Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Monteiro v R; R v Monteiro [2011] NSWCCA 113 Hearing dates: 13 September 2010; 15 September 2010; 17 September 2010 Decision date: 17 May 2011 Before: Simpson J at 1; Hoeben J at 253; Price J at 254 Decision: (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted, appeal dismissed. (3) Crown appeal dismissed. Catchwords: CRIMINAL LAW - particular offences - offences against the person - sexual offences - aggravated sexual assault - s 61J Crimes Act 1900 - property offences - malicious damage - stealing CRIMINAL LAW - appeal against conviction - trial by jury - unrepresented at hearing of appeal - unreasonable verdict - credibility of complainant - implausibility of account - fresh evidence - finding of guilt open on the evidence - appeal dismissed CRIMINAL LAW - appeal against conviction - trial by jury - conduct of defence counsel - failure to comply with instructions - absence of cross-examination on particular matters - no evidence given by accused at trial - exercise of forensic judgment - no miscarriage of justice - appeal dismissed CRIMINAL LAW - application for leave to appeal against sentence - applicant unrepresented - plea of guilty to property offences - aggravated sexual assault - finding of guilt following trial - offences related - numerous grounds - conditions of incarceration - mental illness - bias - failure to order sentences be served wholly concurrently - fresh evidence - error in finding no evidence of causal relationship between mental illness and sexual assault offence - error in finding offences committed while on conditional liberty - sentences within available range - no manifest excess - leave granted - appeal dismissed CRIMINAL LAW - Crown appeal against sentence - s 5D Criminal Appeal Act 1912 - manifest inadequacy - special circumstances - degree of departure from standard non-parole period - conduct reaching the "cusp" of mid-range of seriousness - evidence of causal relationship between offences and mental illness - error in finding offences committed while on conditional liberty - errors favour applicant on appeal - finding of special circumstances - no manifest inadequacy Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Hili v The Queen [2010] HCA 45 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 R v Birks (1990) 19 NSWLR 677 R v Ehrenburg (NSWCCA, 14 December 1990, unreported) R v Engert (1995) 84 A Crim R 67 R v Gallagher [1986] HCA 26; 160 CLR 392 R v Hemsley [2004] NSWCCA 228 R v Kertebani; Kertebani v R [2010] NSWCCA 221 R v Smith [1987] 44 SASR 587 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Willard [2001] NSWCCA 6; 120 A Crim R 450 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Texts Cited: Halsbury's Laws of England, 4th ed, Vol 3(1) Howie and Johnson, Criminal Practice and Procedure NSW, Butterworths Category: Principal judgment Parties: Simon Monteiro (Applicant/Respondent) Regina (Respondent/Applicant) Representation: Counsel: In person (Applicant/Respondent) N Noman (Respondent/Applicant) Solicitors: Not applicable (Applicant/Respondent) S Kavanagh (Solicitor for Public Prosecutions) (Respondent/Applicant) File Number(s): 2008/8845 Decision under appeal Date of Decision: 2009-04-09 00:00:00 Before: Norrish DCJ File Number(s): 2008/8845 Judgment 1SIMPSON J : On 9 December 2008 the appellant was arraigned in the District Court on an indictment that alleged four offences. The first was an offence of sexual intercourse without consent, in circumstances of aggravation (an offence against s 61J of the Crimes Act 1900). The circumstance of aggravation pleaded was that, immediately before the sexual intercourse, the appellant intentionally inflicted on the complainant actual bodily harm. The second offence, pleaded in the alternative to the first, was that the appellant assaulted the complainant thereby causing actual bodily harm ( Crimes Act , s 59(1)). The third offence was of intentional damage to property ( Crimes Act , s 195(1)(a)), and the fourth of stealing specified property ( Crimes Act , s 117). (I will refer to the third and fourth offences collectively as the property offences.) The events the subject of counts 1 and 2 were alleged to have taken place on 2 January 2008. The offences the subject of counts 3 and 4 were alleged in the indictment to have been committed between 3 January and 4 January 2008. 2The appellant entered pleas of not guilty to each of the first and second counts, and guilty to the third and fourth. A jury was, accordingly, empanelled, and a trial of the first and second charges took place. The appellant was represented by Mr Clive Jeffreys, a solicitor and barrister experienced in the practice of criminal law. 3On 17 December 2008 the jury returned a verdict of guilty on the first count. It was, therefore, unnecessary to return a verdict in respect of the second count. 4On 9 April 2009 Norrish DCJ sentenced the appellant. In respect of the property offences he imposed fixed term sentences of, respectively, 2 years and 8 months and 1 year and 9 months, each to date from 8 January 2008, and the shorter, therefore, to be served concurrently with the longer. 5On the sexual intercourse without consent count, he imposed a sentence of 11 years, made up of a non-parole period of 6 years and 6 months, and a balance of term of 4 years and 6 months, to commence on 8 April 2009, and therefore accumulated by 1 year and 3 months on the earlier imposed sentences. The total effective sentence is of 12 years and 3 months, with a non-parole period of 7 years and 9 months, commencing on 8 January 2008 and expiring on 7 October 2015, with a balance of term of 4 years and 6 months expiring on 7 April 2020. 6The appellant appeals against the conviction and seeks leave to appeal against the asserted severity of the sentences imposed in respect of the sexual assault offence and the malicious damage offence. The Director of Public Prosecutions has cross-appealed against the sentence imposed in respect of the sexual assault sentence, asserting that it is manifestly inadequate. The grounds of appeal 7Initially, on appeal, the appellant was represented by senior and junior counsel. A single ground of appeal against conviction was pleaded, that the conviction is, having regard to the evidence, unreasonable and cannot be supported. Written submissions signed by both counsel were provided and have been considered by this Court. 8Thereafter, the appellant terminated the retainer of his legal representatives, and undertook the conduct of the appeal himself. He added a further ground of appeal against conviction, that he formulated as follows: "Breach of Legal Professions Act by Clive Jeffreys, incompetence." 9No objection having been raised by the Crown to that additional ground being argued, the Court treated the Notice of Appeal as having been so amended. 10In support of that ground, and, it seems, the original ground, the appellant filed multiple handwritten documents, some of which were intended to be affidavits, and some submissions. Again, the Crown took no objection to any formal deficiencies in the affidavit evidence, and, in my view, those documents that purport to be affidavits ought to continue to be treated as such, as, to date, they have been. 11Central to the second ground of appeal was a claim by the appellant that, in a number of respects, the counsel who appeared for him at trial failed to comply with explicit instructions given to him by the appellant. The appellant also claimed that, in other respects, the counsel was incompetent. 12Because of the assertions made by the appellant concerning the quality of his representation and particularly the asserted failure to comply with instructions, it was necessary that this Court take the unusual step of hearing evidence. That occupied three days in September 2010. 13In respect of the conviction appeal, evidence was given by the appellant, by Mr Jeffreys (trial counsel) and by Mr Jeffreys' former employed solicitor, Ms Anne Green. Evidence relevant to sentence was also given. I will deal with that when I come to the sentence appeals. Background 14Given the nature of the grounds of appeal, and the argument directed thereto, it is necessary to set out in some detail the relevant facts and circumstances. Compartmentalisation is, however, necessary. Consideration of the first ground of appeal is necessarily confined to the evidence given in the trial. Consideration of the second ground will involve examination of the additional evidence given in the hearing of the appeal. Nevertheless, in the account of the factual circumstances, I will incorporate reference to matters that arise principally in regard to the second ground. 15I begin with the case the Crown sought to make at trial. What immediately follows, under the next sub-heading, is, unless otherwise indicated, drawn from the evidence in chief given by the complainant. It is not intended to represent any findings of fact. The Crown case Evidence of the complainant 16The complainant was born in 1970. In 2007 she lived in an apartment in Birriga Road, Bellevue Hill, Sydney. On an evening in March of that year, after she had been at a hotel with a friend, consuming alcohol, she and her friend encountered the appellant (who she did not previously know), and a male friend of his. After the four had had a pizza, the complainant and the appellant shared a taxi. Both alighted at the complainant's address at Bellevue Hill and the appellant stayed overnight. A sexual relationship developed. In about April, the appellant moved into the apartment. Initially, the complainant thought that she had met "the man of my dreams". However, the appellant became "quite possessive". He persistently telephoned the complainant, and accused her of associating with other men. Arguments developed. On one occasion, the appellant smashed the complainant's telephone. He began using physical force on the complainant. 17In June 2007 the complainant became pregnant, but, by agreement between the complainant and the appellant, the pregnancy was terminated. 18At some time after this termination, the appellant went out with friends, without the complainant. When he returned home he was intoxicated. He had non-consensual penile/vaginal sex with the complainant. This was not the sexual intercourse the subject of the first count on the indictment. The appellant then either went to sleep or passed out. The complainant showered and slept on a couch. A couple of hours later the appellant joined the complainant. She said "You raped me". He denied the accusation and said "Prove it. Where are the marks?" (T 70). 19Notwithstanding this event, the relationship continued. The complainant said that this was because the appellant told her that if she reported him to the police, he would "come after me or my family" and that she would "have to live with that" (T 71). Threats of this nature, she said, were constantly made. 20In September the complainant was again pregnant. Initially, she and the appellant decided to proceed with the pregnancy. However, on 16 October, the pregnancy was terminated. 21Throughout the relationship the appellant was both physically and verbally abusive. There were other occasions when he had sexual intercourse with the complainant without her consent. In about September 2007 he pulled out a clump of her hair, and again had sexual intercourse with her against her will (T 72-73). This also was not the subject of the charge on the indictment. On this occasion the complainant contacted police, but did so anonymously. She spoke to a Constable Kylie Westfallen at the Rose Bay Police Station. The complainant said that she made the complaint anonymously because the appellant had told her that, if she went to the police, he would: "... go after my family and he'd gut my dad like a fish ..." (T 75/1-5) He threatened her with iron bars, which he thrust towards her, under her chin, while at the same time making threats of assault on her, her father or her brother. This happened more than once (T 76). 22Eventually, the complainant did disclose her identity to Constable Westfallen, but did not proceed with any action, and signed a notebook entry stating that she was not in fear for her life, and that the appellant would be vacating the apartment that week. She said that she did this because she was frightened of what the appellant would do if he knew that she had been to the police, and that he would know that she had been to the police (T 75) because he had been assisting them with another matter, and therefore had access to information (T 156). She said that after that event, she and the appellant reconciled. (Evidence subsequently given by Constable Westfallen established that the complainant's first contact with her was on 15 October 2007, and the notebook entry was signed on 16 October, the same day as the second termination.) 23In October, after being threatened with an iron bar, the complainant told the appellant that the relationship was over and asked him to find alternative accommodation. This was shortly before the second pregnancy termination. The appellant did not vacate the premises. The complainant slept on the couch, the appellant in the bedroom. He told the complainant that he was looking for somewhere else to live. The complainant fixed the date of the termination of the relationship as 16 October, the date of the termination of the second pregnancy. 24These living and sleeping arrangements continued until December. Just before Christmas, the complainant travelled to Goulburn to visit her parents. (Later evidence suggested that this was on 22 December.) While she was in Goulburn, the appellant repeatedly rang her on her mobile telephone. He suggested that he might come to Goulburn to deliver a Christmas card to her parents (who he had never met) and the complainant told him not to do so. Although the complainant had never given the appellant her family's addresses in Goulburn, the appellant came to her sister's house at lunchtime on Christmas day; he did not enter the house. The complainant had a conversation with him outside the house about how he had obtained the address. Initially, he told the complainant he had obtained the address from an internet search; later, he said that he had obtained her parents' address from electoral rolls at a library, that he had gone to that address, and had been given the complainant's sister's address by a neighbour. The appellant's arrival in Goulburn terrified the complainant. She told him to leave. He told her that he had travelled to Goulburn by taxi, which he had paid for on a credit card. The complainant gave him a small amount of money and some food from her sister, which he consumed sitting in the gutter at the end of the driveway. The appellant then left. (The circumstances of this event featured prominently in the appellant's second ground of appeal.) The events of 2 January 2008 25The sexual intercourse offence charged in the indictment was alleged to have been committed on 2 January 2008. 26The complainant returned to Sydney at about midday on that date. Her parents drove her from Goulburn. Because there was only one set of security keys to the apartment block, the complainant telephoned the appellant and asked him to leave the keys out for her. She told him that it was inappropriate for him to be present when her parents dropped her at the apartment because their relationship was over. Nevertheless, he was present. 27The complainant had a hair appointment at Bondi Junction for later (4.00pm) that afternoon; it was her intention that her parents would drive her there on their way home. However, the appellant told the complainant that the appointment had been cancelled by the hairdresser and she remained at the apartment. Her parents then left (at about 12.15pm or 12.20pm) and the complainant remained at the apartment with the appellant. The complainant later re-booked the appointment for an earlier time. (In cross-examination it was established that this call was made at 2.46pm.) 28After farewelling her parents, the complainant walked into the apartment, with the appellant following closely behind her, so closely as to be pushing at her with his body. The complainant walked into the living room, the appellant to the kitchen on the other side of the apartment where the complainant heard him rummaging in the drawers. The appellant turned and pushed towards the complainant, his hand against her face, pushing backwards into the bedroom and on to the bed; he did this with sufficient force that a pair of sunglasses that had been on the back of the complainant's head fell forward onto her face and broke. The appellant was shouting at the complainant. He said: "Think you're a smarty do you. Think you can play games with me. You will do what you're told. You will be my girl and we will be having a baby. That slut dog Dunne is off limits and don't think that you won't be getting fucked." (T 96-97) ("Dunne" was a female friend of the complainant's.) At this time the appellant had a pair of scissors in his hand. As he pushed her on to the bed, he said: "Your stupid fucking plastic hair, you think that's better than me, I'll cut it all fucking off." (T 98) 29The appellant struck the complainant in the face, in a slapping or cuffing motion. He said: "Get them off, get them off" (T 97/40) and pulled her sneakers from her feet. The complainant sought to retreat from him, saying: "No, Simon, it doesn't have to be like this, please don't do this." (T 100/15) 30The complainant told the appellant that she needed to use the toilet. The appellant said: "I don't care, piss the bed." (T 100/20) 31The appellant then moved on to the bed, and lay on top of the complainant, his hand over her face, pushing it into the mattress. The complainant was crying. She asked him not to "do this". The appellant pulled the complainant's pants off. He told her to take off her dress. She refused. He repeated the instruction to take it off. She struggled, but took off the dress. The appellant was sitting between the complainant's legs, on top of her, alternately pushing and slapping her. He put his hand over her face, preventing her from breathing and screaming. At times he momentarily released his grip to allow her to breathe. She tried to scream. The appellant took a pillowcase, with which he gestured, indicating that he would put it in the complainant's mouth or over her face, and said: "Scream again and it will be your last." (T 101/35) 32He removed his shorts and with his hand he guided his penis into the complainant's vagina. This was the act of sexual intercourse the subject of the first count on the indictment. The complainant had both hands clenched under her chin. The appellant told her to kiss him. She said that her mouth hurt. He said: "Touch my balls while you're being fucked and then I won't kiss you." (T 102/30) He took her hand and placed it on his testicles. 33After a short time the appellant ejaculated. The complainant again said that she needed to use the toilet - urgently - and the appellant again told her to: "piss the bed" (T 103/15) The complainant then gave the following evidence: "and then I said, 'well, please, can you get something for me to go to the toilet in." And he went to the wardrobe and I had a glass jar with my hair ribbons in it and he handed that to me. And I said, 'I'm not going to the toilet in my ribbon jar. Just let me go to the toilet.' And so I started to get up and I was sliding myself on my bottom across the bed to get up and I went to grab my pink sundress so I could put my dress back on and he said, 'You won't be needing that.' And I said, 'Well, Simon, what do you think I'm going to do? You've deadlocked the flat. I can't get out anyway.' And then he said, 'I'm coming with you.' So I went to the bathroom and I went to the toilet and the window in the bathroom was open but he reached over and shut it, shut the window. And then after I had been to the toilet he kind of I guess herded me back to the bedroom. And I was just sitting on the bed and then it was like he completely calmed down. His demeanour completely changed and then he passed me my sundress and he said, 'Okay, you can put this on.'." (T 103/15-25) 34She walked back into the bedroom and sat on the bed. The appellant handed her her dress. Her face was hurting, her head was throbbing and her mouth was sore (T 116). 35The complainant dressed and walked to the living room and sat on the couch. She was feeling giddy and strange. The appellant walked past and asked if she was all right. She said she was not. He gave her a cold pack wrapped in a tea towel. 36The two then had a conversation about some photographs of a boat that the appellant had on his computer. The complainant said that she was trying to speak "softy and gently" to him, because past experience had taught her that this was the best way of curbing violent outbursts on his part (T 118). 37The complainant examined her face in a mirror. She observed abrasions to her face, and that her lip was swollen. She saw a cut under her left eye where the sunglasses had broken on her face. These constituted the actual bodily harm that was the circumstance of aggravation alleged in the indictment. 38The complainant walked into the bedroom and saw the scissors on the floor. She kicked them under the bed. She then walked to the telephone, intending to cancel the hair appointment she had earlier made. The appellant demanded to know what she was doing, and set the telephone on loudspeaker. (In cross-examination it was established that this call was made at 2.56pm.) He then told the complainant that he was in love with her, and wanted to marry her and have children with her. He asked why she had stopped loving him. She told him that it was because of his anger and violence, and said: "This isn't love" (T 124) gesturing to her face. He said to her: "[Name of complainant] this is not violence, you don't know what violence is." (T 124/25) He told her that one day she would meet somebody who would be really violent with her and that she would miss what he (the appellant) did. 39The complainant then raised the subject of the appellant moving out of the apartment. She suggested looking at an Internet accommodation site, which the appellant did. He located an advertisement for a room to let in a boarding house in Double Bay. At the complainant's suggestion, the appellant telephoned and made an appointment to see the room at 6.00pm that afternoon. The two left the apartment and walked to the address in Double Bay. Before doing so the complainant applied make-up to conceal the marks on her face. The walk to Double Bay took about 20 minutes. 40They were let in to inspect the room by a male (in later evidence identified as) Peter Smith. After the inspection they walked back to the Birriga Road apartment. Both the appellant and the complainant stayed in the apartment that night. The complainant intended to sleep on the couch, but the appellant told her that she could have the bed. He then joined her in the bed; when she resisted, he said: "Oh look I'm not going to touch you, I'm not going to do anything." (T 130/20) They both slept in the bed. 3 January 41The following day, 3 January, the complainant rose at about 7.00am, in order to prepare to return to work that day. She later noticed that the appellant had removed the sheets from the bed, and turned on the washing machine. She presumed, but did not see, that he had washed the bed linen (T 135). She packed an overnight bag with sufficient clothes for the week, showered and dressed. She did not intend to return to the apartment and told this to the appellant. She told him that she intended to terminate the lease on the apartment. She left the apartment alone, carrying her overnight bag, but the appellant followed very closely after her. He caught up with her at the bus stop. He took the overnight bag from her and said: "Don't think you won't be coming home tonight." (T 133/5) He carried the bag to the bus stop. The complainant entered the bus. The appellant remained at the bus stop. The complainant began screaming (although her voice was hoarse from screaming the previous day), telling the appellant to return her bag. The complainant left the bus, still screaming, and attempted to retrieve the bag. The appellant asked if she was mad, but eventually surrendered the bag. The complainant again entered the bus, as did the appellant. There followed an argument on the bus, in which the appellant accused the complainant of stealing money from him, and claimed that the contents of the bag were his. 42The fracas over the bag appears to have lasted for some time, and involved the bus driver, who ordered them to cease or to leave the bus. After they left the bus in Bondi Junction, the complainant, on the instruction of the appellant, opened the bag to demonstrate that she did not have any of his possessions in it. He shouted at the complainant: "You want to go down this road, do you?" and: "Call the police." He snatched the complainant's mobile telephone from her hand. She took the bag and ran towards her workplace. The appellant followed, and attempted to return the telephone. She refused to take it. On arrival at her workplace, the complainant encountered a female colleague, Julie Martire. After a moment's pleasantries, the complainant broke down and told Ms Martire that she was: "in trouble, in big trouble." (T 152) She fell to the floor, crying, and pointing to the bruises on her face. 43Eventually, on the urging of Ms Martire, the complainant rang Rose Bay Police Station, and then Paddington Police Station, where she spoke to Constable Westfallen. The complainant was taken to the Police Station and then the hospital, where she was medically examined by Dr Patricia Brennan. Other evidence in the Crown case 44I will in due course return to deal with the cross-examination of the complainant. Evidence was also given in the Crown case by Dr Patricia Brennan, Mr Vincent Lopez, Mr Michael Bailey, Ms Julie Martire, Mr Peter Smith, Ms Annamaria Galimi, Ms Louise Humphries, and police officers Mark Reynolds, Kylie Westfallen, Anthony Whyte and Kay Whitty. 45Dr Brennan was the medical director of the Liverpool Sexual Assault Service and a staff specialist in forensic medicine at the Royal Prince Alfred Hospital in Sydney. She examined the complainant, and took a history from her. The history includes the following: "On 3 January 2008 between the hours of 1440pm and 1630pm ... I attended an interview with [the complainant]. When asked what happened [the complainant] described how she had been in a violent threatening relationship with a male she has lived with for nine months. She stated she'd previously rung the police but signed a disclaimer as being 'too terrified to proceed with police'. When asked to describe the violence [the complainant] states that three weeks ago the male struck her on the forehead, a large egg shaped bruise came up on the right side of the forehead and then yesterday after about 1pm when her parents left he shut the door, grabbed her by the clothes, punched her face and head back hard such that her glasses broke. He then proceeded to slap her hard across the head, over the ears and face, she was sitting on the bed crying and he then threatened her with scissors which he had on the bed. He pulled her shoes off and then her underpants, she took her dress off and he proceeded to have forced penile-vaginal intercourse without a condom. At some stage he punched her in the abdomen ..." (T 219-20) 46On physical examination Dr Brennan observed "abrasioned bruises" above and below the left eye, pin point bruising near the ear, a bruise over the right eye, an abrasion on the neck, abrasions to the right hand and bruising to the lips. Dr Brennan formed the opinion that the injuries she observed were consistent with the history given by the complainant of having been slapped heavily over the ears and the face. 47Dr Brennan took a number of specimens from the complainant's body, including low and high vaginal swabs and smears, and vulval swabs and smears. (These were later analysed and DNA tested by the Division of Analytical Laboratories.) 48Mr Lopez was the driver of the bus taken by the appellant and the complainant on the morning of 3 January. He recalled picking up a male and a female (accepted as having been the appellant and the complainant). The complainant was "acting a bit distressed". He said that she entered the bus, and then alighted to get something from the appellant. She was screaming at him on the bus. She took a bag from him and re-entered the bus, followed by the male. They argued, the appellant speaking loudly to the complainant, and asking if she wished to make a scene. Mr Lopez pulled into a bus stop and told them to separate or leave the bus. The complainant thanked him and walked to the back of the bus. The appellant started speaking loudly to her again, "cursing" and swearing. They left the bus at Bondi Junction, the complainant holding the bag. 49Mr Bailey was a passer-by in Bondi Junction on the morning of 3 January. He observed a female (accepted as having been the complainant) walking towards him in an upset and distressed state, and looking over her shoulder. She was carrying a black bag in her right hand and attempting to use a mobile telephone with her left. A male (accepted as having been the appellant) ran past Mr Bailey, and in front of the complainant, and grabbed her with both hands around the arms. She told him to let her go; he demanded to know what was the matter with her. 50Ms Martire worked with the complainant in Bondi Junction. She was the first person to whom the complainant spoke when she arrived in the office on the morning of 3 January. She said to Ms Martire: "Julie, I'm in so much trouble" and began to cry (T 374). 51Ms Martire asked what had happened, the complainant replied: "Simon raped me." The complainant then told Ms Martire that, the previous day, her parents had dropped her off at her apartment, but that as soon as they left: "... she got dragged into the unit by her hair ... Then he [the appellant] just started hitting her around the ears", held scissors at her throat and held her down on the bed. The complainant told Ms Martire that she tried to push the appellant away and had her hands on her face in attempting to do so. 52Ms Martire observed some bruises to both sides of the complainant's head, especially around the tops of the ears, and a little mark under her left eye. She told Ms Martire she had tried to conceal the injuries with make up. 53The complainant then telephoned police. 54Mr Smith was the caretaker of the boarding house in which the appellant and the complainant had inspected a room in the afternoon of 2 January. He recalled the appellant and the complainant arriving at the premises but noticed that they were not talking to each other. He was able to give a description of the complainant as having a small frame and blonde hair, and wearing a dress. He noted that she was attractive. 55After they inspected the room the appellant and the complainant left. The next Mr Smith saw of the appellant was on the following Sunday, 6 January. The appellant returned to Mr Smith's premises, and wanted to talk to him. He asked Mr Smith if he remembered him. The appellant said: "I was here, came around looking at a room for my girlfriend. She's accused me of assault. It's a frame up. Could you say that nothing happened between us while we were here?" (T 379) Mr Smith replied: "Nothing happened between you while you were here." The appellant then pulled out a document, which he asked Mr Smith to sign, as he said: "... to verify that nothing happened while we were here." Mr Smith declined to do so, saying that the appellant was a complete stranger to him and that, as he had not made the statement himself, he would not sign it. 56Ms Galimi was a hairdresser working in the salon at which the complainant had an appointment on 2 January. She recalled an occasion towards the end of 2007 when she was attending to the complainant's hair, when she noticed a bald patch at the back of her head. She described it as: "It was just, it was just a missing patch of her hair, very, very short, it was very, very obvious." (T 385) 57Ms Humphries was a neighbour of the complainant. She rented an apartment immediately above that of the complainant. She recognised but did not know the complainant. She was aware that the appellant moved into the apartment in about April 2007. She recalled a conversation with the appellant on 22 December 2007, during which the appellant said: "... yes, I know, it's over, we're not together anymore. She's told me I have to be out by 1 January." (T 389) 58Ms Humphries also recalled 2 January 2008. She could hear an argument from the complainant's apartment between a male and a female that involved: "... just a whole heap of yelling and crying." The female was crying, and the male was yelling. She said that this took place between 4.00 and 5.30pm. 59She had heard arguments from that apartment previously, perhaps in October. 60Constable Reynolds gave evidence of having attended at the complainant's apartment on 4 January. He saw a pair of broken sunglasses in a cupboard in the bedroom, and a pair of scissors on the floor in the bedroom, to the left of the bed. 61Constable Westfallen was the police officer with whom the complainant had a conversation on 15 October 2007, and another the following day, 16 October. On that date the complainant signed a statement in Constable Westfallen's official notebook. That statement is: "On Monday 15 October 2007 I had a conversation with Constable Westfallen over the telephone. I held this conversation in confidence and wanted police to be aware I was separating with my partner Simon. I do not have any immediate fears for my safety in the future. I and Simon have discussed separation and Simon is moving out by Friday 19 October 2007 and Simon has agreed to this. At this stage I do not want any police action." (T 398) 62Constable Westfallen spoke to the complainant again at about 8.30am on 3 January, and later in the morning she met the complainant at the Paddington Police Station. She observed bruising and swelling around the complainant's left eye and abrasions to her face. She accompanied the complainant to the hospital where she was examined by Dr Brennan. 63Constable Westfallen also gave evidence that on the same day, 3 January, she received a telephone call from the appellant, and that he walked into the police station at 9.20am that day. She observed a superficial scratch across his left cheek, and a faded bruise on his left leg. 64On 3 January Constable Whyte was rostered for duty at Paddington Police Station. At 9.20am on that day, the appellant entered the police station, saying that he wished to report an assault. He said: "My girlfriend has assaulted me and she's making claims that she's going to tell police that I've raped her." (T 416) The appellant named the complainant, and said: "It's an ongoing thing, have a look at this, she's had a real good go at me", indicating scratch marks on his face, "[name of complainant] is trying to make it look like I've been raping her. She's threatening to tell the police that I bashed her and raped her. She reckons I've drugged her with medication." 65The appellant then raised his shorts and indicated five to eight pale yellow bruises, of golf ball size, between his thighs. He said: "See, she's hit me with a baseball bat, she's mad ... I've been teaching her to box, you know I'm a fighter, I like to keep fit. She asked me to teach her to fight. I tried to teach her but the marks on her face are because she wouldn't listen to me and she gets hit in the head all the time." (T 416) Exhibit J is a series of photographs of various parts of the appellant's body taken at the Waverley Police Station on 8 January. 66The appellant told Constable Whyte that he did not wish to pursue assault charges, but preferred to make a report. He said that he had spoken to Constable Westfallen, and another police officer, and "they know what she's like". 67The following day Constable Whyte attended the complainant's premises and took part in a search of the apartment. On the floor under the bed he found a pair of scissors. The bed was "dishevelled", the mattress off the base, draping down to the floor. 68In cross-examination, Constable Whyte said that when he came to the police station on 3 January, the appellant was in possession of a pillowcase, containing clothing, which he showed to the constable. Constable Whyte did not see any blood on the pillowcase. The appellant told him that the sheets (which he did not produce) had his blood on them. 69Detective Whitty was the officer in charge of the investigation of the complainant's allegations. She was contacted by Constable Westfallen during the afternoon of 3 January, and at 4.30pm on that day, she spoke to the complainant. She observed some bruising behind the complainant's right ear. On that day, and the following day, Detective Whitty took a statement from the complainant. With other police she attended at the complainant's apartment. 70In that statement the complainant told Detective Whitty that she had seen the scissors on the bed (the implication being that she had not seen them previously). Thereafter, from time to time, Detective Whitty received emails from the complainant. In one email, dated 4 February, the complainant told Detective Whitty that she had been giving some thought to where she had first seen the scissors. Her clear recollection at that date was (in accordance with her evidence) that she had heard the appellant rummaging in the drawers in the kitchen, and that she was "certain" that that was when and where the appellant had obtained the scissors, and that they were not already on the bed (at the time the two entered the bedroom). 71On 8 January Detective Whitty went to the Waverley Police Station where she saw the appellant. He was cautioned and declined to answer any questions. A buccal swab, for the purpose of DNA testing, was taken from him; since, in the trial, the appellant accepted that there had been sexual intercourse on the day, the result of that testing did not assume great prominence in the trial, although, as will appear below, it had indirect relevance. 72In cross-examination, Detective Whitty said that a canvass had been made of the residents in the apartment block; only one witness (Louise Humphries) emerged as having any relevant information. 73In cross-examination, Detective Whitty was able to give evidence of two telephone calls made by the appellant to the emergency number, 000. These were made at 10.23pm on 14 October and 3.18pm on 31 December 2007 respectively. Transcripts of the telephone calls were in evidence as Exs H1 and H2. 74In the first call the appellant asked the operator if there was "a reference number" for the call. He confirmed that calls to that number were tape-recorded. He then gave his first name and his date of birth and said: "I've a girlfriend that is threatening me. She threatened me with an iron bar. She's threatened me that she's going to set me up with the police because she knows if she makes a complaint to the police, the police will come and arrest me. So I just want to put this on record that that's what ..." The transcript then shows that something untranscribable was said in an unidentified female voice, followed by the appellant saying: "No she doesn't want to talk to you. I just want to put ..." The operator then asked for his address but the appellant declined to give one. The operator said that the only way he could put it on record was for the police to come to see him. There was then some further speaking from an unidentified voice in the background, followed by the appellant saying: "Excuse me, excuse me. I'm just telling the lady. Excuse me, madam. So that's all I'm doing, I'm putting it on record, thank you. Bye." 75In the second call the appellant again confirmed that what he said was being recorded and said: "Oh good, okay, so there'll be a record of it." The operator confirmed that. The appellant said: "Okay, goody. Now, I'm very sorry to occupy your emergency line ... I've made a complaint of a domestic violence matter, and also threats from my girlfriend to say that she was going to say that I raped her and all of this ..." He gave his full name and date of birth and was asked by the operator to identify his complaint. He said: "My complaint is now that, that I'm obviously, um, thinking that this person is trying to set me up with the police to get me, um, ah, charged with something I didn't do. So I'm calling the police ..." The operator asked if he would like police to attend, to which he replied: "No, well, I want to be able ... I'm just putting on record, because I know this is recorded, and I'm sorry to call 000 ..." 76There was then an exchange between him and the operator about the call being recorded, and the appellant said that he did not mean "to take up your time ...". He then said: "I'm in fear, I'm in fear of being set up by this ... with this woman for something I didn't do and I want it on record that I've spoken to you about it, that she's threatened me to say that she's going to make up a story to say that I raped her and all this type of thing, and I want it on record because, I've got ... don't worry I've got letters and everything, there's no way she's going to get around this." The operator confirmed that the appellant did not wish police to attend and the call ended. I note without comment that this second call was made on 31 December, at a time when the complainant was still in Goulburn with her family. 77Detective Whitty also gave evidence (somewhat imprecise) that in early December the appellant had spoken by telephone to a Detective Sergeant Krisafuli, who recorded in the duty book that the appellant was concerned that the complainant was threatening "that she would set him up for rape" or words to that effect. 78Exhibits G1 and G2 were Certificates of Analysis from the Division of Analytical Laboratories. The first certificate established an overwhelming probability that the appellant's DNA was present in the high vaginal swab taken from the complainant. 79The second certificate provided an answer to a question posed by Detective Whitty. The question was: "What is the estimated time frame for the persistence of spermatozoa in the vagina?" After explaining the progressive process of dilution and degradation of seminal fluids, the analyst indirectly answered the question as follows: "I would estimate the time since intercourse in this case as most likely to be less than 24 hours and possibly less than 12 hours." (The sample had, on the evidence of Dr Brennan, been taken between 2.40pm and 4.30pm on 3 January.) Cross-examination of the complainant 80The complainant was extensively cross-examined. In the first questions asked of her, it was established clearly that the appellant's response to the allegation was that the sexual intercourse that had (apparently admittedly) taken place on the afternoon of 2 January was consensual, and that the complainant's assertion to the contrary was a lie. 81It was then put to the complainant that after consensual sexual intercourse she and the appellant went to Double Bay, then returned to the apartment, and that, while the appellant was in the bedroom, the complainant rushed at him in a "very, very angry" state, brandishing scissors with which she attacked the appellant, accusing him of having had a female in the apartment, and that, in order to protect himself, and stop the attack, the appellant slapped the complainant. 82This, no doubt, was an attempt to explain a number of circumstances in the Crown case - the injuries to the complainant's face (observed by Dr Brennan and Constable Westfallen), the presence of scissors in the bedroom (seen by Constable Reynolds and Constable Whyte), the excursion to Double Bay (confirmed by Mr Smith), and the presence of the appellant's DNA in the complainant's body. The complainant emphatically denied the proposition put, labelling the scenario "a lie". 83At one point in the cross-examination counsel asked the complainant about her psychiatric condition. She said that she had consulted a psychiatrist "maybe six or seven years ago" (T 202) (from the date of her giving evidence, December 2008). She denied having been referred because of "massive mood swings", but was not expressly asked what she understood was the basis for the referral. She agreed that she was prescribed medication to control mood swings. She said, in response to a series of questions: "I was under the impression that it was because I'd had a really crappy year and I was feeling a bit down, that was it as far as I understood it ... ... as I understood it, it was because I was having a really crappy year. I didn't ever hear the term mood swings, sorry. ... I went there [to the psychiatrist] because I was having a crappy year and I wanted to talk about it." (T 203) She said that she was prescribed an anti-depressant. 84Counsel also cross-examined at considerable length about the relationship between the appellant and the complainant. The complainant agreed that the appellant had been working on a film project, called "Plastic Fantastic", for which he was seeking sponsorship, and with which she was assisting by typing documents. 85One subject of cross-examination concerned the complainant's second pregnancy, which she acknowledged was not accidental. It was put to her that, as at September 2007, the relationship was sufficiently close for her to become pregnant. She said that the appellant wanted to have a baby; she did not want to make him angry, and that she did not wish to have a baby with him. She said: "... I did what I needed to survive ..." (T 238) 86Another subject of cross-examination concerned inconsistencies or discrepancies in the various accounts given by the complainant to Dr Brennan, Detective Whitty and Ms Martire, and the evidence she gave in the trial. Dr Brennan recorded that the complainant said that the appellant "grabbed her by the clothes"; the complainant did not give evidence to that effect. Nor did she say that to Detective Whitty when interviewed. Ms Martire said that the complainant told her that the appellant dragged her into the unit by the hair. The complainant did not give evidence to that effect, and denied having said so to Ms Martire. 87As to the events of 2 January, the complainant was expressly asked whether any incident in which she was crying or screaming had occurred at a time after the 2.56pm telephone call to the hairdresser. Her answer was definite, that no such incident had occurred after that time. 88The complainant agreed that in email communications with Detective Whitty at some (unspecified) time after 3 January, she had said that the first time she saw the scissors they were on the bed, and that it had occurred to her that the whole scenario had been planned by the appellant. In her evidence she said that she first saw the scissors in the appellant's hand in the bedroom. 89The complainant was also cross-examined about telephone records that showed that a call had been made from the appellant's mobile telephone to her own at 4.22pm on 2 January. The call lasted 12 seconds. This was intended to contradict her assertion that, from the time she returned from Goulburn on that day, she and the appellant were constantly and continuously in one another's company. After some thought (overnight) the complainant explained this by saying that the appellant was in the habit of taking her mobile telephone from her. If he were unable to find it, he called it so that it could be located from its ring tone. 90A good deal of the material that provided the basis for the cross-examination consisted of electronic communications between the complainant and the appellant, either email or SMS messages. In considering this cross-examination it is important to bear in mind that the complainant fixed the date of the termination of the relationship as 16 October 2007. She was adamant that, from that date, she and the appellant had no romantic relationship. It is, however, also relevant that her evidence had been of an abusive and violent relationship for some time before that date. It is also relevant that, in her evidence in chief, the complainant said that she and the appellant had reconciled, after the day that she signed Constable Westfallen's notebook (T 78). (That was 16 October.) 91Exhibit 5 was a folder of emails that passed between the complainant and the appellant. To the casual observer, these appear to be the communications of a loving, untroubled, couple. It is worth taking a little time on their contents. On 24 September 2007 (when she was pregnant) the complainant sent an email to the appellant. She gave as the subject line "Cub Cub". The message was: "This is what we have made so far ..." and was accompanied by a photograph of a foetus. 92On 2 October the complainant sent another email, headed "Daddy Update". The message read: "Good morning baby, here is some information for you. The photos are spread over two pages, in case you miss some. Love you Mr Monteiro x ..." The balance of the email gave information about her pregnancy. 93Both of these emails pre-date 16 October, the date the complainant claimed the relationship ended, and are, therefore, perhaps, unsurprising. However, the tone appears to have remained unchanged after that date. On 25 October the complainant forwarded to the appellant an email headed "Mental Feng Shui" that she said contained "words of wisdom that make a good deal of sense" and that she thought was worth sending on. The tone is friendly and affectionate. 94On 29 October the appellant emailed the complainant, commencing "Hi baby", and concluding: "I love you, thank you for this." 95On 30 October the appellant emailed the complainant, telling her she was getting "a little testy", and concluding "Love you always", followed by a line and a half of x's and "And 1 million more". The complainant replied, commencing "Sime darling", saying that she was not "testy", just "frikking busy", and signing "Your [complainant's abbreviated first name] xox". (The x's and o's that permeated the emails represented kisses and hugs.) 96On 28 November the complainant emailed the appellant, saying "check out how clever your girl is", and saying "Love you ... xo". 97Later the same day she again emailed the appellant, beginning "HONEY", and saying: "This is EXCELLENT!! This will all come together. Your efforts will pay off. I am SOOOOOOOOOO PROUD of you. Good Job ..." (bold and upper case in original) She signed: "Love you ... xoxo" 98On 3 December the complainant emailed the appellant, commencing "Baby", and saying (after the main message): "I hope you are having a wonderful and positive day ... Love you, [abbreviated name of complainant] xox" 99Another email on 11 December she commenced "Babe". 100On 13 December a number of emails passed between the two. In one, the complainant sent the appellant: "... an idea for a double sided business card for you", and finished with: "Love you xoxo." 101On 14 December the appellant emailed the complainant, calling her "Honey", and asking her to do some artwork for him for Plastic Fantastic. The last line was a long row of x's and o's. 102There were indications of a different tone on some occasions. On 12 December the complainant emailed the appellant about the Plastic Fantastic project. After a personal message, she wrote: "By the way Simon, contrary to your preferred opinion , I am not a fool. I am well aware that it has been your modus operandi over the past period to secure a means or reason to gain access to telephone records to try and find a reason not to trust me. Sorry to disappoint you and your ever fervent efforts, but there is nothing to hide here. I do not believe that having the aforementioned documentation will gain any weight to your defense, but then again, I am not a lawyer - but I am not a dummy either! Do you have any idea what it is like to be CONSTANTLY doubted by you. If I say I am not on the phone Simon, I am NOT on the phone. Simple. I have no reason to lie to you Simon. Maybe you are so paranoid because you have been lied to in the past, or perhaps, because you lie, you presume it is my mode of operation too. If you are trying to catch me out or set me up Simon, I am afraid you are not only wasting your time, but pushing me away. At a rate of knots. STOP tarring me with a brush that carries a paint different to my own. ..." (bold and upper case in original) 103When asked about why, if she was, as she claimed, attempting to finish the relationship and get away from the appellant, she complained that he was pushing her away, she said: "... all of this was part of my survival manual, I didn't know how to manage the abusive situation that I was in and so I was trying to keep things peaceful, I wanted him to be successful so he'd just leave." (T 333) 104In the morning of 17 December she emailed the appellant. The purpose was to make arrangements for the payment of a telephone bill. But the complainant added: "One last thing - All I ever really wanted Simon was to be respected by you. That's all. You cannot love somebody if you don't respect them. If I asked you not to do something to something that was not yours, I wanted you to honour that. That's' all. As I said to you Simon, it was never about the juice, or the diet coke, or WHATEVER. Just about the fact that you always did what you wanted, with whatever you wanted, whenever you wanted. You constantly second guessed me and went through my belongings. Don't get me wrong, Simon, I have nothing to hide, it is just horrible, to have somebody going through your stuff, taking it, hiding it, doing whatever with it. That is why I react Simon. I don't think that is a very nice way to treat anybody. Let alone, a person you profess to love. It just does not stack up. You are right about most things Simon. I am fat. I am ugly. My use by date has been and gone. I am an 'egg'. You are right about most things. One thing you are wrong about is the lump in my breast. Perhaps the wish you made aloud to your mum about me getting cancer of the 'twat' or whatever rude word you called it, has just misplaced itself. We will just have to wait and see. Perhaps you are far more powerful than I gave you credit for. I stand corrected." (bold and upper case in original) 105On 18 December the complainant emailed the appellant, attaching some documents that she said she had found on her computer. She gave some advice about available food in the apartment, reminded the appellant about arranging payment of the telephone bill, and added: "I am so sad that we were such a disaster Simon. In answer to your question this morning, yes, I do love you Simon. My love for you has never been in question. Print it, shout it to the world, subpoena it, if you must, but, sometimes, love just aint enough. I need so much more than I have received from you - and no, I am not talking materially, although, it is relevant ..." 106The final email in the series was a short one from the appellant to the complainant dated 22 December enclosing, for her to show to her family, a synopsis of the Plastic Fantastic project. 107On the evening of 17 December the complainant sent to the appellant a series of text messages. Although the evidence is not easy to follow, it seems that the appellant had gone out without the complainant and she was unable to contact him on his telephone. At 9.03pm she sent a text message saying that she would leave the keys in the usual spot, and repeated this just two minutes later. At 9.23pm she sent the following message: "I know it's none of my business but a part of me is sad that you have moved on so quickly as you said you were leaving an hour ago. I hope she is nice." When asked about this message, the complainant said, repeatedly, that she sent it because she wanted the appellant to think that she was disturbed, so that this would make him "move on" and that she wanted him to think that she was sad that she did not want them to be together any more. 108At 9.53pm she sent a further message about the keys; at 10.23pm she sent the following message: "Simon, I'm sick of your selfishness and lack of respect for anybody but yourself. Borrow some money from your uncle and get the hell out of my life. You've well and truly outstayed your welcome. This charity has closed its doors. Go and find somebody else to sponge off. You should be ashamed of yourself. I have a huge bruise on my forehead from you and you can't even bother to call. You are a loser." At 10.48pm she sent the last of the messages for that evening. It read: "Don't bother coming back here. You are horrible. I was even arranging a Christmas present for you as you will be on your own. What was I thinking? As you've turned your phone off you dirty alcoholic I can't tell you where I've put the keys. I was explaining the whole respect thing to you and you can't even hold the ball for one day. Very sad. Not angry Simon, just supremely disappointed. Please don't come back here tonight as I need to sleep. x" 109She said that she sent this message out of exasperation because there was only one set of keys to the apartment, and she could not go to bed until the appellant knew whether she was going to leave the keys, and she could then lock the door. When asked about contemplating buying a Christmas present for the appellant in the circumstances she claimed to exist, the complainant reasserted that she was terrified of him and said that she would have done anything to keep him "peaceful" (T 210). 110She said that when the appellant finally arrived at home late that night, she opened the door for him, and, out of frustration, slapped his face. 111Also in evidence as Ex 2 was a rather lengthy handwritten note from the complainant to the appellant, the provenance of which is not clear, but which needs to be re-produced in full. The note reads: "beautiful boy, a beautiful Soul who deserves to and will shine. I am really sad and heartbroken at the moment but ultimately am blessed to have shared this small part of my journey. I have learned much of love and life at your hand and hopefully, when my wounds have healed, I will look back and smile and understand why things turned out like this. I am not quite sure what lesson the Universe is trying teach me through this experience but hopefully, one day I'll get it. I meant what I said in my sms. My love for you is boundless and not in any diminished by our human experience. If at any time, for whatever reason, you feel sad or alone, or if the demons that haunt us all from time to time come, just close your eyes and you will feel my love - wherever you are and whatever your circumstance or situation may be you just called and said you want to talk to me this afternoon but I don't know what else there is to talk about. If you are worried that I would ever be vindictive or nasty - please get those thoughts out of your head. You can keep them there if you want but they are unnecessary and unfounded as I will hold no malice. Perhaps that is why I am alone and perhaps will always be alone as my very nature enables people to take advantage of me - whether that be emotionally or financially. Maybe I am just too messed up and insecure that I keep on giving because I am scared to be alone or rejected. I don't know the answer(s) but from now, at least in solitude, I will always know who I can count on, where my support will come from and learn that neither acceptance or love come from another person or life experience. I am tired - exhausted in fact - of being let down. Of indulging momentarily and believing in happiness and excitement - only to find once more - that it is a journey that nobody wants to share with me - other than Bosley. I just realised this is turning all soppy and it is not serving any due purpose - self-indulgent twaddle - as you would say. I know that anything we have shared - and any secrets we have told - are safe with me. I am not a nasty person and genuinely wish you all the best. I meant what I said about you leaving and not having to pay back the money you theoretically 'owe' me. I did not support us with a tit for tat mentality. There are lessons in every situation and I have to teach myself the hard way. Besides - I am not a victim and always have and always will land on my feet. With regard to our c.c. I don't expect you to give me money. I will work things out. There are government pension things that can help and I have paid my taxes for 20 years so it is time for the system to work for me. I don't understand how legal things work in situations like this but I think if I initial and date each page it should be enough so you don't have to ever worry but when you make it big time that I will change my mind. I checked the flights because you didn't tell me which one you have changed to but I will go out (the last one lands at 11.10pm) as I don't want to make things worse for either of us. Please let me know when you have sorted out your things. I know it will take some time (but I understand why you want to move to QLD - you need a new start like you said and you will like it there). I will just pop in and out to get some clothes etc and leave you your space to do your things. I know you have a big meeting on Monday - so I imagine you won't put anything in place until after that time. Let us do this peacefully and quietly as we both did our best and for whatever reason it didn't work out and is obviously not meant to be. Sometimes it is hard but you just have to let things go as hanging on just hurts your fingers." 112The note bears on the bottom of each page the date "22/10/07". The complainant acknowledged that she had written the letter, and thought that she had left it in the apartment for the appellant but queried the date. She said that she did write a date but it probably would have been "more like the second" (ie 2 October). She also said that it was written at a time when she and the appellant were going to separate, and that he was supposed to vacate the apartment on 19 October. She said she took this view about the date of the letter because there were references in the note to her being pregnant and that she had had the pregnancy terminated on 16 October. (I assume that what she said were references to the pregnancy are those to "our c.c." and government pensions.) 113The complainant agreed that, in August 2007, she had, at the request of the appellant, purchased a baseball bat for the appellant. It was put to her, in effect, that it was unlikely that she would do this if she had been, as she asserted, "terrified" of the appellant. She replied: "I lived on egg shells the whole time ..." (T 273) and said: "I was surrounded by iron bars anyway, so what's a baseball bat?" (T 274) 114Also in evidence were two bundles of photographs. The first, Ex 4, were said to have been taken on 27 October 2007 by the appellant and the complainant. They are portrait shots of one another, and do not suggest any animosity; indeed, each appears to be very happy. The second set of photographs, Ex 3, was said to have been taken on 3 November, by a friend of the appellant's. They depict the appellant and the complainant in apparently loving embrace. (The dates on which the photographs were taken were never established; the dates mentioned above are drawn from counsel's questions. The nearest the complainant came to giving a date was: "it would've been towards the end of last year" ie the end of 2007.) 115The complainant was also cross-examined about her contact with the appellant during the time she was in Goulburn over Christmas. Mobile telephone records revealed extensive telephone calls between the two of them, on one occasion continuing over more than an hour and a half. It seems, from the evidence, that most of the calls emanated from the appellant's telephone, although there were some, much shorter, calls from the complainant to the appellant. It was suggested that this was because the complainant had limited credit on her telephone, and may have called the appellant only in order to have him call her back. The complainant said that she participated in these conversations because she was frightened of what the appellant would do. She denied a proposition put to her that she and the appellant were attempting a reconciliation. 116Although the complainant agreed that the emails extracted above had been exchanged between herself and the appellant, she was not asked to explain the apparent contradiction between their consistently (until 12 December) loving tone, and her assertion that the relationship had ceased by 16 October. And although, at the end of cross-examination, the Crown Prosecutor sought and was granted an opportunity to confer with her, specifically for the purpose of preparing for re-examination, no question was asked to elicit such an explanation. I do observe, however, that, although the complainant pinpointed the date of cessation of the relationship as 16 October (by reference to the date of the second termination) she also said, in her evidence in chief, that the couple reconciled after the day on which she signed Constable Westfallen's notebook (which was also 16 October). The defence case 117The appellant did not give evidence. No evidence was called on his behalf. Since, when arrested on 8 January and given the opportunity to participate in an interview, he had declined that opportunity and exercised his right to silence, there was no indication, other than what was put to the complainant in cross-examination, of his response to the complainant's allegations. There was no version of events given in his own words. Those propositions, where rejected by the complainant, were therefore entirely without evidentiary foundation. Counsel said, in the presence of the jury, that he was "content to rely on the matters elicited in cross-examination" (T 455). (That was supplemented by the documentary material admitted into evidence during the course of cross-examination.) 118The appellant's case was encapsulated in a series of questions put to the complainant at the end of her cross-examination. It is convenient to re-produce the questions, together with her answers: "Q When you came back to the apartment, the true position is this. That there was no sexual assault, it was consensual sex that started off with you giving him a massage. That's the fact isn't? A Absolutely not. Q After the sex, which took some little time, when you were talking about various things there was then discussion of separating and you wanted some money didn't you? A Absolutely not. Q You told him that you had been speaking with your friend Tanya about being able to claim as a de facto -- A Absolutely not. Sorry, absolutely not Mr Jeffreys. Q After the sexual intercourse had taken place we've established have we not that the sexual assault that you claim took place you say that you rang the hairdresser? A At 3.00pm in the afternoonish. Q At 3.00pm alright and then after 3.00pm you say you were trying to calm the accused - you weren't calming the accused down, you were going through Domain with him to see if you could find accommodation and talking to him about accommodation and things of that nature, correct? A Yeah. Q Between the time of the phone call and when you left to go to Double Bay was there any incident where you were crying or screaming or making a noise about anything? After the phone call. A After I'd called the hairdresser? Q Yes. A No. Q So after the phone call we've established that as 2.46 [sic - this may be a transcription error; earlier evidence established the phone call as having taken place at 2.46pm] ... Q I suggest to you that after the phone call some couple of hours, maybe an hour after the phone call you had this discussion with the accused which I've put to you about getting some money? A No Mr Jeffreys. Q You told the accused that he was leaving you and you were broke and he was going to get money from Plastic Fantastic, he was going to get money from the property deal and you wanted a share. That's the fact isn't it? A There was no such conversation Mr Jeffreys. Q You'd certainly thought about it earlier because you wrote about it in your letter or note of 22 October hadn't you? A I'm sorry I don't follow. ... Q You said that the legal things that that was referring to was any suggestion that you might make a de facto claim, remember that? A That is correct. Q This was something I suggest to you that you raised on 2 January after you'd had the phone call to the hairdresser? A That's not true Mr Jeffreys there was no such conversation. Q He told you that you weren't entitled to anything because you'd only been together for a short of period of time and then you started bursting out crying, what do you say to that? A No Mr Jeffreys. Q The accused was saying to you 'Look you're not entitled to that, you're not getting it' and he was talking down to you in that fashion, now what do you say to that? A No Mr Jeffreys. Q That was some time between 4.00pm and 6.00pm, probably closer to 6.00pm, 5.30, 6.00 o'clock what do you say to that? A Nothing like that happened Mr Jeffreys." (T 340-342) and: "Q Now once you got back to the unit in Birriga Road [from Double Bay] I suggest to you that you then started doing some of your art work and Mr Monteiro went into the bedroom. What do you say to that? A Absolutely not. Q I suggest to you that at some stage you came into the bedroom and confronted him with a hair clip, that's a female hair clip. What do you say to that? A Absolutely not. Q I suggest to you that you said words to the effect of, 'Whose is this? You've had a female or a woman in the flat.' What do you say to that? A Absolutely not. Q ... And you asked him if he had any females in the flat, what do you say to that? A Absolutely not. Q He told you that he had a person from the Marrickville Council in relation to the Plastic Fantastic project? A There was no such conversation. ... Q You also asked him if he'd been seeing any other women? A No I didn't. Q He told you that he'd seen a friend Vanessa and he'd had a coffee with her, and you said, 'You've been fucking her.'? A No, Mr Jeffreys. Q You just got yourself worked up and angry and then you had your scissors in your hand and you attacked him whilst he was on the bed? A No, Mr Jeffreys. Q You told him that you were going to gouge his eyes out with scissors? A. No, Mr Jeffreys. Q That's when he slapped you? A No, Mr Jeffreys. Q He slapped you a number of times and tried to push you away as you were attacking him with the scissors and you were biting him at the same time, what do you say to that? A No, Mr Jeffreys. Q Now the next day you say don't you that when you got on the bus, or before you got on the bus, Mr Monteiro was claiming that you'd stolen some money? A That is correct. Q You had in fact taken his money hadn't you? A No, Mr Jeffreys. Q You told him that you were leaving the flat? A I told him I was leaving the flat, yes. Q That you were going to stay out until you found somewhere else? A That I would not be returning, correct ... Sorry, to be precise, I wouldn't be returning and I was arranging for a removalist to come on the Saturday to collect my belongings, and I did not return other than to get my stuff. ... Q I suggest to you that after you'd attacked him with the scissors and he'd slapped you, you calmed down and he told you that he hadn't had sex with anybody through his entire relationship other than you, what do you say to that? A There was no such conversation, Mr Jeffreys. Q He told you that what you'd done to him, 'This is assault, I'm sick of this shit' what do you say to that? A Absolutely not. Q And a number of times whilst you were attacking him and also afterwards you said to him 'I hate you, I hate you' what do you say to that? A No, Mr Jeffreys. Q You said to him 'I'll say you raped me, you're sperm or cum is inside me' what do you say to that? A No, Mr Jeffreys. Q And he said to you 'You're insane'? A There's no such conversation Mr Jeffreys. Q A discussion continued in you said 'After tonight I'll stay somewhere else until you move out' and the accused said 'Whatever' what do you say to that? A I said that I was not returning and that removalists would be getting my stuff on the day after, that was the only conversation that we had in anything to do with that." (T 346-348) 119There was other cross-examination about the events of 3 January but I do not propose to extract it. Ground 1 of the appeal: unreasonable verdict 120Hesitant as I am to prolong this already lengthy judgment, it is necessary to state precisely the question to be posed when this ground of appeal is raised. That question was stated in M v The Queen [1994] HCA 63; 181 CLR 487, in the following terms: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty ... But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations ... In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence ..." (pp 493-494, internal references omitted) That test was re-endorsed in MFA v The Queen [2002] HCA 53; 213 CLR 606. 121The written submissions made by counsel on behalf of the appellant in support of this ground were concise and precisely structured. They hinged entirely upon an attack of the credibility of the complainant. 122As is common in such cases, the only direct evidence of the events that gave rise to the charge was given by the complainant. The only challenge to that evidence is what emerged in her cross-examination. There is one qualification to the former proposition: the evidence of Ms Humphries was important evidence corroborative of the complainant's claim that an incident that was acrimonious and marked by violence, at least (on Ms Humphries' evidence) verbal violence, occurred on 2 January. Ms Humphries' evidence of her conversation with the appellant on 22 December is also important in countering the suggestion that the complainant was untruthful in her claim that, by that date at least, the relationship was over. 123Counsel submitted that the evidence of the complainant was unreliable and "unacceptable". As I read their submissions, they made a number of specific points, which they said pointed to the implausibility of the complainant's account of the events and her explanations for matters that had arisen in cross-examination. The points may be encapsulated as follows: (i)that, despite the complainant's claim of having been sexually assaulted by the appellant in June or July, and again in September, she continued to live in the apartment with him for many months thereafter. This, it was put, was highly implausible; (ii)equally implausible (if not more so) is the complainant's evidence that, notwithstanding her assertions as to the appellant's prior conduct, she deliberately became pregnant again in September, planning to have a baby with the appellant; and her explanation that she did so in order to keep the appellant "peaceful" could not be believed; (iii)the complainant insisted that the relationship had come to an end on or by 16 October; the loving emails and photographs (Exs 3, 4 and 5) well after that date are irreconcilable with that proposition, as is Ex 2, the complainant's handwritten note bearing the date 22 October; (iv)the complainant's evidence that she lived in fear and was terrified of the appellant is irreconcilable with her evidence that, on 17 December, on his late return to the apartment, she slapped his face; (v)the records of telephone calls between the appellant and the complainant during her sojourn at Goulburn over Christmas cast further doubt on her claim that the relationship had ended; (vi)the complainant's purchase in August of a baseball bat for the appellant is inconsistent with her stated fears of his violence; (vii)the complainant's account of the critical events of 2 January is "unacceptable": in particular - * in her initial account to police the complainant said that when she first saw the scissors they were on the bed; in her evidence she said that the appellant went to the kitchen and came running at her with the scissors in his hand; * had the complainant been assaulted to the face as she claimed, it is implausible that Mr Smith would not have observed the marks to her face when she and the appellant inspected the boarding house; * the record of a call from the appellant's mobile telephone to the complainant at 4.22pm on 2 January contradicts her assertion that the two of them were together continuously throughout the day from the time she arrived at the apartment; * the complainant's assertion that, after the events she described, she and the appellant slept in the same bed is implausible; (viii)the complaint made by the complainant to police is entirely consistent with concerns expressed by the appellant in his two telephone calls to 000. 124Some of these points are well made. Some are not. I will begin by disposing of those that are not, using the numbering system above. (i) and (ii) 125These propositions disregard what is well known to those who take an interest in issues concerning domestic violence. It is all too common to see victims, most commonly women, overlook and forgive abusive treatment, and accept apologies, protestations of regret, declarations of love and promises to reform. Here, there is no evidence that the appellant ever acknowledged having behaved as the complainant said he did; but I find no difficulty in accepting, however regrettable it may be, that the complainant was prepared to proceed with the relationship notwithstanding the conduct she described. (vii) 126I do not find it implausible that Mr Smith failed to observe any marks to the complainant's face. She said that she applied make-up to conceal the marks; there is no reason to think that Mr Smith paid particular attention to her. It is notable that although Mr Smith was closely cross-examined about his opportunity to observe the complainant, and about his observation that she was attractive, counsel adroitly steered clear of asking about marks or signs of injury to her face. The complainant's explanation for the 4.22pm telephone call is acceptable, if not persuasive. That is supported by the fact that the call itself was 12 seconds only. The complainant's assertion that, despite her protests, the two slept in the same bed after that assault is also explained by her evidence. (vi) 127The evidence of the purchase of the baseball bat by the complainant falls into the same general category as (i) and (ii) above although, perhaps, with less force. The complainant said that she purchased the bat, at the appellant's request, "for another purpose", but was not given the opportunity of identifying what that purpose was. There is also some force in her response to one question, that she was surrounded by iron bars, so that a baseball bat posed little additional threat. 128I now turn to those matters that have significant weight. The most compelling of these are the post 16 October emails, the text messages of 17 December, and the photographs, Exs 3 and 4, none of which suggests a fractured relationship, at least prior to 17 December. Much the same can be said of the lengthy and frequent telephone calls to the complainant at Goulburn, although the content of these calls is not known. But the events of Christmas day, when the appellant travelled to Goulburn, but was banished by the complainant, run counter to the conclusion that the relationship was friendly and functioning. 129To the contrary is Ex 2. As I have mentioned, it bears, on each of 18 small pages, the date "22/10/07". The complainant accepted that she had dated the note, but suggested that that date could not be correct, because the note referred to her pregnancy (in current terms) and that pregnancy had been terminated six days earlier. She postulated that she had written the date "2/10/07"; unstated, but clearly suggested, was that an additional "2" had been inserted. In my opinion, that hypothesis must be rejected. In the first place, it is impossible to conceive of any reason why anybody would have taken that course. In the second place, I have carefully examined the original of the exhibit. Admittedly without the aid of expert evidence, it appears to me that the date - the whole of the date - is written with the same pen as the whole of the note. Moreover, the "2's" appear plainly to have been written by the same hand. On some pages they are, to my eye, identical. The note, in my opinion, must be accepted as having been written on the date that it bears. I note that the jury were given the original of the note to enable them to compare it with the copies they had been given (T 128). 130What to make of the note is more problematic. It is clear that, as at that date, the complainant perceived that the relationship had terminated. The references to the (already terminated) pregnancy (if that is what they are) are a mystery. Also a mystery is the circumstances in which the relationship reached the stage indicated in that note. It is quite inconsistent with the subsequent emails of 29 October, 30 October, 28 November, 3 December, 11 December, 13 December and 14 December. 131In my opinion very significant weight indeed must be given to the email correspondence, the photographs, and Ex 2. The question for determination is whether that weight (together with other matters) is such as to create a reasonable doubt about the complainant's account of the events of 2 January. 132There is some force in the point made about the complainant's evidence about where the scissors were when she first saw them. On balance, however, I am not greatly troubled by this, having regard to the highly traumatic events the complainant described. It is, I accept, a matter to be given some weight in the overall assessment of the case made on behalf of the Crown. 133One matter to which little attention was paid, but which to me appears important, is Constable Reynolds' evidence of finding the broken sunglasses in the bedroom. There is nothing in the appellant's hypothesis that accounts for them - his proposition (it has to be called that, because there was no evidence to support it) was that, after their return from Double Bay, the complainant did some artwork before becoming enraged and attacking the appellant in the bedroom. It is unlikely, in those circumstances, that she would have been wearing sunglasses. 134What was put, in the appellant's alternative scenario, in cross-examination of the complainant, was this: * consensual sexual intercourse took place during the afternoon of 2 January (the timing roughly consistent with when the complainant alleges that non-consensual intercourse took place); * following that sexual intercourse a discussion took place about separation, and about money - the complainant claiming some entitlement under de facto relationships legislation; * after the sexual intercourse (at about 3.00pm) the complainant rang the hairdresser; * after that the complainant and the appellant searched the Internet for accommodation; * an hour or a couple of hours after that, the complainant and the appellant argued about her entitlements to make a claim against him under de facto relationships property legislation; * thereafter (at an unspecified time (but probably about 20 minutes before 6.00pm)) the complainant and the appellant walked to Double Bay; * on their return to Birriga Road the complainant began doing some art work, involving the use of scissors, while the appellant was in the bedroom; * the complainant suddenly accused the appellant of having had another female in the apartment; * the complainant became enraged and attacked the appellant on the bed with the scissors; * the appellant slapped the complainant and she bit him. 135The scenario is out of alignment with the evidence given by Ms Humphries, that the screaming and arguing she heard from the apartment occurred between 4.00pm and 5.30pm. Ms Humphries' evidence also does not sit easily with the scenario advanced by the Crown through the complainant. In particular her answer to one question is critical. The question was: "Between the time of the phone call and when you left to go to Double Bay was there any incident where you were crying or screaming or making a noise about anything? After the phone call." The telephone call to which reference was made was the 2.56pm call to the hairdresser. 136The answer given by the complainant was: "After I'd called the hairdresser? [at 2.56pm] ... No." (T 341) But nor does Ms Humphries' evidence sit comfortably in the scenario advanced on behalf of the appellant. It was not suggested that the argument about money - that may be thought to have taken place between 4.00pm and 5.30pm - involved any screaming or crying. The question postulating a violent event involving scissors, precipitated by the complainant, suggested that that event occurred after the return from Double Bay, well after the outside time fixed by Ms Humphries. 137Together with the evidence of the emails, photographs and text messages, Ms Humphries' evidence casts some doubt upon the complainant's general credibility, at least in relation to her recollection of the events of the later part of the afternoon of 2 January. 138Ms Humphries' evidence does not cast doubt on the complainant's evidence about a violent and loud event earlier in the day because she (Ms Humphries) was not in her apartment until 4.00pm. 139As against that is the evidence of Constable Whyte concerning the appellant's attendance at the police station on 3 January. There, he told Constable Whyte that the complainant had accused him of drugging her with medication and of hitting her with a baseball bat. He told Constable Whyte that he had been teaching her to box or to fight, and that the complainant sustained marks to her face because she would not listen to him and got hit in the head all the time. 140These propositions were never put to the complainant and, it seems, by the time of trial the appellant disowned them. The attack upon this aspect of Constable Whyte's evidence took the form of a challenge to the accuracy of his record of the conversation. I will make that a little clearer. From the cross-examination, it appears that the relevant sequence, on the appellant's version, was this: * when the appellant entered the police station and spoke to Constable Whyte he said that he wished to report an assault. Constable Whyte made some notes in his notebook but, because the appellant had told him that he did not wish to proceed with action, his notebook entry was incomplete - it was, Constable Whyte said, for use as "a prompt or bare bones indicator of our conversation" (T 424). Constable Whyte did not enter in the notebook any reference to the appellant teaching the complainant to box; * the following morning, 4 January, Constable Whyte made a computerised entry in the COPS system. Although this was not in evidence (neither was the notebook) I infer from the cross-examination that the statement attributed to the appellant about teaching the complainant to box was included in that entry; * on 13 January Constable Whyte made a formal statement for the purpose of the appellant's prosecution. I again infer that this incorporated the reference to teaching the complainant to box. 141The inference that was invited was that Constable Whyte's evidence about the boxing lessons was, at the best, unreliable. But it was never put directly to Constable Whyte that the appellant did not make that statement; it was put to him that the appellant had said, in a flippant fashion in response to a question about marks on the complainant's face: "Boxing training, mate. I already told you what happened." (T 427) The suggestion being that Constable Whyte had misunderstood, or recalled inaccurately, what the appellant had said. 142The simple fact is that there was no evidence to support the appellant's hypothesised account of events. The complainant emphatically rejected every proposition contained in the series of questions I have extracted above, put as encapsulating the appellant's case. 143I also note that the questions put to the complainant at the end her cross-examination included the proposition that she had attacked the appellant with scissors, intending to "gouge his eyes out" and was biting him. Not only were these accusations apparently not put to Constable Whyte, there is no evidence that the appellant showed him any sign of biting. 144True it is that there are some - and some significant - aspects of the complainant's evidence that are inconsistent with other, objective, evidence. The most notable of these are her assertions concerning the course of the relationship, and the emails. These impinge upon her credibility. But, when examination is made of her account of the events of 2 January, no real inroads were made in cross-examination. What may appear to be a small point - the broken sunglasses - is, in fact, compellingly corroborative of her account. To that may be added the abandoned explanation given by the appellant to Constable Whyte for the bruising and injury to the complainant's face. 145There was also some support for the complainant's account of the violence of the relationship in the evidence of Ms Galimi, the hairdresser, that she had, in September, observed a "bald patch" on the complainant's head where hair was missing. This was consistent with the complainant's claim that the appellant had pulled a clump of hair from her head. 146In my opinion, it was well open to the jury on the evidence before it to be satisfied beyond reasonable doubt of the appellant's guilt. For my part, having made my own independent assessment of the whole of the evidence, I am also satisfied, to the same standard, of his guilt. I would therefore reject ground 1 of the appeal. Fresh evidence 147The appellant sought to adduce additional evidence which appears to be relevant to this ground. The Court determined that the evidence should be admitted provisionally, and later determination made as to any use that could be made of it. The evidence upon which he sought to rely was contained in two statutory declarations made by Mr Peter Blyton, on 26 July 2010 and 16 August 2010. Mr Blyton also gave oral evidence. His proposed evidence was primarily directed to the occasion on which, the complainant said, the appellant had first raped her (which she placed as in about June 2007). Her evidence was that she and the appellant had a pact not to drink alcohol but that the appellant had, notwithstanding that pact, gone out with Mr Blyton and Mr Blyton's then girlfriend, Lorraine, and another person. She said that the appellant repeatedly telephoned her during the course of the evening, sounding intoxicated, and asking her to join them. She refused. She said that he returned home, intoxicated, they argued, and he raped her. 148In his first statutory declaration, Mr Blyton referred to a night in mid August 2007 when, he said, he was with a group of people that included the appellant and the complainant and Lorraine. In his subsequent statutory declaration he added that: "... the night the alleged rape took place ..." was: "... the one and only time that [the appellant] had ever met or seen" Lorraine. 149Mr Blyton's oral evidence was to similar effect. He said that the group, including the complainant, had gone to a hotel together, but the complainant left early and went home. The appellant remained, and ultimately returned to Mr Blyton's home where he stayed the night. He repeated that this was the only occasion on which the appellant had met Lorraine. If that were so, the appellant claims, the complainant's allegation of rape on that night can be seen to be false. Plainly, that would affect the jury's assessment of the complainant's credibility. 150In my opinion, Mr Blyton's evidence could not have advanced the appellant's defence. First, Mr Blyton's account fixed the occasion of the outing as August 2007, while the complainant fixed the date of the rape as June of that year. That of itself may be of relatively little moment. However, the complainant's evidence was that, on the night of the rape, she had not been in the company of the appellant and he had gone out without her. That suggests a different occasion. It is true that Mr Blyton said both in his statutory declaration, and in his oral evidence, that the appellant had only met Lorraine on one occasion. This is critical to the import of his evidence because it could have established that the appellant was not at the Birriga Road apartment on the occasion the complainant alleged the appellant had raped her. But that evidence would not be admissible in a trial. Mr Blyton would not be permitted, even if his evidence were accepted as fresh evidence, to say that the occasion of which he spoke was "the night the alleged rape took place". 151The principles on which fresh evidence may be admitted on a conviction appeal have been considered on a number of occasions: see, for example, R v Gallagher [1986] HCA 26; 160 CLR 392 ; Mickelberg v The Queen [1989] HCA 35; 167 CLR 259; R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417, and see Howie and Johnson, Criminal Practice and Procedure NSW , Butterworths, [20-270]. Fresh evidence is evidence that was not available to the accused at trial. Mr Blyton's evidence does not meet that test. 152However, some latitude is permitted and, ultimately, the test is whether any miscarriage of justice has been shown. No such miscarriage is shown. 153Even if admitted, Mr Blyton's evidence could not alter my view of the strength of this ground. No miscarriage of justice was occasioned by the absence of Mr Blyton's evidence. Ground 2: incompetence of counsel 154The appellant complains that he was incompetently represented, and that his counsel failed to follow his instructions. At one point in his argument he went further and alleged that the failings "could not have been accidental". Just what he intended by this he never spelled out. 155The principles applicable to the determination of a ground of appeal raising alleged incompetence of counsel were settled in R v Birks (1990) 19 NSWLR 677. Those principles include: " 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." (p 685, per Gleeson CJ) 156Earlier, Gleeson CJ had said: "As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case." (p 683) 157The Chief Justice cited, and plainly accepted, a passage from Halsbury's Laws of England , 4 th ed, Vol 3(1), par 518 at 420 which is in the following terms: "... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment." (p 684) 158The decision in Birks was essentially endorsed by the High Court in TKWJ v The Queen [2002] HCA 46; 212 CLR 124. There, Gleeson CJ said: 16 It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks." See also the judgment of McHugh J at [74]-[78]. 159Many of these remarks are particularly apposite to the issues raised by the appellant. 160The material presented by him on his own behalf in support of this ground is extraordinarily diffuse, lengthy, repetitive, and, most of the time, difficult to follow. The material consists of: * a handwritten affidavit that extends over 135 pages; this affidavit bears the date "1 st July" but does not specify the year; * a second undated handwritten affidavit of one page; * a third affidavit, typewritten, dated 28 July 2010, of a little over two pages; * two handwritten statutory declarations made by Peter John Blyton (referred to above) dated respectively 26 July 2010 and 16 August 2010; * one handwritten, undated, page headed "Submissions"; * a document, handwritten, of 34 pages, headed "Outline of appellant's submissions", undated. 161The appellant gave oral evidence and was cross-examined, as did and was Mr Blyton. Mr Jeffreys and his former employed solicitor, Ms Anne Green, provided affidavits and gave evidence in the Crown's case. 162The material in the very lengthy affidavit of 1 July concentrated to a very large degree on instructions the appellant claimed to have given to Mr Jeffreys. To the extent that what he asserts related to factual matters concerning his relationship with the complainant, and the events surrounding (but not including) those of 2 January, Mr Jeffreys accepted that the substantial part, although not the entirety, of those instructions had been given. (It will be seen that I have restricted these comments to instructions on "factual matters". That is to distinguish such instructions from instructions the appellant claims to have given Mr Jeffreys with respect to the manner in which the trial was to be conducted. I will come to the latter in due course.) 163By way of example, the appellant asserted that he had instructed Mr Jeffreys of the following facts (I have generously paraphrased from the appellant's affidavit): (a)that only one security key to the Birriga Road apartment block was in the possession of himself and the complainant, that the complainant had taken that key with her to Goulburn, leaving him without access (unless some other resident admitted him) to the apartment block, that the complainant told him that, if he wanted the key, he would have to travel to Goulburn to retrieve it, and that that was his only reason for undertaking that trip. (The appellant does not say when the complainant told him that, but I note that the complainant travelled to Goulburn on or about 22 December, and the appellant did not do so until Christmas day, 25 December); (b)that he did not obtain the complainant's parents' address from a computer or electoral roll search, but that the complainant had given it to him; (c)that the Christmas present to which the complainant referred in the text message of 17 December was a fluffy toy cattle dog, which he produced to Mr Jeffreys and which Mr Jeffreys had in his possession at the time of the trial; (d)that he had not pulled out a clump of the complainant's hair, and that the complainant's hair loss that was observed by the hairdresser was caused by an adverse reaction to a "cheap and nasty" hair product that she had purchased at "Priceline"; (e)that, on 24 August 2007, the complainant had purchased for him a baseball and baseball bat; that this was a surprise gift, to remind him of a time he had lived in New York City and because he liked baseball; (f)that the telephone calls between himself and the complainant over Christmas were related to issues involving the documentary "Plastic Fantastic" (other than, perhaps, one call when the complainant wished him a happy birthday); (g)that the appellant had never wished to have a baby with the complainant; (h)that, on the walk from Birriga Road to Double Bay on 2 January to inspect the room for rent, the appellant and the complainant walked side by side with the complainant talking all the way; and that, after inspecting the room on that day, the appellant and the complainant stopped for coffee; (i)that the room for rent at Double Bay had a particularly pungent and unpleasant odour, and that this was the reason for the lack of communication between them that was observed by Mr Smith; (j)that, early in the morning of 2 January, the appellant had purchased a Sydney Morning Herald for the purpose of searching for an apartment; (k)that the "Bosley" referred to in the complainant's letter of 22 October was in fact a rabbit (the point the appellant sought to make from this was expanded; it was that, in the letter, the complainant envisaged "sharing her life journey" with Bosley, that, while rabbits have an expected life span of 7 years, Bosley was 4 years; that the complainant's expectation of "sharing her life journey" with Bosley was indicative of mental instability); (l)that, when Bosley did die, the complainant placed him in the freezer, that she intended to eat him in order "to continue the bonding process", and that she accused the appellant of murdering Bosley with his bad energy and witchcraft; (m)that when the appellant protested to the complainant about the physical condition of two rabbits she kept in a cage in the apartment, she threatened him that if he notified the RSPCA, she would call the police and report that he had raped her, and that police would accept her account because they hated the appellant and would arrest and incarcerate him; (n)that the complainant had not given the appellant the letter of 22 October, but that he had found it accidentally, and that she had pleaded with the appellant not to leave her, and not to move to Queensland as he contemplated, that she would stop threatening to report him to police and would seek treatment for her continual mood swings; (o)that the complainant told the appellant that she was alcoholic, suffered from extreme bipolar disorder, and that she herself considered that the diagnosis ought to have been schizophrenia; (p)that the complainant had frequently hidden the appellant's own anti-depressant medication; (q)that the complainant had threatened suicide, showing the appellant a plate of about 50 tablets; (r)that the complainant was able to "cry on command [or demand]" and boasted of her capacity to do so, and in fact demonstrated her talent to the appellant; (s)that the complainant had stolen the appellant's deceased mother's jewellery, plus several (or five) thousand dollars in cash, but that when he told her he intended to report this to police, she again threatened to accuse him of rape; (t)that, on the occasion on which the complainant alleged that the appellant had first raped her, they had been out as a couple with Mr Blyton and others, and that he (the appellant), but not the complainant (who went home) had stayed overnight at Mr Blyton's home, and had not been at Birriga Road; (u)that 2 January was the only occasion on which he had "slapped" the complainant, and that, on that occasion, he did so in self-defence; (v)that, when they walked from Birriga Road to Double Bay, the complainant was wearing her (sun)glasses; (w)that, during the course of their relationship, the appellant regularly took the complainant out to various elite restaurants for dinner; (x)that a neighbour, Mr Simon Overall, had visited the complainant's apartment and seen the complainant and the appellant together in circumstances that suggested a relationship different from that portrayed by the complainant; (y)that, for many months before the trial, the appellant, who was in custody, was extremely depressed and having trouble with his memory, was very fatigued, and constantly very cold, and that he did not feel able competently to give evidence in the trial. 164The above by no means exhausts the matters about which the appellant claims he instructed Mr Jeffreys. The essence of his complaint is that, notwithstanding that he had given explicit instructions to Mr Jeffreys on these matters, Mr Jeffreys failed to cross-examine the complainant with respect to them. In respect of a relatively small number of these factual matters, Mr Jeffreys denied that the instructions asserted had been given. I would accept his evidence. Where there is a conflict of fact (and the areas of conflict of fact are relatively limited) I prefer the evidence of Mr Jeffreys. As mentioned above, to a substantial degree, Mr Jeffreys acknowledged that factual instructions along the lines claimed had been given to him. He said that, in the course of the trial: "I exercised my forensic judgment ... in a way that, subject to my various duties as an advocate, I believed would give the appellant the best chance of acquittal." (affidavit, 8 September 2010, para 4) Mr Jeffreys said that, at the conclusion of his cross-examination of each witness, he consulted the appellant as to any additional matters the appellant wished him to raise, and, having taken those instructions, made his own judgment on whether or not further to cross-examine. 165In fact, in respect of many of the items identified above, Mr Jeffreys did cross-examine the witnesses, principally the complainant. As to other items (for example, the rabbits referred to in para [162](m)) he said that he considered the subject matter "too dangerous" because there was, in the brief, conflicting material that the Crown may have adduced if he had ventured into that territory. The conflicting material was a claim by the complainant that the appellant had admitted to her that he had killed Bosley. 166Mr Jeffreys denied that the appellant had instructed him of any incapacity to understand the trial process, or give a reasonable account of himself. I would accept that evidence. Mr Jeffreys produced a copy of written instructions from the appellant that he did not wish to give evidence in the trial. That document is dated 16 December 2009, the second last day of the trial. However, it is apparent that, throughout, there was a real likelihood that the appellant would not give evidence. That raises another consideration in relation to some of the matters about which the appellant now complains the complainant was not cross-examined. Forensically, to challenge a complainant about evidence that she has given, and to put alternative or additional propositions of fact to her, without supporting those propositions of fact, is a difficult and dangerous course for an advocate to take. The advocate knows that the jury will inevitably be directed that the evidence is what is elicited from witnesses, or contained in exhibits, and not what comes from the mouth of the cross-examiner. A litany of propositions put to a witness, not then supported by evidence, is very likely to provoke an adverse response from the jury. Where an accused is unlikely to, or is not going to, give evidence, an experienced advocate may well consider that prudence dictates a limit on the factual issues raised by way of challenge, particularly where they are of material relevance to the events the subject of the charge(s). That is even more so where there is no account, in, for example, a record of interview, given by the accused person. Here, the appellant have never given his own account of the events in question. Whether or not that was Mr Jeffreys' reasoning does not matter (he gave no explicit evidence to that effect). The fact is that the absence of cross-examination on these matters is unlikely to have reflected adversely on the appellant's prospects of acquittal. 167There were also a small number of areas of fact upon which the appellant focussed in his argument, that formed no part of the evidence in the trial. One example, to which the appellant referred more than once, is an assertion concerning a threat by the appellant to throw acid in the complainant's face. No such evidence was given in the trial. I infer that the appellant drew this material from the contents of statements with which he had been served. It is, of course, correct that Mr Jeffreys could have elicited those assertions, for the purpose of painting the complainant as untruthful, even mentally unstable. But to do so would involve a particularly risky forensic tactic and one that a prudent advocate, especially knowing that his/her client was unlikely to give evidence, would be very hesitant to take. 168Another matter to which repeated reference was made by the appellant concerned a statutory declaration said to have been made by the complainant, in which the appellant's former surname was contained (or, on another view, blacked out), but which asserted that the appellant's father had threatened to take out an Apprehended Violence Order against the appellant. That document never found its way into evidence, and the appellant's current complaints about Mr Jeffreys' conduct of the trial in this respect are entirely without foundation. The appellant also made a complaint that the jury, if it knew that he had changed his surname, would be likely to regard him with suspicion. There was a document (part of Ex 5) in evidence, and some cross-examination of the complainant that elicited the fact that the appellant had changed his surname, but that was innocuous. 169The appellant also complained that Mr Jeffreys had inadequately taxed the complainant about the circumstances of his travelling by taxi to Goulburn on Christmas Day, for the purpose, he said, of retrieving the security key to the apartment block. 170It is, in my opinion, highly unlikely that the jury would have regarded the appellant's version as credible, even if the appellant had given evidence of it, and far less so when he did not. At the time Mr Jeffreys made the decision not to cross-examine the complainant to this effect (leaving aside the extent to which the complainant could be asked to give evidence about the appellant's motivation in travelling) he must have known that the probability was that the appellant would not give evidence. Following the instructions the appellant now claims that he gave would have involved Mr Jeffreys putting before the jury, without evidence, a palpably improbable hypothesis. To decline to take that course, in the exercise of professional judgment, is not evidence of incompetence. 171The appellant made a number of additional complaints about the conduct of the trial by Mr Jeffreys. He asserted, for example, that he had "clearly instructed" Mr Jeffreys to present the fluffy toy (see para [162] above) to the complainant in cross-examination and suggest to her: "That a fluffy toy is not something that she would purchase for a man who had twice raped her, threatened to throw acid in her face, threatened to murder her parents by gutting her father like a fish, violently yanked a clump of hair from her head, stalked her all over Bondi Junction, and generally caused her to exist in a state of constant terror, doing what she had to do to survive as she put it." 172The appellant asserted that Mr Jeffreys was instructed to cross-examine the complainant about the odorous nature of the Double Bay room that they had inspected. There are many more examples of instructions the appellant claims to have given Mr Jeffreys about the manner in which he ought to conduct the trial. It is unnecessary to prolong this judgment by repeating them. As the passages from Birks and TKWJ above show, these are decisions peculiarly within the province of the advocate. A skilled advocate will be ready to sense the mood of the trial and abandon subject matters of cross-examination if it appears that to pursue them would be futile, or worse. There is no basis for the appellant's complaint that Mr Jeffreys failed to cross-examine in the manner he purported to direct. 173The appellant also attacked Mr Jeffreys for his failure to locate and call Mr Blyton. Mr Jeffreys denied that he was instructed to obtain a statement from Mr Blyton. I would accept Mr Jeffreys' denial. It is clear from what I have written above (see Ground 1) that, had he done so, Mr Blyton's evidence could not have advanced the appellant's case. Those parts of it upon which the appellant placed most reliance were inadmissible. 174The appellant made a range of other generalised complaints. For example, he complained that Mr Jeffreys' then employed solicitor (and his then wife) had conferred with him in custody, by way of preparation, but had wasted the resources of the Legal Aid Commission by discussing with him, at length, her personal affairs. These matters could not remotely advance his case. 175I find nothing in the matters raised that support the appellant's claim that he was incompetently represented, or that any failure by Mr Jeffreys to comply with instructions resulted in a miscarriage of justice. I would reject ground 2 of the appeal. 176It follows that I would dismiss the appeal against conviction. Sentence 177The appellant (as I shall continue to refer to Mr Monteiro) seeks leave to appeal against what he asserts is the manifest excess of the sentence imposed in respect of the aggravated sexual assault offence, and the malicious damage offence. The Crown exercised the right conferred by s 5D of the Criminal Appeal Act 1912 to appeal against what it asserts to be the manifest inadequacy of that sentence. 178The appellant was, immediately prior to the trial on the sexual assault offence, indicted on two further charges, one of intentional damage to property ("malicious damage") and one of stealing property. This was done in the absence of the jury panel. The appellant entered pleas of guilty to each charge. The malicious damage charge was brought under s 195(1)(a) of the Crimes Act 1900; the stealing charge was brought under s 117 thereof. Each carries a maximum penalty of imprisonment for 5 years. 179The aggravated sexual assault charge carries a maximum penalty of imprisonment for 20 years, and, pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 10 years. 180On the malicious damage count, Norrish DCJ sentenced the appellant to a fixed term of imprisonment for 2 years and 8 months, and on the stealing charge he sentenced the appellant to imprisonment for a fixed term of 1 year and 9 months, to be served concurrently, each commencing on 8 January 2008. On the aggravated sexual assault charge, he sentenced the appellant to imprisonment for 11 years, made up of a non-parole period of 6 years and 6 months and a balance of term of 4 years and 6 months, commencing on 8 April 2009, and accumulated on the property offences by 1 year and 3 months. The result was a total effective sentence of 12 years and 3 months, commencing on 8 January 2008, and expiring on 7 April 2020, with a non-parole period of 7 years and 9 months, expiring on 7 October 2015. Malicious damage and stealing offences: the facts 181These offences were committed in the aftermath of the sexual assault, sometime after 1.00am on 4 January 2008. At that time police attended the Birriga Road apartment in order to serve a telephone interim order on the appellant. They were unable to gain access, but were able to observe that the apartment appeared to be intact. When they returned later in the morning and made a forcible entry, the apartment had been extensively damaged. By his plea of guilty to the property charges, the appellant acknowledged that he was responsible for the damage. 182He threw paint, soy sauce and dirt throughout the apartment, onto the floor, the walls, the ceiling and furniture. He emptied a fish tank, causing the fish in it to die. He filled a bath with books belonging to the complainant, and left the shower running. He upended and slashed furniture. He emptied plants from pots. He tore up photographs. He cut up rugs and cushions. He splashed paint on the complainant's artworks, on blinds and statues, a television cabinet, and squirted oil into a DVD and a video player. In the bedroom, he pulled the mattress from the bed and slashed it, and slashed a throw rug and some of the complainant's clothing. He cut a large painting and splashed paint on the blinds. The complainant estimated the value of the damage to her property to be $14,750. The owner of the apartment stated that the cost of repairs was $1140. 183The appellant stole from the apartment various items, including a number of Buddha heads and other decorative items, kitchen equipment, clothing, and electronic equipment. 184Photographs in evidence demonstrate the level of wreckage perpetrated by the appellant. Evidence relevant to sentence 185For reasons not apparent, sentencing proceedings did not take place until 3 April 2009. By then, Norrish DCJ had available to him extensive evidence concerning the appellant's personal circumstances, although the appellant himself did not give evidence. Documentary evidence consisted of a more than usually comprehensive Pre-Sentence Report, prepared by Probation and Parole Officer Kenneth Stevenson, three psychiatric reports, (two from Dr Bruce Westmore, and one from Dr Gordon Davies), and two psychological reports from Mr Anthony Diment. Oral evidence was given by Mr Stevenson, and by Mr Roland Lowe, the appellant's father. The evidence given by the appellant went, in part, to matters relevant to sentence. 186The appellant's personal history was essentially common to all reports, from which the following emerges. The appellant was born Simon Lowe in December 1966, the youngest of three sons from his parents' marriage. His mother died from melanoma when he was 2 years of age. He then lived with his grandparents for about 2 years. His father re-married, and the appellant's relationship with his stepmother was not positive. Even at the time of his consultation with Mr Stevenson, he harboured and expressed deep resentment of her. Of course, the extent, if any, to which this animosity was justified is impossible to assess. The appellant also spoke of emotional abuse by his father, and of excessive physical discipline. 187Mr Lowe told Mr Stevenson that, at age 12, the appellant had accidentally been given "a double dose" of diphtheria vaccination and that this precipitated a decline in his behaviour. (It is of more than passing interest that, in his evidence, Mr Lowe made a similar claim, but fixed the diphtheria injection as having occurred when the appellant was "12 months " old, before which, Mr Lowe said, the appellant had been "an ideal child".) 188Mr Lowe also told Mr Stevenson that, at the age of 12, the appellant was diagnosed as suffering from Attention Deficit Disorder, and medicated for the following three years. The appellant claimed to Mr Stevenson that this was a misdiagnosis, but acknowledged that he had experienced severe mood swings as a child, and an unrecognised (and unmedicated) mental illness. 189As a child, the appellant exhibited what must have been quite severe behavioural difficulties, resulting in his admission, at an unspecified age, to Rivendell, a psychiatric institution for adolescents, after which he went to another residential facility, conducted by the Order of St John of God. There is evidence that he attended another residential facility, but this is not very clear on the evidence. The appellant has since claimed that he experienced a level of abuse (which he has specifically asked not be documented) while in one of these facilities. In his evidence, Mr Lowe confirmed that he had had some suspicion that something was untoward during the time of the appellant's residence in that facility. 190The appellant left school and home at the age of 15, but has, nevertheless, obtained a commercial pilot's licence. He told Mr Stevenson that he has held a variety of other forms of employment, as an actor, filmmaker and model. He has lived in the United States and in Brazil, in the latter of which he has said to have a daughter. He told Mr Stevenson that, while living in the USA in the late 1980s, he was diagnosed as suffering from bipolar disorder and a borderline personality disorder, and that he has a history of depression and anxiety. The appellant also told Mr Stevenson that he had been treated by Justice Health for bipolar disorder, but Mr Stevenson noted that this does not accord with Justice Health records, which state that there is no evidence of mania or major depression, but that the appellant's presentation is consistent with narcissistic personality style. (That is not consistent with Dr Davies' report, with which I will deal below.) 191Mr Stevenson reported that the appellant had told a drug and alcohol corrective services worker that he had used cannabis from age 14 to 39, ecstasy from 25 to 27, and cocaine from 23 to 39. 192The appellant has, throughout, denied the sexual assault offence. He maintained that denial during the course of all of the interviews. He admitted to Mr Stevenson, however, that he has an anger management problem. 193The appellant's conduct in custody up to the time of sentencing had resulted in four charges of institutional misconduct; two of intimidation, one of assault and one of obstruct correct officer. The details of these were not explored. 194While in custody, the appellant has regularly referred himself to psychiatric and psychological facilities, alcohol and other drugs and welfare workers. He had been described by care workers as "belligerent, agitated, self entitled, abusive", and demanding, and failing to accept responsibility for his actions. 195He was assessed as at moderate to high risk for recidivism. However, as Mr Stevenson suggested, since the appellant had declined to participate in the assessment, it may be of limited value. Mr Stevenson reported that the appellant did not appear to take responsibility for his actions, described the complainant as "vindictive", said that he had been "set up" for the sexual assault conviction, showed no remorse or empathy for the complainant and had stated that he would refuse to participate in any sex offenders' treatment programme. Mr Stevenson therefore concluded that the appellant was not prepared to address his offending behaviour. 196Dr Davies has been the appellant's treating psychiatrist since February 2008 (that is, since he has been in custody), and has seen him quite regularly since then. He considered that the appellant's history of symptoms was suggestive of Attention Deficit Disorder, and observed (in his report) that the appellant "appeared slightly grandiose and paranoid", and not overtly depressed. He made a firm diagnosis of bipolar disorder. This is in contrast to what Mr Stevenson drew from the records to which he had access. Dr Davies expressed the opinion that: "... it is almost certain that his illness was a significant factor in [the] genesis" of the offences committed by the appellant. The appellant maintained to Dr Davies that he was not guilty of the sexual assault offence. 197Dr Westmore recounted a similar history. He diagnosed: * mood disorder; * substance and alcohol abuse (both in remission); * possible conduct disorder arising in adolescence; * significant personality dysfunction; * probable personality disorder, with possible anti-social qualities, borderline characteristics, fragile personality structure. It is to be noted that he did not explicitly diagnose bipolar disorder. 198Dr Westmore considered that the appellant's loss of his mother at an early age, with no substitute maternal figure, would have impacted on his personality development. 199After receiving further information Dr Westmore again reported, on 13 March 2009. He adhered to his earlier opinion concerning mood disorder, and said that the clinical notes with which he had been provided strongly suggested the presence of significant "personality difficulties/disorder". 200Dr Anthony Diment is a consultant psychologist who interviewed the appellant on 26 February 2009 over a three hour period, and administered various tests. He noted that, even during the interview, the appellant's mood swung from "high intensity" to a slower phase. He had above average levels of anxiety and depression. 201The appellant has a criminal history which began in 1981 in the Children's Court with an offence of stealing. Thereafter, the history records a number of offences of dishonesty, assault, property offences, and some Listening Device Act offences. There is one count, in 2002, of supply prohibited drug, in respect of which the appellant was sentenced to imprisonment for 6 months and one, in 2004, of stalking or intimidating with intent to cause fear or physical or mental harm. In respect of this offence the appellant was sentenced to a term of imprisonment for 12 months which was suspended. 202His most recent offences, as shown on the conviction history, were in 2004, of assault occasioning actual bodily harm, and destroy or damage property. In respect of each of these a 2 year good behaviour bond was imposed. This is of some importance. The Remarks on Sentence 203The Remarks on Sentence are lengthy and comprehensive. Norrish DCJ recounted at length the relevant factual circumstances of all offences, and stated the facts that he found proved and that were relevant in relation to the sexual assault charge. He was quite satisfied that the marks on the appellant's legs that he showed police on his arrest on 8 January had nothing to do with the complainant. He considered that the subsequent property offences, of malicious damage and theft, were "very vindictive indeed", and perpetrated "as an act of revenge and intimidation", to "cause [the complainant] ... maximum hurt in the emotional sense". He noted that the appellant had not sought "in any way whatsoever" to express any remorse, even in relation to the property offences, which he admitted. 204His Honour spent a good deal of time recounting the appellant's history, including his criminal history, his drug use and abuse, and his problems with anger management. He noted the psychiatric and psychological evidence. He accepted, to a limited degree, a submission that the appellant is susceptible to some danger in custody, and, although unsupported by evidence, that the appellant was serving his sentence in "strict protection" (although he expressed some doubt about what that meant). 205His Honour turned his attention to s 21A of the Sentencing Procedure Act (which specifies aggravating and mitigating features that a sentencing judge is required to take into account), and noted that a number of the aggravating features there specified had been proved. These were that substantial emotional harm had been caused to the complainant (s 21A(2)(g)); that the use of a weapon had been threatened (s 21A(2)(c)) (the weapon being the scissors, although the finding was limited to the complainant's fear of the use of the weapon); that there was some (although limited) planning of the offence, which, he said, also had "an element of opportunism"; and that the offence was committed in the home of the victim (s 21A(2)(eb)). In addition, his Honour took into account that the offence was committed while the appellant was at conditional liberty (s 21A(2)(j), (see below)). Finally, he rejected a Crown submission, made under s 21A(2)(d), that the appellant's record of previous convictions was an aggravating feature. So far as the record was concerned, he held merely that it disentitled the appellant to leniency. 206His Honour correctly held that there were few (if any) mitigating features, the only one of which he found established being the absence of any level of planning. 207Since the offence is one to which Pt 4 Div 1A of the Sentencing Procedure Act (imposing standard non-parole periods for certain offences) applies, it was necessary for Norrish DCJ to determine where, on a scale of objective seriousness of offences of its kind, the sexual assault offence fell. He noted submissions made on behalf of the appellant that, by reason of the prior relationship between the appellant and the complainant, the offence fell below the mid-range. He noted that this was "not a typical or common case", and questioned the effect of the prior relationship between the appellant and the complainant. He concluded: "... that the conduct here does reach to the cusp of the mid-range of the seriousness but I am not prepared to conclude that it does fall within the mid-range. But [it] is very close." (ROS 40) 208He gave consideration to the question of the appellant's mental illness, making express reference to the decisions of this Court in R v Engert (1995) 84 A Crim R 67 and R v Hemsley [2004] NSWCCA 228 at [33]-[36], and the impact that mental illness may have on a sentencing decision. 209Of some significance, he said: "I have got no evidence of any relevant illness that contributed to the commission of the sexual assault matters (sic)" (ROS p 30) (This was incorrect: see para [196] above.) 210His Honour, following the reasoning in Engert , found that the appellant's mental condition fell "far short" of what is necessary in order to reduce the weight to be given in sentencing to considerations of general deterrence. 211Pursuant to s 44(2) of the Sentencing Procedure Act, Norrish DCJ found that special circumstances existed justifying departure from the statutory proportions between the head sentence and the non-parole period. These were, particularly, the appellant's need to receive professional assistance to adjust to community living, as evidenced by "his recalcitrant attitude". 212Norrish DCJ had available to him sentencing statistics provided by the Judicial Commission of NSW. The limitations in the use of such statistics are well known and do not need to be restated: see Hili v The Queen [2010] HCA 45 at [54]. All the statistics provided related to cases decided after the introduction of standard non-parole periods in Pt 4 Div 1A of the Sentencing Procedure Act. 213The Remarks on Sentence extend over 44 pages. At their commencement, the transcript records the appellant interrupting Norrish DCJ. It is apparent, from the closing pages, in which his Honour referred to "the continual interruptions from the prisoner during the course of these remarks", that that continued. His Honour considered the impact of those interruptions. However, he had already announced the sentences he intended to impose, and he did not depart therefrom in the sentences he did finally impose. The appellant's application for leave to appeal against sentence 214The appellant specified the grounds of appeal against sentence in the following way: "Sentences - manifestly excessive. Should run concurrent. Sentences - medical mitigation, and strict protection not taken into consideration in sentencing. hardship as child not taken into consideration by Judge Norrish. IE [here the appellant complained of what he said was a response by the sentencing judge during the course of submissions concerning the mistreatment of the appellant in one of the juvenile residential facilities to which I have referred above] that comment alone demonstrates a prejudicial attitude towards me by Judge Norrish when sentencing me. He showed his hand, so to speak!" 215In support of his application the appellant filed an affidavit, dated 22 July (no year is given, but presumably 2010) which extends over 15 handwritten pages, and contains a number of annexures. 216The appellant complained of not having received material relevant to his appeal (eg "police brief, subpoenas and transcripts), and said: "The whole issue is ridiculous and starting to read like a B-grade soap opera." 217He complained that his inability to obtain "sentencing guidelines" was inhibiting his preparation and was unfair. The complaints which followed were many and diversified. He complained of the manner and nature of transportation from prison to court; he complained of an assault he alleged had been committed on him by prison officers; he complained that after court appearances prisoners received only a cold meal and no rations for the following day; he complained that the prison system was not focussed upon rehabilitation, that staff are "overwhelmingly apathetic"; he complained that conditions and treatment of prisoners are "largely inhumane". He gave a critique of the NSW prison system, and the flaws in its rehabilitation programmes, and made suggestions for an improved penal philosophy. 218He asserted that he was serving his sentence as a protected prisoner and that, for the past 2 years, he had been locked in his cell for 22 or 23 hours a day. He complained that he had been forced to share a cell with cigarette smokers, and complained of what he said was the filthy condition of the cells and the beds provided. He complained about his legal representation during the trial and sentencing proceedings. 219He then asserted that he suffered from a number of medical conditions, including a chronic back and neck condition causing severe pain, and that he had not been provided with an orthopaedic mattress which had been recommended for him. He said that he suffers from depression, a thyroid deficiency requiring hormone medication for which he had not been issued with the appropriate medication. He asserted that he had been the subject of a front-page article in a Sunday newspaper and that this had resulted in his repeated assault, and threats and intimidation. It was for this reason that he had been housed in protection. He complained that he had sought to enrol in a yoga correspondence course, but that the representative of the Academy at which the course was conducted had been told that he was not eligible because he was a rapist. His complaint about this was two-fold: that he had been thwarted in his attempt to undertake the course, and that information about his personal circumstances had been unethically disclosed. He went so far as to claim that the disclosure had damaged his future "economic" prospects, and possibly prevented his access to "pain relieving practices", as well as breaching his right to privacy. He complained that he did not have access to a particular medication for haemorrhoids, and declared "garbage" the explanation (that it was a medication used by inmates to make home brew alcohol) given for its non-availability. 220He claimed that, by reason of his medical conditions, particularly his back and neck pain, and depression, incarceration weighed more heavily upon him than on other prisoners. 221In response to all this, the Crown filed an affidavit sworn by Mr Terry Murrell, the Superintendent of Offender Management and Operation of the Department of Corrective Services, and an affidavit affirmed by Dr Stephen Hampton, Clinical Director of Primary and Women's Health at Justice Health. Mr Murrell also gave oral evidence. 222Mr Murrell reviewed the appellant's incarceration history. He said that, on 24 June 2010, the appellant had allegedly assaulted a staff member, and this resulted in his re-classification, and placement on a segregation order (which was revoked on 30 July 2010, when the appellant was transferred to the Goulburn Correctional Centre). He confirmed that the appellant was, at the time he swore his affidavit, subject to a Protection Requested Limited Association ("PRLA") order and had, in the past, at his own request, been subject to Special Management Area Placements ("SMAP") orders. 223He said that, because these arrangements had been made at the appellant's request, his access to other inmates and facilities was a matter for local management determination, but that the appellant usually had about 3 hours of exercise out of his cell per day, and was housed in a cell by himself, both because he had so requested, and because of threats he had made to harm his former cellmate and officers of Corrective Services. He explained that the appellant had not been granted access to the yoga instruction course for policy reasons concerning potential work with students, together with the nature of the offence for which the appellant was serving a sentence. He denied that the appellant was refused a shower or a hot meal on days when he attended court. 224Dr Hampton set out the appellant's medical history while in custody, and the medication and other treatment which was afforded to him. He said that he had seen psychiatrists on many occasions. That accords with what is contained in Dr Davies' report. Dr Hampton confirmed that the appellant had been diagnosed as suffering from a thyroid deficiency, and said that he is receiving appropriate treatment for the condition. 225In written submissions the appellant made the following complaints: (i)that the property offences had originally been charged in the Local Court, and he ought to have been sentenced under the more lenient sentencing regime that there applies; he suggested that the offences had been removed to the District Court maliciously, in order to ensure a harsher penalty; (ii)that all sentences should have been made to run concurrently; (iii)alternatively, that the sentences for the property matters should have been specified to run concurrently; (iv)that the sentence imposed in respect of the malicious damage offence was "far too harsh" when considering comparable sentences, and that the sentencing judge was biased against him; (v)that the sentencing judge commented that there was no evidence that he was a "PRLA classification inmate" or, if so, how long he was likely to remain so, and that he was, at the time of the submissions, still so classified; (vi)that his status as a "PRLA inmate" impeded his access to recreational activities and educational facilities; (vii)that the sentencing judge did not take into account his medical conditions, particularly his thyroid condition because evidence of this only became available after his incarceration; (viii)that the sentencing judge gave inadequate consideration to his bipolar disorder, because he remarked, during sentencing submissions, that a condition of bipolar disorder "doesn't make him necessarily mentally ill"; (ix)that the sentence imposed in respect of the sexual assault offence was in the top 20 per cent of sentences for such offences imposed after trial. 226As to the first of these, I accept that, where offences may be dealt with in the Local Court, it is sometimes appropriate to take into account the jurisdictional limits on sentencing in that court. Here, however, the malicious damage offence was an extremely serious example of its kind and it would scarcely have been appropriate, even if it were not linked with the sexual assault offence, to have charged it in the Local Court. I would reject this ground of the application. 227As to concurrency, the sentences imposed in respect of the property offences were specified to be served concurrently. It is not quite true, as the appellant argues, that all offences were "part of the same crime spree". The sexual assault offence was committed in the afternoon of 2 January, the property offences at some time during the morning of 4 January. It may be inferred that, as Norrish DCJ found, the property offences were related to the sexual assault, in the sense that there were committed out of revenge (either for the complainant leaving him, or, more likely, out of his recognition that she had reported the assault to police). Far from reducing his culpability in relation to those offences, that circumstance aggravates them. The property offences were well separated in time from the sexual assault, and were committed when the appellant had had ample time to consider his position, particularly in respect of the sexual assault offence. In my opinion it would have been erroneous not to have specified some degree of accumulation; the accumulation of 15 months was entirely appropriate. 228As to the appellant's protected status, Norrish DCJ acted on the evidence available to him. It was quite true to say that he did not know how long the appellant was likely to remain so classified. It is now well established that the mere fact that a sentence is being served on protection does not automatically result in a mitigation of the penalty. Evidence as to the precise impact of that classification is required. 229The principles relating to the admission of fresh evidence in relation to sentence are substantially those, already discussed, that relate to appeals against conviction. These were recently examined in R v Kertebani; Kertebani v R [2010] NSWCCA 221. Where in an application for leave to appeal against sentence it is sought to adduce fresh evidence, the evidence may be admitted if its purpose is to cast new light upon facts that were in existence at the time of the imposition of sentence, but not known to the sentencing judge, or further to explain facts that were known: R v Smith [1987] 44 SASR 587 at 588. See also R v Ehrenburg (NSWCCA, 14 December 1990, unreported ); R v Ashton [2002] NSWCCA 498; 137 A Crim R 73. 230Fresh evidence is not admissible to establish the occurrence of events, or the existence of circumstances, that post-date sentencing: R v Willard [2001] NSWCCA 6; 120 A Crim R 450 . 231As I would infer that the appellant's thyroid condition was in existence at the time of sentencing, although not diagnosed and therefore not know to him or to Norrish DCJ, it does appear that the appellant's thyroid condition qualifies as fresh evidence, not available to the sentencing judge, and which it would be appropriate for this Court to take into account. It does not, however, amount to evidence that could or should affect the assessment of the excessiveness of the sentence imposed. The thyroid condition is being treated, as Dr Hampton has made clear. I would reject this basis of the application. 232The comment (concerning bipolar disorder) to which the appellant refers was made during the course of argument and does not form part of the reasons for the selection of the sentences. I would accept that bipolar disorder is a mental illness. Moreover, although it was not part of the appellant's argument, I consider that his Honour did make a factual error in overlooking the opinion, expressed with some force by Dr Davies, that the appellant's mental illness had a causal relationship with his offending. 233Although it has not been raised by the appellant, having regard to his unrepresented status, it is appropriate here to deal with the finding that the offence was committed while the appellant was at conditional liberty. I have been unable to find any evidence of that, and the account, given above, of the appellant's history would suggest that it is erroneous. It does not appear from the criminal record that he was at liberty conditionally. Certainly no support was provided for the finding: but that may be because it was not challenged by the appellant. In any event, I will bear this in mind when I come to considering the asserted excessiveness or inadequacy of the sentence. 234The appellant placed particular reliance upon one set of statistics. These showed that, of 14 convictions, after trial, of offences against s 61J of the Crimes Act that incurred non-parole periods or fixed terms, the lengthiest non-parole period imposed was 9 years; in only 21 per cent of cases were non-parole periods of 6 years or more imposed. 235Norrish DCJ made particular reference to this statistic, noting that the mean non-parole period appeared to be of about 4 years, but expressed appropriate reservations, given the absence of any detail as to the facts of the matters and the conclusions reached by the sentencing or appellate courts. 236I would reject the appellant's contentions concerning the statistical material. As his Honour observed, the statistics themselves tell little about the reasons for the sentence ultimately imposed. 237I would, however, make this tentative observation. All of the cases that contribute to the statistics were of offences of the same kind as that committed by the appellant; and each offender was convicted after trial. Not one was sentenced to the standard non-parole period of 10 years; the vast majority (71 per cent) were sentenced to non-parole periods of significantly less than half the standard non-parole period. It would be very surprising indeed if that proportion of the total number of offences were of significantly less than the mid-range of objective seriousness, or had other circumstances warranting such a substantial departure from the (statutorily decreed) standard non-parole period. The figures would suggest, on the contrary, that Pt 4 Div 1A is not being applied with the rigour that is due to a regime imposed by Parliament. 238Notwithstanding that I consider that two errors are apparent, both sentences were well within the range available to the sentencing judge. The sentence imposed in respect of the sexual assault offence was not manifestly excessive. When measured against the standard non-parole period, it was very lenient indeed. Only a very generous application of the principles relating to mental illness could possibly have justified departure of such magnitude from the standard non-parole period. Neither was the sentence imposed in respect of the malicious damage offence exercise. I would grant leave to appeal against sentence but dismiss the appeal. The Crown appeal 239The following grounds of appeal were pleaded by the Crown: "Ground 1: His Honour failed to impose a non-parole period that complied with his findings as to the objective seriousness for the purpose of addressing the standard non-parole period. Ground 2: His Honour erred in his approach to the medical evidence. Ground 3: His Honour was inappropriately guided by sentencing statistics. Ground 4: His Honour made too great an adjustment to the ratio in relation to his finding of special circumstances; Ground 5: His Honour erred in imposing a sentence that is manifestly inadequate." 240As I understand it, the Crown bases its appeal substantially upon the degree to which the non-parole period imposed (6 years and 6 months) departs from the standard non-parole period (10 years). This is a case in which, because the appellant was convicted after trial, Pt 4 Div 1A directly applies: see R v Way [2004] NSWCCA 131; 60 NSWLR 168. The standard non-parole period is to be imposed unless the sentencing judge finds that there is a basis for departure. One available basis is that the offence committed is of less than the mid-range of objective gravity. The sentencing judge did find that the appellant's offence was of less than mid-range gravity, but only marginally so - it was on "the cusp of the mid-range"; he was not prepared to conclude that it fell within the mid-range - but added that it "is very close". 241Such a finding would justify at most only a minimal reduction in the non-parole period. That is, of course, unless there are other circumstances that justify a greater departure. His Honour did not expressly identify any other such circumstances. 242It was, it seems, in order to support this ground that the Crown hypothesised (expressed as Ground 3) that his Honour gave too much weight to, or was "inappropriately guided by" sentencing statistics. 243A glance at the Remarks on Sentence establishes that his hypothesis cannot be sustained. His Honour, as I have said above, expressed appropriate reservations about the sentencing statistics, noting, in particular, that he had no information about the facts and circumstances of the cases constituting the statistical material. 244In fact, as I have said above, in the context of the appellant's application, the statistics in this case tell little - other than that sentencing patterns do not appear to be in accord with statutory requirements. I would therefore reject Ground 3. If there was error, it was not caused by undue reliance on sentencing statistics. 245I do accept (notwithstanding my rejection of Ground 3) that no proper basis was identified for the significant departure from the standard non-parole period. 246However, there were the two errors in the Remarks on Sentence to which I have already referred - conditional liberty, and the causal relationship between mental illness and the commission of the offences. Each of these was capable of operating to the disadvantage of the appellant in the sentencing exercise, but favours him in the appeal. Were it not for the second of these, I would conclude that the Crown appeal ought to be allowed, and the sentence increased and increased to something very close to the standard non-parole period of 10 years. 247In this context, it is also necessary to consider the impact of the finding of special circumstances under s 44(2) of the Sentencing Procedure Act, which does, of itself, justify a reduction from the standard non-parole period. (The Crown does not challenge the finding of special circumstances, merely the extent of the variation between statutory proportions that resulted). 248If the standard non-parole period of 10 years were imposed then, in accordance with s 44(2) and absent a finding of special circumstances, a head sentence of 13 years and about 3 months might be expected. 249Three circumstances are relevant to determining whether or not the sentence was manifestly inadequate. The first is the finding of special circumstances, warranting modest downward departure from the standard non-parole period (but not relevant to the head sentence). The second and third, both relevant specifically to the head sentence, but having, by reason of s 44(2), a flow-on effect to the non-parole period, are the erroneous finding that the offence was committed while the appellant was at conditional liberty, and the overlooking of Dr Davies' evidence that there was a causal connection between the appellant's mental illness and the commission of the offence. Although, in my opinion, a reduction in the standard non-parole period of 3 years and 6 months - a reduction of 35 per cent - is very generous indeed, it is not so generous as to warrant the intervention of this Court. 250Put another way, had those errors not been made, the sentencing judge may well have arrived at a sentence within the vicinity of that imposed. 251For these reasons, I would dismiss the Crown appeal. 252The orders I propose are: (1)Appeal against conviction dismissed. (2)Leave to appeal against sentence granted, appeal dismissed. (3)Crown appeal dismissed. 253HOEBEN J: I agree with Simpson J. 254PRICE J : I agree with Simpson J. ********** 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. Decision last updated: 18 May 2011