New South Wales Court of Criminal Appeal CITATION : R v Holland [2002] NSWCCA 469 revised - 01/09/2006 FILE NUMBER(S) : CCA 60326/02 HEARING DATE(S) : 5 November 2002 JUDGMENT DATE : 27 November 2002 PARTIES : Peter James Holland - Appellant Crown - Respondent JUDGMENT OF : Simpson J at 1; Carruthers AJ at 55; Mathews AJ at 56 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/11/0084 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER : COUNSEL : P Power - Crown AW Street SC/Ms Soars - Appellant SOLICITORS : SE O'Connor - Crown Van Houten - Appellant CATCHWORDS : aggravated sexual intercourse without consent - attempted sexual intercourse without consent - assault with acts of indecency - verdicts of guilty on two counts, not guilty on three counts - alleged inconsistency of verdicts - directions to jury - effect of doubt concerning credibility or reliability in relation to one count, or more than one count, in relation to other counts - jury question concerning withdrawal of consent - verdicts - evidence of tape recorded telephone conversations between complainant and appellant Listening Devices Act 1984 LEGISLATION CITED : Evidence Act 1995 Criminal Appeal Rules - Rule 4 Markuleski v R [2001] NSW CCA 290; 125 A Crim R 186 CASES CITED: R v Jones (1997) 191 CLR 439 R v Murray (1987) 11 NSWLR 12 DECISION : Appeal against convictions dismissed. IN THE COURT OF CRIMINAL APPEAL 60326/02 SIMPSON J CARRUTHERS AJ MATHEWS AJ 27 November 2002 REGINA v Peter James HOLLAND Judgment 1 SIMPSON J: On 13 May 2002 the appellant was charged in the District Court on an indictment containing five counts. The first was a charge of aggravated sexual intercourse without consent; the second and third were of attempted sexual intercourse without consent; and the fourth and fifth of assault with acts of indecency. All offences were said to have been committed as part of a single, continuing course of conduct during the evening of 19 July 2001. The jury found the appellant guilty on the first and second counts, and not guilty on all others. 2 On the first count the appellant was sentenced to imprisonment for four years with a non-parole period of eighteen months; on the second count he was sentenced to imprisonment for two years with a non-parole period of one year to be served concurrently with the first sentence. He now appeals against the convictions. He has not sought leave to appeal against the sentences. the Crown case 3 The Crown case, as given principally through the complainant's evidence, was that the appellant, who was then a member of the NSW Police Service, was engaged as a tutor at the Goulburn Police Academy. The complainant, who was then twenty-one years of age, was a student at the Academy. One of her classes was taught by the appellant. Until 19 July 2001 she had no social relationship with him. On the evening of that day the complainant had dinner with friends at a licensed establishment called Tully Park Tavern in Goulburn, and then returned to the Academy. She went to a liquor bar. There she encountered the appellant. They greeted each other in a friendly and physical manner. The appellant showed signs of intoxication. After a few minutes, at the complainant's invitation, the appellant joined her group. They talked for a time and the appellant rejoined the group with whom he had previously been. After a time the appellant and the complainant were again in the same group, and joined in playing some kind of game for about five minutes. The complainant purchased a drink for herself and one for the appellant. 4 The appellant left the bar and went to Tully Park Tavern. Just before leaving he pulled forward the clothing the complainant was wearing on the upper part of her body, indicated her breasts and made a sexually suggestive remark. After having another drink at the Academy Bar, the complainant also returned to Tully Park Tavern in the company of others. She encountered the appellant and again bought a drink for each of them. He then bought each of them a drink. The appellant and the complainant engaged in conversation for about 20 or 25 minutes. During this conversation the appellant hugged the complainant on two or three occasions. This caused her no concern. At this point the appellant's (male) companion stated that he intended to leave. The appellant asked the complainant what she intended to do. She said that she intended moving to another bar (identified in the transcript as "Dingoes", also known as "Bingo". It may be that "Dingoes" is a mis-transcription for "Flamingos".) In any event the complainant and the appellant left Tully Park Tavern and went to another bar called Flamingos. At Flamingos the appellant continued to behave in a sexually suggestive manner, and his behaviour became more sexually explicit. The appellant's hands were on the complainant's back and hips. He told her he wanted to go outside. She asked why and he said he wanted to talk. He took the complainant by the hand and led her outside. He led her to a gate, pressed her against it and made further sexually suggestive references to her breasts. He pulled down her upper clothing, continuing to make references to her breasts. He kissed her breasts. The complainant was protesting. The act of kissing her breasts was the act that gave rise to the fourth count on the indictment, the first in time. On this count the appellant was acquitted. The complainant stated that she wished to return inside, but the appellant held her by the wrist and walked down a hill. The complainant protested. The appellant continued to hold the complainant tightly by the wrist preventing her pulling away. The appellant again removed, or tried to remove, the top part of the complainant's clothing. The complainant continued to protest. The appellant put his hand in the front of the complainant's pants and inserted his fingers in her vagina. This caused the complainant some pain. The act of inserting his fingers in her vagina gave rise to the first count on the indictment (of which the appellant was convicted). At the same time he was attempting, using his other hand, to remove her clothing. The appellant told the complainant that she "wanted it because she was wet". The appellant pushed the complainant downwards until she was on her knees and attempted to insert his penis into her, but his penis was not fully erect and the attempt failed. This gave rise to the second count (of attempted sexual intercourse), on which, again, the appellant was convicted. The appellant again pulled the complainant down and attempted to insert his penis into her mouth. It was not fully erect, and touched her face. This gave rise to the third count on the indictment (on which the appellant was acquitted). 5 The complainant stood up and began to leave. The appellant took her hand and placed it on his penis. This gave rise to the fifth count (which resulted in the appellant's acquittal). The complainant began to walk away and returned to the car park at the Tully Park Tavern. The appellant accompanied her. On the way he again attempted to kiss her. At the car park the complainant saw four of her friends entering a car, and she joined them. They drove to Flamingos. There she found a close friend, Cameron Bellis. 6 She told him something of what had happened. She made specific reference to the allegation that the appellant had attempted to insert his fingers in her vagina. She was crying. Mr Bellis, and a number of others, observed the complainant in an apparently distressed condition. She was experiencing pain in the vaginal area. In the toilet she made a visual inspection of her vaginal area and found that it was swollen and discoloured. 7 Two days later (a Sunday) the complainant told another friend (Jason Banks, a senior constable at the Academy) of the incident, and the following day spoke to a female clerical assistant at the Police Academy. She subsequently spoke to Inspector Lesley Dickens and then made an official report. 8 There was a considerable body of evidence attesting to the complainant's distressed condition upon her return to Flamingos. Mr Bellis, to whom the complainant first gave an account of the incident, described her as "very upset" and crying. Ms Jennifer Robertson, who was a friend of the complainant, saw her in the toilets at Flamingos. She was crying. She did not tell Ms Robertson the cause of her distress. Ms Donna Green observed her at Flamingos and saw that she had been crying, her hair was dishevelled and she "looked shaken". She also described the complainant's manner of dancing as "odd" and "sort of sluttish" and said that the complainant was upset because she had lost her jacket. Matthew Ellis was the person who drove the car (with the complainant as a passenger) from the Tully Park Tavern to Flamingos. He described the complainant as "very quiet" and said that on arrival at Flamingos she went straight to the bathroom and that when she emerged she "was quite distressed and it looked like she had been crying". 9 The principal evidence of complaint was that of Mr Bellis in whom the complainant first confided. When Mr Bellis asked the cause of her distress the complainant gave a brief account which was consistent with the evidence she gave before the jury. 10 Thereafter, it was not until Sunday 22 July that the complainant took any steps officially to report the events of which she complained. It was then that she spoke to Senior Constable Banks who observed that she appeared to be having difficulty walking and was wincing which caused him to assume that she was in pain. Again, she gave a brief account to him which was consistent with the evidence she gave in the trial. 11 Senior Constable Banks passed on the information to Ms Julie-Anne Swords, a clerical officer at the Academy, who in turn spoke to the complainant during the evening of Sunday 22 July. Once again, to the extent that the evidence discloses what the complainant said, it was consistent with the account she gave in evidence. 12 There was also medical evidence, from Dr Christopher Harman. Dr Harman examined the complainant on 23 July. He recounted the history he took from the complainant, which included the description of the appellant forcing his hand down the front of the complainant's pants and inserting his finger into her vagina. Dr Harman deposed that examination revealed the complainant's mons and labia to be contused, swollen and tender, too tender to permit the use of a speculum for further examination. He also noted the presence of a small abrasion internally on the right labia. He said that in his opinion the complainant's injuries were consistent with the description given in her history. 13 On 26 July the officer in charge of the investigation, Detective Sergeant Stuart Gray, sought and was granted a warrant under the Listening Devices Act 1984. His intention was to have the complainant instigate contact with the appellant with a view to engaging him in a conversation during the course of which he would, or might, make admissions or incriminating remarks about the events of the evening of 19 July. To this end, and in cooperation with Detective Gray, the complainant contacted the appellant by email. This was done on 2 August. However, the appellant did not immediately respond, and by the time he did, the warrants granted had expired. Further warrants were sought and obtained, and on 6 September there were two telephone conversations between the complainant and the appellant. Both the tape recordings and the transcripts of the first and second conversations (which were agreed to be accurate) were before the jury, although the transcripts were said to be before the jury as an "aide memoire". 14 The third telephone conversation was not recorded but the complainant made an immediate note of its content and this note was read to the jury. It is necessary to extract at some length some of the conversations as recorded in the transcripts that were before the jury. In the first conversation, after some inconsequential exchanges, the complainant is recorded as having raised the subject of their meeting at Goulburn. The following is recorded as the ensuing conversation (I have maintained the punctuation as it appears in the transcripts): Complainant: What was that all about? Appellant: Y…oooh, mate, "pissed" and "pissed off", mate. Complainant: What happened? Appellant: Yeah, "pissed" and "pissed off", mate. It'll never happen again. Complainant: You s… you scared the shit out of me. Appellant: Yeah, it's alright "Krusty". "Pissed" and angry, mate. That's all, but I wasn't angry at you. Complainant: Huh? But, well, I mean, why do that, but, like …? Appellant: Yeh. Complainant: Do you know what I mean? Appellant: Yeah, I know. I know. Complainant: I kept … Appellant: But it'll never happen again. Complainant: … I told you I wanted to go back, and … Appellant: Yeah, I know. It'll never happen again, "Krusty". I was just "pissed off", "pissed off with the world", "pissed off with my life". … Complainant: But, well, why take it out on me? Specially somethink like that? Appellant: Yeah. Complainant: Do you know? Uh, I just, I don't know, just, do you know, I didn't expect it from you. Do you know what I mean? Appellant: Yeah, well, I didn't expect it from me, either "Krusty" 'cos I don't do those sort of things. Complainant: And you, you really "scared the shit out of me". Appellant: Yeah, oooh, right, I didn't mean to. Complainant: No, but, do you think that was called for, really? Appellant: Yeah. Yeah, well if, if that's the case, well I don't think it advisable if I do see you then. Complainant: Why, do you think you would be like that again? Appellant: No! No! No! If I scared you, I don't want, no! Complainant: Well, just I've, no, I've never seen you like that, that's all and I kept … Appellant: Yeah. Complainant: … I kept telling you "No", and, and that I wanted to go back … Appellant: Yeah. I know. Complainant: … and you didn't … Appellant: But, mate, sincerely apologise for my anger on that night. Complainant: Mm hm. Appellant: Sincerely apologise for that and you didn't deserve that, and I really mean it. … Complainant: Do you remember what you did? Appellant: Ah, n … well that's the "hazy part", hhhuh, as I say, but I don't wanna, know. I don't wanna know. Complainant: Do you remember me telling you "No"? Appellant: Ah, n … I don't remember much about anything. I remember walking outside and tripping over and I remember being on the grass and trying to get over a fence. … Appellant: Yeah. No, you're right, mate. You're right, but look, yeah, "Krusty", I think the best thing to do, mate, is just forget I even exist, mate, because I don't wanna, you know, make you feel uncomfortable if I've done anything too, ah, to hurt you or upset you, mate. Complainant: Mm Appellant: I, I certainly don't wanna make you feel uncomfortable in any way. Complainant: Alright ah … Appellant: And, and so, mate, I just apologise if I, um, if I hurt you or upset you or offended you. Complainant: Mm, hm. Appellant: 'Cos I certainly didn't mean to. Complainant: Yeah. Appellant: I, I hope you understand that, 'cos I certainly didn't mean to. Complainant: Sure, alright. Appellant: Yeah. I didn't, what, I didn't do anything wrong, did I? Complainant: Sorry? Appellant: I didn't do anything wrong, did I? Complainant: Well, I kept telling you "no" and you wouldn't stop, and things like that, so … Appellant: Oh, shit!! Complainant: And I just telling you I wanted to go back and you just kept me dragging, kept dragging me down … Appellant: Oh, you're kiddin' "Krusty"!! Complainant: That's wh …that's why you really scared me Appellant: Oh, fuck, honey!! Oh, fuck!! Complainant: Yeah Appellant: Aaah, "Krusty". I am so sorry mate. Complainant: Mm, hm. Appellant: I had no idea. I truly had no idea. Complainant: Alright, then. Appellant: But, mate, I, look I sincerely, well if I didn't do any, I didn't hurt you did I? Complainant: Yeah. Appellant: Where? Complainant: Well, you, you don't remember anythink do you? Appellant: Well, no. Did I hurt you? Complainant: You kept tryin' to grab me between the le … crutch. Appellant: Ooh, shhh … you're kidding!!? Complainant: And I was, yeah, it was, hurts there. Hu … it hurt there. Appellant: Oh, fuckin' hell!! Are your (sic) kidding? Complainant: No. I'm not. You really did hurt me. That's why I wanted to know what, what was it all about. Appellant: Oh, fuck!! I feel like I'm gonna be sick. Oh, fuck!! "Krusty", are you, are you, are you serious? Complainant: Yeh, I'm serious. You really hurt me hhhh. That's why I've never seen you that angry. … 15 There was a great deal more in the same vein, after which the following is recorded: Appellant: Mate, you've got no idea! I mean, I mean, ooohh, fuckin' hell, mate, I yeah … am I in trouble? Complainant: What do you mean? Appellant: Am, am I, have I done something like, against the law, trouble? Complainant: Ahhh, you could probably say that, yes. Appellant: Oh, "Krusty"! Am I gon … am I gonna get locked up? Complainant: Who said that? Appellant: No, are y… are you gonna get me locked up? Complainant: Why? I haven't said anything to anyone. … 16 The conversation continued with the appellant expressing his apologies and promising to do whatever he could to make amends. This telephone call was initiated by the complainant. It commenced at 12.35 p.m. on 6 September and concluded at 1.03 p.m. Five minutes later, at 1.08 p.m., the appellant telephoned the complainant. The appellant again expressed himself to be "absolutely shocked" and "truly, truly sorry". Well into the conversation the following is recorded: Appellant: Just tell me what happened. Complainant: You don't, honestly don't remember anythink? Appellant: Well, if you tell me, I might be able to … Complainant: Do you remember me, do you remember, you, do you remember you dragging me, and tried to drag me outside? Appellant: Outside where? Complainant: Outside TULLY'S? Appellant: I was talkin' to "Chook" and Brian ALBRECHT. Complainant: Who's that? Appellant: Yep, and you walked up and you gave me a "shot". Complainant: Yep. Appellant: And then we've walked through the glass doors near the disco. No, near the bistro, sorry. Complainant: Say that again? Appellant: That's the exit. We've walked out of the glass doors near the bistro. We've turned right, gone down the grass and that's when I've tripped over in the grass. Complainant: Yeah, but … Appellant: And then we've moved over to a fence … Complainant: Yeah, well, mean … meanwhile … Appellant: Near a house … Complainant: … I was tryin' to tell you I wanted to go back inside and I didn't want to just be out there and my friends come lookin' for me. Do you remember that? Appellant: I remember you sayin' that after, when, um, you were going. Complainant: No. Appellant: Yeah. No, no. I remember that, because you went back towards that way, towards TULLY'S, and I went back up towards Tom's place. Complainant: No, 'cause you pulled me outside and I did … didn't want to go out and then, so I s … said "no", 'cause I will stay inside, and then , well, you, we went out, well you pulled me outside, you … Appellant: Right. Complainant: ..,. Took me outside and then you pulled me around, you had me ha … by the hand and you pulled me around behind the gate. Do you remember that? Appellant: Behind a gate? Complainant: Yeah, that gate that goes down to the Gym. … Appellant: … Everyone would've seen that because there was people in the bistro. Complainant: That's what I kept saying to you and you said "No, no, no. No one will see me." Appellant: Well, yeah, but people would've seen me draggin' you off to the bloody, behind there. Complainant: Yeah, that's why my friends come looking for me. Appellant: But no-one came lookin' for you "Krusty"! Complainant: Yes, they did. Appellant: "Krusty", no-one came lookin' for you! Complainant: We were walking, we were, when we were walking along the grass … Appellant: "Krusty", I walked back behind you. When you went back in towards TULLY'S I went, walked back after you to see if you got back there alright. Complainant: That was … Appellant: There was no-one lookin' for you!! … Appellant: There was no-one lookin' for you "Krusty"!! "Krusty", there was no-one lookin' for you, because I went back lookin' for Tom and I didn't even see Michelle, Rochelle LANGREISE's car parked there. So I though they'd gone, so I turned around and started walkin' home!! … Complainant: …That was a … at, that was the last bit of it. There was, there was heaps more in between that! Appellant: Yeah. Yeah, of course there was. Of course there was. Complainant: That's what I'm asking you, if you remembered. Appellant: But I didn't … No, I, "Krusty", I didn't drag you anywhere, mate. Complainant: You had me by the hand. Appellant: Oh, mate, "Krusty", I didn't drag you anywhere. Come on, mate? That's, that's me, and I didn't drag you anywhere, and if I was draggin' anyone anywhere everyone would've seen, because the gate is only ten feet away from the bloody main door!! Complainant: Yeah, but you, I'm just saying, you had me by the hand, and took … Appellant: "Krusty", I didn't have you by the hand, because we walked out, there's no way I had you by the hand, because peop … everyone would've seen!! They would've seen us, by, with the hand. Come on "Krusty"?! and I remember walking down towards this house and we moved over towards the fence behind the tree. Is that right? Complainant: Yeah Appellant: Yeh Complainant: And I kept telling you that I wanted to go back. Appellant: Yep, and that's when we walked over to the fence and I tripped over the fence too. Remember that? And I said to you I was so friggin' "pissed" and been such an idiot. Yep? How'm I doin' so far? Complainant: No. I kept tellin' you that I wanted to go back and you said "No, no, no. Stay here. Stay here". Appellant: Yeh, but I … yeh, and then when you said "That's it. We're going," what happened. Complainant: Yeh, it too … it took a while. Appellant: It didn't take a while, "Krusy", com on!! How long were we gone for, "Krusty"? Complainant: Ages. Appellant: Bulshit!! Ten minutes. Complainant: I don't know how long we were gone for. Appellant: Ten bloody minutes, "Krusty"!! Complainant: Mmm. Appellant: From the t … hey, because Tom WAIBEL said he saw me and he said they s … they saw that I'd gone and that's when they got in the car and started lookin' for me. He said I was gone for ten minutes. Ten bloody minutes, "Krusty"!! Now, you say I'm draggin' you out of the place, and we walked out side by bloody side. Now, if I was draggin' you out, people would've seen that. That's number one. Complainant: No. I didn't say, you, ah, you had me by the hand. … Appellant: So it's right there. Yeh, I didn't drag you out friggin' anywhere, "Krusty"!!! … Appellant: I as, ah, "Krusty", obviously I wasn't that drunk, if I can remember this! I thought you were sayin' that I did somethin' else!! Now, I, no, I remember things that happened, but I tell you what, I'm not rememberin' the things you're sayin' that I did!! As I said to you, I'm, I am, I'm truly sorry, if you're, if, if … 17 The final telephone call took place at about 2.00 p.m. the same day. This, again, was initiated by the appellant. It was put before the jury in the form of the notation made by the complainant immediately afterwards. She recorded that, when she answered the telephone the appellant announced himself, and the following conversation took place: Appellant: I remember everything that happened, can you talk? Complainant: No. Appellant: Listen and tell me if this is what happened. Complainant: Yep. Appellant: You walked out with me, we went for a walk, I fell over, you tried to take my pants down. Complainant: I'm listening, I can't talk. Appellant: You said to me that you wouldn't be able to get it up because you're too drunk. We ended up going because I couldn't do it to my girlfriend. We were only gone for about five minutes and then we walked back inside. I remember back we walked back inside because Michelle's car was still there. That's right, isn't it? Complainant: Whatever. Appellant: Can we arrange to go out, what's your roster? Complainant: Yep, sometime. Good bye. Appellant: Good bye. 18 On 21 September the appellant was arrested and charged. On the same day he participated in an electronically recorded interview. He denied an allegation put to him that, while at the Academy Bar, he pulled forward the complainant's upper clothing. He acknowledged that there had been some conversation about the complainant's breasts, but said that he had taken her to be flirting. He acknowledged sexual activity between himself and the complainant but claimed that it was consensual and that the complainant was a willing and active participant. Specifically, he acknowledged putting his hand down the front of the complainant's pants, but denied thrusting his fingers in and out of her vagina and said that the complainant took hold of his hand and sucked his finger. He denied that the complainant protested, and denied that she said that she wanted to return to the bar. He claimed that she undid his pants and performed fellatio upon him. His answers were inconsistent with his professed absence of recollection during the conversations with the complainant. They were also inconsistent with his expressed remorse during those conversations. * * * 19 The appellant gave evidence in the trial. He denied having forced the complainant from Tully's Tavern. He denied having pulled down her clothing to expose her breasts and denied attempting to kiss her breasts. He said that such sexual activity as there was had been consensual. He adopted and relied upon the answers he had given when interviewed. He was asked to explain the content of the telephone conversations. Contrary to what he had there repeatedly said, he denied that he had been intoxicated, although he had earlier repeated (as he had said in his interview) that he was "moderately affected" on the night and explained his responses in those conversations by saying that he accepted what had been put to him by the complainant. He said that he was ashamed of what had happened. He also claimed to have realised that sexual intercourse was not going to eventuate and that he told the complainant to "just fuck off back to Tully Park". He said he was ashamed of having said this also. In cross-examination the appellant went further. He agreed that he had put his hand down the complainant's pants and admitted that he had inserted a finger in her vagina. He claimed that it was the complainant who attempted to initiate oral sex and that he rebuffed her in this attempt. This evidence also sat uneasily with his responses to the complainant in the telephone calls. * * * 20 The trial proceeded over seven days in May 2002. The jury retired at 4.37 p.m. on 20 May. The following morning at 11.45 a.m. the jury conveyed a question to the trial judge in the following terms: "If an act starts with consent and then consent is withdrawn during that, does this constitute consent or non consent of the total act?" 21 The trial judge discussed with counsel the manner in which the question should be answered. The concurrence of both counsel to the proposed answer was given, with counsel for the appellant specifically asking that the jury be reminded that the appellant bore no onus of proof. Accordingly the trial judge further directed the jury: "Ladies and gentlemen of the jury, I have received your note. [He then read the question.] I have discussed the matter with counsel. The law is that if an act commences as a consensual act but consent is withdrawn, then it becomes a non-consensual act, but when considering this, you have to consider whether the Crown has satisfied you beyond reasonable doubt that the accused knew at that time that the complainant was not consenting or was recklessly indifferent as to whether she was consenting or not. So if I can just put it another way, if a sexual act commences and consent is withdrawn, it is at that moment when it becomes non-consensual that you must consider whether the Crown has satisfied you beyond reasonable doubt that the accused knew at that time she was not consenting." 22 His Honour then asked both counsel whether they wished anything added or subtracted and received a negative response from both. 23 The jury returned with the verdicts already mentioned at 3.45 p.m. grounds of appeal 24 The grounds of appeal ultimately argued were framed as follows: "Ground 1 The verdicts of the jury on counts 1 and 2 were unreasonable by reason of inconsistency with the verdicts on counts 3, 4 and 5 and therefore there has been a miscarriage of justice; Ground 3 Erroneous instruction from trial judge following note from jury; Ground 4 Inadequate directions – failure to direct jurors that where they entertain a reasonable doubt about the complainant's credibility in relation to one count and the effect of this in respect of other counts; Ground 5 That the learned trial Judge erred in directing the jury that the telephone call evidence between the accused and the complainant were admissible as evidence of the lack of consent; Ground 6 That the learned trial Judge erred by failing to direct the jury that the telephone call evidence between the accused and the complainant was not evidence as to the fact of the want of consent to the alleged offences." (The ground originally numbered 2 was formally abandoned.) 25 It is convenient to deal with the grounds in a sequence different from that in which they are pleaded. ground 3 26 The simple submission put on behalf of the appellant in relation to ground 3 is that the response to the jury question should not have been given at all. This, it was said, was because the direction had the capacity to invite the jury to return verdicts on the basis that the complainant consented at some level and withdrew consent notwithstanding the fact that the Crown case was at all times that the complainant did not consent to any sexual activity with the appellant. 27 In my opinion this submission should be rejected. It omits reference to the competing position adopted by the appellant, to the effect that sexual activity had taken place between the two and that the complainant both consented to it and was actively involved in it, indeed initiating some activity. The jury was not obliged to accept in full the Crown's position, nor was it obliged to accept in full the appellant's position. In the circumstances of this case it was perfectly legitimate for the jury to consider whether some intermediate position should be seen as reflecting the reality. The jury were given adequate directions concerning the onus of proof, and were reminded of that in the response to their note. Moreover, the direction was given with the full concurrence of counsel for the appellant. In these circumstances the appellant requires leave under Rule 4 of the Criminal Appeal Rules to argue this ground. In my opinion, having regard particularly to my views concerning the merits of the ground, leave should be refused. ground 4 28 The formulation of this ground is drawn from the judgment of Spigelman CJ in the decision of this court in Markuleski v R [2001] NSW CCA 290; 125 A Crim R 186 at [188]. There his Honour said: "It will often be appropriate to direct jurors that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability or the complainant's evidence generally." 29 It is true that the trial judge did not give a direction in precisely these terms. What his Honour did say was: "Now if at the end of your deliberations there is in respect of any or all of the counts on the indictment a reasonable doubt on the Crown case then you must acquit and by the same token if there is no reasonable doubt on any or all of the counts on the indictment then you can convict. It must be the decision of you all one way or the other on each count of the indictment and each count must be regarded separately. A finding one way or the other on one count does not, as it were, automatically spread to the others. You have got to look at each one separately and you have got to return a verdict on each one separately, so that there are five verdicts to be returned." 30 What is omitted from this direction is any reference to the effect a reasonable doubt concerning the credibility or reliability of the complainant in relation to one count, or more than one count, might have, or should have, in relation to the other counts. In its written submissions the Crown accepted: "that it may have been desirable for some additional direction along the lines suggested by the appellant to have been given to the jury." 31 The proposed direction arises, not only from the judgment in Markuleski, but in turn rests on the decision of the High Court in R v Jones (1997) 191 CLR 439. That was a case in which the appellant was charged with three counts of sexual assault of which he was convicted on two and acquitted on one. In the joint judgment of Gaudron, McHugh and Gummow JJ, the following appears: "The jury's finding of not guilty on the second damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the event which was said to give rise to that count. … Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury was not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. … It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any grounds for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count." 32 The High Court set aside the convictions and entered verdicts of acquittal. However, as was pointed out by Spigelman CJ in Markuleski, this was not solely on the basis of the adverse effect of the acquittal on the assessment of the jury's assessment of the perception of the complainant's credibility, but also because, in Jones, two other factors operated – an absence of corroboration and a lengthy and unexplained delay in the reporting of the alleged incidents – neither of which is present in this case. 33 The particular issue under consideration in Markuleski concerned the directions that are necessary in trials of multiple counts, particularly where the Crown case depends essentially on the evidence of a principal witness. It therefore has particular practical application in trials of charges of sexual misconduct, in which typically the Crown case depends upon the evidence of the complainant. But it is also to be observed that the Chief Justice expressly disclaimed the promulgation of a fixed form of words, noting that what will be required depends upon the circumstances of each case. 34 Although this was a case in which it would not be surprising to have found that the jury returned identical verdicts (whether guilty or not guilty) on all counts, it was not logically necessary that they do so, and the jury was given the specific direction that it was not necessary that all charges result in the same verdict. In Jones the High Court explored a number of possible explanations for the differing verdicts and, in that case, rejected all possibilities as unlikely or improbable. By contrast, the facts alleged in the present case are susceptible of rational explanation for the differing verdicts. The evidence was capable of establishing that the complainant had, at some stage, been a willing participant, or at least of creating a reasonable possibility to that effect in relation to certain of the events alleged and therefore raising a reasonable doubt about whether the Crown had, in those counts, negatived consent to the requisite standard. Moreover, although it does not appear to have assumed a focal role in the trial, the appellant's knowledge of the absence of consent was a crucial element in the Crown case. Given the circumstances I have outlined, the jury may well have taken the view that the evidence did not, on the counts which resulted in acquittal, permit a conclusion beyond reasonable doubt that the appellant knew that the complainant was not consenting or was recklessly indifferent as to whether she was consenting or not. It is not without significance that the two charges on which the appellant was convicted were charges of actual or attempted vaginal penetration, the first digital and the second penile. The medical evidence alone was powerful support, not only that the incidents had occurred, but that they were performed with a degree of roughness inconsistent with consensual activity. 35 I acknowledge that all the complainant's allegations, particularly in relation to the third count, were of serious sexual assault and could have given rise to convictions. That they did not does not, in my view, diminish the complainant's credibility in any relevant way. It reflects upon the evidence the Crown was able to adduce, and in particular upon the evidence establishing the appellant's state of mind. 36 It is to be borne in mind that the present ground concerns a direction which, it is claimed, ought to have been given. I have dilated upon the factual circumstances of the complainant's allegations in order to consider whether the evidence was such as to call for the direction propounded on behalf of the appellant. The matters to which I will refer when considering grounds 1, 5 and 6 are also here of relevance, particularly the appellant's own utterances in the telephone conversations, as recorded. In my opinion a direction as set out in Markuleski was not, in these circumstances, called for. 37 It is also of relevance that, at the express request of the Crown Prosecutor, the trial judge gave the jury a direction in accordance with R v Murray (1987) 11 NSWLR 12 at 19. What was said in that case was: "In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in…" 38 The direction given by the trial judge was in these terms: "The last thing is that as a matter of law where you get a case where the evidence essentially is the evidence of one person against another, you must examine the complainant's evidence very, very carefully to make quite sure that you understand precisely what they are saying and weigh it very carefully because in the situation where the real allegation comes from [the complainant] alone, although there is evidence to support those allegations, nonetheless you should look at her evidence very, very carefully were you mindful to convict." 39 This was not, strictly, a case in which there was only one witness asserting the commission of a crime, although, plainly, the complainant was the only witness to the actual events. There was also the strong supporting evidence of the complainant's obvious distress immediately after the events of which she complained, and the medical evidence. Added to that was the evidence of the appellant's responses in the tape recorded telephone conversations, of which I say more below. In my opinion, the Murray direction was favourable to the appellant. I would reject ground 4. grounds 5 and 6 40 These grounds concern the tape recordings and transcripts of the two telephone conversations which have been set out at some length above. Objection was taken at the time of the tender of this evidence, but it was taken on the ground of relevance, and failed. As an alternative position counsel then appearing for the appellant sought the exclusion of the evidence under s137 of the Evidence Act 1995. His Honour rejected the objection on the ground of relevance and stated that he would admit the documents "simply because they are relevant". He impliedly rejected the application for the exercise of the s137 discretion. He expressed the view that contained in the tapes were admissions "that something took place between" the appellant and the complainant and, further "an admission as to an assault which he is not charged with" and "an admission of some interchange that occurred on that particular night". 41 There followed some discussion which may be interpreted as an application under s136 of the Evidence Act that the use to which the evidence could be put be limited, although this is not entirely clear on the transcript. In any event, his Honour said: "I am quite prepared to say something to them of the nature that this is evidence of an association on that particular evening but is not an admission to any of the matters which have been alleged against him." 42 Counsel for the appellant stated that that was in accordance with his application. The tape recordings were then played to the jury and each member of the jury was provided with a copy of the transcript. The complainant's notes of the third telephone conversation were put to the jury through the complainant. His Honour gave the following direction to the jury at that point: "Ladies and gentlemen, in relation to these two telephone intercepts and one related telephone call, I want to point out to you at the earliest possible opportunity that it is the task of the Crown to put evidence before you which is relevant and only that evidence which is relevant. I wanted to point out to you that the relevance of the those telephone intercepts was as far as the Crown case is concerned that it could, if you accepted it, be construed as an admission that there was some interchange between these two people on the night in question. But there was a lack in both telephone conversations of any specific allegation and whereas it appears in the first telephone conversation that the accused is admitting to something, it is in effect when you think about it only an accusation that he scared her. That is, in that first conversation, that in reality is in the first part of that conversation that is what he is admitting to. He said 'That's no excuse if I upset you and got angry and you know, that's no excuse.' It's along those lines that the admission is made. There is an allegation of, in those telephone calls, of an indecent assault but there is no admission as to that in the first telephone call. In the second telephone call, it is very much of the same nature. He said, 'I just want to apologise because you said you were scared and that I was angry'. As far as forcing himself upon her, which you will find in the second telephone conversation, there is a reposit of that, 'No, I don't remember that.' In short, that's a denial to that accusation. There is also a denial, a somewhat vehement denial that he dragged her out from the club. I am saying that at the earliest possible opportunity because whilst the facts are for you and for you, alone, in this trial as I will tell you later, it is possible to place too much emphasis on a particular piece of evidence to the total ignore of everything else. So I would like to point that out to you straight away so that you don't, as it were, go off at a tangent because you think there's perhaps more significance in those telephone calls than there really is because they're only admitted for the Crown case to show that they were together at a particular time on that particular evening alone. And that's as far as really those two telephone calls goes." 43 His Honour invited both counsel to indicate if they wished anything added, but both declined. 44 Senior counsel who appeared on the appeal identified eight references to the tape recordings in the summing up. These were: (i) " … and then there is the telephone call to the accused when she said to him words to the effect, 'I told you I wanted to go back' and he said, 'Yeah, but it will not happen again'. That is, he agrees with that, but says it will not in the future happen again." (ii) "… and then there were the telephone calls when he admitted that he knew she was not consenting in exactly the same line. 'I told you I wanted to go back'. 'Yes'. " … (iii) "The Crown said there should not be any contest about that. She was not consenting and here you have [the complainant's] evidence and the telephone call and he knew that he [sic] was not consenting …" (iv) "… You will recall that there were the two telephone calls and third which she reported which was not intercepted and the contents of all of those are before you … " … (v) "As far as the telephone calls were concerned, they were an accurate transcript." … (vi) "There is no attempt in those telephone conversations to put the account of events that he now puts to you, that is in the first two telephone conversations." (vii) "… She did not consent to go out and then you can hear those answers in the telephone calls." (viii) "… His lack of recollection of the third telephone call really cannot be accepted." 45 Two points were made on behalf of the appellant in relation to this evidence. They can be stated with relative simplicity. The first is that it was wrong to characterise the contents of the tape recordings as capable of establishing the absence of consent, as suggested in the extract from the summing up which appears at sub-paragraph (iii) above. The second is that a direction should have been given to the effect that the assertions made by the complainant to the appellant could not be used as evidence of the truth of what was contained therein and in particular of the absence of consent. 46 A reading of the transcripts of the tape recordings does not do justice to the recordings themselves. I have listened to the tape recordings, as did the jury. The jury may have thought that these were a powerful indicator that the appellant was aware that his conduct had been of the kind described by the complainant, and that she had not consented to his conduct. His expressions of remorse and even mortification may have been very compelling evidence in the minds of the members of the jury. In my opinion the jury, having heard the tape recordings, may well have concluded that the appellant was aware that the complainant had not consented to his conduct. It was therefore not wrong for the trial judge to direct the jury as he did. It is true that, as the first conversation progressed, the appellant professed a lack of recollection of the events of the evening. In these circumstances it was specifically within the province of the jury to assess the evidentiary value of the tape recordings. 47 The second point, that the complainant's own assertions could not be treated as evidence of the truth of what was contained in them, and a direction to that effect should have been given, also, in my opinion, fails. While it is to be borne in mind that the complainant had an advantage in that she was aware that what she said was being recorded, and, indeed, was intended to provoke the appellant into making inculpatory responses, what she said was in no way inconsistent with the evidence she gave in the trial. The Crown case was not strengthened by the content of the complainant's accusations alone during the telephone conversations. Certainly, the Crown could not prove absence of consent, the central issue in the trial, merely by relying on assertions made by the complainant in these circumstances. But it was not her accusations that were the focus of this evidence: it was the responses made by the appellant. I do not think the jury could have been in any doubt about that. Particularly powerful in this respects was the appellant's response, at an early stage, to the complainant's assertion that she had told him that she wanted to "go back". His response was: "Yeah, I know. It'll never happen again, "Krusty". I was just "pissed off with the world", "pissed off with my life". Moreover, as she had already given, in much greater detail, her account of the events, what she said in the telephone conversations could not have added anything to the Crown case, other than to make sense of the appellant's responses. 48 I would reject these grounds of appeal. ground 1 49 By this ground the appellant invokes the reasoning in Jones to which I have already referred. The essential point he makes is that the variation in the verdicts should give rise to relevant unease about the convictions because there was nothing to distinguish the complainant's credibility in relation to the first and second counts from the remainder. 50 Counsel referred to a good deal of evidence from which it could readily be inferred that the complainant had, at least in the early stages of the evening, willingly participated in the encounter with the respondent and could be seen to have shared his amorous intentions. He also referred to the evidence that the respondent was unable to complete his intended acts of intercourse, and to the evidence given by the appellant that he told the complainant: "It wasn't going to be happening. I just said fuck off back to Tully Park." 51 This reference was to suggest that the complainant made her allegation as a hostile reaction to her rejection by him. While this was a proper matter to put before the jury for its consideration it is not such as to warrant the setting aside of the convictions. It is something that plainly the jury rejected. 52 In my opinion the jury may well have concluded that the Crown had failed to negative consent in relation to the less serious assaults but had done so in relation to the more serious, of which he was convicted. In this respect I refer again to the supportive medical evidence, and to the evidence of the complainant's distress. Further, the appellant's own inconsistent position, as revealed in the tape recordings, his recorded interview and his evidence, could hardly have assisted him. In my opinion the varying verdicts in this case cannot be seen in the same light as those in Jones or Markuleski. Here, it seems to me, the salient issue is the jury's assessment of the complainant's willingness to participate at an early stage in the encounter. That is particularly borne out by the question asked by the jury. It is entirely consistent with the overall impression obtained from a reading of the evidence, even confined to the evidence of the complainant herself. This is not a case in which a verdict of not guilty on one count (or three counts) must be seen to cast doubt on the complainant's credibility on the other counts. The strong evidence of the complainant's evident distress on her return to the club provided a powerful balance to evidence of the kind referred to by counsel for the appellant. 53 I am satisfied that the acquittals in relation to counts 3, 4 and 5 do not impact upon the complainant's credibility in such a way as to warrant the convictions being set aside. I would reject this ground of appeal. 54 In these circumstances I propose that the appeal against the two convictions be dismissed. 55 CARRUTHERS AJ: I agree with Simpson J. 56 MATHEWS AJ: I agree with Simpson J. Amendments 01/09/06 - Correct name of counsel for appellant added - Coversheet ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.