having had a heavy beating, she fell asleep at once and did not wake up until Ms Hobbs' arrival. She then complained immediately on waking to the first female she encountered. 51 Fifthly, a related difficulty in the appellant's position is that one of the key contentions advanced on appeal is quite different from the corresponding contention put to the complainant at trial. At trial it was put to the complainant that the reason she did not complain to Messrs O'Donnell and O'Brien of rape was that she "couldn't really remember the details of what had happened" - she could "only remember bits and pieces, [she] could remember the accused hitting [her] around the face but [she] could not remember the details of what had happened." She said she could remember being raped, but did not tell the men because "I didn't want them to know what had happened to me". In re-examination she said that she "didn't feel comfortable telling them". They were "close friends but [she] wanted to tell a female about what had happened". But she was not cross-examined to suggest that she only alleged rape because her injuries made it impossible to deny physical assault, she had revealed the identity of the person who assaulted her, she realised there would be an official investigation which would reveal consensual sexual intercourse of which she was ashamed (perhaps because of her family's likely reaction, perhaps because of the likely reaction of the person with whom she had sexual intercourse on 12 May), and she thereupon determined to make a false allegation of rape. This may be a non-compliance with the rule in Browne v Dunn (1893) 6 R 67. Any non-compliance in itself is not a fatal obstacle to the contention that conviction was unreasonable. But the failure of the experienced counsel who represented the appellant at trial to put the new theory of the case to the complainant is a sign either that the theory was so far-fetched that it did not occur to him, or that he regarded it as so unlikely to succeed as not to be worth propounding. In any event, the consequence of the failure is that the theory advanced by the appellant on the appeal lacks evidentiary support: it has not been shown that the complainant was conscious that there would inevitably be an investigation or that the suggested consequences might follow. The defence case at trial, in its positive aspect, rested on an appeal to the appellant's credibility, and, in its negative aspect, in the complainant's drunkenness. That line may well have appealed to defence counsel as the likeliest to succeed. But the stress on drunkenness contradicts the line now being advanced. The drunker she was, the less able she was to engage in speedy fabrications on 14 May. Further, she had no time to do so, for, as has been noticed, immediately she parted from the appellant, she met Mr McDonald; then she met Mr O'Brien; then she fell asleep; and then, as soon as she awoke, in a disorientated condition, she complained of rape in strong and direct terms, and complained of being thrown against the wall, which is a detail absent from, and denied in, the appellant's version. She was so drunk, fatigued and distressed that there was no opportunity to resolve to fabricate a story along the lines suggested. Motives for false allegation 52 The appellant submitted: "The motives for a false allegation of 'rape' were obvious: (a) The complainant would no doubt have regretted a decision, presumably very much influenced by her intoxication, to have sex with the appellant. She would have believed, not without some cause, that he had taken advantage of her. (b) On the appellant's account, it is apparent that, after sex, she had been angered by his refusal to drive her home. His refusal would have confirmed a view that, once he had obtained what he wanted, he had little interest in what she wanted. (c) The complainant would have harboured considerable animosity to the appellant over the physical assault. (d) The complainant would have wished to avoid the embarrassment of admitting that she had got drunk and agreed to have sex with a man she did not know well." 53 These were all possibilities which might raise a doubt. Whether that doubt was reasonable was a matter which the jury had to consider, and which this Court must now consider. But those possibilities must be examined in the light of all the evidence. So considered, they do not raise a reasonable doubt. Reluctance to consult relatives 54 The appellant submitted that the reluctance to contact her family or her friends has as a possible explanation that she harboured some embarrassment and guilt over what she had done. Another possibility is that which Ms Blackley embraced: "She was obviously very upset and was looking pretty bashed up". It was Mother's Day. To delay the delivery of bad news past that day could have been seen by the complainant as an act of kindness. There was nothing of a practical kind to be done which the complainant's relatives could do which Ms Blackley and Ms Hobbs were not doing. The Ground 1 arguments considered 55 In addition to the nine points made by the appellant, it might be said that a reading of the transcript reveals numerous differences between witnesses and various curiosities in the complainant's evidence. The decision of the appellant's counsel not to highlight these on the appeal was sound: they were no more than what was to be expected and they had no significance equalling the points he did take. 56 There is also a question, which counsel on both sides evidently canvassed at the trial, about whether the evidence of the appellant and the complainant fully explained the sequence of events between 5.30am and 8am on 14 May. If the appellant and the complainant left the Albion Hotel when it closed at 5.30am, and if Mr McDonald saw them at 8am at the clubhouse, a period of two and a half hours must be accounted for. Some of that time would have been taken up by the drive from the Albion Hotel to the appellant's house and the drive from the appellant's house to the clubhouse. Some may well have been taken up while the complainant and the appellant stood around inside or outside the Albion Hotel at 5.30am: the fact that an hotel is supposed to close at a particular hour does not mean that its patrons instantly leave either it or its neighbourhood, especially if they have been drinking for over twelve hours. This leaves a substantial period of time - about two hours. The complainant in fact estimated that the period she was with the appellant was about three hours: this seems quite unlikely, though on her version of events her ordeal may well have seemed to last that long. The problem is that on neither the appellant's version nor the complainant's version is a period of about two hours accounted for. Her version is that she woke up in the appellant's bed: if that happened soon after arrival, her narrative of events would be likely to fill a lot less than two hours. His version, too, would not take as long as two hours to unfold. This time difficulty probably favours acceptance of the complainant's story, since on her version she may have slept for some time at the appellant's house before waking up. 57 The appellant rightly submitted that it was necessary for the jury, and is necessary for this Court, to scrutinise the complainant's evidence carefully. The same is true of the appellant's evidence. Proof of the complainant's physical condition does not depend on her evidence or on his. How it arose does depend on their evidence. The jury was directed in plain language not to presume sexual assault from the fact of physical assault, and to scrutinise the evidence of complaint with particular care. The evidence of complaint and of distress related to it was strong, and the essential elements of the case against the appellant were powerful. Some of the points now made by the appellant are without force. Those which have more force relate to defects of detail, but these defects are explicable by the drunkenness of the appellant. There is nothing in this case corresponding, for example, with the combination of factors which caused the High Court to find the verdict unreasonable in M v R (1994) 184 CLR 487 - contrary medical evidence, an absence of speedy complaint, an absence of distress, a history of damaging allegations, key testimonial contradictions, and the improbability of the noisy conduct alleged having occurred within hearing of the appellant's wife. 58 The arguments advanced for the appellant in relation to this ground of appeal are arguments which in varying degrees had a chance of causing the jury to experience a reasonable doubt. But they did not in fact cause the jury to do so. They fail in this Court as well. 59 GROUNDS 2 AND 3: CRIMINAL PROCEDURE ACT S 105 These grounds are as follows: "2. The trial Judge erred in excluding evidence of sexual activity involving the complainant on 12 May 2000. 3. Exclusion of the evidence of sexual activity involving the complainant on 12 May 2000 rendered the conviction unsafe and thereby caused a miscarriage of justice." 60 The appellant's complaint was that he was not permitted to cross-examine the complainant or otherwise adduce evidence to the effect that: "1. The complainant engaged in sexual intercourse on or about the evening of Friday 12 May 2000. 2. That intercourse included vigorous sexual activity. 3. Such activity caused or may have caused tenderness in the area of the complainant's genitalia." 61 When Dr Sneddon examined the complainant at about 11pm on 14 May 2000, the complainant told her that she had had consensual intercourse on 12 May at 8.30pm: about thirty-four hours before the intercourse with the appellant, and more than forty-eight hours before Dr Sneddon's examination. Dr Sneddon found signs indicating generalised vaginal tenderness and pain indicating recent intercourse, but no visible trauma. In reaching these conclusions, she relied on what the complainant told her, but also relied on the fact that taking swabs from the complainant caused her obvious discomfort, which is not normally the case. For tenderness to have been caused there would have had to have been some aggression or vigour in the intercourse. 62 At the trial the appellant contended that the evidence was admissible in two ways. On appeal the appellant contended for these two avenues of admissibility, and for a third as well. Each of these avenues goes to Ground 2. The appellant also contended that even if the evidence were inadmissible its inadmissibility rendered the verdict unreasonable: that contention goes to Ground 3. 63 The relevant provisions are subsections (1)-(6) of s 105 of the Criminal Procedure Act 1986. They provide as follows: "(1) This section applies to prescribed sexual offence proceedings. (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." Section 105(4)(c) 64 The appellant's argument to this Court was: "On the voir dire, the prosecution adduced evidence from Dr Sneddon that the complainant had asserted 'tenderness' when she was vaginally examined…. It also adduced evidence from Dr Sneddon that such tenderness indicated that the sexual intercourse involved 'aggression' … although that may have been 'vigorous' consensual intercourse … rather than non-consensual intercourse. The defence argument was that the 'tenderness' fell within the category of 'injury' in s 105(4)(c)(ii) and that the provision permitted the defence to adduce evidence of the sexual intercourse on 12 May, 36 hours earlier, in order to provide an alternative explanation for the 'injury'. However, the trial judge accepted a Crown argument that the s 105(4)(c)(i) condition had not been satisfied. He held that the appellant did, in fact, 'concede the sexual intercourse so alleged' because he admitted that sexual intercourse had occurred. It is submitted that the trial judge fell into error. The words 'so alleged' permitted a distinction between sexual intercourse per se and the non-consensual intercourse alleged by the prosecution. The provision should be given a liberal interpretation in this regard." 65 Whatever the correct interpretation of s 105(4)(c)(i), the proposition that Ground 2 should be upheld by reason of it must be rejected. 66 Even if the appellant's construction of s 105(4)(c)(i) were correct, no reason has been advanced for doubting the correctness of the trial judge's conclusion under the tailpiece to s 105(4), namely that the appellant had not shown that the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. Dr Sneddon gave firm evidence to the effect that in the absence of trauma it would be "extremely unlikely" - "very unlikely" - that the tenderness was caused by the intercourse on 12 May. In short, the evidence which was excluded was of no, or, at best, hardly any, probative value. This is particularly so since intercourse on 14 May was admitted, and since tenderness was not incompatible with consent on 14 May. The real issue was consent, and tenderness did not negate it. The fact of consent to intercourse on 12 May was of no value in proving consent to intercourse on 14 May. The distress, humiliation or embarrassment likely to have been caused to the complainant by a cross-examination devoted to a comparative assessment of the particular characteristics of the 12 May and the 14 May acts of intercourse was considerable for reasons which the Crown developed in detail but which need not be repeated. The trial judge's conclusion on the tailpiece was expressed as an alternative basis for his decision, but even if it had not been so expressed, the reasoning capable of being deployed in its support prevents the present argument from succeeding. In written submissions the appellant did not attack this part of the trial judge's reasoning, and orally counsel for the appellant said it was very difficult to do so. 67 Since the argument fails because of the tailpiece to s 105(4), it is not necessary to decide whether, even if s 105(4)(c)(ii) is satisfied, the construction advanced by the appellant of s 105(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 s 105(4)(c) to the rule of exclusion created by s 105(3) would cease to exist in all cases in which s 105(4)(c)(ii) was satisfied. Section 105 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 s 105(4)(c)(ii) was satisfied, the s 105(4) exception would apply because s 105(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 s 105(4)(c)(i). Section 105(6) 68 The second argument advanced by the appellant at the trial rested on s 105(6). The appellant submitted: "… that the mere adducing of the evidence of tenderness along with the opinion of Dr Sneddon implied that the complainant had 'not taken part in sexual activity' which might otherwise explain the tenderness …. The jury would have inevitably understood from the way the trial proceeded that the prosecution case was that the 'tenderness' was caused by the sexual intercourse with the appellant. It was implicit that no alternative explanation for the intercourse existed. The trial judge erred in ruling … that this exception was not satisfied." 69 The appellant had to demonstrate that the appellant would be unfairly prejudiced. The tenderness experienced by the complainant was neutral on the issue of consent. Had the complainant been asked about the 12 May act of intercourse, Dr Sneddon would have said that it would be extremely unlikely to have caused the tenderness. It could have been caused by vigorous consensual intercourse, or by non-consensual intercourse. The 12 May intercourse had little probative value on the issue of how the tenderness was caused. The appellant submitted orally: "I appreciate the argument against the appellant on this ground is, given the doctor's evidence, the evidence of sexual activity would have low probative value. Nevertheless, one has to be very careful in applying that approach to evidence led by the defence for the purpose of creating a reasonable doubt. The jury may have regarded the tenderness as significant evidence. It may have been assumed it tended strongly to point to sexual assault. Conversely, if they had been aware of the sexual activity 36 hours before they may have been prepared to say, 'We cannot place much weight on the tenderness in those circumstances.' I cannot put the argument more strongly than that." However, in the light of Dr Sneddon's evidence, a doubt based on the explanation for the tenderness being found in the 12 May intercourse would not have been a reasonable doubt. 70 Further, though in the circumstances it is not necessary, and therefore not desirable, to reach a conclusion on the point, it seems strongly arguable that s 105(6)(a) was not satisfied. The argument that it was not satisfied is to the following effect. The Crown did not "disclose" that the complainant had a lack of sexual experience, or had not taken part in sexual activity. "Disclosure" means intentional expressed revelation. The word "implied" in the expression "disclosed or implied" means intentional suggestion. It cannot be said that the silence of the Crown about the complainant's sexual experience before 14 May "implied" a lack of sexual experience or a failure to take part in sexual activity. The calling of evidence from which the jury might have been likely to infer that the tenderness was caused by the appellant does not imply that there was no alternative explanation. If the provision were construed otherwise, any allegation of sexual intercourse as an ingredient of a crime might be said to have "implied" a lack of any other sexual experience. That would considerably restrict the function of s 105 as a means of protecting complainants. Section 105(4)(a) 71 On appeal the appellant advanced a third s 105 argument. It was based on s 105(4)(a). The appellant submitted: "Evidence which tends to reveal that the complainant was in some kind of consensual sexual relationship only shortly before the alleged sexual assault would provide a reason for her denying that the intercourse with the appellant was consensual (other than those motives to make a false allegation of 'rape' discussed above). She would presumably not want the man she had had sex with on 12 May to know that, the following night, she had got drunk and had sex with a man she barely knew." 72 This avenue of admissibility must fail because of the tailpiece to s 105(4), as discussed above in relation to the appellant's first argument. In any event, even if the theory advanced in the appellant's submission is plausible, the sexual intercourse on 12 May was not an event which formed part of a connected set of circumstances in which the crime of sexual intercourse on 14 May without consent and with aggravation was committed. The two events were entirely unconnected. Each respectively related to two entirely separate sets of circumstances. The making of a false allegation of rape on 14 May might be loosely connected with the 12 May intercourse, but the actual alleged offence was not connected with the 12 May intercourse. Unreasonable verdict 73 The appellant's fourth argument - which goes to Ground 3 - was that if, contrary to the three arguments just considered, the trial judge was correct in holding the evidence to be inadmissible, that fact "provides an additional basis for holding the conviction" to be unreasonable. The appellant cited R v Morgan (1993) 63 A Crim R 526 at 537, where Mahoney JA said: "If the result of the application of s 409B is that the accused has not had a fair trial, then the verdict will not stand." Section 409B of the Crimes Act 1900 was the precursor of s 105. Gleeson CJ and Sully J agreed with Mahoney JA's reasons for judgment. 74 In refusing special leave to appeal in Berrigan v R (unreported, 23 November 1995, High Court of Australia) Dawson J (speaking for himself, Toohey and McHugh JJ) said: "The correct application of the provision [s 409B] cannot of itself found an argument that the trial was unfair or that the verdict was unsafe or unsatisfactory." It is not necessary to consider whether Mahoney JA's statement requires re-examination. It depends on establishing that the trial was not fair. In view of the lack of probative value of the evidence and the fact that its exclusion did not unfairly prejudice the appellant, its exclusion cannot be said to have led to the result that the appellant has not had a fair trial. GROUND 4: DELAY DIRECTION 75 Ground 4 was: "The trial judge failed properly to direct the jury regarding the delay in complaint regarding sexual assault." The appellant submitted: "It is submitted that the way in which the trial judge directed the jury was inadequate. He reminded them of a defence argument that the complaint of sexual assault to Hobbs and others was less significant in supporting her credibility/consistency because of the fact that no comparable complaint was made to McDonald and O'Brien. However, he did not invite the jury to consider whether that delay positively tended to discredit the complainant, notwithstanding the reason she gave for not telling them. The present is a case where a miscarriage of justice resulted from the failure of the trial judge to point out to the jury that the delay might be used to discredit the complainant: Crofts v R (1996) 186 CLR 427. The trial judge had a duty to provide the warning suggested by Kilby v R (1973) 129 CLR 460 at 465, Crofts at 451. The peculiar facts of this case …, and particularly the fact that, after she made the first complaint of 'bashing', she would have realised that the fact of sexual intercourse would have emerged, suggest the need for a warning to restore the balance ( Crofts at 451.8)." The appellant referred orally to the following observation of Hunt CJ at CL in R v DJK (1997) 96 A Crim R 443 at 448: "The judge did not direct the jury that, in evaluating the evidence of the complainant and in determining whether to believe her, they could take into account her failure to make a complaint at the earliest reasonable opportunity as reducing her credibility." 76 The first difficulty with this submission is that it postulates that there was delay which might have been to the discredit of the complainant. Yet in truth there was no relevant delay. The first two complaints to Ms Hobbs and Ms Blackley were, to use the words of Hunt CJ at CL, made at the earliest reasonable opportunity. 77 The second difficulty with the submission is that it rests on the theory advanced on appeal but not at trial that by the time she had spoken to Mr McDonald and Mr O'Brien she would have known the matter would be officially investigated, and to protect herself from the revelation of consensual intercourse she concocted a false charge of rape. That theory, which supposedly explains the "delay", has been shown to lack any evidentiary foundation or reality. 78 The third difficulty is that the argument depends on a distinction between a direction that delay could cause the jury to give the complaints less importance and a direction that delay could cause the jury not to believe the complainant. This distinction was described by counsel for the appellant as "a fine distinction". In truth it is a non-existent one. The reason why delay might have caused the jury to give the complaints less importance is that delay might have caused the jury to believe the complainant less than they otherwise might have. 79 The fourth difficulty is that since counsel appearing for the appellant at the trial (who did not appear on the appeal) did not ask the trial judge to direct the jury in the manner which it is now said should have been employed, leave is needed under rule 4 of the Criminal Appeal Rules if this ground is to succeed. That leave should be refused. The direction which was criticised was given on 31 October 2000 before lunch. No relevant redirection was requested by counsel for the appellant when the jury left the court just before lunch, though the Crown asked for some directions at that point. Nor was any redirection requested later that day when the jury retired. Even if, contrary to what has been said above, there was an error in not giving the direction, it was a very minor error. It was not an error capable of creating a miscarriage of justice. The trial judge gave numerous directions about factors which might cause the jury to reject or question the complainant's credibility or reliability. The omitted direction would not have caused the jury to scrutinise the complainant's evidence any more critically than other directions invited them to. ORDERS 80 Despite the arguments advanced by the appellant's counsel, and the ability with which they were put, the appeal should be dismissed. 81 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Heydon JA. I agree with his reasons and the orders he proposes. 82 SULLY J: I agree with Heydon JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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