New South Wales Court of Criminal Appeal CITATION : Regina v Villar; Regina v Zugecic [2004] NSWCCA 302 HEARING DATE(S) : Tuesday 27 April 2004 JUDGMENT DATE : 3 September 2004 JUDGMENT OF : Grove J at 1; Simpson J at 176; Howie J at 177 DECISION : Appeals against conviction dismissed; Appeals against sentence allowed; Appellants resentenced CATCHWORDS : CRIMINAL LAW AND PROCEDURE - JOINT TRIAL OF OFFENDERS' - INDICTMENT - JOINT AND SEVERAL CONSTRUCTION - INADMISSIBLE STATEMENTS BY CO-ACCUSED NOT RENDERED ADMISSIBLE AT BEHEST OF OTHER ACCUSED - CROSS EXAMINATION OF COMPLAINANT WHERE SEXUAL OFFENCES ALLEGED - SCOPE OF "SEXUAL REPUTATION" - FACTS SUFFICIENT TO SUPPORT AGGRAVATED OFFENCES BY BEING "IN COMPANY" - INCONSEQUENTIAL SLIPS OF LANGUAGE IN CHARGE TO JURY - JUDGE'S FINDINGS OF FACT FOR PURPOSE OF SENTENCE NOT NECESSARILY IDENTICAL TO JURY FINDINGS LEADING TO GUILT - COMMENT BY CROWN PROSECUTOR ON FAILURE OF ACCUSED TO GIVE EVIDENCE OTHER ACCUSED HAVING DONE SO - WHETHER DEMONSTRATING MISCARRIAGE - SENTENCE - STRUCTURE RESULTING IN EXTREMELY LONG POTENTIAL PERIODS OF PAROLE - RESENTENCE APPROPRIATE LEGISLATION CITED : Crimes Act 1900 Bataillard v The King 1907 4 CLR 1282 BRS v The Queen 1997 191 CLR 275 Cheung v The Queen 2001 209 CLR 1 Crofts v The Queen 1996 186 CLR 427 DPP v Merriman 1973 AC 584 Gregory v The Queen 1983 151 CLR 566 Hale's Pleas of the Crown (1778) Hawkins' Pleas of the Crown 8th Edn CASES CITED : R v Berrigan, unreported NSWCCA 7 Oct 94 R v DMC [2002] NSWCCA 513 R v Fenwick 1953 54 SR (NSW) 147 R v Leary, unreported NSWCCA 8 Oct 93 R v Leoni [1999] NSWCCA 14 R v Markuleski 2001 52 NSWLR 82 R v McGarvey 1987 10 NSWLR 632 R v Rowe 1996 89 A Crim R 467 R v Scognamiglo 1991 56 A Crim R 81 PARTIES : Regina v Gerardo Villar Regina v Kristijan Zugecic FILE NUMBER(S) : CCA 60489/03; 60380/03 D. Arnott (Crown) COUNSEL : J.C. Papayanni (Villar) B. Vasic (Zugecic) S. Kavanagh (Crown) SOLICITORS : C. Jeffries (Villar) M. Marando (Zugecic) LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3105; 02/21/3099 FILE NUMBER(S) : LOWER COURT Coleman DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60489/03 60380/03 GROVE J SIMPSON J HOWIE J Friday 3 September 2004 REGINA v GERARDO VILLAR REGINA v KRISTIJAN ZUGECIC Judgment 1 GROVE J: Gerardo Villar (Villar), Kristijan Zugecic (Zugecic) and Tome Hadzi-Mitrov (Mitrov) were presented for trial on indictment before Coleman DCJ and a jury at Campbelltown District Court. The indictment was lengthy but all alleged offences by all then accused were alleged to have occurred at the same premises over the night of 24-25 May 2001. Count 1 was charged under the now replaced s 90A of the Crimes Act 1900 (kidnap) and all other offences were of the nature of sexual crimes. A general description of the counts and outcomes follows. 2 Count 1 of the indictment charged the three accused that: "On or about 24 May 2001 at Canley Vale in the State of New South Wales, did detain RB with intent to hold her for advantage to themselves". 3 On deliberation, the jury sent a note stating: "The directions given on count 1 caused the jury to believe all three had to be found guilty or not guilty, however if the charges are specific to each accused, we have a unanimous verdict for two accused" (T5 15 October 2002). 4 His Honour stated that he proposed to take those verdicts in relation to that count and added: "From the heads that have been nodded at the bar table, I take it there is no opposition to that course". 5 An oral response is recorded by counsel for Villar "No, your Honour". 6 Thereafter the jury returned verdicts of guilty against Villar and Zugecic on that count. They were discharged as unable to agree in respect of finding a verdict on that count in respect of Mitrov. 7 Counts 2 and 3 in the indictment charged Villar with having sexual intercourse with RB without consent contrary to s 61I of the Crimes Act. The jury returned verdicts of not guilty on these counts. 8 Count 4 charged Zugecic with having sexual intercourse with RB without consent in circumstances of aggravation contrary to s 61J, that circumstance being that the accused was in company at the time of the offence. A verdict of guilty was returned. 9 All counts in respect of which circumstances of aggravation were pleaded involved Crown allegation that, at the relevant time, the offender was in company. 10 Counts 5 and 6 charged Villar with similar offences contrary to s 61J. On each of those counts verdicts of not guilty were found by direction of the presiding judge. 11 Counts 7, 8, 10, 18, 21 and 24 charged Zugecic with further offences of sexual intercourse with RB without consent in circumstances of aggravation. The jury returned verdicts of guilty on counts 7, 8, 10 and 18. The jury were unable to agree and discharged from bringing in a verdict on count 21. They returned a verdict of not guilty on count 24 by direction of the judge. 12 Counts 9, 11, 15, 16, 17, 22 and 25 charged Villar with further offences of sexual intercourse with RB without consent in circumstances of aggravation. The jury returned verdicts of guilty on counts 9, 11, 17 and 22. The jury found a verdict of not guilty on count 16. On counts 15 and 25 the jury returned verdicts of not guilty by direction of the judge. 13 Counts 12, 14, 19 and 20 charged Mitrov with sexual intercourse with RB without consent in circumstances of aggravation. The jury found a verdict of not guilty on count 12. The jury returned a verdict of not guilty on count 14 by direction of the judge. On counts 19 and 20 the jury were unable to agree and they were discharged without verdict. 14 Count 13 charged Mitrov with indecent assault upon RB and count 13(a) charged Villar with inciting that offence. The jury returned a verdict of not guilty on count 13 and consequently no verdict was taken on count 13(a). 15 Count 23 charged Zugecic with sexual intercourse with RB without consent contrary to s 61I. The jury returned a verdict of not guilty on this count. 16 In overview then, Villar and Zugecic were convicted of offences, Mitrov of none. 17 The victim nominated in all counts was the same woman. She had been acquainted with Villar for many years. There was contradiction between them about whether they had engaged in sexual intercourse during a relationship which had existed between them at a previous time. RB had met Zugecic on a few occasions and had spoken to Mitrov on the telephone but had not met him. As a result of some telephone conversation, RB met Villar at a shopping centre and together they proceeded to Zugecic's house at Warwick Farm. At the house were Zugecic and two other men. Mitrov arrived later. It was suggested that some of them go to Mitrov's unit which was in Canley Vale. RB and the three men subsequently charged were driven there by a fourth man who stayed there for a time and then left. As is disclosed by the specification of the charges, all the alleged criminal conduct occurred overnight in these premises at Canley Vale. 18 The conduct constituting the counts upon which convictions were entered included penile/vaginal intercourse, fellatio and digital anal penetration. 19 Before turning to the grounds of appeal, some general observations can be made. The counts upon which verdicts of not guilty were directed by the learned presiding judge were not supported by necessary evidence and I have mentioned the reason for no verdict being taken on count 13(a). A pattern of sorts can be discerned in relation to the outcome of the other counts. 20 The jury were not satisfied of the proof of certain offences charged against Mitrov and brought in verdicts of not guilty for some and were unable to agree about others, but no finding of guilt on any count was made against Mitrov. 21 The jury acquitted Villar of offences alleged to have occurred in the main bedroom when only he and RB were present. They found both Villar and Zugecic guilty of offences once the latter had entered the main bedroom and they were in company of each other. The jury found proved offences by Zugecic and Villar after Mitrov entered that room but they were not satisfied of offence by Mitrov. 22 Subsequent to the alleged events giving rise to those charges, RB went to a bathroom where her pubic hair was shaved. Thereafter on return to the main bedroom the jury was satisfied of the proof of offences charged against Villar and Zugecic, but again, not against Mitrov. 23 Later, RB was downstairs (the main bedroom was in an upper level of the unit) and the jury were satisfied of the proof of an offence by Villar in that location but were unable to agree upon an offence charged against Zugecic. In relation to the latter it was alleged that Villar had on this occasion instructed RB to fellate Zugecic. 24 Thereafter, Zugecic was alleged to have taken RB to a second bedroom (also upstairs) where a further offence was committed by him. They were alone at the time of this charged offence although Villar entered the room afterwards. The jury returned a verdict of not guilty on this charge. 25 Finally RB was in the main bedroom alone with Mitrov. The jury found Mitrov not guilty of an offence alleged to have occurred there. The evidence demonstrated that they fell asleep on the bed. RB awoke at about 8.30 am. She dressed and left after an affirmative response from Mitrov when she asked him whether she could leave. 26 Thus, findings of guilt against the appellants were significantly made when there was sexual activity in company and I have referred to this as a pattern of sorts, that is to say, convictions followed offences committed in company but acquittals or disagreement when RB and an alleged offender were alone. Count 16 is an exception in that the jury found Villar not guilty of an offence alleged to have been committed in company. 27 This pattern of findings can be discerned to have some correlation with what undoubtedly was a significant evidential resource. On departure from the scene RB went in succession to, and complained to, an ex boyfriend and her ex husband. The latter took her to police and it is obvious that she informed them that a video camera had been used during her ordeal. 28 On 28 May Villar told investigating police that videotaping had been done on a camera owned by Zugecic. Zugecic, when questioned, told police that the relevant tape had been disposed of in a garbage bin. He took police to the bin. The tape was recovered in an unravelled condition. By rewinding into a suitable cassette it was able to be played. The tape not only provides a pictorial record but it is accompanied by an audible sound track. 29 At the hearing of the appeal counsel for each of the appellants expressly submitted that the Bench should view and listen to the video recording (Exhibit A at trial). We have done so. Sexual activity is portrayed in detail. RB is both seen and heard to cry on occasions. Her utterances are poignant. Among other things she can be heard to say: "Gerry (Villar) don't hit me"; "I'm scared, I don't want to"; "Sorry, it just hurts, sorry"; and "No, I don't want to". At one point she is seen to be struck and to have her hair pulled. The voices of the accused are audible including at one stage Villar saying: "Yeah, you better not stop or I'll fuckin deck ya". 30 A powerful demonstration of the criminal conduct of the appellants is available by viewing the video. This appreciation derives from viewing the exhibit and hearing the sound track in its context. 31 A submission by the appellants' counsel was that viewing the video would undermine the evidence of RB. It was not suggested that the video was an uninterrupted depiction of everything that happened on that night. Attention was directed to discrepancies between the complainant's oral testimony and events and words recorded by the video. That there is a discrepancy between memory and record is hardly surprising. The posited inconsistencies, even if they be large in number, offer a metaphoric view of trees rather than of a forest. RB's credibility was a matter for assessment by the jury. It was their function to weigh all the circumstances including matters asserted to be exaggeration, embellishment or invention. A particular example alleged of the lastmentioned was a dispute about threat of a gun. The transcript shows that this matter was appropriately canvassed before the tribunal of fact. Having acceded to counsels' request to view the exhibit I comment that for my part that viewing did nothing to strengthen the submissions on behalf of the appellants, quite the contrary. 32 The appellants (and Mitrov) were separately represented at trial. Neither counsel who appeared on the appeal had appeared at trial. Whilst there is some coincidence in the grounds of appeal relied upon by each appellant, it will be convenient to deal with them successively. I turn first to those argued on behalf of the appellant Villar. VILLAR 33 Grounds 1 and 2 are in these terms: "1. His Honour erred in law in respect of count 1: (a) in accepting the jury's verdict of guilty and entering and recording a conviction. (b) in directing and/or failing to direct adequately or properly in respect of the elements of the offence. (c) in directing and/or failing to direct as to the Crown case. 2 (a) His Honour erred in law in directing and/or failing to direct adequately or properly as to joint enterprise and the elements and evidence in respect thereof. (b) His Honour failed to determine whether there was a prima facie case to allow the acts of others to prove the crime." 34 The submissions on these grounds were presented in combination by counsel for Villar. 35 As above noted, three accused were charged in count 1 of the indictment. It was the Crown case that those three accused detained RB for their advantage, namely to enable them to perform sexual acts upon her. The jury did not agree upon a verdict concerning Mitrov. 36 The appellant's first submission was that, as the indictment was "solely joint, the verdict had to be the same for all three accused, i.e. all guilty or all not guilty." The argument was focussed upon the specification of advantage "to themselves" in distinction from advantage to each of them. The contention that the indictment was solely joint appeared to be based upon this. 37 The indictment is not to be so restrictively construed. 38 In Hale's Pleas of the Crown (1778) Vol 1 p 46 it is stated "every indictment is as well several and joint." 39 In Hawkins' Pleas of the Crown 8th Edn (1824) Vol 2 p 331 s 89 it is stated: "It seems certain, at this day, that notwithstanding the offence of several persons cannot but in all cases be several, because the offence of one man cannot be the offence of another but every one must answer severally for his own crime, yet if it wholly arise from any such joint act which in itself is criminal … the indictment … may either charge the defendants jointly and severally … or may charge them jointly only, without charging them severally, because it sufficiently appears, from the construction of law, that if they joined in such act, they could but be each of them guilty; and from hence it follows, that on such indictment … some of the defendants may be acquitted, and others convicted; for the law looks on the charge as several against each, though the words of it purport only a joint charge against all. " 40 These statements were cited with approval in DPP v Merriman 1973 AC 584. In that case the House of Lords also noted the correctness of a decision of this Court in R v Fenwick 1953 54 SR (NSW) 147. In Fenwick two persons were charged in one count with rape, it being alleged that they had each raped the same girl when driving her home from a dance. The trial judge told the jury that they might convict the accused for acting in concert or alternatively, individually, whether or not they were acting with a common purpose. A ground of appeal was that it was not open to the jury, if they found an absence of common design, to consider the individual cases of the accused, as separate charges had not been preferred against each of them. Street CJ, noting that the point was technical said: " I think it can be dealt with by an equally technical answer. Indictments are to be read jointly and severally." 41 When the jury question abovementioned was received, Coleman DCJ included in his response a direction (of which he supplied to them a written copy) which concluded: "You cannot convict any one of the accused unless you are satisfied beyond reasonable doubt that he participated in one of these ways with one or more of the other accused." 42 These "ways" refer to earlier directions as to how an individual might participate in an offence. No complaint is made about those parts of the direction. 43 His Honour's direction, by its mention of convicting "any one" of the accused, recognized the possibility that the jury may find differently in respect of individuals. Such a direction was permitted by the indictment and the findings of guilt of two of the three accused was open to the jury. The stance taken by counsel at trial not to object to taking the verdicts on counts against two accused in respect of whom the jury had agreed was correct. 44 The second submission made reference to R v DMC [2002] NSWCCA 513. In that case an issue had arisen as to whether a person went with an accused as a result of instruction (there was a parental relationship) or as a result of fear. It was held that it needed to be proved that the accused's intention was to hold the other person irrespective of whether she was willing or not and that the jury had to be instructed accordingly. 45 In the present case, in giving the direction discussed in relation to the previous submission, his Honour referred to the requirement of proof that the accused would detain RB "for their advantage, that is, keep her against her will to enable them to perform sexual acts upon her." In his summing up he had earlier referred to the Crown case that the accused agreed to have RB remain at Mitrov's unit "for the purpose of sexual gratification of those men, whether or not she consented to that activity." 46 No application was made to supplement his Honour's directions in these regards and, in the context of this case and the issues for determination, they were appropriate and adequate. Ground 2 is sufficiently answered by reference to the written supplementary direction to the jury abovementioned. At the hearing of the appeal, it was necessary for the Court to request provision of copies which were supplied by the Crown. It was apparent that counsel for the appellants (as distinct from trial counsel) were not in possession of copies of the document. After production, no criticism of its content was advanced beyond the argument asserting that the indictment was "solely joint." 47 The content of the document (MFI 43) was: "There are 2 elements or ingredients each of which the Crown must prove to your satisfaction beyond reasonable doubt. 1. The first is that there was an understanding or agreement in existence between the accused that they would commit a crime: a. The agreement or understanding the crown alleges that the accused made was that they would detain RB for their advantage that is keep her against her will to enable them to perform sexual acts upon her. If the accused were to reach such an agreement or understanding it would be an agreement or understanding to commit a crime. b. The understanding or agreement need not be express – that is it need not be spoken – and its existence may be inferred from the all the circumstances in the way I have already outlined in paragraph 2 of the earlier written directions on Count 1. c. You must be satisfied beyond reasonable doubt that there was such an agreement or understanding. If you are not so satisfied you must find the accused not guilty. d. You only go on to consider the next element or ingredient if you are satisfied beyond reasonable doubt that the crown has proved this first element or ingredient. 2. The second is that each of the accused participated in that understanding or agreement by either a. Committing the agreed crime or b. Being present when the crime is committed knowing that it is being committed or c. By intentionally assisting or encouraging another participant in the agreement or understanding to commit that crime. d. You cannot convict any one of the accused unless you are satisfied beyond reasonable doubt that he participated in one of these ways with one or more of the other accused." 48 It is true that the papers do not appear to show a formal ruling of the type mentioned in Ground 2(b). I express it this way as some parts of the proceedings seem to have been transcribed at different times and are titled "extracts" most of which recommence pagination and interlocutory rulings are indexed accordingly and sequence is not always obvious. The Court was not referred to any formal ruling but it is abundantly clear that there was appropriate evidence of joint enterprise. One need look no further than the evidence of RB and Exhibit A (the video). 49 Grounds 1 and 2 should be rejected. 50 Ground 3 asserts: "3. His Honour erred in law in rejecting the admissibility of part of the applicant's ERISP and the video; and (b) in rejecting cross examination of the complainant as to (i) parts of the ERISP of Zugecic (ii) parts of the video (iii) parts of the applicant's ERISP". 51 This somewhat cryptic and unparticularized expression of the grounds of appeal requires reference to submissions in order to detect what appear to be the appellant's complaints. 52 On 28 May 2001 Zugecic was interviewed at length by police. At various points of it he claimed that he had seen RB at a brothel some months previously, that when he first met her two years previously he did not think she was in a relationship with Villar because she was a "worker" (prostitute) in a relationship "with everybody", that until the night of the offences he had not had sex with her and that he had been told by one, Italo Arche, that RB had had sex with more than one partner at the same time. 53 His Honour ruled that those parts of the interview in which Zugecic made those assertions be rejected. This ruling was accepted by Zugecic. He further ruled that parts of an interview by police with Villar in which Villar claimed that RB may have complained of his conduct because he had rejected her overtures towards a relationship on account of his knowledge of her past as a prostitute and other reasons, also be rejected. 54 The submission was that the rejection of both parts of Zugecic's interview was erroneous and thereby prevented cross examination on behalf of Villar about those matters. 55 What Zugecic said was not an admission by him and it was accepted by him that the statements were inadmissible. They could not change their character as to admissibility at the behest of a co-accused. 56 The gravamen of Villar's complaint relates to a ruling inhibiting cross examination about four allied propositions. Following the procedure suggested in R v McGarvey 1987 10 NSWLR 632, a written description of the ingredients of proposed cross examination was produced and the subject matter included (the paragraph numbers in the document are adopted): (1) Complainant previously told Villar that she previously worked as a prostitute. (2) The complainant has worked as a prostitute. (3) Location of the brothel and time frames at which the complainant worked. (8) Words by the complainant after the events in Mitrov's flat "Am I going to be paid for this?" 57 It might be mentioned that Villar gave evidence of sexual practices in which he claimed to have engaged with RB in the past, including the use of insulting words by him such as "slut" and "bitch" and "come on you whore". He had had "group sex" with her and a friend, Italo Arche. Arche was called and gave corroborating evidence of the lastmentioned. He testified that the activity occurred at RB's suggestion and that she told him that she "loves it rough" and that during the encounter Villar slapped her on the "backside". 58 Thus, the ultimate effect of the restrictions imposed by his Honour's rulings were limited to RB's having allegedly worked in a brothel and an associated remark. His reason was expressed in terms that s 105(2) (now s 293) of the Criminal Procedure Act 1986 was a blanket prohibition against admissibility of evidence of sexual reputation and not subject to exception. He referred to McGarvey (which dealt with the predecessor of s 105(2) namely s 409B of the Crimes Act) as relevant authority. The distinction was sought to be drawn in the case of Villar that the evidence did not relate to sexual reputation but was relevant to Villar's alleged belief that the complainant was consenting to sexual activity with him. By way of comparison, it was noted that in McGarvey reference was made to the fact that the complainant there may have asked for money but the argument of relevance to honest belief was apparently not advanced. 59 The context of mention of possible payment in McGarvey was as part of a series of consensual sexual encounters conceded by that particular complainant which preceded the occasion accompanied by assault which had become the subject of charge. The case offers no authority for the proposition that a request for money by a complainant is admissible. 60 That the material now canvassed was inadmissible and accordingly not appropriate for cross examination on the basis now contended for is made plain in McGarvey where Hunt J said: "……. the argument was ……… the complainant had been prepared to consent to intercourse with twenty men …….. led him to believe that she was consenting to intercourse with him …….". 61 Consensual intercourse with twenty men and prostitution convey comparable matters of repute. Hunt J went on to observe: "That, however, is the very sort of evidence that s 409B was designed to exclude ……. the evidence …….. would appear to have been inadmissible on an issue of belief in consent even prior to the introduction of s 409B ……. Gregory v The Queen 1983 151 CLR 566". 62 Any former admissibility on the issue of credit is plainly the subject now of statutory bar. 63 Ground 3 should be rejected. 64 Ground 4 asserts that: "4. His Honour erred in law in directing and failing to direct adequately or properly: (a) in respect of 'in company' (b) the evidence in respect of the elements of 'in company'." 65 Again, the statement of the ground is bereft of particulars. 66 In support it was put that "no direction was given in respect of counts 11, 17 and 22 as to whether the Crown had to prove beyond reasonable doubt that Villar was in company of both (Zugecic and Mitrov)". 67 The learned trial judge expressly directed the jury in respect of thirteen nominated counts (including those mentioned in this submission) that the Crown had to prove the additional element of circumstances of aggravation. He made it abundantly clear what the standard of proof required of the Crown was. He identified the circumstance of aggravation as being in the company of another person and directed that what was required was demonstration that "there is another person who is physically present and who participates in the offence by encouraging or assisting the accused." 68 Any reference to others being present would be understood in the context of that direction. It was, first, simply incorrect to assert that no direction had been given. Second, the direction may have been unduly favourable to the appellant. In R v Leoni [1999] NSWCCA 14 Kirby J observed that where a victim is confronted by the combined force or strength of two or more persons, that will be sufficient (to fulfil a circumstance of aggravation) "even if the offender did not, as it happens, intend to physically participate if required." 69 It was submitted that the failure of the jury to agree upon verdict in respect of Mitrov negatived any proposition that Mitrov acted in concert with Villar and that he was not "in company". That submission confuses the issue. That a jury may not have been satisfied beyond reasonable doubt of the commission of an offence by Mitrov does not extinguish his capacity to be relevantly in company at the time when Villar committed an offence. 70 Attention was drawn to the specification in particular counts that Villar was in company of Zugecic and Mitrov in distinction from alleging that he was in company with one or the other. No complaint was made at trial and it could not reasonably be said that the appellant might have misunderstood the case he was being required to meet. It was sufficient to elevate the appellant Villar's offence to the aggravated form if one other person was present in the relevant sense. 71 Ground 4 should also be rejected. 72 Ground 5 asserts: "5. His Honour erred in law in failing to direct adequately and properly in respect of the tendency evidence of the group sexual activity with Arche and the applicant's previous sexual relationship with the complainant including any consensual sexual activity during the night of the charges." 73 It seems that what is meant by the expression "tendency evidence of the group sexual activity" is the single occasion in which RB was alleged to have been engaged in sexual activity with Villar and Arche about two and half years before 24 May 2001. His Honour permitted that matter to be canvassed before the jury and allowed Mr Arche to give evidence to that effect. It might be mentioned in passing that written submissions on behalf of Villar referred to the tendency rule in s 97 of the Evidence Act. It can be observed that the requirements of that provision, in the context of a criminal trial, do not only apply to notice given by the Crown but whenever evidence of tendency of a person to act in a particular way is desired to be adduced. There was no suggestion that a tendency notice in respect of the evidence of RB had been given. His Honour repeatedly directed the jury that the Crown had to prove beyond reasonable doubt that Villar knew that RB was not consenting and, inter alia, explicitly told them that "the way in which they previously engaged in sexual activities was relevant to the issue of consent so far as Villar was concerned." It would have been obvious to the jury that his Honour was referring both to the sexual relationship which Villar testified had existed and "the ways" in which it had been consummated including the occasion that an additional partner Mr Arche was engaged. 74 A matter of particular complaint was part of a direction by his Honour in these terms: "…… on the issue of consent ladies and gentlemen, you cannot reason on previous occasions there is evidence that RB consented to sexual intercourse with (Villar), therefore she must have consented on this occasion. That reasoning is not permissible." 75 This followed other directions including mention of "the way in which they (Villar and RB) engaged in sexual activity". It might be noted that his Honour's expression there did not refer to the dispute between Villar and RB as to whether any such previous activity had taken place. The jury would have understood the context and realized that his Honour was not directing them to reject RB's evidence on that matter. 76 By the same token, they would not have understood his Honour to be determining that Villar did not have a belief of consent. After the passage to which attention was directed, further directions canvassed issues including Villar's evidence that RB had previously come to him, undressed and engaged in sexual activity without speaking and that, given that experience, it was Villar's contention that it should not be found that the Crown had proved beyond reasonable doubt that on the occasions charged he knew that RB was not consenting. 77 The passage complained of says no more than that simply because sexual intercourse may have occurred by consent on other occasions it does not necessarily prove that on the occasions charged there was also consent. There was no unfairness to the appellant Villar in stating what was obviously correct. 78 Another aspect raised under this ground was a contention that the jury should have been directed that, if they found in respect of some counts charged that there had been consensual sexual activity, then such findings should be taken into account both when considering whether there was consent on the other occasions and in relation to Villar's belief regarding consent on those occasions. 79 The jury received conventional direction about the need to consider each count separately. In addition, they were instructed that the credibility of RB was essential to the proof of any count, although they were also told, correctly, that they could accept parts of what a witness (including the complainant) said and reject other parts. 80 In regard to the lastmentioned it has been declared desirable that some reference ought be made to the effect upon the assessment of credibility of a complainant if the jury finds itself unable to accept her evidence in respect of any count. The form and terminology of any such direction is a matter for a trial judge in the particular circumstances of a specific case: R v Markuleski 2001 52 NSWLR 82. 81 No direction was sought. The failure to give unrequested directions did not cause the trial to miscarry. 82 Ground 6 asserts that: "6. His Honour erred in law in directing that consciousness of guilt applied in respect of the (attempted) destruction of parts of the video." 83 I have already made some comment about the potential for incrimination derivable from viewing the video. 84 Again there are no particulars identifying the precise complaints this ground is intended to express but argument seemed to reveal these assertions: (a) at one point in the summing up, his Honour erroneously referred to the evidence of Zugecic when he was recapitulating evidence given by Villar, (b) his Honour did not expressly refer to denials of intention to conceal guilt which had been made by Villar, (c) there was reference to reasons for "a lie", and (d) the video might have been taken for sexual gratification by the appellant and destroyed by Zugecic without Villar's agreement. 85 His Honour separately dealt with the Crown's arguments in support of assertion that action concerning the video exhibited a consciousness of guilt on the parts of Villar and Zugecic respectively. Referring to Villar he read to the jury part of the text of transcript of his evidence, only some of which I need for present purposes to reproduce: "Q. Yes what did you do? A. We watched the movie. It (sic) think we watched it and then we threw it away. Q. So you watched this movie that had been made of what happened that night? A. Yes. Q. And then you threw it away? A. Yes we disposed of it." 86 His Honour's directions continued: "Ladies and gentlemen the Crown Prosecutor put to you that the disposal of the tape or the attempted disposal of the tape showed a consciousness of guilt on the part of the accused Mr Villar and the accused Mr Zugecic in that they realised that if the video tape was found the truth would come out about what they did. That is about the lack of consent on the part of Ms (RB). Ladies and gentlemen I should give you a direction concerning that. First of all ladies and gentlemen you must be clear on precisely what it is that the Crown says illustrates the consciousness of guilt and the Crown says that the act which illustrates the consciousness of guilt is the destruction or attempted destruction of the video tape and it must be shown ladies and gentlemen that that relates to a material issue in the case. It is not enough the tape was destroyed or there was an attempt made to destroy the tape. It must be shown that that related to a material issue in the case. The Crown says that the material issue to which it relates is the issue of consent. That the images shown on the tape would indicate that (RB) was not consenting and that the acts that took place on that night were not consensual. Before you can take that material into account you must first be satisfied beyond reasonable doubt that there was an attempt to destroy the tape. Secondly that it related to a material issue in the case and reveal a knowledge of the offence charged and that the accused did it because he knew that the truth about the images which were shown on the tape would implicate him in the offence charged. Or to put it another way because of a realisation of guilt and a fear of the truth. I emphasize to you that you must be satisfied beyond reasonable doubt that what was in his mind was guilt of the offence charged and not some other crime. You must remember however ladies and gentlemen that people don't always act rationally and that conduct of this sort may sometimes be explained in other ways. There may be reasons for disposing of the tape quite apart from a realisation of guilt. It may have been done ladies and gentlemen as has been suggested to you for example by (counsel) because after viewing the tape the persons who had participated in the acts on the tape realised there was something they didn't want to keep. That there was something they didn't want to have left lying around in the future. It might be something the children might come across. It was something that they were perhaps not willing to keep once they had looked at it and realised precisely what it was that the tape showed. If you think that there is a reasonable possibility that it was thrown away or attempted to be disposed of and thrown away for that purpose then you cannot use the circumstances in which the tape was disposed of for the purpose of establishing a consciousness of guilt. I remind you ladies and gentlemen that there may be matters quite unrelated to a consciousness of guilt as has been put to you by (counsel) which do not relate to consciousness of guilt but relate to a realisation that what is contained on the tape is perhaps not very savoury and not worth keeping and not something which one would like to have about and be discovered by people who might come across it and be related to or connected to the accused in some way." 87 These directions were not erroneous and posed the issues for the jury fairly to both the prosecution and the then accused. The complaints which I have summarized in (b) and (d) above are answered by the text of this extract from his Honour's directions. It is true that there was no specific reference to Villar's denial. None was sought and it can be inferred that those who could gauge the atmosphere of the trial were content with this balanced posing of the issue. 88 The summing up extended over more than one day and on the following day after giving these directions, his Honour turned specifically to the case concerning Zugecic and the Crown contention of his consciousness of guilt in attempting to dispose of the video tape. His Honour said that he would take the jury to the evidence relied upon and he introduced this by saying: "Mr Zugecic was asked this question". He then read the whole of the extract of evidence of Villar which he had read the previous day, from which I have extracted several questions and answers. The reference to Mr Zugecic's evidence was plainly a slip of the tongue. The jury were well aware that Villar was the only one of the three accused who elected to give evidence and they would also have recognized the extract of transcript which had been read to them the previous day. Neither counsel for Villar nor counsel for Zugecic asked for correction. This slip does not attract intervention by this Court. 89 Different considerations may give rise to a prosecution allegation that a consciousness of guilt has been manifested. The commonest instance is probably the telling of lies but other examples are attempted bribery of witnesses, flight or, as in this case, attempted destruction of evidence. 90 The directions to be given in all of such cases are similar and, of greatest importance, similar cautions must be given specifying restraints which the jury must apply in deliberating upon such a Crown submission. In this case these cautions were appropriately and amply given, however, in giving them on the second occasion, mainly in relation to Zugecic, his Honour mentioned "a lie" possibly being told for reasons apart from a realisation of guilt. He gave examples of such explanations being out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence related to the offence. As the substance of the direction had made clear, the Crown was relying upon an attempted destruction of the video evidence and not upon the telling of any lie. The jury would have understood from express statements that what was being dealt with was that alleged attempt at destruction and not some unspecified lie. Again, this apparent slip was not the subject of any request for correction. What was said, although referring to a mistaken example of a possible foundation for consciousness of guilt, was not an expression directed towards inculpation of Villar or Zugecic. 91 I would reject ground 6. 92 Ground 7 is in these terms: "7. The verdicts of the jury were inconsistent and/or unreasonable and cannot be supported by the evidence being also unsafe and unsatisfactory giving rise to a miscarriage of justice." 93 The submissions in support of this ground commence by reciting findings by the trial judge which he made for the purpose of sentence. Some of these findings were contrary to RB's testimony. It is submitted that "these findings meant that the complainant deliberately lied" about various matters. 94 The ground attacks the integrity of the jury verdicts and his Honour's findings on sentence are not germane to them. This can be demonstrated by selecting one example. His Honour was satisfied that consensual intercourse took place on an occasion when Villar and RB were alone. Reference was made in written submissions to the acquittals by the jury on counts 2, 3 and 11 (the last is probably intended to be reference to count 16) and it was put that there was "no doubt that she was not believed on her oath on those counts." This does not follow. It may very well have been doubt about proof of the knowledge of Villar that she was not at the time consenting which gave rise to the acquittals. 95 As I have indicated, his Honour's finding for the purposes of sentence is irrelevant to examination of the verdicts. As was remarked in Cheung v The Queen 2001 209 CLR 1 (per Gleeson CJ, Gummow and Hayne JJ @ 10): "The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing." 96 The issue raised by this ground is whether the jury verdicts should be sustained. It was expressly submitted: "It would be essential to view the video and transcript of the video (without deletions) in order to assist in assessing the evidence of the complainant." 97 It was conceded at the hearing of the appeal that there had been no "deletions" by the Crown. The exhibit consisted of the entirety of what was salvaged from the attempted disposal of it. 98 I have already noted that the Court accepted this invitation to view (and hear the sound track) of the video. That exercise was more convincing of the soundness of the verdicts of guilty than provoking doubt about them. The implication that consensual sexual activity was portrayed is somewhat negatived by the description given by RB on the evening of 25 May 2001 to Dr Cooper at Liverpool Hospital. She described fellating Villar and said: "He was telling me to enjoy it. He said he was going to kill me and beat the shit out of me if I didn't act like I enjoyed it." 99 This statement to Dr Cooper bears comparison with excerpts from the sound track of the video, namely: "Villar: Get into it, don't be shy fuckin enjoy it. RB: But I am not enjoying it. Villar: That's right. RB: Just be gentle, that's all. Is that alright. (inaudible) RB: Gerry (Villar), please don't hit me." 100 It is a reasonable inference that the last utterance was a response to something which was not audibly reproduced from the sound track. The exchange has a telling consistency with the history given to Dr Cooper. The verdicts of the jury were neither unreasonable nor unsupported by the evidence and this ground should be rejected. ZUGECIC 101 Grounds 1 to 4 on behalf of Zugecic were argued together. They were expressed: "1. The learned trial judge erred in admitted (sic) evidence of 'relationship' or 'context' evidence without requiring the Crown to specifically distinguish such evidence from evidence of charged acts of sexual assault. 2. The learned trial judge erred in not directing the jury that it could not use evidence of uncharged acts as tendency or propensity. 3. (i) The learned trial judge erred in failing to specifically identify to the jury which acts were charged and which were not charged; (ii) Alternatively, the learned trial judge erred in allowing the jury to determine which acts were charged and which acts were not charged. 4. The trial miscarried as a result of the Crown: (i) failing to lead sufficient or any evidence to distinguish between charged and uncharged acts of sexual intercourse; (ii) failing to lead any evidence from the complainant in relation to the specific sexual acts depicted in the video." 102 The submissions referred to the content of the video. It was tendered after RB was asked to confirm that she had viewed it (when asked to do so by police) and that she identified herself and the three accused as portrayed in it. The video was received into evidence and played to the jury without objection by defence counsel. She was not led in chief through the various depictions of sexual activity but she was asked: "Q. Did you want any of that activity that you saw on the video, did you want it to take place, want it to happen? A. No I did not, no I didn't." 103 It is common ground that the video includes filming of sexual activity between RB and the appellants (and Mitrov) which was not the subject of any charge in the indictment. His Honour drew this to the attention of the jury and cautioned them that the use that could be made of such was to place the offences which were charged into "their true context and to provide continuity and a chronology of events, in the sequence in which the Crown alleges they took place." 104 In this instance it is significant to note that all these events, whether relating to charged or uncharged conduct, occurred on a single night within the same premises. The contentions specified in these grounds seek to dissect the activities in a way which was not sought to be done at trial. It is submitted that a direction should have been given that the evidence of uncharged acts could not be used as elements in a chain of proof of the offences charged: BRS v The Queen 1997 191 CLR 275. 105 The cases being presented by the accused were in each case that although sexual activity occurred, RB was a consenting party or, at least, each of them believed that she was consenting. There is a different contention about one occasion testified to by Villar but that dispute does not affect the argument concerning the ground. The existence of onus of proof is not to the point when perceiving that it would be a curious tactic for the defence in such circumstances to seek a direction of the type now canvassed which would highlight the uncharged activity. As stated, no direction was sought and the consequence of highlighting was thus avoided. 106 That the jury did not approach its task by considering the evidence in some global fashion is confirmed by the discrimination manifest between charges which they found proved and those which they did not. 107 The directions given by the trial judge were appropriate to the circumstances. 108 Ground 5 contended that: "5. Verdicts of guilty in relation to counts 1, 4, 7, 8, 10 and 18 are unreasonable and cannot be supported on the whole of the evidence." 109 Zugecic did not give evidence and the argument in support of this ground is necessarily based upon criticism of the Crown evidence. It is submitted that although RB's evidence "could not be said to lack credibility by reason of the manner in which it was given" it contained discrepancies, inadequacies and a lack of probative force sufficient to lead to a conclusion that there was a significant possibility that Zugecic was not guilty. 110 In support of this, attention was directed to several matters which were capable of being relevant to assessment of RB's credit. She had a backpack containing, inter alia, clothing, because she said she had arranged to stay at the house of a former boyfriend Mr Lipman, overnight. Mr Lipman denied this arrangement. This was a peripheral matter and weight, if any, was peculiarly a matter for the jury. 111 The acquittals of Villar on counts 2 and 3 were claimed thereby to have damaged the complainant's credibility on all counts. I have mentioned elsewhere that the reasons for the jury's finding may well have been based upon doubt about proof of the state of mind of individual accused concerning consent at particular times. The acquittals do not convey inherent rejection of RB's testimony. 112 The next topic addressed was the circumstances in which RB's clothes came to be removed. She testified at different times that Villar took them off or that she took them off because he told her (forcefully) so to do. Reference was then made to her testimony that threats were accompanied by the mention of a gun. The submission continued by pointing out inconsistencies between RB's oral evidence and what were said to be "obvious" depictions on the video. Other testimony which was said to be inconsistent or embellishment was also identified. 113 The ultimate submission was that it should be concluded that RB was being deliberately untruthful in denying activities which were inconsistent with "her general version of violence, threats and being pinned down", that matters such as the mention of the gun were likely fabrications and that "on all of the evidence, the complainant's version does not ring true." 114 Such a conclusion is not conveyed. It is not known, for example, for what reason the jury found verdicts of not guilty on counts 2 and 3 but let it be assumed that they were satisfied that consensual sexual activity was involved (ignoring the issue of onus). The jury may nevertheless have been otherwise satisfied that many of the multiple subsequent sexual assaults by the appellants were undertaken by them with an attitude that they could do as they pleased towards her after initial consensual activity. It was well open to them to find that in such a circumstance the appellants well knew that she was no longer consenting to these multiple acts. It can be reiterated that the ultimate findings (including occasions when agreement could not be reached) offer a significant demonstration that the jury conscientiously adhered to his Honour's instruction to consider each count separately. 115 There was abundant evidence of the occurrence of sexual activity and the verdicts of guilty in respect of some of them were not in the overall context of the evidence unreasonable. The jury had the advantage of seeing and assessing the complainant and judging her responses to the matters of criticism then, and now again, advanced. His Honour had emphasized the necessity for this jury to accept her testimony on the appropriate essential ingredients of charges. These grounds are not sustained. 116 Ground 6 asserts: "6. (i) The trial miscarried by reason of the Crown Prosecutor's comments on the failure of the appellant to give evidence. (ii) The learned trial judge erred in failing to discharge the jury after the Crown Prosecutor made such comments." 117 The ground in substance contends that the Crown Prosecutor contravened s 20(2) of the Evidence Act 1995 in his closing address. The relevant part of that provision reads: "(2) The judge or any party (other than the prosecutor) may comment on the failure of the defendant to give evidence." 118 The terms of prohibition applicable to the prosecutor are unqualified. The matter complained of is contained within this extract from the transcript of the address: "Ladies and gentlemen, I now move to the defence case and the evidence of Mr Villar, and his record of interview. The first thing that I must tell you, and it's most important, Mr Villar did not have to give evidence in this trial. Mr Villar does not have to prove his innocence. He and each of the other accused are presumed innocent, unless and until they are proven to be guilty. They don't have to prove anything in this trial, and they don't have to give evidence and Mr Villar didn't have to give evidence. Indeed, his Honour will tell you that you cannot draw any adverse inference about an accused person if they don't give evidence. But once an accused person steps into the witness box and gives evidence, you are entitled to assess that person, as you would any other witness. That is, to assess whether they're telling you the truth, whether they're reliable, in precisely the same way you treat any other witness." (Emphasis added) 119 Application was made to discharge the jury on the basis of this comment. His Honour held that the remarks, considered in their context, did amount to a comment of the failure of Zugecic and Mitrov to give evidence. His Honour's conclusion was correct and I reject the submission by the Crown that the references to "they" were to "theoretical others." The situation is comparable to the prohibition against comment that a person has refrained from giving evidence which was provided by the Accused Persons Evidence Act 1898 about which Isaacs J observed: "If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up is made to the fact that the prisoner had the power or the right to give evidence on oath, and yet failed to give ……. evidence …. there would be a contravention……" (of the provision): Bataillard v The King 1907 4 CLR 1282. 120 Nonetheless, his Honour refused the application to discharge the jury. It should be noted that on the day previous to that upon which the Crown Prosecutor made the impugned remark the jury had submitted questions which included that they would "like to know why the other two accused did not testify." His Honour responded that it was not appropriate at that point to answer the question but that he would deal with the matter in the summing up. He did so and it is apt to recapitulate the terms in which he did: "There is one other important direction I should give you at this point ladies and gentlemen and that relates to the way in which you deal with the election by the accused, Mr Kristijan Zugecic and Mr Tome Hadzi-Mitrov, to rely upon their ERISP's and not to give evidence. You must only take into account the directions that I am now giving you in relation to those matters. In particular, you should ignore any comments made in the course of this trial and in particular in his address by the Crown Prosecutor in relation to Mr Villar giving evidence on oath. The accused Kristijan Zugecic and Tome Hadzi-Mitrov did not give any explanation of themselves in evidence in respect of the Crown case. Instead, they chose to rely upon the material that was contained in the ERISP. The accused was not bound to give evidence and there may have been many reasons why he did so and you must not speculate about those reasons. It is for the Crown to prove its case beyond reasonable doubt and you must not draw any inference from the accused not having given evidence. There may be reasons unknown to you why an accused person if otherwise in a position to contradict or explain evidence remains silent. There are a number of important directions of law which I must give you in relation to that. An accused person may always by himself or by calling evidence make a response to the case presented by the Crown in the way of an explanation for the whole or parts of the Crown's case. But there is no obligation to do so. As I have already pointed out, the Crown bears the obligation and onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus. He is presumed to be innocent until you have been satisfied by the Crown that he is guilty. Although the accused may give evidence in relation to the whole or any part of the Crown's case by way of explanation for it, or by way of additional matters which he may raise, as Mr Gerardo Villar did, he may equally elect to give no explanation or call any evidence in that regard. He is entitled to say nothing and make the Crown prove his guilt. I repeat. There may have been many reasons why the accused did not give evidence and you must not speculate about those reasons and must not drawn (sic) any adverse inference from the accused not having given evidence or in fact any inference at all. I direct you as a matter of law that the accused's silence in court is not evidence against the accused and you must not draw any inference adverse to the accused because he has not given evidence in Court. His election not to give evidence must not be used by you to fill up gaps in the Crown case or to make up what you regard as deficiencies or defects in the Crown case. The election of an accused not to give evidence must not be regarded by you as any indication that he is guilty or that he believes himself to be guilty of the offence. As I remind you again ladies and gentlemen that you must not draw any inference adverse to the accused because he has exercised that right." 121 There had been no suggestion that the Crown Prosecutor deliberately infringed the statutory bar, indeed he argued unsuccessfully that he had not done so. The issue to be dealt with by his Honour was whether the jury should be discharged. He concluded that he should not so order and that the matter could be redressed by giving the direction which I have recited. 122 The situation is within the category of inadvertent events which occur during a trial. The joint judgment (Toohey, Gaudron, Gummow and Kirby JJ) in Crofts v The Queen 1996 186 CLR 427 @ 440-441 articulates the approach that should be taken: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?" 123 The present matter turns upon the capacity of the appellant Zugecic to have given evidence. As Villar had done so it was obvious to the jury that he could. The comment by the Crown Prosecutor added nothing to the jury's store of knowledge which was potentially prejudicial to Zugecic. The emphatic direction by the trial judge removed any prospect of practical prejudice to Zugecic even if this were to be hypothesized. The comment by the Crown Prosecutor did not contribute to the risk of a substantial miscarriage of justice. 124 Although, as his Honour found, the point might be decided in favour of the appellant in the sense that there was a "breach of s 20", the appeal founded on this ground should be rejected by this Court in accordance with the proviso to s 6 of the Criminal Appeal Act. 125 An additional ground of appeal was advanced at the hearing on behalf of Zugecic complaining of the rejection by his Honour of cross examination of RB and a statement asserted to have been made by her to the effect, "Am I going to get paid for this?" The issue was raised by Villar in his appeal (Ground 3). I will refer to some further detail. 126 For the purpose of ruling his Honour had a statement by RB made about three months prior to trial (supplementary to an earlier statement) in which she revealed that on two occasions about five years prior to the night during which the offences were alleged to have been committed she worked in a brothel. She stated that she came forward with this information because she had recalled telling Villar this. The other material was that in his police interview on 28 May 2001 Zugecic said that he had on one occasion some two to four months beforehand seen RB in a brothel at Liverpool. He described her at one point as working there. His contact was limited to observation of her presence and he did not have sexual relations with her. He said that he had made other visits to that brothel but had not seen RB there on those occasions. 127 The argument involves consideration of the application of provisions of s 293 of the Criminal Procedure Act 1986 (at the time of trial s 105 and formerly s 409B of the Crimes Act 1900). 128 The legislation, I have already noted, expressly makes evidence of sexual reputation inadmissible. In McGarvey (supra) Hunt J observed: "The Crimes Act 1900, s 409B (2), makes inadmissible any evidence relating to the complainant's sexual reputation. It is a blanket prohibition, and it is not subject to any exceptions. Before the section was introduced in 1981, evidence was usually permitted that the complainant had a reputation for promiscuity as the basis for an assertion by the accused that, because he knew of that reputation, he honestly believed that she was consenting to intercourse with him." 129 The first proposition argued on behalf of Zugecic is that the remark "Am I going to get paid for this?" is not evidence of sexual reputation but evidence upon the issue of whether RB did in fact consent to the sexual acts which took place. 130 The remark, if made, suggests that RB was a person who would provide sexual services for payment. Such a person is a reputed prostitute. The remark relates to sexual reputation and is therefore inadmissible. 131 The alternative argument is that the remark is comprehended with an exclusion specified in s 293(4)(a). The evidence of what RB told Villar (and the facts) about two events five years previously and the observation by Zugecic claimed in his interview do not assist. These matters are far less significant than, for example, convictions for prostitution but such have been held to be inadmissible where they occurred months before alleged offences: R v Berrigan, unreported NSWCCA 7 October 1994. 132 The Crown has pointed out that there is no material suggesting that the remark was made and it remains an allegation, and one which does not appear in the lengthy interviews by police with any of the then accused. However, the question raised is whether, if made, it is "of events that are alleged to form part of a connected set of circumstances" in which the offences were committed. 133 As the remark was said to have been made after the events it could not have operated on the minds of the appellants to induce a belief in them that RB was at the time consenting to activity. Thus, the assertion must be that it is relevant to actual consent. 134 The document (MFI 2) submitted on behalf of the then accused to the trial judge under the title "Detailed Written Statement of the Nature and Scope of the Evidence Sought to be Adduced" revealed no more than: "The complainant said the words to the effect 'am I going to get paid for this?' after the alleged incident." 135 To whom it was alleged to have been said and in what circumstances was not detailed. It would appear that the matter was argued at trial "on principle". It was not suggested that Zugecic wished to advance a case that he believed that RB came to Mitrov's unit for prostitution. The scant information available fails to demonstrate tangible probative value in support of contention that RB consented to what was happening and the ground should be rejected. 136 The appeals against conviction should be dismissed. Each appellant seeks leave to appeal against sentence. As with the conviction appeals, it will be convenient to deal with the arguments separately advanced, but there are a number of common features which will not require repetition. It will be necessary to examine the structure of sentences but the ultimate result was in the case of Villar, imprisonment for seventeen years with a non parole period of ten years and, in the case of Zugecic, imprisonment for sixteen years with a non parole period of ten years. VILLAR 137 Villar had a minor antecedent record for taking and driving a conveyance (in 1987) in respect of which he kept a recognizance to be of good behaviour and in 2002 (subsequent to the current offences) a fine for being in possession of a prohibited drug. His Honour found that this record did not disentitle the appellant to leniency and that finding should be endorsed. 138 The five counts upon which Villar was convicted charged detaining for advantage (count 1) and four counts of aggravated sexual assault (counts 9, 11, 17 and 22). 139 The first acts of intercourse between Villar and RB on the night in question occurred when they were alone in an upstairs bedroom. Verdicts of not guilty were found by the jury in respect of these occurrences (counts 2 and 3). The finding of the judge for the purpose of sentence was expressly that these acts were consensual and this is distinguishable from acquittals which may be based upon failure to prove knowledge that the victim was not in fact consenting. 140 His Honour also found, contrary to the evidence of RB, that the previous relationship between Villar and RB did include participation in sexual activity. This included as well the one occasion of "group sex" involving the witness Arche. He concluded that the latter offered some explanation for RB going upstairs to the bedroom with Villar whilst other men were in the unit. 141 In relation to count 1 his Honour found that Villar and Zugecic agreed upon the detention of RB after the consensual sexual intercourse between Villar and RB in the bedroom, and, it necessarily finished some time before RB awoke from sleep in the company of Mitrov. So far as it may be relevant, she received assent from Mitrov to her enquiry as to whether she could leave and she in fact left the premises. 142 The facts giving rise to count 9 were that, after an occasion when RB had fellated Zugecic, Villar inserted his finger in her anus. Count 11 was a similar act after Mitrov had entered the room and was fellated by RB. His Honour found that the acquittal of Mitrov on a charge relating to that event was based upon absence of knowledge on the part of Mitrov that RB was not consenting. 143 Later, after the shaving of RB's pubic hair (by Mitrov) Villar had penile/vaginal intercourse with RB positioning her differently on two occasions, hurting her, causing her to cry and striking her face and pulling her hair when she asked to get off the bed (count 17). 144 Count 22 involved another act of penile/vaginal intercourse still later but downstairs on a two seater lounge. 145 The appellants were taken into custody when the jury verdicts were returned on 15 October 2002. On counts 9 and 11 (the digital penetrations) Villar was sentenced to fixed terms of imprisonment of three years to be served concurrently commencing on 15 October 2002; on count 22 (the second act of penile/vaginal intercourse) to a fixed term of seven years commencing on 15 October 2003; on count 1 (the detention) to a fixed term of five years commencing on 15 October 2003, and on count 17 (the first act of penile/vaginal intercourse which was accompanied by violence and marked distress of RB) to fifteen years imprisonment with a non parole period of eight years commencing on 15 October 2004. 146 The maximum prescribed penalty for the offences of aggravated sexual assault was twenty years imprisonment. The prescribed maximum for the offence charged as count 1 was also twenty years imprisonment unless it be proved to the satisfaction of the judge that the victim was liberated without sustaining any substantial injury, in which case the prescribed maximum reduces to fourteen years imprisonment. It is argued on behalf of both appellants that the latter maximum was applicable in this case. 147 In the context of the section (then s 90A of the Crimes Act), "substantial injury" means more than minor or slight injury but it need not be of a serious kind which would constitute it as grievous bodily harm: R v Rowe 1996 89 A Crim R 467. 148 The learned sentencing judge turned his attention to this issue and expressed himself satisfied that RB suffered substantial injury with particular reference to medical evidence of bruising to the thigh and small anal tears, to which were added indications of residual psychiatric condition. As the terms of s 90A make clear, it is for the offender to demonstrate that the victim was liberated without substantial injury in order to make the reduced maximum penalty applicable. It is perceptible that his Honour approached the matter unduly favourably towards the appellant. In any event, there is no demonstrated error in his Honour's conclusion. 149 It was submitted that the sentence on count 17 in particular was manifestly excessive and that the overall criminality of the offences was sufficiently reflected in the sentence on that count. The latter submission involved no concession that the assessment of fifteen years head sentence was appropriate. 150 The reason given by his Honour for the partial cumulative sentences was a need to reflect the total criminality involved. This is, of course, a principled objective. However, I have some difficulty in concluding that as having been appropriately achieved in this case. 151 It is true, as his Honour observed, that the offences were in a sense episodic but it was a single outbreak of criminality over one night and at one location. It is an extremely unusual feature that the forced acts of sexual aggression followed almost immediately upon what his Honour had found to be consensual intercourse. That circumstance did not expose RB to being used by the appellants for sexual gratification in whatever way they chose. 152 There was a considerable subjective case available to Villar. Mention should be made that he was himself a victim of a previous serious assault and his Honour expressly accepted evidence in these terms: "He appears to have no history of violent offending but has been a victim of violence himself. He has serious mental health problems that need further assessment and ongoing treatment, including PTSD, depression and possibly a low average intelligence complicated by head injuries." 153 His Honour adverted to this evidence in the context of difficulties that Villar had in adjusting to custody and in rejecting his condition as a mitigating factor or providing any justification or excuse for his actions on this night. In the remarks on sentence he observed general deterrence and public denunciation were of "primary importance" in sentencing for offences such as these. He did not advert to whether Villar was a suitable vehicle for manifesting general deterrence in the light of the "serious mental health problems" which he found were relevantly present: R v Scognamiglio 1991 56 A Crim R 81. 154 As earlier noted, the appellant's record did not disentitle him to leniency but his Honour was entitled to find that the grave objective circumstances were not significantly diminished by subjective considerations. 155 I would affirm the principle that the past history of the victim, particularly reference to her having engaged in prostitution (which in this case was minor in the extreme) was irrelevant and that all citizens are entitled to equal protection under the law: R v Leary, unreported NSWCCA 8 October 1993. I also affirm his Honour's view that these offences were extremely serious (although not in worst case category) but it should also be added that the appellant was not himself in the worst category of offender. 156 Taking all matters into account and giving due respect to his Honour's experience as a sentencing judge, I have concluded that the effective sentence of seventeen years imprisonment with a non parole period of ten years is excessive and resentence should be undertaken. In coming to this conclusion I have regard to the statistical pattern available from the published collections of the Judicial Commission. 157 It is difficult to conceive an appropriate basis for the structure of sentence which results in a potential for an appellant to be on parole for seven years of a seventeen year sentence. That is particularly so in the circumstances of this offender. 158 As observed at the beginning of this judgment, the whole of the criminal activity of the appellants took place as a sequence of events in the one place on the one night against one victim. Whilst the seriousness of individual offences varied and was escalated by repetition of criminal conduct, these matters will be adequately reflected in the sentences now proposed. 159 I am unpersuaded that, by reason of special circumstances there should be alteration of the setting of a non parole period in accordance with the proportion mentioned in the applicable statute. ZUGECIC 160 Zugecic had a minor antecedent record of being fined in 1996 and 2000 for possession of prohibited drugs. His Honour found that this record did not disentitle him to leniency and I would endorse that finding. 161 The six counts upon which Zugecic was convicted charged detaining for advantage (count 1) and aggravated sexual assault (counts 4, 7, 8, 10 and 18). 162 After Villar and RB engaged in consensual intercourse in the bedroom (as found by his Honour) Zugecic entered and forced RB to fellate him (count 4) and later placed his finger in her anus (count 7). Villar had done likewise and then Zugecic engaged in penile/vaginal intercourse with her (count 8). By this time Mitrov had come into the room and whilst he and RB were engaged in sexual activity, Zugecic again digitally penetrated RB's anus (count 10). Villar was also present at this time. After RB returned from the bathroom where the shaving had taken place, Zugecic again had penile/vaginal intercourse with her (in succession to Villar) and in the presence of both Mitrov and Villar (count 18). 163 The maximum prescribed sentences were the same as I have recited in relation to Villar's offences. For the reasons that I have given, I reject the submission also made on behalf of Zugecic that the applicable prescribed maximum for the offence in count 1 was fourteen years imprisonment. I need not repeat my references to a number of circumstances which I made when dealing with Villar. Zugecic's first offence did not have the unusual aspect of following immediately upon acts of consensual intercourse as was the case with Villar. As the agreement to detain was found by his Honour to have followed these consensual acts (a finding which was not challenged) it is a consequence that Zugecic's first crime must have come close to coinciding with the making of that agreement. It is also observed that Zugecic was convicted of five counts of aggravated sexual assault in distinction from four counts of such offence in the case of Villar. However, Zugecic was about six years younger than Villar and it is fairly plain that RB's long term acquaintance and history of relationship with Villar must have been a significant factor in RB's decision to accompany these men to Mitrov's flat. His Honour had found that it was an adverse matter affecting Villar that he was, in a sense, breaching the trust that she had in him. 164 Zugecic was also taken into custody on 15 October 2002. He was sentenced to fixed terms of three years imprisonment commencing on 15 October 2002 to be served concurrently for the acts of digital penetration (counts 7 and 10). On counts 4 and 8 (fellatio penile/vaginal intercourse in the bedroom before the shaving incident) he was sentenced to fixed terms of imprisonment for seven years to commence on 15 October 2003. On count 1 (detention) he was sentenced to a fixed term of imprisonment for five years to commence on 15 October 2003 and on count 18 (the final act of sexual intercourse by Zugecic which took place in the bedroom) to imprisonment for fourteen years to commence on 15 October 2004 with a non parole period of eight years commencing on that date and expiring on 14 October 2012. 165 The longest sentence was for the act which followed the offence by Villar which was accompanied by Villar striking RB, but the evidence did not reveal similar behaviour by Zugecic. It can also be observed that Zugecic's offences of aggravated sexual assault, although greater in number, were all committed in the bedroom and within a more compacted span of time than in the case of Villar, whose final assault occurred downstairs later. The basis for concurrency of sentence for a unified outbreak of criminal conduct is stronger in Zugecic's case in my opinion than in the case of Villar. 166 While Zugecic's relatively insignificant record does not disentitle him to leniency he does not suffer from the handicaps of the latter particularly "serious mental health problems." 167 For coordinate reasons with that which I have expressed in relation to Villar, I consider that a case has been made out for intervention by this Court in respect of sentence. Although there are differences, I am of opinion that the criminality of each offender is such that it would be appropriate that they receive terms which will, as a matter of practicality, be effectively equivalent. 168 As is the case with Villar, I am unpersuaded to find that special circumstances lead to alteration of the proportion mentioned in the statute when setting a non parole period. ORDERS 169 In each appeal, the appeal against conviction should be dismissed. 170 I would grant Villar leave to appeal against sentence and allow the appeal, quash the sentences imposed in the District Court and in lieu thereof sentence him as follows: (a) Counts 9 and 11. To terms of three years imprisonment to commence on 15 October 2002 and to expire on 14 October 2005, to be served concurrently. (b) Count 22. To a term of seven years imprisonment to commence on 15 October 2002 and to expire on 14 October 2009. (c) Count 1. To a term of five years imprisonment to commence on 15 October 2002 and to expire on 14 October 2007. (d) Count 17. To imprisonment for twelve years to commence on 15 October 2002 with a non parole period of nine years commencing on 15 October 2002 and expiring on 14 October 2011. 171 I would not set non parole periods in respect of the sentences imposed on counts 9, 11, 22 and 1 for the reason that the terms are wholly encompassed by the non parole period specified in connection with the sentence on count 17. 172 I would grant Zugecic leave to appeal against sentence, allow the appeal, quash the sentences imposed in the District Court and in lieu therefore sentence him as follows: (a) Counts 7 and 10. To terms of three years imprisonment to commence on 15 October 2002 and expire on 14 October 2005. Those terms to be served concurrently. (b) Counts 4 and 8. To terms of seven years imprisonment to commence on 15 October 2002 and expire on 14 October 2009. Those terms to be served concurrently. (c) Count 1. To a term of imprisonment of five years to commence on 15 October 2002 and to expire on 14 October 2007. (d) Count 18. To imprisonment for twelve years to commence on 15 October 2002 with a non parole period of nine years commencing on 15 October 2002 and expiring on 14 October 2011. 173 I would not set non parole periods in respect of the sentences imposed on counts 7, 10, 4, 8 and 1 for the reason that the terms are wholly encompassed by the non parole period specified in connection with count 18. 174 The overarching effective sentence which I propose results in each case in imprisonment for twelve years with a non parole period of nine years. 175 For each appellant, 14 October 2011 is specified as the earliest date of eligibility for consideration of release to parole. 176 SIMPSON J: I agree with Grove J. 177 HOWIE J: I agree with Grove J. ********** Last Modified: 09/08/2004 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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