New South Wales Court of Criminal Appeal CITATION : Regina v HAWAT [2004] NSWCCA 393 HEARING DATE(S) : 11/10/04 JUDGMENT DATE : 8 December 2004 JUDGMENT OF : Grove J at 1; James J at 2; Hoeben J at 218 DECISION : Appeal against conviction dismissed CATCHWORDS : CRIMINAL LAW - Conviction appeal - sexual intercourse without consent - whether the trial judge erred by failing to discharge the jury when it was put by defence counsel that prejudicial media publicity had been published during the course of the trial - whether trial judge failed to adequately direct the jury as to the inconsistencies in the evidence of the complainant and the Crown witnesses - whether the trial judge erred in his directions on hearsay evidence - whether the trial judge erred in failing to give warnings relating to identification evidence - whether verdicts of guilty constituted a miscarriage of justice LEGISLATION CITED : Crimes Act Evidence Act Jones v The Queen (1997) 191 CLR 439 CASES CITED : M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v Crowther-Wilkinson [2004] NSWCCA 249 PARTIES : Regina v Ahmed HAWAT FILE NUMBER(S) : CCA 2004/1806 COUNSEL : A Francis - Appellant Dr P Power SC - Crown SOLICITORS : S O'Connor (LAC) - Appellant S Kavanagh - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0394 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1806 GROVE J JAMES J HOEBEN J 8 December 2004 Regina v Ahmed HAWAT JUDGMENT 1 GROVE J: I agree with James J. 2 JAMES J: Ahmed Hawat appealed against his conviction, after a trial in the District Court before his Honour Judge Patten and a jury, on two counts of sexual intercourse without consent on 3 December 2001, being offences under s 61I of the Crimes Act. The appellant had been indicted on two counts of the aggravated form of the offence under s 61J of the Crimes Act, the circumstances of aggravation being the infliction of actual bodily harm on the victim, but during the trial the trial judge held that there was no evidence on which the jury could find that the appellant had inflicted actual bodily harm on the victim. 3 The victim of both the alleged offences was a young adult woman, who I will refer to as "the complainant". At the trial the appellant did not dispute that on 3 December 2001 he had had sexual intercourse with the complainant but he said that he had had sexual intercourse with the complainant only once and that that act of sexual intercourse had been consensual. THE CROWN CASE AT THE TRIAL 4 The principal witness in the Crown case was the complainant. Two other important witnesses in the Crown case were two young women, who I will refer to as Andrea and Alison. Other witnesses in the Crown case included another young woman, who I will refer to as Natalie, the complainant's brother, a police officer who on 3 December 2001 took a short statement from the complainant in his notebook soon after the offences were allegedly committed, certain other police officers and Dr Crampton, a medical practitioner who examined the complainant on 3 December 2001 soon after the offences had allegedly been committed and who took a short history from the complainant. 5 As at 3 December 2001 the complainant, Andrea and Natalie lived together in a rented house at Strathfield. Alison was an acquaintance of the other three young women. 6 Having regard to the grounds of appeal and the submissions made in support of the grounds of appeal, it is necessary to examine in some detail the evidence of the complainant, Andrea and Alison. The Complainant Evidence in Chief 7 The complainant gave evidence that she first met the appellant on a Saturday night in mid-October 2001, when she and Andrea were travelling on a train bound for Circular Quay. A group of males who included the appellant approached the complainant and Andrea. They asked the two young women for their names and telephone numbers and the complainant supplied her name and telephone number. The males got off the train at Town Hall station and the complainant and Andrea proceeded to Circular Quay. 8 Later the same night the complainant received a telephone call from a person who identified himself as "Ahmed". The caller proposed that he and the complainant meet later that night in the city but the complainant declined the proposal. 9 Over the next eight weeks the complainant received a number of telephone calls and SMS messages on her mobile telephone. On some occasions the telephone number which the appellant had supplied as being his telephone number was displayed. On other occasions no telephone number was displayed. The complainant replied that she was not interested in meeting the appellant and that she was trying to study. 10 In late November 2001 the complainant was walking to her home from a railway station, when the appellant hailed her from a building site where he was working. He proposed that he and the complainant go out together but the complainant declined. 11 On 1 December 2001 the complainant received a SMS message from the appellant's number, "why aren't you calling me?" At the complainant's request, Natalie sent a reply, telling the caller to leave the complainant alone. This prompted an offensive reply and then a further message from Natalie and then a further message "if you think you're a sick bitch like your friend, you're going down with her". The complainant said in her evidence "something had changed, he was angry now, so it frightened me". 12 On the late afternoon of Sunday 2 December 2001 the complainant was at home, trying to study. She was becoming fearful, because she was alone and evening was approaching. She telephoned her brother and asked him to call the appellant and say that the complainant was not interested in him. While she was speaking to her brother, she overheard her brother say on his landline "leave her alone". 13 At about 7 or 8 o'clock that evening Andrea and Natalie returned to the flat. Alison was with Andrea. 14 At the request of the complainant, Alison telephoned the appellant's mobile telephone number and had a conversation. About five minutes later the complainant's mobile telephone rang. Alison answered the call but the complainant took the telephone from her and discovered that the caller was not the appellant but a different male, "Tyrone", who was the appellant's cousin. Tyrone had a deeper voice, spoke a lot more quickly and sounded a lot more angry than the appellant. Tyrone made threatening comments about Alison and threatened to kill the complainant too. The complainant sent a SMS message "just leave us alone" and received a message in response "no". 15 The complainant telephoned the appellant again "and I said, 'what's going on?' and he asked to meet at Auburn McDonald's. I just said 'why?' and he just said, 'just come here. If you don't, we'll shoot you in your house'. Then the phone was hung up". 16 When asked by the Crown Prosecutor whether she believed that the threat was serious, the complainant said:- "I thought it was highly possible because he worked in my area and I had to pass his work place every day going to the train station. It could have been easy for him to find out where I lived just by following me home or finding which direction I came from". 17 The complainant said that Alison wanted to go to McDonald's, because she was hungry anyway. Andrea did not really say anything. The complainant said in her evidence:- "I thought, if anything, it might be better because it was a public area. McDonald's being a public restaurant, there would be other people around, whereas being shot in your house was a very private sort of thing. There was no one about. So I didn't think it was that bad an idea at the time". 18 The three women, the complainant, Alison and Andrea drove to McDonald's at Auburn in Alison's car, arriving at about 11 or 11.30. At McDonald's they saw a parked car with a group of males in it. "The accused walked around and tapped on my window and said, 'Don't you say hello?' They were making gestures for me to get out of the car, so Andrea got up to let me out and I just chatted to them for a while". 19 The other two women Andrea and Alison remained in their car. The conversation at that time between the complainant and the males was polite. The appellant introduced the complainant to Tyrone and another male named Hussein or Sam. There were two other males, one of whom was named Mark. The complainant had a conversation with Hussein, who by an unlikely coincidence had some names similar to the complainant's. A number of cars which had been in the car park left. The complainant said in her evidence:- "And then Tyrone said, 'you're coming to Silverwater Bridge with us'. At that time I said, 'Look, no, I've met up with you now, I've got to go back home and study. I don't, you know, I don't want to go to Silverwater Bridge,' and he just kept asking me, so I said, 'Look, it's not up to me, it's up to the driver'". 20 The complainant continued in her evidence:- "So he went around to Alison's window and said, 'Make her come to Silverwater Bridge or we'll follow you home'" 21 The three women had a discussion about what they should do. The complainant said in her evidence:- "We just thought, 'Okay, if we did drive off at this time, do we think they're going to follow us', and we all thought that they would, so we thought maybe the best thing would be to follow them". 22 The three women, travelling in Alison's car, followed the males' car to Silverwater Bridge. They arrived at a large car park near the Bridge. 23 At Silverwater Bridge Tyrone and the appellant got out of their car, approached the women's car and asked the complainant to get out, because they wanted to talk to her. It seemed to the complainant that Tyrone was the one among the males who decided what was to happen. Tyrone said to the complainant:- "you're here because I want you to be here". The complainant asked "can we go?" and Tyrone said "no". 24 The complainant's evidence continued:- "I think Tyrone and the accused spoke in another language for a couple of minutes. I don't know what they were discussing. And then the accused said, 'We are going for a walk'. He pulled me away sort of by my neck and my shoulders". . . . We stopped near by a tree, and I tried to return to walk away, and he just pulled me back. He was asking me to sit down on the ground, and I was just saying no, I wanted to go back to the car, and he said, 'No, I want to talk to you'. And at that stage I saw Alison's car driving away, and it slowed to where I was, and they ran down the window and said, 'We'll be back soon', and then they drove away". . . . I think I was standing at the front of the car when I was spoken to and taken away. They (the other two women) would have seen me, being pulled away by the accused". 25 The complainant and the appellant walked back to where the males' car was. The complainant's evidence continued:- "..the accused and Tyrone said something else, again in another language, and then the accused took me off into a different direction". . . . "Just by force around the shoulder area, same sort of thing as before. This time it was in a completely different direction to which we had come from". 26 When the complainant was taken away by the appellant, the appellant said that there was a gun in the car and that he would shoot the complainant, if she did anything the appellant did not want her to do. 27 The appellant tried to push the complainant to the ground. The complainant said "no, no, no, no". I don't want to do this". The appellant told her to shut up. The appellant was trying "to take off my shirt and pull down my pants". The complainant resisted and the appellant grabbed both the complainant's hands by the wrists and held them with his own hand above the complainant's head. The appellant pulled down the complainant's tracksuit pants and underwear and penetrated the complainant. The appellant said "if you don't do this, I swear I'm going to kill you". The complainant was not sure whether the appellant ejaculated. 28 The complainant's evidence continued:- "This happened for about five minutes and then he got up and looked towards the direction of the cars and I got up and pulled my pants up. I started running back towards the cars. He caught up to me and pulled me back down on to the ground. Q. Where did he grab you? A. He grabbed me by – he was coming from behind me, so he grabbed me by the shoulders and just pushed me back and then jumped in front of me and pushed me on to the ground. Then he did it again. He pulled my pants down, my underwear down. His penis entered and I'm pretty sure this time that he did ejaculate because I could feel it on my leg. This time it was only for maybe three minutes". 29 During the encounter the complainant was trying to talk, saying "no, no, no don't do this. Do you know this is rape" but the appellant was trying to kiss her on the lips and eventually covered her mouth. 30 Tyrone came over and spoke to the complainant. He talked generally for a time and then:- "..he just tried to kiss me on the mouth. He tried to lay me down on the grass but I was saying, 'no, no, no,' and I think eventually he just gave up and dragged me back up to the car". 31 The complainant noticed that Alison's car had returned. The complainant gave evidence:- "I walked up to Andrea's window and her window had been wound down, so I just – I asked her, 'can we go? I want to go. I want to leave'. At that time I noticed that they were smoking a bong". 32 The other two women did not respond to what the complainant said. They were laughing and listening to music. 33 The man Hussein or Sam approached the complainant. He touched the complainant on the breasts and said "lets go for a walk". The complainant said that she did not want to. Hussein took the complainant in the direction she had first been taken by the appellant. Hussein pushed the complainant down on to the ground. Hussein noticed bruises on the complainant's neck and asked "did Ahmed do that to you?" Hussein said that he could do a better job than the appellant and started kissing the complainant, biting her on the neck. 34 It was this evidence about Hussein's conduct which led the trial judge to withdraw from the jury the alleged circumstances of aggravation of the appellant inflicting actual bodily harm on the complainant. 35 As Hussein was opening a condom, the complainant jumped up and returned to where the cars were. Her evidence continued:- "When I got back to the cars, I was crying and I asked the girls again, 'I want to go. Can we go now?' They didn't respond to me". . . . They didn't really care. It was very obvious that I was upset. I was crying. I had marks on my neck". 36 The man Mark grabbed the complainant around the waist and said "we're going for a walk". Mark and the complainant went past the tree and had a conversation. However, no sexual activity occurred. 37 When the complainant and Mark returned to the cars, "there was a dispute of some sort going on". Alison was accusing Tyrone of having stolen her mobile telephone. Andrea realised that her mobile phone had also been taken. The appellant took Alison's car keys and said that he wanted to give the car a test drive but Alison refused. The appellant then threw Alison's car keys away. The complainant retrieved the car keys. 38 The males drove away in their car. As they drove away, they shouted "we've got your phones and your CD's". The women drove back to the house at Strathfield. The complainant told the other two women that she wanted the police called. 39 In the police investigation the complainant made photographic identifications of the appellant, Tyrone and Hussein. 40 The complainant gave descriptions of the appellant and Tyrone. She described the appellant as "about five foot six, five foot seven… dark in appearance…of Lebanese appearance, dark hair. It was shaven but a bit longer on top, of probably slim build, I think." The complainant described Tyrone as "probably five eight or five nine. He had dark hair, dark appearance. I would say of Lebanese appearance again. He was of a large build". Cross-examination 41 The complainant agreed that the threatening message on 1 December 2001 was the first time language of that sort had been used and she was not sure that the message had emanated from the appellant. 42 The complainant said that when the appellant took hold of her and started pulling her away, she screamed out "leave me alone", "in a pitch that someone could have heard", but neither of her friends had come to her assistance. 43 At the time when the other women drove past, leaving the car park, the complainant was blocked between the tree and the appellant and it would have appeared to an observer that she was being detained against her will. 44 The complainant was cross-examined about a number of alleged inconsistencies in her evidence or between her evidence and the statement she had made to police on 3 December 2001. 45 In the statement the complainant had said that she was pushed to the ground, before Alison's car drove past. In her evidence the complainant said that it was after Alison's car had driven past, that the appellant pushed her to the ground. 46 In her evidence the complainant said that after the first act of sexual intercourse she herself got up off the ground. It was put to the complainant in cross-examination that in her statement she had said that the appellant "pulled her up". However, it would appear that in her statement the complainant said that after both acts of sexual intercourse she herself "got up" (pars 47 and 49 of the statement). 47 It was put to the complainant in cross-examination that there were inconsistencies in her evidence about whether she struggled against the appellant. The complainant was asked in cross-examination "you tell us that you tried to fight him?" to which she replied "not exactly, no". The complainant then said that there had been a struggle between the appellant and herself. However, when asked "would you say that you were struggling as best you were able", she replied "no". The complainant was referred to her evidence in chief in which she had said "I was trying to fight against (the appellant)". The complainant said in her cross-examination that she had used as much force as she was able, to break the appellant's grip on her wrists. 48 The complainant accepted in cross-examination that she had not suffered any injuries to her wrists or back, which might support her account of how the assaults had occurred. 49 In her evidence the complainant said that the appellant had released her hands, so that her hands were free by the time the appellant had intercourse with her and that she was trying to push the appellant off with her hands. In her statement she had said that by "this stage", that is after the appellant had pulled her clothing down, "he had both his hands on top of my hands". 50 In cross-examination the complainant was criticised for using the expression "I think", when answering a question about what she had said to the appellant. The complainant had given evidence "I can't remember exact words, I think I said 'stop'". 51 In her evidence in cross-examination the complainant said that, immediately before the second act of intercourse, the appellant had run past her, got in front of her and pushed her to the ground. It was put that this evidence was inconsistent with her evidence in chief that "he was coming from behind me so he grabbed me by the shoulder, just pushed me back then, jumped in front of me and pushed me to the ground". Both the Crown prosecutor and the trial judge expressed a view that there was not necessarily any contradiction between the complainant's evidence in cross-examination and her evidence in chief. 52 In her evidence the complainant denied having used marijuana on 3 December 2001. Both Andrea and Alison later gave evidence that the complainant had in fact used marijuana. 53 Both Andrea and Alison later gave evidence that the complainant appeared "fine", when she returned with the appellant at Silverwater Bridge. 54 The complainant was cross-examined about why she had not made an immediate complaint of having been raped to Alison or Andrea. The complainant said that she had said to Andrea that she wanted to go, that she wanted to leave the area. Andrea Evidence in Chief 55 In 2001 Andrea was living in the same rented house at Strathfield as the complainant and Natalie. 56 Andrea was with the complainant on the train journey in October and she gave an account of events on the train journey, which was generally consistent with the complainant's. 57 When asked whether one of the males on the train had asked for the complainant's telephone number or whether the complainant had offered her telephone number without being asked, Andrea said that she did not remember. She was then asked by the Crown prosecutor whether having access to the statement she had made to police on 3 December 2001 would assist her in recalling what had happened on the train and she replied "no, but my statement is true". She said that having access to her statement would not assist her, "because I don't remember what happened". The trial judge granted leave to Andrea under s 32 of the Evidence Act to revive her memory by referring to her statement. Andrea then read aloud paragraph 7 of her statement in which she had said:- "A few minutes later I heard the other guy that was with the fellow talking to (the complainant) say, 'how about giving me your number?'. I then heard (the complainant) read out her mobile phone number to him. As she was doing this I saw this guy keying this number into his mobile phone. He then said, 'I'm going to ring it to see if it's the right number'. (The complainant) said, 'why would I give you the wrong number'. This guy then used one of the other male's mobile phone. A few seconds later I heard (the complainant's) mobile phone ring. It rang only once before it stopped". 58 Andrea gave evidence that she saw the person who had asked the complainant for her telephone number at McDonald's at Auburn on 2-3 December 2001. 59 Andrea said in her evidence that the complainant had received telephone calls from the appellant but Andrea did not remember whether she herself had spoken to the appellant. She was given leave to revive her memory by referring to her statement (par 13), in which she had said that she had spoken to the appellant on the telephone three or four times. She said in evidence that the appellant had not been polite and "he was quite adamant about (the complainant) coming on the telephone". 60 Andrea was given leave to revive her memory by referring to par 15 of her statement, in which she had said:- "He then said, 'all we want to do is sleep with her'. I said, 'who's we and why?' He said, 'me and my boys'. He then became abusive and threatening saying, 'I'll slit your throat. I can put a bullet in your head'. He also threatened to come around saying 'I know where you live'. I later learnt that this guy's first name was Ahmed". 61 In the absence of the jury and of the witness the Crown prosecutor said to the trial judge that "it is quite clear from the demeanour of this witness that she is not… happy being here… it is not expected that there will be an objection to treat this witness as unfavourable". However, no application was made by the Crown at that stage for leave to cross-examine Andrea. 62 Andrea then gave evidence about events happening on the night of 2 December 2001. She returned to the house at Strathfield at about 8.50, with her friend Alison. The complainant and Natalie were at the house. The telephone rang and Andrea answered it. Andrea said in evidence that she believed that the person who spoke to her was "Ahmed" and that "I had a conversation… about meeting up with him, maybe". She was given leave to revive her memory by referring to par 17 of her statement and she read aloud from par 17 of her statement in which she had said:- "About two minutes later (the complainant's) telephone commenced to ring. I then picked it up and answered it and said, 'hello'. A male then commenced to speak to me. He said, 'hello'. I said, 'who is this?' He said, 'Ahmed, what are you up to?' I said, 'not much. I'm just at home with friends. What about you?' He said, 'I'm at home with the boys. Why don't you hook up with us?' I said, 'because I have work in the morning and as if I'd want to anyway. You're a dickhead'. He said, 'don't raise your voice and swear at me. Do you know who I am?' I said, 'obviously not, I've met you once before and I've spoken to you. What do you think I am, psychic'? He said, 'I'll find out where you live and I'll come and get you and your slut of a friend. You don't believe me do you, I've got shotguns. I know heaps of people. I can find out where you live tomorrow. I then threw the phone down towards (the complainant) before she picked it up and terminated the call". 63 Andrea then said in her evidence that the complainant organised with one of the males to go and meet up with them at McDonald's at Auburn. She continued in her evidence:- "I didn't really want to go. But (the complainant) and Alison were both saying that they were expecting three of us, so I suggested we didn't take any money and took our jewellery off, and we took a rolling pin and a steak knife with us". 64 At McDonald's at Auburn the three women met a group of five males which included the appellant. One of the males, she thought Tyrone, told the three women to follow the males' car to Silverwater Bridge. 65 Andrea gave evidence that at Silverwater Bridge:- "Alison announced that it was 12 o'clock, and that it was my birthday, and Ahmed asked if he could give me a kiss, and I told him no. And I think he said, 'what about (the complainant),' and then (the complainant) said, 'yes, but not here. We'll go into the bushes'. She didn't want to kiss him in front of everybody". 66 The appellant and the complainant then walked away side by side, without the appellant's hand being anywhere on or near the complainant. While the appellant and the complainant were away, the rest of the group played music and talked. The appellant and the complainant were gone for about half an hour. When the complainant returned, she appeared "fine" and did not appear distressed. 67 Andrea gave evidence that there was discussion about obtaining marijuana. In a statement she had made to police on 3 December 2001 she had not mentioned marijuana. She said in her evidence that this was because she and Alison had made an agreement "not to put marijuana in the statements". 68 Andrea gave evidence that there was a conversation between Alison and Tyrone about going back to the house at Strathfield, getting money, coming back to Silverwater Bridge and then obtaining marijuana. 69 When Alison and Andrea were driving out of the car park at Silverwater Bridge, Andrea saw the complainant and the appellant and told the complainant, who appeared "fine", that they were going to McDonald's. 70 The proposal to obtain money and then marijuana was carried into effect and some of the males left and returned to the car park with marijuana. Andrea gave evidence "I didn't actually see anyone use it but I believe a few of the boys did and Alison and (the complainant)". She did not see a bong. She herself did not use any of the marijuana. 71 Andrea gave evidence that the complainant and Hussein left to go for a walk in the bush. She accepted there was nothing in the statement she had made to police about the complainant going off with Hussein. She did not know why that had been left out of her statement. 72 When the complainant and Hussein returned, the complainant "had love bites on her neck". She accepted that there was nothing in her statement about this. 73 Andrea gave evidence that Tyrone and the complainant left the group and sat together near a lake. They were not gone for long. Andrea accepted that there was nothing in her statement about Tyrone and the complainant going off together. 74 Subsequently there was conversation between the three women about going home. During this conversation the complainant appeared "fine" and not upset. The males told the women that they wanted the women to stay. The appellant took the keys from the ignition in Alison's car and threw them on the grass and the complainant retrieved them. The males drove off in their car. One of them yelled "we've got your CD's and mobile phones". 75 Andrea was asked whether at any stage she saw the complainant "shaking". She replied "I believe in my statement, yes, I did put that". She gave evidence that she did not remember the complainant shaking. Andrea was asked whether at any stage she saw the complainant "visibly upset" and she replied "yes… when we were parked outside my home at Strathfield". Similarly, she said that the complainant had burst into tears but only when they parked outside the house at Strathfield. Andrea accepted that in her statement made on 3 December 2001 she had given "a different scenario altogether". 76 The Crown prosecutor made an application for leave to cross-examine Andrea. The application was not opposed by counsel for the appellant and the application was granted. Cross-examination by the Crown 77 Andrea was cross-examined by the Crown about pars 27 and 28 of the statement she had made to police, in which she had said that she saw the complainant and the appellant go for a walk and then saw them return. She was then cross-examined by the Crown about all of par 29 of her statement in which she had said:- "When (the complainant) reached the car she leant on the door where I was seated and said, 'let's go, we have to go now'. I could see that (the complainant) was visibly upset and she was shaking. Her eyes looked like she'd been crying. I then noticed two huge marks on either side of (the complainant)'s neck. These marks were very dark and deep. I then turned to Alison and said 'we have to go". 78 Andrea said that par 29 was what she had said in her statement but that it was not her recollection at the time of her giving evidence. She agreed with the Crown prosecutor that, "as far as your statement goes, that it was truthful but you just now do not have any recollection of those matters". 79 Andrea agreed in cross-examination by the Crown that there had been a dispute between the complainant and herself about the bond money on the lease of the house where they were living and whether Andrea was entitled to part of the refunded bond money. The dispute gave rise to a series of emails in July 2002 between the complainant and Andrea, which became exhibit G at the trial. 80 The series of emails commenced with an email from Andrea to the complainant, which read as follows:- "As I payed (sic) the bond money I am entitled to it. It's OK, you will be served with a 'release of funds' form soon. I am capable of giving evidence as is Alison and will do so, but unfortunately, not in the favour of you!" 81 The complainant replied as follows:- "You are not entitled to any of the bond money that I got back. This is because you did not sign the lease. Both Gareth and I do not know where your towel or lamp are. Nor do we care. The last that I saw of those items was when we left them at the front of the house in Strathfield – along with your other items that you did not return for. I doubt that you will be going to court in September. The police know that you and Alison are not capable of giving evidence". 82 The emails between the complainant and Andrea continued in similar, acrimonious, terms. Cross-examination by the Defence 83 When cross-examined by counsel for the appellant Andrea gave evidence generally in accordance with the evidence she had given in her evidence in chief, as distinct from the statement she had made to police on 3 December 2001. 84 She said that on the train journey a male other than the appellant had done most of the talking. 85 The complainant had not appeared to have been forced to go with the appellant at Silverwater Bridge. When the complainant had returned, she appeared fine, she was not upset or crying and she had no marks on her neck. Andrea recalled the complainant going for only one walk with the appellant at Silverwater Bridge. 86 When Andrea and Alison left to get some money to buy marijuana, Andrea said to the complainant, who was just outside the car, that they were going to McDonald's and the complainant replied "OK. See you soon". 87 It was when the complainant returned from a walk with Hussein that the complainant had marks on her neck. 88 There had been no conversation in the car on the way home to Strathfield. When Alison parked outside the house at Strathfield, the complainant said that she had been raped. 89 Cross-examination about the disputed bond money included the following:- "Q. There has been mention made of this dispute between you and (the complainant) about the bond money. Was that of such a serious nature in your mind that it would cause you to tell lies in the witness box? A. No. Q. Did you ever threaten (the complainant) that you would, in fact, tell lies against her if she didn't pay the bond money? A. That's correct. Q. I will just repeat the question. Did you ever threaten her that you would tell lies in the witness box if she didn't pay you the bond money? A. Not in them words, no. Q. What did you say? A. I told her that I wouldn't give evidence in favour of her. Q. Did you change your evidence against (the complainant) because of the dispute over the bond money? A. No". Alison Evidence in Chief 90 Alison gave evidence that as at December 2001 she knew the complainant and Andrea. 91 On the evening of 2 December 2001, while Andrea was with Alison at her home, Andrea received a telephone call from the complainant. Alison spoke on the telephone to the complainant, who told her that she had received a text message and that she was scared. 92 Alison and Andrea arrived at the house at Strathfield at about 9.30 or 10 o'clock. At the house the complainant received a number of telephone calls. The complainant said that "there were these guys that wanted us to go meet them at Auburn McDonald's". 93 Before the complainant received any of the calls, Alison herself made a telephone call to someone who, on the basis of what the complainant told her, she believed to be the appellant. "I was telling him to leave my friend alone and he told me that my friend was 'a slut'". 94 Andrea suggested that the women call the police but the complainant said that they should go and meet the males. The complainant said that "they told her that they were going to kill us, if we didn't go". Alison agreed to go because the complainant had told her that the males had threatened to kill the women. The women took a rolling pin and a kitchen knife and left their jewellery and wallets behind. 95 Alison drove herself, the complainant and Andrea in Alison's car to McDonald's at Auburn. At McDonald's the complainant got out of the car and started talking to the men. Alison heard the complainant say "you'll have to ask the driver" and a male then said to Alison "are you going to come to Silverwater Bridge?" and Alison said "yes, looks like we are". Alison gave evidence that she had not wanted to go to Silverwater Bridge but decided to go, because the complainant said that she wanted to go. All the women were "a bit scared" about going to Silverwater Bridge but they followed the males to Silverwater Bridge. 96 At Silverwater Bridge the complainant got out of the car and started talking to the men. Alison said that it was Andrea's birthday and one of the men asked for a birthday kiss. The complainant then walked off with one of the males, who was not the appellant. The complainant and this male walked next to each other, not touching. They did not walk far. 97 After the complainant had walked off with this male, another of the males said to Alison "what are the chances of you and I having sex tonight?" to which Alison replied "not likely". This male then said "what if I raped you?" This male then put his head on Alison's chest. She was still inside the car. She pushed him away. This male then said in an angry voice, not to touch him. Alison said that she believed that this male's name was Ahmed. There was just one "Ahmed" at Silverwater Bridge that night. 98 In her evidence up to this point Alison had distinguished between the first male with whom the complainant had walked off and "Ahmed". However, the Crown prosecutor asked Alison whether it was before or after the incident in the car "that Ahmed" walked off with (the complainant)?" Alison replied that it was "after". The complainant and Ahmed were away about half an hour and when the complainant returned "she had some bruises or love bites on her neck". 99 After a further interval in which Alison in her evidence did not describe anything significant as having happened, "Ahmed took my keys from the car and we noticed that everything else was missing". Ahmed threw Alison's car keys away and the car containing the males drove off. The complainant retrieved the car keys. 100 The three women decided to leave. Before they left Silverwater Bridge, the complainant told the other two that she had been raped. 101 Alison later gave evidence that she and Andrea had gone to Andrea's house at Strathfield to get money to pay for marijuana. As Alison and Andrea were leaving to go to the house at Strathfield, they saw the complainant with a male other than Ahmed. Alison said to the complainant "make sure you don't have sex with him". At the time she said this, the complainant was about ten metres away from the car. Alison agreed that there was nothing in the statement she had made to police about her saying this to the complainant. 102 After the marijuana had been obtained, Alison and the complainant used some of it. Alison agreed that there was nothing in the initial statement she had made to police about driving away from Silverwater Bridge or obtaining marijuana. Cross-examination by the Crown 103 The Crown prosecutor applied for and was granted leave to cross-examine Alison about certain paragraphs of her statement of 3 December 2001. 104 Alison had also made a statement on 14 August 2003, only a few days before the trial commenced. Both of Alison's statements were ultimately admitted into evidence at the trial as exhibits K and L. 105 In pars 11-18 of the statement of 3 December 2001 Alison had said:- "11. Some time during the night Andrea got out of the car and one of the males got into the passenger seat, He said, 'What are the chances of you and I having sex?' I said, 'No chance at all.' He said, 'Why not' I said, 'Because I don't want to' He said, 'Well what if I raped you' I said, ' Yeah right' He said, 'So there is still a chance". I didn't say anything back to him. The male then leaned over towards me and put his head on my chest area. I then with my left hand pushed his head away from me. He said, 'Don't fucking touch me' I said, 'Don't come near me' He said, 'You pushed me in the eye'. The male then got out of the car. A short time later Andrea got back into the passenger seat. 12. I would describe the male as being, Lebanese appearance, dark skin, dark short hair, about 150cm – 170cm tall, thin build around 17-21 years old. He was wearing dark pants, black shirt which had a picture in the middle of it. The male's ears were sticking out. 13. Soon after Andrea got into the car, I saw the same male walking with (the complainant) toward a park. Andrea and I stayed in the car talking to the other males who were standing outside the car. 14. Around half an hour later I saw (the complainant) and the same male walking back towards us. (The complainant) approached the passenger side and leaned forward, when I noticed (the complainant) had a reddish/blueish marks around her neck. Andrea got out of the car and started talking to (the complainant). I stayed in the car. We stayed there for a while and I decided to leave. I said to (the complainant) and Andrea that we should leave. (The complainant) and Andrea then walked around the passenger side of my car and Andrea noticed that her mobile phone was missing. (The complainant) also noticed that her mobile phone was missing. At that stage I noticed that my mobile phone was still where I left it at the back of the console area. 15. While looking for the phones the same male that put his head on my chest approached my window and grabbed the car keys from the ignition. I said, 'Give me my keys, give me my keys, give me my keys' He said, 'No, I want to drive your car, let me drive your car' I said, 'No, give me my keys'. The male then got into the passenger side of my car and took my glasses from the console area. 16. I then grabbed the face of my stereo so he can't take it. He said, 'Put it back on, put it back on' I said, 'No, give me my stuff' He said, 'I'll do a deal with you, if you put the stereo back on, I'll give you back your glasses. I said, 'No, give me my stuff'. At that stage I noticed that my mobile phone was missing. I said, 'Give me my phone back'. The male didn't say anything, the male then handed the glasses back to me and got out of the car. 17. While the male was walking over to the commodore, he turned around and threw my keys on the floor about two hundred meters away from my car. The male then got into the commodore and drove off. 18. (The complainant) then walked over and picked up the keys. Andrea and (the complainant) then got into my car. I then turned the interior light on and noticed that a number of CD's were missing. While talking about the stuff that was missing, (the complainant) said, 'I could get him for rape', I said, 'What', She said, 'He raped me'. I then drove to (the complainant's) house and Andrea contacted police". 106 In pars 4-8 of her statement of 14 August 2003 Alison said, with reference to paragraphs of her earlier statement:- "4. Re paragraph 11, a. It was Ahmed, the accused who asked if he could have sex with me. At some stage I saw (the complainant) go off with Ahmed but this was after Ahmed asked me to have sex. b. When he said, 'don't fucking touch me' he said it in an angry tone. c. After he got out of the car he was probably just standing around talking to the others. 5. In paragraph 13 I am referring to the accused with (the complainant). I first saw them when they were about 100 meters from the car; I observed them in my rear view mirror. 6. In paragraph 14 I said that I wanted to leave because it was 4am and I had to go to work the next day. (The complainant) appeared to be acting normal and at no stage did she say that we should go. 7. In paragraph 18 (the complainant) was referring to the accused as the one who had raped her. She told me this before we drove away but after she found the keys. 8. When (the complainant) told us that she had been raped I formed the view that she was only a little upset". 107 Alison said in cross-examination by the Crown that the leaving of Silverwater Bridge to get money to buy marijuana should be fitted into par 14 of her first statement, as having occurred after she had noticed marks on the complainant's neck. 108 Alison said that she had later seen the complainant walk off with "one of the other guys" but "I didn't see them do anything". Alison agreed that there was nothing in her statement of 3 December 2001 about this incident. She said with reference to her statement of 3 December 2001:- "When I was giving the statement, I hadn't slept all night, and I had waited at the Burwood Police Station for six hours to give my statement. So my memory was probably a little bit vague". 109 Alison said that on the night of 2-3 December 2001 she had left Silverwater Bridge only once. This was contrary to pars 9 and 10 of her statement of 14 August 2003, made only a few days earlier, in which she said that she had left Silverwater Bridge twice, once to go to McDonald's to get a drink and the other time to get money to buy marijuana. 110 Alison said that it had been agreed by all three women at the police station to leave out of their statements anything about marijuana. She was cross-examined about par 13 of her statement of 14 August 2003 in which she said:- "I did not put in my statement anything about going back to McDonald's or Strathfield because I just wanted to get the statement over and done with, also because the police did not ask me if I had left. There were no discussions with anyone to the effect that we should leave out of the statement anything to do with marijuana". 111 Alison said that her evidence, and not what she had said in par 13 of her statement, was true. When making the statement she had not been under oath, whereas when giving evidence in court she was under oath. 112 Alison said that she was aware that there had been a dispute between the complainant and Andrea about bond money. Her attention was directed to an email in exhibit G from Andrea to the complainant, which states that a copy of the email was being sent to Alison and in which there are references to Alison. Alison said that she did not remember receiving the email. She agreed that she had had discussions with Andrea in which "Andrea was telling me that (the complainant) took her bond money and that she wouldn't give it back". Cross-examination by the Defence 113 In cross-examination by counsel for the appellant at the trial Alison said that the complainant had wanted to go to McDonald's at Auburn and meet the males, that Andrea did not want to go and that Alison herself did not really mind. The complainant did say "they've got guns". 114 At McDonald's one male, who Alison believed was Tyrone, did most of the talking. She was not aware that Tyrone's real name was "Ahmed" and he had not used the name "Ahmed" that night. 115 Alison had not wanted to go to Silverwater Bridge but the complainant said:- "…that we should go for a while, and I knew that she had met them before and that she knew them, so I thought well, if she knows them, then it's not so bad". 116 Alison denied that at McDonald's Tyrone had said "make her come to Silverwater Bridge or we will follow you home". However, Alison had believed that the men would have followed her, if she had driven off. Alison did not think that she had felt hungry at McDonald's. 117 Alison agreed in cross-examination that, in leaving McDonald's and going to Silverwater Bridge, they were leaving "a public place with lots of people to go to a place that you didn't know". 118 After arriving at Silverwater Bridge she had not heard any conversation between the complainant and Tyrone, as alleged by the complainant. 119 It was put to Alison in cross-examination that she was mistaken in saying it was the appellant who had asked her for sex. She replied that "it was definitely him (the appellant)". She accepted that she had thought the appellant was joking, when he said, "what if I raped you". 120 The complainant and the appellant walked off together out of sight. When they returned, the complainant did not appear to be under any kind of coercion. She recalled that the complainant and the appellant had walked off together on two occasions. The walks had been in different directions. In each case the complainant had gone "apparently willingly". 121 Alison said that she saw the complainant, apparently willingly, and Hussein go off together. She did not see the complainant close up, after the complainant returned with Hussein. She agreed that it had been Hussein who the other males were calling "an animal" for giving the complainant love bites. 122 Alison gave evidence that she also saw the complainant, apparently willingly, go off with another man, who could have been Mark, "the white Croatian". 123 In neither of her statements, including the statement of 14 August 2003, had Alison made any mention of any one of Tyrone, Hussein or Mark going off with the complainant. 124 When the complainant had returned with the appellant, "her hair was a bit messy", her clothing "looked the same as when she walked off", there were no grass stains or vegetation on her clothing, she appeared "fine", she was not crying or upset and she did not then and there ask to leave Silverwater Bridge. THE DEFENCE CASE 125 The appellant gave evidence in the defence case. He was the only witness in the defence case. 126 The appellant said that on the train journey the complainant gave her telephone number, because "she was asking for our number, then we asked her for her number". 127 Over the ensuing weeks the appellant had a number of telephone conversations with the complainant. The complainant had never said not to telephone her. The appellant had not spoken to any of the complainant's friends. 128 The appellant gave evidence that the meeting at the building site between the complainant and the appellant had been arranged by the complainant. 129 The appellant said that for a period which included 2 and 3 December 2001 the man Tyrone, whose real name was Ahmed Oueik, had the appellant's mobile telephone and SIM card. The appellant denied that he had spoken threateningly on the telephone to any of the complainant, her brother or her friends. 130 The arrangements to meet at McDonald's were made on behalf of the males by Ahmed Oueik (Tyrone). 131 At McDonald's Tyrone took over the conversation. Tyrone made the proposal to go to Silverwater Bridge. Tyrone did not make any threats at McDonald's. The appellant was aware that threats had been made by Tyrone earlier that night, in a telephone call the appellant had overheard. 132 The appellant said that at Silverwater Bridge the complainant and Andrea had got out of the car in which the women had travelled. There was talk about Andrea and a birthday kiss for her. 133 The appellant's evidence then continued:- "Then I go to (the complainant),'Don't I get a kiss hello'. She goes, 'not in front of anyone'. . . . Then her friends go then, 'why don't youse go for a walk'. So we went for a walk'. . . . We went.. 'two minute walk' …I had… my arm around her waist, and we were walking". 134 The appellant denied that he had been forcing the complainant in any way. When the complainant and the appellant got to the vicinity of the tree, they were talking. The appellant's evidence continued:- "Then we started kissing. Then her friends drove past" . . . "They stopped the car, and we went and spoke to them". . . . "They were saying they were going to Macca's, and they are going to go and get money". . . . "She goes, 'Okay'". . . . "We went back to where the cars were parked. . . . "…we went for a walk again in the opposite direction". . . . "She was saying, 'let's go for another walk'". 135 The appellant denied that he had hold of the complainant in any way. The appellant's evidence continued:- "Went under the bridge next to the park" . . . "And we sat there, and I asked her, 'do you want to have sex'. She goes, 'Yes'". 136 The appellant said that the complainant herself pulled her own clothing down. The appellant denied that he was holding on to the complainant's wrists. The appellant then had sexual intercourse with the complainant. The appellant denied that the complainant had said anything to him like "don't do this". The appellant denied that he had kissed or bitten the complainant on the neck. The appellant, at the complainant's request, withdrew and ejaculated on the ground. 137 The appellant gave evidence that, after he and the complainant had dressed, the complainant proposed a race between them back to the cars. The appellant denied that there had been any second act of intercourse. When the appellant and the complainant got back to the cars, the complainant was "fine" and "happy". 138 The appellant gave evidence that everyone used the marijuana which had been acquired, apart from himself and Alison. The complainant used some of the marijuana and was giggling for the rest of the night. 139 The complainant went off with Tyrone, not under any compulsion, and returned after about half an hour. Tyrone told the appellant that he had had sexual intercourse with the complainant. 140 The complainant went off with Hussein, not under any compulsion. When the complainant came back, she was laughing with her hands around her neck. The appellant could see red marks on her neck. Hussein told the appellant that he had had sexual intercourse with the complainant. 141 The complainant then went off with either Mark or Andrew. Afterwards the complainant went off with the other one of Mark and Andrew. 142 The appellant denied that he had asked one of the other women to have sex with him. The appellant said that it was Hussein who took the women's telephones and CD's. The appellant denied that he had called out to the women as the males' car was leaving. The appellant said that he was not aware that Hussein had taken the telephones and the CD's, until he was half way home. The appellant denied that he had taken the keys to Alison's car and thrown them away. 143 I turn now to the grounds of appeal. Ground 1 – The trial judge erred by failing to discharge the jury as a consequence of prejudicial media publicity concerning the appellant published during the course of the trial 144 On 18 August 2003, the fourth day of the trial, an article was published on page 17 of the Daily Telegraph newspaper. The article was headed "Daring Life of Crime Finally Faces Justice". The article included a picture of a person, not being the appellant, named Mahamad Alameddine, holding a pistol. In the article Mahamad Alameddine was described as a high ranking member of a gang of criminals who had carried out a number of robberies. "Ahmed Hawat" is named three times in the article as being a member of the same criminal gang as Mahamad Alameddine. 145 On 19 August 2003 counsel for the appellant at the trial applied for a discharge of the jury on the grounds that the publication of the article would prejudice a fair trial for the appellant. The Crown prosecutor said that he did not oppose, or support, the application. Counsel for the appellant at the trial said that, if his application for a discharge of the jury was refused, he would not seek any direction specifically referring to the article, because any such direction would make the matter worse. On 19 August the trial judge decided not to discharge the jury, without immediately giving any reasons for his decision. 146 On 20 August 2003 counsel for the appellant at the trial renewed the application for a discharge of the jury. On the previous day, when the Crown case had closed, the trial judge had given the jury a Prasad direction but the jury had declined the opportunity of bringing the trial to an early end by returning verdicts of not guilty. On 20 August a police officer of Lebanese extraction gave evidence on the voir dire that the name "Hawat" is a common Lebanese name. 147 On 20 August the trial judge gave a judgment refusing the application for a discharge of the jury. In his judgment the trial judge said that his reasons for not discharging the jury the previous day included the "perhaps impermissible" reason that the jury might themselves decide to put an end to the trial after the close of the Crown case. However, that had not happened. 148 The reasons the trial judge proceeded to give in his judgment of 20 August included the ability of jurors to comply with a trial judge's directions to put out of their minds irrelevant considerations, that there was no indication that any member of the jury had read the article or, if they had, that they had noted that the name of a member of the criminal gang was the same as the name of the appellant and that, according to the evidence, the name Hawat is a common Lebanese name and the name Ahmed is also a common Lebanese name. 149 On this appeal it was submitted by counsel for the appellant (but not very strongly) that the article published in the Telegraph was so prejudicial that the trial judge's exercise of his discretion whether to discharge the jury had miscarried and that the trial judge's decision not to discharge the jury had given rise to a miscarriage of justice. 150 I do not consider that the trial judge erred in the exercise of his discretion or that the omission to discharge the jury gave rise to a miscarriage of justice. The article was published on an inside page (p 17) of the newspaper. The picture in the article was not a picture of the appellant. The appellant was not the focus of the article; the focus of the article was Mahamad Alameddine. The references to "Ahmed Hawat" were not conspicuous. Both the name Ahmed and the name Hawat are common Lebanese names. The article referred to different sorts of offences from the offences for which the appellant was being tried. There was no indication from the jury that any member of the jury had read the article or made a connection between "Ahmed Hawat" and the appellant. The trial judge gave the jury a standard direction to determine all issues of fact according to the evidence presented during the course of the trial. On this appeal the Crown referred, appropriately, to the recent decision of this Court in R v Crowther-Wilkinson [2004] NSWCCA 249 especially at pars 202-208 per Wood CJ at CL. 151 I would reject the first ground of appeal. Ground 2 –The trial judge failed to adequately direct the jury as to the inconsistencies in the evidence of the complainant and the Crown witnesses Andrea and Alison Ground 3 – The trial judge erred in his directions on hearsay evidence 152 No complaint relevant to either of these grounds was made at the trial, so that the appellant requires leave under r 4 of the Criminal Appeal Rules in respect of both grounds. 153 The two grounds of appeal were argued together in counsel for the appellant's written submissions and in her oral submissions. It is, however, convenient to deal with them separately, as they are distinct grounds of appeal. 154 As regards ground 2, it was submitted that the trial judge had not adequately directed the jury about the inconsistencies between the evidence of the complainant on the one hand and the evidence of the witnesses Andrea and Alison on the other hand. 155 In his summing-up the trial judge quoted or summarised in detail the evidence of the complainant and the evidence of the appellant about what each said had happened at Silverwater Bridge. The trial judge did not summarise, and was not asked to summarise, the evidence of Andrea or of Alison. 156 The trial judge in his summing-up then summarised the submissions of counsel. In summarising the submissions of defence counsel his Honour referred to a submission that neither Andrea nor Alison supported the complainant's evidence that the appellant had taken her off by force, even though, on the evidence, both of them were quite close by and would have been able to see what was happening. His Honour noted a submission by defence counsel "that in many respects the evidence of Andrea and Alison accords more with the evidence of the accused than of (the complainant), particularly when she said that it would have been apparent that she was being held against her will". 157 The full text of defence counsel's closing address is included in the appeal books and it can be seen that in a number of parts of his address counsel compared the evidence of the complainant with the evidence of the other two witnesses. The jury should have had no difficulty in following counsel's submissions. 158 Accordingly, this was a trial in which counsel for the accused addressed the jury at length on inconsistencies between the evidence of the complainant and the evidence of two other Crown witnesses, the trial judge referred to these submissions in a summary way in his summing-up and was not asked by counsel for the accused to say any more. 159 I would refuse leave under r 4 in respect of the second ground of appeal. 160 As regards ground 3, it was submitted that by what the trial judge said in his summing-up he had encouraged the jury to regard the statements of each of Andrea and Alison, which had been admitted into evidence as exhibits, as having a higher probative value than the oral evidence each had given in the witness box. The trial judge had not given the jury any warning about the statements, which, it was submitted were properly to be regarded as hearsay. It was submitted that each of Andrea and Alison, while not denying that she had made a statement or statements in the terms of the documents admitted into evidence, had not in her oral evidence adopted the statement or statements, that is, had not said that the contents of the statement or statements were true. 161 At pp 12-13 of the summing-up the trial judge said:- "Now in this case, statements from the witnesses (the complainant), Andrea and Alison were tendered in evidence. You are entitled to use those statements as evidence of the facts stated in them. Where there is a conflict between the evidence of the witness in court and the statement of that witness you are entitled, as judges of the facts, to prefer one version over the other or to reject both versions. It is entirely a matter for you, but you may think that statements made on the very day or the day after the offence are perhaps more likely to be accurate than evidence given more than two and a half years later". 162 On the following day the trial judge corrected what he had said by saying that the oral evidence of the witnesses had been given, not more than two and half years later, but more than one and a half years later. 163 Once the mistake about the length of the time which had elapsed between 3 December 2001 and the trial was corrected, there was no error in the trial judge saying what he did at pp 12-13 of the summing-up. What his Honour said could not be described as "directions". What his Honour said was merely a suggestion about the facts, of a kind which a trial judge is quite entitled to make. In saying what he did the trial judge used cautious language ("you may think" and "perhaps") and qualified what he said by saying "it is entirely a matter for you". Earlier in the summing-up the trial judge had given the jury a standard direction that, if he expressed an opinion about the facts, the jury were entitled, and indeed bound, to disregard it, unless it happened to coincide with an opinion the jurors had independently formed. 164 It is true that the statement or statements by Andrea and Alison were hearsay evidence within the definition in s 59 of the Evidence Act. However, no warning under s 165 of the Evidence Act was required to be given with respect to the statements, because no request was made for such a warning (s 165(2)). Nor was any other kind of warning required to be given. No such warning was asked for; and that there were inconsistencies between the oral evidence and the statement or statements of each of the witnesses Andrea and Alison would have been quite obvious to the jury and was not something only within the special knowledge and experience of the courts. 165 Although the statements were not evidence given on oath in the courtroom and were not adopted in the witnesses' oral evidence, each witness' statement of 3 December 2001 had been made on the very day the offences were allegedly committed and this was a strong argument, where there was a conflict between the witness's statement and the witness's evidence, for preferring the statement. 166 Although the statements were hearsay within the definition in the Evidence Act, a number of matters which usually tend to render hearsay evidence less reliable than first hand evidence did not apply to the statements. The makers of the statements were reporting events which they had themselves witnessed, not reporting what they had been told by others, and the makers of the statements were witnesses at the trial and were available for cross-examination. 167 Counsel for the appellant at the trial had a forensic reason for not wishing any warning to be given about Andrea's and Alison's evidence, because in a number of respects he wished to rely on their evidence. 168 I would refuse leave under r 4 in respect of the third ground of appeal. Ground 4(a) The trial judge erred by failing to give a warning pursuant to s 116 Evidence Act (NSW) concerning the identification evidence of the complainant. Ground 4(b) The trial judge erred by failing to give a warning pursuant to s 116 Evidence Act (NSW) concerning the identification evidence of Alison. Ground 4(c) The trial judge erred by failing to give a warning pursuant to s 116 Evidence Act (NSW) concerning the identification evidence of Andrea. 169 No application for any of these warnings was made by counsel for the appellant at the trial and, accordingly, leave under r 4 of the Criminal Appeal Rules is required in respect of each part of this ground of appeal. Ground 4(a) 170 The evidence of the complainant in respect of which it was submitted that a warning should have been given was the evidence of the complainant that it was the appellant who, in speaking to her on the telephone on the evening of 2 December, had made the threat that, if the complainant did not come to McDonald's, "we'll shoot you in your house". 171 It was submitted by counsel for the appellant that the evidence of the complainant, that it was the appellant who had uttered that threat, was evidence identifying the voice of the person who spoke to her as being the voice of the appellant and was, accordingly, "identification evidence" within the definition of that expression in Pt 1 of the dictionary at the end of the Evidence Act. 172 In Pt 1 of the dictionary at the end of the Evidence Act "identification evidence" is defined as meaning:- " identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion". 173 It was submitted that the complainant's evidence that the person who spoke to her was the appellant was identification evidence within the definition, as being an assertion by her that the appellant was, aurally, a person who was present at a place where an act connected to the offences for which the appellant was being prosecuted was done, at a time at which the act was done, and was an assertion based wholly or partly on what the complainant heard at that time or place. Counsel submitted that the making of the threat was an act connected to the offences for which the appellant was being prosecuted, because the making of the threat had contributed to inducing the appellant to go to McDonald's and evinced aggression by the speaker against the complainant. 174 It was conceded by counsel for the appellant that no warning was required under s 165 of the Evidence Act, because no request for such a warning had been made by counsel for the appellant at the trial. However, it was contended that directions were required to be given under s 116 of the Evidence Act, which provides that, if identification evidence has been admitted, then, without the need for any request, the trial judge must give directions in accordance with s 116. 175 In my opinion, it is at least doubtful whether this part of the complainant's evidence should be regarded as coming within the definition of "identification evidence". However, even if this part of the complainant's evidence should be regarded as coming within the definition of "identification evidence", I would refuse leave under r 4 in respect of this ground. 176 By the evening of 2 December the complainant had had a number of opportunities to become familiar with the sound of the appellant's voice and was well qualified to express an opinion about whether a voice she heard was the appellant's. She had heard the appellant's voice on the train journey, in the telephone conversations she had had with the appellant over a period of eight weeks and in the conversation she had had with the appellant at the building site. 177 The only other person who could conceivably have been speaking to the complainant in the telephone conversation was Tyrone but earlier that evening the complainant had spoken to Tyrone on the telephone and she readily distinguished Tyrone's voice from the appellant's voice, in that Tyrone had a deeper voice, spoke a lot more quickly and sounded angrier than the appellant. Ground 4(b) 178 The evidence of Alison in respect of which it was submitted that a warning should have been given was her evidence that it was the appellant who had asked her to have sex with him and said "what if I raped you" and that it was the appellant who took and threw away the keys to her car. It was submitted that both of these pieces of evidence were "identification evidence" within the definition in the Evidence Act and, although no direction or warning had been applied for by counsel for the appellant at the trial, directions should have been given pursuant to s 116 of the Evidence Act. Counsel for the appellant pointed out that Alison had never met the appellant before the night of 2 December and submitted that Alison had made at least one false identification claim in her evidence in saying that the first male the complainant had walked off with at Silverwater Bridge was someone other than the appellant. 179 I do not consider that leave under r 4 should be granted in respect of this ground. 180 There were only five males at Silverwater Bridge on the night in question. Two of those males, the man Mark who was a Croatian and the driver, were not Lebanese. The three Lebanese males were the appellant, Tyrone and Hussein. In saying that it was the appellant who had done some act at Silverwater Bridge Alison was not required to identify the appellant out of a large or indeterminate number of other individuals but merely to be able to distinguish the appellant from Tyrone and Hussein. Alison's evidence, both in her oral evidence and in her statements, was that it was the same male person who had sought to have sex with her and who had taken and thrown away the keys to her car. It is clear that in both incidents the male had come very physically close to Alison, in one case laying his head on her chest and in the other taking the keys out of the ignition of her car while she was in the car, and it was likely, from the very nature of the acts done, that Alison would have closely observed the person who did them. 181 In her statement made on 3 December 2001 Alison said that it was the same male in both incidents (pars 11 and 15 of the statement) and she gave a description of the male (par 15). In par 14 of her statement she said that she had seen the same man with the complainant at Silverwater Bridge. In par 4 of her statement of 14 August 2003 she said that it was "Ahmed" who asked if he could have sex with her and that she had subsequently seen the complainant go off with Ahmed. Even if Tyrone's real name was also "Ahmed", there was no evidence that Tyrone, as distinct from the appellant, had been referred to as "Ahmed" on the night of 2-3 December 2001. 182 Alison's evidence that it was the appellant who had taken her car keys was supported by the evidence of the complainant and Andrea. All three of the Crown witnesses, the complainant, Alison and Andrea, whatever the other differences in their evidence, were unanimous in saying that it was the appellant who had taken Alison's car keys and thrown them away. Ground 4(c) 183 The evidence of Andrea in respect of which it was submitted that a warning should have been given was her evidence that it was the appellant who took and threw away the keys to Alison's car. 184 For some of the same reasons as I have given in considering ground 4(b), I consider that leave under r 4 should be refused in respect of ground 4(c). 185 Andrea was not required to identify the appellant out of a large or indeterminate number of other persons but only to be able to distinguish him from two other Lebanese males. In par 30 of the statement Andrea made on 3 December 2001 she had said that it was the appellant who had removed the keys from the ignition of Alison's car, who had asked Alison to be allowed to drive her car and who, when Alison refused to let him drive her car, had thrown the car keys away. 186 As I have already noted, on this matter Andrea's evidence was in accordance with the evidence of both the complainant and Alison. Ground 5 The verdicts of guilty constituted a miscarriage of justice in that the jury ought in all the circumstances to have entertained a reasonable doubt. 187 The principles to be applied by a Court of Criminal Appeal in determining a ground of appeal against conviction of this kind are set out in such cases as M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606 at 622-624 (52-59) and there is no need to repeat those principles in this judgment. 188 Reasons advanced by counsel for the appellant why the jury ought to have had a reasonable doubt were, principally, what was submitted to be (1) inconsistencies between the evidence of the complainant and the evidence of Andrea and Alison (2) inconsistencies in the complainant's oral evidence or between the complainant's oral evidence and the statement she had made to police and (3) inconsistencies between the evidence of the complainant and the history which Dr Crampton had recorded as having been provided to her by the complainant. It was also submitted that the complainant's account of what had happened at Silverwater Bridge was not supported by any physical evidence. As to (1):- 189 There were, undoubtedly, inconsistencies between the evidence of the complainant and the evidence of Andrea and Alison. 190 According to the complainant's evidence, it would have been apparent to the other two women that the complainant was being forced to accompany the appellant, when the appellant and the complainant walked away from the group at Silverwater Bridge and the complainant said in her evidence that she screamed loudly enough for the other two women to have heard her screaming. 191 However, Andrea gave evidence that the complainant had been agreeable to kissing the appellant, provided it did not happen in front of the others; that when the appellant and the complainant had walked off together, the appellant had not been holding the complainant; that when the complainant had returned with the appellant, she was "fine" and showed no sign of distress or of crying; and there had been no marks on the complainant's neck. Andrea gave evidence that the complainant had not made any complaint of having been raped, until after the women had returned to Strathfield. The complainant had been visibly upset and had cried, only after the women had returned to Strathfield. 192 Alison gave evidence that the complainant had gone with the appellant, apparently willingly, and that when she had returned with the appellant she appeared "fine", she was not crying or upset and she did not then and there ask to leave Silverwater Bridge. Her clothing had "looked the same as when she walked off" and there were no grass stains or vegetation on her clothing. 193 Alison's evidence was, in some respects, more consistent with the complainant's evidence than with Andrea's. For example, Alison said that, when the complainant had returned with the appellant, there were bruises on the complainant's neck and that the complainant had complained of having been raped while the women were still at Silverwater Bridge. 194 In my opinion, it would have been open to the jury to take an unfavourable view of Andrea's credibility as a witness. 195 In giving her evidence in chief Andrea repeatedly asserted that she had no recollection of some matter she was being asked about and, on the application of the Crown, she was given leave on a number of occasions to revive her recollection by referring to her statement. 196 The Crown prosecutor, without any objection by counsel for the appellant at the trial, described Andrea as an "unwilling witness" and later made an application for leave to cross-examine Andrea, an application which was not opposed by counsel for the appellant at the trial. 197 Some of the evidence Andrea had given when being examined in chief by the Crown was radically inconsistent with what she had said in par 29 of the statement she had made on 3 December 2001, that is later on the same day that the offences had allegedly occurred. In par 29 of her statement Andrea had said that, when the complainant had returned with the appellant at Silverwater Bridge, the complainant was visibly upset, she was shaking, she looked like she had been crying and there were marks on her neck. 198 Despite her claimed poor recollection of matters which had occurred on 2-3 December 2001, Andrea gave evidence about a number of matters which were unfavourable to the complainant, notwithstanding that they had not been included in her statement made on 3 December 2001. These matters included that the complainant had gone off with Hussein, that when the complainant had returned with Hussein the complainant had had marks on her neck and that the complainant had then gone off with Tyrone. 199 Furthermore, there was evidence of a plausible reason why, at a time after she made her statement but before she gave evidence, Andrea should have become antagonistic to the complainant. It is clear from the emails exhibit G that Andrea was angry with the complainant for not returning bond money which Andrea considered she was entitled to and that Andrea made a connection between her dispute with the complainant over the bond money and her giving evidence at the trial of the appellant for sexually assaulting the complainant. 200 It is true that, when asked by counsel for the appellant at the trial whether the dispute about the bond money would have caused Andrea to tell lies in the witness box, she replied "no". However, the jury could have regarded as significant Andrea's answer to the following question, an answer which was obviously not anticipated by counsel for the appellant at the trial. Andrea was asked "did you ever threaten (the complainant) that you would, in fact, tell lies against her if she didn't pay the bond money?" to which Andrea answered "that's correct". 201 As regards Alison's evidence, I have already remarked that there were some respects in which Alison's evidence was more consistent with the complainant's evidence than with Andrea's evidence. Insofar as Alison's evidence was inconsistent with the complainant's evidence, it would have been open to the jury to take an unfavourable view of Alison's credibility as a witness. Alison, like Andrea, gave evidence of a number of matters which had not been mentioned in the statement she had made to police on 3 December 2001. The evidence she gave about why she had not included anything in her statement of 3 December 2001 about the obtaining or use of marijuana was inconsistent with what she had said in a statement she had made to police on 14 August 2003, only a few days before the trial commenced. 202 Although Alison was not a party to the dispute about the bond money, she was referred to in the emails, one of the emails from Andrea to the complainant stated that Andrea was sending a copy of the email to Alison and Alison agreed in evidence that Andrea had told her that the complainant had taken Andrea's bond money and would not give it back. The jury could readily have inferred that Alison had taken Andrea's side in the dispute and that she was antagonistic to the complainant. As to (2):- 203 I have earlier in this judgment in summarising the cross-examination of the complainant referred to alleged inconsistencies within the complainant's oral evidence or between the complainant's evidence and her statement. 204 As regards the principal matters relied on by counsel for the appellant on this appeal, in both her evidence and in her statement the complainant said that, after the first act of sexual intercourse, she herself had got up off the ground, so that there was no inconsistency. There was not necessarily any inconsistency in the complainant saying that she had struggled against the appellant but had not struggled to the utmost of her ability. There was an inconsistency between the complainant's evidence and her statement as to whether her hands were being held or were free by the time the appellant had sexual intercourse with her. 205 It does not appear to me that such inconsistencies as there were should, of themselves, lead this Court to conclude that the jury ought to have entertained a reasonable doubt about whether the appellant was guilty. As to 3:- 206 Dr Crampton, a staff specialist doctor at a large hospital, who examined the complainant in an examination commencing at 8.20 am on 3 December 2001, recorded in her notes the history of the incident which the complainant gave her. 207 In her notes Dr Crampton stated that "Ahmed" had "vaginal intercourse" with the complainant but there is no reference in Dr Crampton's notes to there having been more than one act of sexual intercourse. 208 I accept that there is an inconsistency between the complainant's evidence and Dr Crampton's record of what the complainant had told her. However, it would have been open to the jury to regard this inconsistency as lacking in importance. The history recorded by Dr Crampton in her notes was fairly brief and did not purport to set out a full account of what had happened at Silverwater Bridge. When on the following day 4 December 2001 the complainant made a full statement to the police, she asserted that two acts of sexual intercourse had taken place. 209 In considering the fifth ground of appeal I have so far dealt with reasons advanced by counsel for the appellant why the jury ought to have had a reasonable doubt about whether the appellant was guilty and I have concluded that the reasons advanced by counsel for the appellant would not have precluded the jury from being satisfied beyond reasonable doubt of the appellant's guilt. I will now refer to further reasons why, in my opinion, the fifth ground of appeal should be rejected. 210 In the trial of the appellant the advantage the jury had of seeing and hearing all of the complainant, Andrea, Alison and the appellant give their evidence was a considerable advantage and is, of course, an advantage this Court does not have. 211 It would have been open to the jury to accept, in preference to her oral evidence, what Andrea had said in par 29 of the statement she had made on 3 December 2001 that, when the complainant returned with the appellant at Silverwater Bridge, the complainant was visibly upset, was shaking, looked like she had been crying and had marks on her neck. The jury could also have accepted Alison's oral evidence that when the complainant returned with the appellant she had bruises on her neck. 212 The jury could have accepted the complainant's evidence and Alison's evidence that the complainant made a complaint of having been sexually assaulted, before the three women left Silverwater Bridge. 213 It would have been open to the jury to accept evidence given by Natalie, the third person living in the house at Strathfield, who had not gone to McDonald's or Silverwater Bridge. Natalie gave evidence that, when she saw the complainant at about 5.30 in the morning of 3 December 2001, the complainant appeared to be in shock and "it looked like she had been crying". 214 There was some support for the Crown case in findings made by Dr Crampton on her examination of the complainant on the morning of 3 December 2001. Dr Crampton found bruising on the complainant's neck, swelling of the complainant's external genitalia and some bleeding in her genitalia and Dr Crampton expressed the opinion that "the findings on physical examination were consistent with the history given". 215 It would have been open to the jury to have formed an unfavourable view of the appellant's credibility. As the trial judge said in his summing-up in summarising some of the submissions made by the Crown, "the Crown pointed out that the accused denied everything negative about him raised in the evidence, even to the extent of denying that he threw the keys of the car away, an event which all three of the women gave evidence about". 216 In my opinion, the fifth ground of appeal should be rejected. Conclusion 217 As I consider that all the grounds of appeal against conviction should be rejected, the appeal against conviction should be dismissed. 218 HOEBEN J: I agree with James J. ********** Last Modified: 12/21/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.