REGINA v DAVID WALSH [2001] NSWCCA 109

New South Wales Court of Criminal Appeal

CITATION : REGINA v DAVID WALSH [2001] NSWCCA 109 FILE NUMBER(S) : CCA 60575/2000 HEARING DATE(S) : 22 February 2001 JUDGMENT DATE : 22 February 2001

PARTIES : REGINA v DAVID WALSH JUDGMENT OF : Mason P at 1; Whealy J at 70; Howie J at 71

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0060 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : Crown: C K Maxwell QC Appellant: P Byrne SC SOLICITORS : Crown: S E O'Connor Appellant: Joseph P Saad & Co CATCHWORDS : Criminal appeal - aggravated sexual assault - assault occasioning actual bodily harm - whether verdicts unreasonable. ND DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

CCA 60575/2000 MASON P WHEALY J HOWIE J Thursday 22 February 2001

REGINA v DAVID WALSH

JUDGMENT 1 MASON P: After a trial in the District Court before Judge Nield and a jury, the appellant was convicted of aggravated sexual assault and assault occasioning actual bodily harm . He was sentenced on the first count to a period of imprisonment of five years comprising a non-parole period of two years and six months, and on the second count a fixed term of imprisonment of six months. 2 The verdicts are challenged as unreasonable having regard to the evidence. There is also a challenge to the directions in relation to complaint.

Facts 3 The complainant and the appellant had been fellow workers at a university in Sydney. At the time of the alleged offences (the evening of 30 October 1998) the appellant was aged 35 and the complainant was aged 21. A sexual relationship between the two had developed by about July 1998. One or two times a week the complainant returned with the appellant to his home at Strathfield. Intercourse took place in the granny flat he occupied at the rear of his mother's home there. 4 A fairly trivial incident involving the family dog on 16 October 1998 contributed to a cooling of the relationship. However, the couple agreed to meet for a drink in a city hotel on the evening of Friday 30 October. Others were meant to join them, but they did not arrive. Versions of what happened at the hotel differ in minor degrees as to the level of tension between the couple while they were there. Considerable quantities of alcohol were consumed. The complainant spent her taxi fare and so the appellant agreed to drive her home to Menai, as he had done previously. They took the train to Strathfield to pick up his car. 5 The complainant's evidence was that the events of the fortnight after 16 October and the discussion at the hotel made it clear that the intimate relationship was over. There were arguments on the train and she told him that she did not have to settle for this. The appellant agreed that things were strained, but his version of events had the couple acting affectionately on the train journey to Strathfield. 6 The complainant's evidence was that, when they got to the flat (at about one o'clock), the appellant invited her in while he changed out of his work clothes before driving her home. She was tired, so she curled up on the lounge fully dressed. She was wearing a long black skirt, black stockings, a red blouse and a black jacket. 7 She said that while she was half asleep on the lounge she felt a hand at the front of her skirt. She then saw the appellant trying to pull her skirt down. He tried to force himself on top of her. She asked him to stop as she did not want to do this. She told him that she wanted to go home. She tried to push the appellant away but since she was on an awkward angle she fell off the lounge. She said that the appellant grabbed her right calf, dragged her and put pressure on her stomach. She felt she could not move and she cried. She said that her underwear was pulled down with her stockings. She said that she believed the appellant had penetrated her vagina with his penis. She did not know whether he had ejaculated. After that the appellant threw her shoes at her legs and said "Now you can get in the car". She said she picked up her stockings, put them in her bag and went very quickly into the appellant's car. She said the appellant told her that she brought everything upon herself and everything she did was her own fault. She was a bitch and nobody would believe her against him. 8 The complainant's version of the encounter was unequivocally that of forced and unwelcome sexual assault in which the appellant penetrated her vaginally with his penis, despite her protestations and knowing that she did not consent. 9 The second charge arose out of an incident during the drive home. The complainant said that there was initially silence between the two of them. However they got to arguing. It was common ground at trial that unpleasant words were exchanged. They got to near the complainant's home. The complainant said that the appellant told her at one stage: "You came from nothing. You are nothing and you are always going to be nothing" , whereupon she "saw red" and hit him with her soft satin clutch bag. It knocked out a lens of his glasses. What then happened was described by her in the following terms: Q. You told us about the conversation at that point. What happened after that? A. After that, basically he grabbed me by the neck. I think I angered him with what I said. He grabbed me by the neck. I could breathe still – he just grabbed me and he hit me several times. I covered – put my hands up to cover my head. He pulled me down so that my chest was nearly touching my knees, he hit me several times on the left ear and mostly my arms 'cause I had my arms up.