Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HOMSI, Houssam v R; KARAMALAKIS, Voula v R [2011] NSWCCA 164 Hearing dates: 10 June 2011 Decision date: 22 July 2011 Before: Hodgson JA at 1; Hoeben J at 129; Grove AJ at 130 Decision: (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted, and appeal against sentence dismissed. Catchwords: CRIMINAL LAW - Appeals against conviction - Applications for leave to appeal against sentence - Whether misdirection by trial judge concerning counsel's failure to cross-examine - Whether misdirection by trial judge on issue of detention in relation to detain for advantage charge - Whether misdirection by reason of failure to give warning concerning hearsay evidence - Whether verdicts unreasonable - Whether there was a miscarriage of justice - Application of proviso. Legislation Cited: Crimes Act 1900 ss 61, 86, 195, [409 since repealed] Criminal Appeal Act 1912 ss 5, 6 Criminal Appeal Rules r 4 Evidence Act 1995 s 165 Cases Cited: Browne v Dunn (1893) 6 R 67 R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 Derbas v R [2007] NSWCCA 118 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 GAR v R (No 2) [2010] NSWCCA 164 R v Harbulot [2003] NSWCCA 141 Henriques v R (1991) 93 Cr App Rep 237 R v Manunta (1990) 54 SASR 17 Mendham & Foster v R (1993) 71 A Crim R 382 M v R [1994] HCA 63; (1994) 181 CLR 487 R v Nemeth [2002] NSWCCA 281 RWB v R [2010] NSWCCA 147 Rasic v R [2009] NSWCCA 202 State Rail Authority of New South Wales v Earthline Constructions Pty Limited [1999] HCA 3; (1999) 160 ALR 588 R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 R v TJF [2001] NSWCCA 127; (2001) 120 A Crim R 209 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Category: Principal judgment Parties: Houssam HOMSI (applicant) Voula KARAMALAKIS (applicant) CROWN (respondent in both matters) Representation: P Hamill SC/ M Swift/ G Brady (applicants) S Dowling (Crown) Conaghan Hunter Lawyers (applicants) S Kavanagh (solicitor for Public Prosecutions) File Number(s): 2009/00011609; 2009/00011614 Decision under appeal Date of Decision: 2010-06-18 00:00:00 Before: Freeman DCJ File Number(s): 2009/00011609; 2009/00011614 Judgment 1On 15 February 2010, the appellants Houssam Homsi and Voula Karamalakis were arraigned before Freeman DCJ on the following 15 counts: (1) That Houssam Homsi on or about 21 October 2008 at Condell Park in the State of New South Wales did assault [the complainant] (2) That Houssam Homsi on or about 21 October 2008 at Condell Park in the State of New South Wales did assault [the complainant] (3) That Houssam Homsi and Voula Karamalakis between 20 October 2008 and 25 October 2008 at Condell Park in the State of New South Wales did while in the company of each other detain [the complainant] without her consent and with intent to obtain an advantage, namely psychological satisfaction, and at the time of the detaining occasioned actual bodily harm on [the complainant] (4) In the alternative to count 3 that Houssam Homsi on 21 October 2008 at Condell Park in the State of New South Wales did assault [the complainant], thereby occasioning to her actual bodily harm (5) In the alternative to count 3 that Houssam Homsi on 21 October 2008 at Condell Park in the State of New South Wales did assault [the complainant], thereby occasioning to her actual bodily harm (6) In the alternative to count 3 that Houssam Homsi on or about 22 October 2008 at Condell Park in the State of New South Wales did assault [the complainant] (7) In the alternative to count 3 that Houssam Homsi on 23 October 2008 at Condell Park in the State of New South Wales did assault [the complainant], thereby occasioning to her actual bodily harm (8) In the alternative to count 3 that Houssam Homsi on or about 24 October 2008 at Condell Park in the State of New South Wales did assault [the complainant], thereby occasioning to her actual bodily harm (9) In the alternative to count 3 that Houssam Homsi between 19 October 2008 and 25 October 2008 at Condell Park in the State of New South Wales did intimidate [the complainant] with the intention of causing [the complainant] to fear physical harm (10) That Houssam Homsi on or about 24 October 2008 at Condell Park in the State of New South Wales did assault [the complainant], and that at the time of such assault did commit an act of indecency on [the complainant] by urinating on her (11) In the alternative to count 3 that Voula Karamalakis on 22 October 2008 at Condell Park in the State of New South Wales did assault [the complainant] (12) In the alternative to count 3 that Voula Karamalakis on 23 October 2008 at Condell Park in the State of New South Wales did assault [the complainant], thereby occasioning to her actual bodily harm (13) In the alternative to count 3 that Voula Karamalakis on 24 October 2008 at Condell Park in the State of New South Wales did assault [the complainant] (14) In the alternative to count 3 that Voula Karamalakis between 19 October 2008 and 25 October 2008 at Condell Park in the State of New South Wales did intimidate [the complainant] with the intention of causing [the complainant] to fear physical harm (15) That Voula Karamalakis between [sic] 23 October 2008 at Condell Park in the State of New South Wales did intentionally damage a quantity of ladies' clothing, the property of [the complainant] 2Pleas of not guilty were entered to all counts, and the appellants were tried before Freeman DCJ and a jury. 3On 9 March 2010, the jury returned the following verdict: Guilty to count 1 against Mr Homsi Guilty to count 2 against Mr Homsi Guilty to count 3 against both appellants Not guilty to count 10 against Mr Homsi Guilty to count 15 against Ms Karamalakis 4Since counts 4 to 9 and 11 to 14 were charged in the alternative to count 3, no verdict was taken on them. 5On 18 June 2010, the trial judge sentenced the appellants as follows. Mr Homsi Count 1 (assault): a fixed term of one year to date from 8 March 2010 and to expire on 7 March 2011. Count 2 (assault): a concurrent fixed term of one year to date from 8 March 2010 and to expire on 7 March 2011. Count 3 (take and detain): a non-parole period of five years six months to date from 8 March 2010 and to expire on 7 September 2015, and a balance of term of three years to expire on 7 September 2018. Ms Karamalakis Count 3 (take and detain): a non-parole period of three years six months to date from 8 March 2010 and to expire on 7 September 2013, and a balance of term of three years to expire on 7 September 2016. Count 15 (malicious damage): a concurrent fixed term of one year four months to date from 8 March 2010 and to expire on 7 July 2011. 6The appellants appeal from their convictions and seek leave to appeal against their sentences. Crown case 7It was common ground that the complainant was at the time of the events married to Mr Homsi, and that she was living along with both appellants and the four children of the marriage in rented premises at Condell Park. The four children of the marriage included three girls who were going to school, and a younger boy, who was aged three and was not going to school. 8The complainant gave evidence to the following effect: (1) In 2008, having separated from Mr Homsi in 2004, the complainant took a lease on the Condell Park house, and moved in with the four children. Against her wishes, Mr Homsi moved in with Ms Karamalakis, and they first took over the main bedroom, causing the complainant to sleep in the lounge room or sometimes in her son's room. (However, her later evidence, including a diagram drawn by her (Ex H9), was that at the time of the alleged offences the complainant was sleeping in what appears to have been the main bedroom, identified as bedroom 1, and that the appellants were sleeping in another bedroom, identified as bedroom 4.) (2) Up until the week of 20 October 2008, the complainant would normally take the three girls to school, driving a Tarago car registered in her name. The complainant had a mobile phone, but Mr Homsi used to take it with him; and the last time she had it was Sunday 19 October 2008. (3) On Monday 20 October 2008, the complainant spoke to Mr Homsi's mother on the phone and told her that Mr Homsi and Ms Karamalakis had been hitting her and screaming at her. At about 11 pm that night, Mr Homsi called the complainant to his room, and Mr Homsi and Ms Karamalakis questioned her about that phone call. Mr Homsi then asked for the children's birth certificates, passports and blue books. The complainant gave him the birth certificates and passports, but could only find two of the blue books. Mr Homsi told her to look for the others. The complainant went to her room to do so, and as she was doing so Mr Homsi grabbed her by the hair, hit her with his fist to the right side of her head (count 1), and swore at her. Mr Homsi took her jewellery and told her to choose what she wanted because he was giving the rest to Ms Karamalakis. The complainant said no, and Mr Homsi punched her. Mr Homsi then woke up their son and took him into his room, and then called the complainant in and asked for her handbag. The complainant got it from the kitchen and gave it to him; and he took the complainant's bankcard, concession card, driver's licence and Medicare card. Mr Homsi then demanded her wallet, and she said she did not have one. Ms Karamalakis accused her of lying. Mr Homsi asked her for the car keys, and the complainant got them from the kitchen and gave them to him; and Mr Homsi said she was no longer allowed to take the car out and it belonged to him. Mr Homsi gave her their son and told her to go and clean the house and that she was not allowed to sleep that night. He also struck her again (count 2). (4) The following morning, Tuesday 21 October 2008, the complainant dressed the three girls for school, and knocked on the appellants' bedroom door to wake Mr Homsi to take the girls to school. Ms Karamalakis told her that Mr Homsi was asleep, and threw the car keys to the complainant and told her to take them herself. The complainant took the girls to school, driving without her licence because Mr Homsi had taken it. Her son was also with her. (5) After dropping the children to school, she called Mr Homsi's mother from a pay phone, and arranged to meet her. She told Mr Homsi's mother that the appellants had been treating her like a slave and that Mr Homsi was hitting her. Mr Homsi's mother told her to go back home and that things would change. (It was put to the complainant in cross-examination, and denied, that she had taken her son to the doctor that day.) The complainant returned home with her son. The appellants were waiting in the driveway. Mr Homsi opened the car door and grabbed the complainant by her hijab and pulled her hair as she was taking her son out of the baby seat. He pulled her inside the house into the lounge-room and kicked her on the legs, punched her to the head and pulled her hair. The complainant pleaded to Ms Karamalakis for help, but Ms Karamalakis told her she deserved it. Mr Homsi got a stool with metal legs from the kitchen and struck her forearms as she put them up to defend herself. The complainant went to the kitchen and Mr Homsi followed her there, and punched her in the face causing her nose to bleed. He obtained a black stick with two red bands on it from his and Ms Karamalakis' bedroom, and returned to the lounge-room and struck the complainant on the legs with it (count 4). (6) At about 2 pm the appellants left to pick up the girls from school, taking her son with them. Mr Homsi told the complainant that she was not to open door for or speak to anyone, and that she was not even to go outside to take the rubbish because he did not want anyone to see her bruises. He told her that if she left the house he and Ms Karamalakis would take her to the cemetery and bury her there. The complainant felt drowsy and exhausted, her hair had been pulled out and she could not stand on her feet. There was no landline in the house and Mr Homsi had taken her mobile phone. While the appellants were out, the complainant picked up the clumps of hair that had been pulled from her head and put them in a bin so they would not be on the floor when the appellants returned. At about 3pm, Mr Homsi's mother came to the house. The complainant told her what had happened and showed her a bruise, and asked for her help. Mr Homsi's mother left prior to the appellants coming home. (7) At about 5 pm the appellants returned with the four children. They were all in the kitchen. Mr Homsi grabbed a 2.5 litre bottle of juice and hit the complainant over the head with it four or five times. The complainant fell to the floor, she could not see properly and noticed blood from her nose (count 5). Her daughter asked her if she was all right and if she wanted her to get some water, and her daughter was shaking; and Ms Karamalakis said to her "No, your mum is acting". (8) At about 7.30 pm that night, Mr Homsi's brother Rabi came to the house. He asked how she was and she showed him her hands. She was crying when she said this and Rabi went out to the garage. (In cross-examination, the complainant disagreed that Rabi had in fact come on Wednesday 22 October 2008.) At the time, the complainant was in pain. She had not dared leave the house earlier in the day when she was alone because Mr Homsi had warned that if she did he would do something bad to her. Also, the complainant did not want to run away without all her children. (9) On Wednesday 22 October 2008, the complainant got the girls ready and the appellants took them to school. Her son remained with the complainant. Ms Karamalakis told the complainant to keep looking for the blue books, and also to clean up the kitchen and that if it was not clean then she was going to punch her. The complainant felt like a slave to her. The complainant did not leave the house while they were out because she did not have all her children with her. (10) When the appellants returned, Ms Karamalakis went to get something out of her bedroom. On the way out, she pushed the complainant by the shoulders against the wall of the hallway and said "did you find the blue book you bitch?" The complainant replied that she had not and Ms Karamalakis said "Keep looking for it, either way I'm going to break your head" (count 11). (11) At about 2.30 pm the appellants left to pick up the girls from school, and they returned about 3.30 pm. Again, the complainant did not leave, because she did not want to leave without all her children. (12) At about 10 pm that night the complainant went to bed. At about midnight she was woken up by Mr Homsi with a punch to the head (count 6). She saw both appellants standing over her. Mr Homsi said to her, "You done it on purpose, you freaking bitch, the hot water is off". The appellants then left and the complainant went back to sleep. (13) On Thursday 23 October 2008, the complainant dressed the three girls for school. The appellants left with them at about 8.30 am leaving the boy with the complainant. The complainant did not leave because she was bruised and swollen and could not walk properly. She was afraid that if Mr Homsi discovered that she had run away that she would be in more trouble from him because he had threatened to kill her if she called the police or spoke to someone. In addition she did not want to leave without the three girls. At about 2.30 pm the appellants left to pick the girls up from school, and at about 3.30 pm Mr Homsi and the girls returned without Ms Karamalakis. At about 3 pm Mr Homsi's mother came to the house, and she was still there when Mr Homsi returned. (14) When Mr Homsi returned, there was a question and answer about what the complainant had made the children for lunch, after which Mr Homsi slapped the complainant across the face and grabbed her by the hair and started kicking her in front of his mother and the children. His mother told him to stop. Mr Homsi said that the complainant was his wife and he could do whatever he wanted to her. (15) Between 5 pm and 6 pm, Mr Homsi left to pick up Ms Karamalakis. Mr Homsi told the complainant not to open the door for anyone and not to go outside for anything. The complainant felt like she needed to do something about her situation but she was afraid. She felt tired and helpless, and was in pain and unable to walk properly. (16) After Mr Homsi finished eating dinner, he went to his bedroom and called out to Ms Karamalakis who also went into the bedroom. Then they both called out to the complainant. The complainant was standing in the doorway of her bedroom when Mr Homsi asked her where the speeding fine was. The complainant was afraid to tell him. Mr Homsi grabbed her by the hair and pushed her into her bedroom and began punching her to the head with his first. She fell to the ground and Mr Homsi kicked her all over her body. She begged him to stop. She saw that he had clumps of hair in his hand (count 7). In the meantime, Ms Karamalakis was going through clothes in the complainant's closet, and after obtaining a pair of scissors commenced cutting up the complainant's clothing (count 15). Mr Homsi kicked her. He lit a cigarette, and with the lighter in his hand began hitting her on the back of the head. The complainant was on the floor at that time, and Ms Karamalakis was still in the room (count 12). (17) At about midnight, the complainant went to her son's bedroom and sat on his bed. At about half an hour after midnight, on Friday 24 October 2008, the complainant heard Ms Karamalakis call out to Mr Homsi that she had found a Centrelink statement, and the appellants came to her son's room. Mr Homsi told the complainant that Ms Karamalakis believed that, according to the Centrelink statement, the complainant had hidden $4,000. The complainant denied this. (18) At about 2 am, the appellants called the complainant to the lounge-room and questioned her about money. She denied she was hiding money from them. Mr Homsi started kicking the complainant in the legs, with Ms Karamalakis sitting on the lounge watching (count 8). Mr Homsi then asked for the registration papers for her car, the Tarago. The complainant got them from the right bedside table and gave them to him. Mr Homsi told her to sign the papers, otherwise he would kill her. She initially refused, but Mr Homsi then grabbed her and told her to do it as the vehicle now belonged to Ms Karamalakis. The complainant then signed the transfer paper. The complainant saw Mr Homsi fill in the rest of the document and give the keys to Ms Karamalakis. (19) At one point when the complainant was standing in the doorway between the lounge-room and the hallway, Mr Homsi got up and told her that she was a "filthy bitch" and that she deserved it, and then urinated on her in front of Ms Karamalakis (count 10). Mr Homsi then told the complainant to clean it up, and the complainant mopped the floor. Mr Homsi then continued to kick her. The complainant sat on the lounge, and Ms Karamalakis said to Mr Homsi that she wanted to get some pliers and cut off the complainant's fingers, and that she wanted to get some duct tape and do things to her. Mr Homsi told Ms Karamalakis to go and get the duct tape. This took place between 4.30 and 5 am. The appellants then questioned the complainant about money and said they wanted $40,000 back, which they calculated to be the amount she owed to them. (20) Some time later Mr Homsi fell asleep on the lounge. A little later the complainant was making school lunches for the girls, and Ms Karamalakis said she was not allowed to speak to or go near her children. The complainant went to the girls' bedroom and Ms Karamalakis pushed her from the back of the shoulders out of the kids' bedroom. The complainant went to the kitchen and Ms Karamalakis followed her. Ms Karamalakis grabbed the complainant by the hair and was trying to drop her cigarette ash on her, and then touched the complainant's hand with the cigarette (count 13). Ms Karamalakis told the complainant that if she didn't tell her where the money was she was going to wake Mr Homsi up and tell him to cut her fingers off. (21) A little later, the complainant realised that Ms Karamalakis had fallen asleep on the lounge. She went to her children's room and told them they were leaving. She did not take anything with her except the children's school bags to make it appear that she had taken them to school. When they were outside, the complainant saw her next door neighbour parking her car and asked her to get her out of there. The neighbour dropped them off near Bankstown police station. The complainant described her state as being exhausted. She was crying and could not walk properly. She had blood coming from behind her ear and she smelled of urine. She did not have any formal identification or other documentation with her. She did not have her mobile phone, her handbag, the keys to her Tarago, the keys to the house, nor any clothing for herself or the children. (22) At the police station, photographs were taken of her injuries. She spoke to police and a woman from Bankstown Community Service Centre. She was then taken to Bankstown hospital by ambulance where she stayed until Monday 27 October 2008. Photographs of her injuries were also taken at the hospital. At some stage, police took her back to the house to obtain clothing for herself. The complainant never recovered her identification, driver's licence and other documents which she believed were with the appellants. She was later given assistance to change her accounts and obtain a new Medicare card. (23) In cross-examination, the appellants' case was put to her and denied. Also put to her were a number of inconsistencies between her evidence at the trial, her evidence at a previous trial, a Family Court affidavit and a written statement made to the police. (However, neither the police statement nor the Family Court affidavit nor her previous evidence was put into evidence at the trial.) In relation to the cigarette incident, the complainant accepted that in the police statement she had referred to the cigarette being thrown, and that the cigarette incident had not been included in her evidence in the previous trial. The complainant accepted that in her previous evidence she had said that Ms Karamalakis had pushed her against a cupboard, not against the wall, and that this incident was not included in the police statement. The complainant accepted that there was no mention in the police statement of being kidnapped, or of being beaten with an object. The appellant accepted that in the police statement she had described the first assault being slapping rather than punching. She accepted that there was no reference in the police statement to being dragged from the car by her hair. She accepted that in the police statement there was no reference to being hit by the bar stool and a stick, and that these matters were put in a different order in her evidence in the previous trial. She accepted that in the police statement she said it was Mr Homsi who made the complaint about hot water, that in her previous evidence she said it was Ms Karamalakis, whereas at the trial she said they both made the complaint. She accepted there was no reference in the police statement to Mr Homsi throwing their son against a wall, this being something included in her Family Court affidavit. She also accepted that there were different versions of the urination incident. It was put to her that she was lying about separation in 2004, in circumstances where the youngest child was born in February 2006. 9Constable Stephen Carey gave evidence that he attended Bankstown police station at 10.20 am on Friday 24 October 2008, following a request from police radio. He saw the complainant and her four children. He asked how she was and he saw her eyes become teary and glazed and she was gasping for breath. She was wearing full-length clothing which fully covered her arms and legs, and she was wearing a hijab that covered her hair. She told him that her husband and his girlfriend had been bashing her since 7 pm the previous night, and that she was only able to leave after they had fallen asleep. When the complainant rolled up her right sleeve, Constable Carey saw swelling and redness extending from her right bicep down to her right forearm, as well as a small red wound on her right forearm where the blood had come to the surface. When the complainant rolled up her trousers, he saw extensive redness and swelling to both lower legs, and a large amount of swelling to her right leg. 10Constable Melina Jeffrey gave evidence that she escorted the complainant to an interview room where a number of photographs were taken; and these photographs were in evidence. Constable Jeffrey could smell urine on the complainant. She observed that the complainant had trouble walking. The complainant told her that she hurt all over and that "they" had pulled her hair out and her head had been bleeding. Constable Jeffrey observed a patch of what appeared to be dried blood on the back of the complainant's hair. Her hair looked very thin and there appeared to be bald patches. When the complainant tried to untangle her hair with her fingers, a clump of hair came out in her fingers. Constable Jeffrey also observed extensive bruising and swelling to various parts of the complainant's body and she photographed these. The complainant told her that "they" had punched and kicked her, and that in relation to a welt on her arm, Constable Jeffrey believed the complainant had told her that "she" had thrown a cigarette at her. 11Detective Senior Constable Helen Weston gave evidence that she observed a number of cuts and abrasions on the complainant's legs, as well as yellow coloured bruising across her lower back, forearms, thighs and shoulders. The complainant appeared timid and frightened and spoke quietly. The complainant told her that she felt pain all over, and DSC Weston observed that the complainant had difficulty walking. The complainant told DSC Weston that she was frightened of her husband and that she was afraid of what would happen to her as a result of speaking with police. Whilst a statement was being taken from her, the complainant needed to take breaks due to pain and discomfort. She was unable to sit for long periods of time and one of her feet was extremely painful. In addition, the complainant needed to comfort her children who were upset. DSC Weston found it difficult to take the statement because of the complainant's physical and mental state. 12Constable Bradley Munro gave evidence that he observed the complainant when she presented at Bankstown police station to be red-faced and in pain. She walked slowly and found it hard to stand. She appeared glassy eyed and close to tears. 13Amanda Gray, a paramedic gave evidence that she attended Bankstown police station at about 12.30 pm on 24 October, and examined the complainant. The complainant told her that she had been assaulted over a 12-hour period. She examined the complainant and noted a laceration in the back of the head, bruising and laceration to both ears, bruising all over her body, in particular her arms and legs, and a large bruise to her left lumbar back area. The complainant complained of pain all over but especially her arms and legs. The complainant's jeans needed to be cut because her legs were so swollen that they could not be lifted up. There was significant bruising on her legs as well. The complainant told her that her husband had urinated on her. Ms Grey did smell a urine-type smell. The complainant told Ms Grey that her husband had assaulted her with his closed fist, shoed foot and a cigarette lighter which had caused the injury to the back of her head. The complainant appeared distressed and upset about her children. She was taken to hospital by ambulance. 14Senior Constable Claudette Gebrael gave evidence that she attended Bankstown hospital with Senior Constable McCardie and Constable Lena Bastoncino. Senior Constable Gebrael observed the complainant lying in a hospital bed wearing a hospital gown and a hijab. The complainant's arms were swollen with purple and blue-yellow bruises. Senior Constable Gebrael observed red bloody cuts and scratches across the complainant's legs, and she had blue, yellow and purple bruises on her upper and lower legs. Her skin appeared swollen in different areas of her legs. When asked what that was from, the complainant replied that they were from Mr Homsi kicking her. The complainant also had bruises on her upper back, right shoulder, and cuts to the back of the left and right ears and face. The complainant moved stiffly and slowly. As she sat up on her bed, SC Gebrael asked the complainant whose hair it was that she observed near the edge of the bed. The complainant told her that it was hers and it was still falling out from where Mr Homsi pulled her hair. The complainant told her that the injury on her head occurred as a result of Mr Homsi having hit her with a lighter. In relation to an injury on her arm, the complainant told her it was caused from trying to defend herself when Mr Homsi threw a chair at her or hit her with it. The complainant consented to photographs being taken, and those photographs were also in evidence. 15Constable Bastoncino also gave evidence. She gave similar injury evidence about observation of the complainant to that of SC Gebrael. She also took a bag of clothing handed to her by a nurse which she understood to be the complainant's clothing, including a yellow dressing-gown, grey pants, and a grey and white striped lady's long-sleeve top. She noticed that the clothing smelled of urine to the extent that it made her gag. 16Plain-clothes Senior Constable Belinda Haggerty gave evidence that she saw the complainant on 29 October 2008 when the complainant gave her second statement. She described the complainant as being between 5 feet and 5 feet 1 inch tall, and as being the size of a teenage girl. She observed the complainant to have bruising from the top of her feet and up her legs. One of her feet was incredibly swollen compared to the other one. When the complainant removed a band from her hair at the police station, hair came out, and a bag with that hair was an exhibit in the case. 17Senior Constable Craig Sands gave evidence concerning the arrest of the appellants. He attended with other police at the Condell Park house at about 2.40 pm on 24 October 2008. There was no answer when police knocked at the door. A short time later a white vehicle parked on the opposite side of the road and two males and two females got out. Mr Homsi walked towards police. Senior Constable Sands asked him his name. Mr Homsi replied "What for?" When asked again, Mr Homsi provided his name. At about 3.30 pm, Mr Homsi was told that he was being placed under arrest for assault, and he was cautioned. He replied "I didn't touch her". Mr Homsi's mother then said he had done nothing wrong. SC Sands asked Ms Karamalakis her name, and she said that she was not going to tell him anything. She then told him her name. She was placed under arrest and cautioned. The appellants were both searched and then placed in the police vehicle. Mr Homsi's mother approached SC Sands and wanted his details. She said: "You will not hear the end of this, my son has done nothing wrong". The appellants were taken to Bankstown police station at about 6 pm. They each declined to be interviewed. 18Constable Stephen Carey also gave evidence concerning the arrest of the appellants. His evidence did not include Mr Homsi's alleged statement "I didn't touch her". However, Constable Carey did give evidence that Mr Homsi's mother said "Why are the police picking on Houssam?" and that she was going to make a complaint about the police. 19Constable Carey gave evidence that later the same day, with the complainant's consent, he entered the house with the assistance of a locksmith, because the complainant did not have keys to the premises and because the keys held by the real estate agent did not open the door. On entering the premises, Constable Carey observed two clumps of hair in a rubbish bin on top of the kitchen bench, that the complainant's room was disorganised and messy, with women's clothes strewn across the bed and floor, a clump of hair on the floor inside the doorway of the bedroom, a clump of hair near the window, a pink pair of scissors on the bedside table, and a pile of clothing behind the bedroom door that had been cut. These items were photographed and left in situ; and the photographs were exhibits in the case. Constable Munro gave similar evidence. 20Evidence was given by Fatima Elcheikh, a child protection caseworker at Bankstown Community Services, that she met the complainant and her four children at Bankstown police station on 24 October 2008. The complainant told her that she had run away after having being assaulted over the previous twelve hours. She said she had not been allowed to leave the home for the previous week, and that her husband Mr Homsi and his girlfriend took turns watching her, while one of them would drop off and pick up the kids from school. She was asked by the complainant to return to the home to obtain the children's birth certificates and passports, because she was afraid that Mr Homsi would take the children overseas. That same day, Ms Elcheikh attended the Condell Park home with police. She was present when the appellants were arrested. After the locksmith attended to change the lock, she entered the house and saw that the kitchen and bedrooms were messy; the drawers were out and their contents on the floor. She saw clumps of hair on the floor of the children's room and in the garbage bin in the kitchen and around the house. She gave evidence that one of the girls' blue books was located and that she took clothing for the children. 21SC Gebrael and Constable Bastoncino also gave evidence that at about 2 pm on 27 October 2008, they escorted the complainant home to obtain personal items for her and the children. They were also there to get the children's birth certificates and blue books. These were not recovered. SC Gebrael observed dirty plates in the sink and clothes on the floor. She saw a clump of hair sitting on top of the garbage bag. 22PCSC Haggerty also gave evidence that, at about 9.20 am on Thursday 30 October 2008, she and other police arrived at the Condell Park house in execution of a search warrant, and shortly thereafter the premises were searched. Entry to the premises was gained through use of keys provided by the locksmith. The search was recorded on video. Items belonging to both the complainant and Mr Homsi were noted in bedroom 1 of the premises. Bedroom 4 was a bedroom said to be occupied by the appellants. The following items were seized: (1) One empty 2-litre juice bottle on the kitchen bench. (2) One large clump of long brown hair in a rubbish bag on the kitchen bench. (3) One unopened Golden Circle brand 2-litre apple and mango juice bottle on the bottom shelf of the kitchen pantry. (4) and (5) Two unopened Berry Healthy Balance juice bottles on the bottom shelf of the kitchen pantry. (6) Two Centrelink sheets in the name of [the complainant] on the kitchen floor. (7) One right Nike white men's shoe on the floor of the hallway. (8) One blue plastic lighter in the top drawer of the bedside table in bedroom 1. (9) One scissors with blue handles on top of the set of drawers behind the television near the entrance to bedroom 1. (10) One page of RTA paperwork in the name of [the complainant] in the second drawer of the bedside table in bedroom 1. (11) One left Nike brand white men's shoe on the floor of bedroom 1. (12) One blue plastic lighter in the bedside table in bedroom 4. (13) One black wooden pole/ stick with two red rings around its base located next to the bedside table in bedroom 4. (14) One Subaru remote car key attached to a Bulldog's key ring on a table in the garage near the garage door. A traffic infringement notice was located in the garage. A knife was located in a drawer where the blue lighter and registration papers were located in bedroom 1. In bedroom 1, police observed over 20 items of women's clothing that had been cut up rendering them useless. No items of men's clothing were observed to be destroyed in this manner. Documents such as birth certificates, blue books and passports for the complainant's children, and gold jewellery were not located during the search. 23Plain clothes Constable Melissa Horvat and Constable Bane Zekanovic also gave evidence of participation in execution of the search warrant. 24Virginia Freidman, an analyst at the Division of Analytical Laboratories at Lidcombe conducted a DNA analysis on a number of items, a buccal swab taken from the complainant, a juice bottle, a black wooden pole/ stick, a buccal swab from Mr Homsi, a buccal swab from Ms Karamalakis, a right shoe, a left shoe, a blue BIC lighter and a dark blue Rhino lighter. The following results were obtained. For the black pole, Mr Homsi had the same profile as DNA recovered from the end of the pole with the red rings, and traces of a second individual too low to determine a profile were also recovered; and from the other end of the pole three mixtures that originated from at least three individuals were recovered, and the complainant, Mr Homsi and Ms Karamalakis could not be excluded as contributors to this mixture. No blood was detected from the pole. No DNA or blood was detected on the juice bottle. For the blue BIC lighter, a preliminary screening for blood was positive, but the presence of blood was not confirmed; and DNA testing was unsuccessful. No blood was detected on the shoes, and no blood was detected on the dark blue Rhino lighter. Ms Freidman stated that traces of DNA could be transmitted by handling things. 25Karen Cabanastia, a scientific officer, had experience in the examination of human hair. She examined two clumps of brown hair. She said that the proportions of hair in the samples examined, found to be present in each growth stage, supported the hypothesis that the hair examined had been forcibly removed from the scalp. 26Transfer documents from the RTA were put into evidence, in relation to the registration of the Toyota Tarago. There was a transfer document dated 23 October 2008, signed by the complainant transferring ownership to Mr Homsi and showing that registration of the vehicle was transferred by Mr Homsi to Danny Kourouche on 23 October 2008 for a sale price of $5,000. The declaration on the document was signed on 27 October 2008. Further documents showed that on 10 November 2008, Danny Kourouche sold the vehicle to Shah Kahn for $2,500. The declaration signed on 10 November 2008. 27Also put into evidence were clinical notes from the Royal Prince Alfred Hospital for Ms Karamalakis. These notes showed that at just before 10 am on Saturday 25 October 2008 Ms Karamalakis presented at the Emergency Department of RPA, her presenting information being that she "finished menstrual cycle 3/7 ago, while running last pm, hit side of table, lower abdomen affected. This am woke with PV bleeding which hasn't stopped since. Slight lower abdominal pain and dizziness. Nil other. Nil HX." Ms Karamalakis is also recorded as saying "in police custody" "? What for - she says she doesn't know; and "LMP - finishing 3 days ago. Was a few days late so she had done a pregnancy test prior to period. Negative". 28The case history notes included "not using C/C - withdraw method. Prev on COC pill. Has had a IMB on stopping pill". The only injury noted was "mild tender lower abdo" and "no bruising. There is no record of any assertion that she had been attacked by the complainant. Her registration form showed her next of kin as Mr Homsi, and the relationship with him as "fiance". 29Evidence from the previous trial by Dr James Chau was read. He examined the complainant at about 4 pm on 24 October at the Emergency Department of Bankstown Hospital. He found tenderness to the left para-spinal region, bruises to both arms and legs, and swelling to the left leg. X-rays of the complainant's chest, knees, ankles and legs were taken, and an analgesia was administered. Dr Chau's opinion was that the injuries were consistent with the complainant having been assaulted. In cross-examination, Dr Chau stated that he had examined the complainant's head and observed some abrasion but no bruising. He agreed that the photograph of the complainant's head (taken three days after his examination) showed an injury on the complainant's head which was consistent with her being struck with an object. He stated that bruising could last for weeks, depending on the patient. 30Finally, a statement of Fadia Bekdache dated 9 March 2009 was read to the jury. In that statement, Ms Bekdache stated that on a Friday in 2008 she saw the complainant as she was returning home. The complainant was standing near the fence-line between their two houses and she had her children with her. She was wearing a robe or pyjamas and was carrying a small bag. The complainant asked for a lift to Greenacre. Ms Bekdache told her that she could take her to Bankstown. She asked the complainant if there was something wrong, and the complainant told her that she had had an altercation with her husband. Ms Bekdache took the complainant and her children to Bankstown. She observed the complainant was having difficulty walking and getting into the car. She suggested that the complainant go to see a religious leader to help conciliate between her and her husband. The complainant told her that her husband was mistreating her and showed her marks and bruises on her legs and what looked like burns on her hand. The complainant said: "look, this is where they hit me and where they burnt me with cigarettes and they tore clothes --- my husband and his girlfriend were pulling my hair all night, he made me sign my van over to his name and he took my money and jewellery as well". When Ms Bekdache dropped the complainant off at Bankstown, the complainant pleaded with her not to tell her husband where she was. At about 10.30 am the same day, Ms Bekdache saw the other woman who lived at the Condell Park house pass by as though looking for something. Her husband went outside and spoke to the husband from the Condell Park house. When the husband returned a second time, Ms Bekdache went outside and told him that she had dropped the complainant on Marion Street Bankstown. The husband asked whether the complainant had told her anything and she said she was told there had been a domestic problem. Ms Bekdache then went back inside. Mr Homsi's case 31Mr Homsi's case was that the complainant had set him up and that her injuries were occasioned during an altercation she had with Ms Karamalakis. 32Mr Homsi gave the following evidence: (1) Mr Homsi said he was an upholsterer, having started his own business (which included making chairs) in September 2008. Ms Karamalakis had designed and made his business cards, and also ordered the materials, fabrics and legs for the chairs. (2) Mr Homsi met the complainant at his uncle's engagement in Lebanon, and they were married there in 1999. They moved to Australia in 2000. They moved into the Condell Park house about six months prior to October 2008. Ms Karamalakis moved in with them in September 2008. He and the complainant shared the first bedroom on the left. He described his marriage as normal and happy. He said that his wife and Ms Karamalakis were best friends. He said that the complainant wanted to collect Centrelink payments and made him agree to sign a separation form so that she could do so; but they were never separated and did not separate until 23 October 2008. (3) Mr Homsi gave detailed evidence of what happened during the day on Monday 20 October 2008. His brother Aladean and his friend Adam Wasi came over at about 8 pm and they sat in the garage. The complainant made them coffees and sat with them for a while. She then went back inside and Adam and Aladean left at about 10.30 pm. Mr Homsi had a shower, and then lay in bed next to the complainant and their son. He had a headache so he went to the kitchen to get some medicine. He found an electricity bill and a Foxtel bill for which he had given the complainant $1,000 the previous Tuesday, money which he had borrowed from his brother Rabi. Mr Homsi then confronted the complainant about the bills, and she told him that she had to send money to her family. That night the complainant also told him she was taking their son to a doctor the following day because he had a cough. (4) On Tuesday 21 October 2008, Homsi got up at about 8.30 am. The complainant had already gone to take the girls to school. He went to the garage to work on children's chairs. At about midday he went to Condell Park to pay the overdue electricity bill. The complainant returned between 1.30 and 2 pm and sat with him in the garage until she left to pick up the girls from school. His brother Aladean and his business partner Danny Kourouche came at about 4 pm, and the complainant returned with the girls about half an hour later. Aladean and Danny left at about 6 pm. Mr Homsi had dinner then went back to work in the garage, and he went to bed at about 10.30 pm. (5) On Wednesday 22 October 2008, he got up at 7 am. He went with the complainant to take the girls to school. They got home between 9.30 and 10 am and he went to work in the garage. At about midday he called his mother to borrow some money to pay for one of the girls' school fees and for some shopping. He met his mother at the school where she gave him $1,000. He and Ms Karamalakis went to pick up the girls from school that day. He paid the school fees and they then went to do some shopping. At about 7.30 pm his brother Rabi came over because he was leaving on a cruise the following day. The complainant and the children spent some time with him. After putting them to bed, the complainant made them coffees. Mr Homsi and Rabi then went to the garage to see the chairs. Before Rabi left, the complainant told him not to forget their presents. Rabi left at about 11 pm. That night Mr Homsi slept on the couch because he couldn't cope with his son's noise. (6) On Thursday 23 October 2008, he got up at about 7.30 am. He and Ms Karamalakis took the kids to school because the complainant wanted to have a shower. His youngest daughter did not go to childcare that day. They got home between 9.30 and 10 am and he went to the garage to work. In the afternoon, Ms Karamalakis asked him to take her to his mother's house because she had no fuel in the car. He dropped her off at about 4.30 or 5 pm after picking up the girls from school. He got home at about 6 pm and his mother was there. At about 8.30 pm he received a call from Ms Karamalakis to go and pick her up. He left, and when they returned home between 9.30 and 10 pm his mother had gone. He went out to the garage while Ms Karamalakis was making pizzas. When they were ready he went inside to eat. He asked the complainant to put the children to bed because it was late. After doing so, the complainant called him into the bedroom and told him that she had been spending all the money that he had been giving her for bills, on herself. Mr Homsi told the complainant that their relationship was over because he could no longer trust her. The complainant was sad and cried. He asked her to give him the registration papers for the Tarago because he did not trust that she would not sell it. In the meantime Ms Karamalakis was holding his son and trying to settle him. Mr Homsi told the complainant to put her son to bed. About five minutes later he heard his son scream as though the complainant had done something to him. He saw a red mark on his son's side and his son was pointing to the complainant. He took his son from the complainant and gave him to Ms Karamalakis who put him to sleep. Mr Homsi reminded the complainant about the registration papers. She got them, signed them and gave them to him. (7) Mr Homsi told the complainant that he was leaving and would come in the morning to pick up the kids. The complainant was crying. He went to the toilet and she tried to barge in. He went to get his wallet and keys from the kitchen and heard a bang. He ran back to the hallway and saw Ms Karamalakis getting up onto her knees and the complainant swinging an orange juice bottle at her. Ms Karamalakis was hitting the complainant with a "baton". Mr Homsi pulled them apart. The complainant said that it was all because of Ms Karamalakis. Mr Homsi told them that from tomorrow, they should each go their own way and they agreed. He then hid the "baton" in Ms Karamalakis' bedroom behind her bed where he believed it had come from. He then left at about 12.30 am and went to his mother's house where he slept on his mother's couch. (8) At about 5.30 am on 24 October 2008 he woke up and went home. Ms Karamalakis opened the door for him and the complainant came to kiss him. He moved away from her and she started to cry and walked away. He sat on the lounge and Ms Karamalakis went to make coffee while the complainant got the girls ready for school. He fell asleep and woke up at about 8 am and discovered that the complainant and the children were gone. He tried calling her but her phone was switched off. He grabbed the keys for his Subaru but could not get out because the Tarago was in the way and the complainant had taken the keys (as well as the keys to the house and keys for the Subaru). He went to the Condell Park shops to look for them and then called his brother Aladean who came with Danny Kourouche to pick him up in their work van. They went back to the house to see if the complainant had come back. Ms Karamalakis told him that a lady was coming to pick up items she had purchased on eBay. While they were standing out the front, his neighbour Gasam Bekdache came out on his balcony. Mr Homsi asked him if he had seen his wife and children. Mr Bekdache replied that he hadn't and enquired what was wrong. Mr Homsi told him they had left. Mr Bekdache went back inside but came back out about five minutes later and told him that his wife had dropped the complainant and the children off at Bankstown shopping centre. They drove to Bankstown in search of them and then to Aladean's house to get in his car so Danny could go back to work. They went back home and saw their mother there. Aladean told him that his wife had seen birth certificates and passports in the complainant's bag the previous Sunday. Mr Homsi called the airport to see if the complainant and the children had left the country, and they put them through to the Federal Police. They went to KFC for lunch, and then waited for school to finish. They went back to the house at about 3.30, where they saw police officers in front of the house. (9) Mr Homsi denied hitting the complainant in any way and forbidding her to leave the house. He denied urinating on the complainant. He denied verbally abusing the complainant and threatening her. He denied that police had told him he was under arrest for assault or that he had said he didn't touch her. He said that, after sitting in the back of the paddy-wagon with Ms Karamalakis for three hours, he asked her out. He denied he had been in a relationship with her prior to this time. Mr Homsi called a number of relatives and acquaintances who gave evidence to the effect that his relationship with the complainant was a good and happy one. 33Mr Homsi's brother Aladean gave the following evidence: (1) He had known the complainant for ten years and Ms Karamalakis for just as long. She was the complainant's best friend, and they were like sisters. He described his brother's marriage with the complainant as a normal happy marriage. He said he assisted his brother in moving to the Condell Park house. The things moved included Mr Homsi's, the complainant's and the children's belongings. (2) On Monday 20 October 2008, Mr Aladean and his friend Adam Wasi went to Mr Homsi's house. They were greeted by the complainant. They went out to the garage with Mr Homsi. The complainant later made them coffee. She said that her son had been sick and she was taking him to the doctor the following day. Aladean and Mr Wasi left at about 10.30 pm. (3) On Tuesday 21 October 2008, Aladean and his business partner (and Mr Homsi's cousin) Danny Kourouche went to Mr Homsi's place at about 4 pm. Mr Homsi was in the garage working on some chairs. About half an hour later the complainant returned and came into the garage with the kids. After a while she went inside to help Ms Karamalakis cook dinner. Aladean and Danny Kourouche left at about 6 pm. The complainant appeared normal. (4) At about 9.30 am on Friday 24 October 2008, Aladean received a call from Mr Homsi to help him look for his wife and kids because they were missing. He and Danny Kourouche picked up Mr Homsi from the Condell Park shops and they drove around before going back to the house. They were standing at the front when the neighbour came out. Mr Homsi asked if he had seen his wife and kids and the neighbour said no. He went inside and then returned a couple of minutes later and told them that his wife had taken them to Bankstown shops. Aladean, Mr Homsi and Danny Kourouche then drove around Bankstown looking for the complainant. Later Aladean and Mr Homsi went to the school to see if the children were there. Aladean then called his wife Diana, who told him she had seen passports and birth certificates in the complainant's bag the previous Sunday when they were on a picnic. Ms Karamalakis then called the Federal Police and they were told they had not left on any flights that day. They went to KFC across the road from the school and waited until school finished. They asked the complainant's friends if they had seen her. They returned to the house and saw police out the front. Mr Homsi got out of the vehicle and was arrested. 34Adam Wasi gave evidence that he believed Ms Karamalakis was the complainant's best friend; and gave evidence that he had helped move Mr Homsi's, the complainant's and the children's belongings to the Condell Park house. He gave similar evidence to that of Aladean concerning Monday 20 October 2008. He described the complainant as happy that night. 35The appellant's brother Rabi gave evidence that he visited his brother on 22 October 2008 at about 7 pm to say goodbye as he was leaving on a cruise the following morning. The complainant answered the door. She then took the kids for a bath. After bathing the kids, the complainant came out and they chatted and she made them coffee. They all went out to the garage so that Mr Homsi could show him the chairs he was making. At about 9.30 pm they went back into the house and he left at about 10.30 pm. Before he left, the complainant told him not to forget to buy them presents. A P & O cruise tag for 23 October to 1 November 2008 was put into evidence. Rabi described the complainant as normal that evening. He did not see any injuries on her. He also gave evidence that he had helped them move to the Condell Park house, involving moving all of Mr Homsi's, the complainant's and the children's belongings. 36Danny Kourouche gave evidence similar to that of Aladean concerning the events of Tuesday 21 October 2008, and also concerning events on the morning of 24 October 2008. He also gave evidence that he bought the Toyota Tarago from Mr Homsi on 27 October 2008 although the papers were dated 23 October 2008. He sold the vehicle for $5,000 (although the documents say $2,500) on 10 November 2008. 37Aladean's wife Diana Homsi gave evidence that she, the complainant and Ms Karamalakis had taken the children to Wiley Park for a picnic on Sunday 19 October. At one point she saw passports and birth certificates in the complainant's bag. Her impression was that the complainant and Ms Karamalakis were good friends. 38Halah Kourouche, the appellant Mr Homsi's mother, gave the following evidence: (1) She had known the complainant since 2000 when her son married her. She had known Ms Karamalakis for nine years as they used to work together. The complainant and Ms Karamalakis were very close. Whenever she visited the complainant, Ms Karamalakis would always be there. Ms Kourouche treated the complainant like her own daughter. (2) On Tuesday 21 October 2008, Ms Kourouche met the complainant at about midday in front of Dr Alameddine's surgery as arranged the previous day. (There was put into evidence a handwritten document showing the date 21 October 2008 but otherwise illegible, purportedly provided by Dr Alameddin in response to "subpoena for [the son] Homsi".) They were to go for coffee, however the complainant stated she had received a call from Avon and she had to go and see the manager, and then she left. The complainant appeared normal. (3) On Wednesday 22 October 2008, Ms Kourouche met her son in front of the school, to give him $1,000 he had asked to borrow from her. (4) On Thursday 23 October 2008, Ms Kourouche went to the complainant's house at about 4 pm and saw the complainant and the two youngest children. Mr Homsi had gone to pick up the older girls from school and then to take Ms Karamalakis to her mother's house. The complainant made spaghetti for the children and they chatted. At about 5 to 5.30 pm Mr Homsi returned and showed her the chairs he was making in the garage. At about 8.30 pm, Mr Homsi went to pick up Ms Karamalakis, and about 15 minutes later Ms Kourouche left. The complainant appeared normal. (5) At about 1 am on Friday 24 October 2008, Mr Homsi came to her house wanting to sleep there. He told her he could no longer trust his wife because she had not used the money he had given her to pay the bills. He slept on the sofa and left at about 6 am that morning. (6) At about 10 or 10.30 am Ms Kourouche received a call from her son who told her that his wife and children had left. She told him she was coming. When she went to the house she saw Ms Karamalakis, and a short time later Mr Homsi arrived with his brother Aladean. They all left in her car and went to make enquiries at the school. They also asked the complainant's friends at the school whether they had seen her. They drove back to the house and saw police at the front of the house. Police approached Mr Homsi and asked him his name. When he told them, they apprehended him and put him on the ground. Police then told Ms Kourouche and Aladean to go home. (7) Ms Kourouche stated in cross-examination that she did not hear police tell Mr Homsi that he was under arrest for assault, and that Mr Homsi did not say that he did not touch her. She denied speaking to the police at all, stating there was no time and she was in shock. She denied having seen Mr Homsi assaulting the complainant on Thursday afternoon, and she denied that the complainant had complained about Mr Homsi's treatment of her on 21 October. Ms Kourouche was also cross-examined about an affidavit dated 25 June 2009 she had made in Family Court proceedings in answer to an affidavit of the complainant dated 19 June 2009. She accepted she was aware from reading the complainant's affidavit that there were allegations concerning things that happened during the morning of 24 October 2009, but said she did not in her affidavit make any statement about what happened in the early hours of 24 October (that is that her son had come to stay in her house between 1 am and 6 am) because no one asked her to do so. 39Evidence was given by a Greg Gillan of going to pick up an outdoor play gym from the complainant's house between about 2 pm and 3 pm on Tuesday 21 October 2008. Case for Ms Karamalakis 40Like the appellant Mr Homsi, Ms Karamalakis' case was that the complainant had set her up, in that the complainant's injuries were caused during altercations between them, instigated by the complainant attacking her. 41Ms Karamalakis gave the following evidence: (1) She had known the complainant since 2001. She moved into the Condell Park house in August 2008. She had the last bedroom at the end of the hall. She denied having been in a sexual relationship with the appellant while he was living there. At the time she was going through a bitter divorce. (2) After her arrest on 24 October 2008, she was taken to the Royal Prince Alfred Hospital because she had very heavy bleeding and cramps. She told the doctor that the previous night she had run into a table hitting her abdomen. It occurred during her altercation with the complainant. She had nominated Mr Homsi as next of kin on the hospital forms, because while they were in the paddy wagon after their arrest, he "asked me", and that was why she put down he was her fiance. The records stated that a pregnancy test had come back negative and that she was not using contraception. Ms Karamalakis said she had been in a relationship with a person named Isaac and they had ended the relationship in early October, and he had gone back to live in Morocco. (3) Ms Karamalakis said she assisted Mr Homsi in his upholstery business. She denied the complainant's allegations in relation to events alleged to have occurred between 20 and 24 October 2008. She did not at any time see Mr Homsi strike the complainant or urinate on her. (4) On Thursday 24 October 2008, while she was making pizza, the complainant approached her and told her she wanted to "come clean" about a few things with Mr Homsi. The complainant told her she had used the $1,000 that Mr Homsi had given her for the electricity bill to put a deposit on a ring. Ms Karamalakis told her she should be frank with Mr Homsi. (5) Later that night when the girls were asleep, Ms Karamalakis was settling the boy when the complainant called Mr Homsi into their bedroom. Five or ten minutes later, Mr Homsi walked out and told the complainant to put her son to bed. The complainant took her son and went to his room. In the meantime Mr Homsi appeared devastated. He was questioning whether he could trust the complainant. Then they heard the boy scream and they ran to his room. Ms Karamalakis took him and lay him on his mother's bed to settle him. The complainant then came into the room and pulled a piece of paper from one of her drawers. A couple of minutes later she heard a bang and Mr Homsi asked the complainant what she was doing. The complainant glared at Ms Karamalakis and walked towards the lounge-room. (6) After the boy was asleep, Ms Karamalakis went to leave the room and close the door gently. She felt a blow to the back of the head and blacked out. When she gained consciousness she saw the complainant with a juice bottle in her hand. Ms Karamalakis reached for the black stick she saw near the dresser and hit the complainant with it. Mr Homsi broke up the fight and removed the juice bottle and the stick from them. He asked them what they were fighting about and the complainant screamed that it was all Ms Karamalakis' fault. Mr Homsi told them he was moving out the following day and he then left. Ms Karamalakis then went to her room and locked the door. (7) After a while, she felt like a cigarette so she went to the dining area to get them. She saw the complainant running towards her with a kitchen knife in her hand. Ms Karamalakis ran and hit the dining-room table with her stomach. She turned round and whacked the complainant's hand to make her drop the knife. They proceeded to fight. Ms Karamalakis punched, kicked and hit the complainant. She hit the complainant on the head with the lighter she was holding. She overpowered the complainant and ended up throwing a stool at her. She told the complainant not to touch her again. She then went back to her room and locked the door and did not sleep all night. In cross-examination, Ms Karamalakis stated that she pulled the complainant's hair during the fight. (8) At about 6 am she got up to go to the bathroom and heard a car pull up and a car door slam. She saw that it was Mr Homsi in the Tarago and opened the front door for him. She offered to make him a coffee. The complainant then went to kiss him and he told her that it was over between them, and the complainant walked off crying. After making coffee Ms Karamalakis saw that Mr Homsi had fallen asleep on the couch. She sat down and also fell asleep. She woke up at about 8 am to Mr Homsi asking where the complainant and the kids were. She gave evidence then of Mr Homsi going to look for the complainant and the children, and of being arrested. (9) At no time on the Thursday night did she see Mr Homsi punching or kicking the complainant or grabbing her hair or urinating on her. At no time did she cut any clothes. Some of the cut clothes shown in the photograph were hers. Mr Homsi's clothes and the complainant's clothes were in the complainant's and Mr Homsi's room, while her clothes were in her room and also some of them were in the complainant's and Mr Homsi's room. 42Evidence was given by Aliki Naxakis, the grandmother of Ms Karamalakis. She said Ms Karamalakis came to her house on 23 October, arriving at about 4.30 pm. The witness' son and daughter (Ms Karamalakis' mother) also came to the house. At about 9 pm, the appellant Mr Homsi came and collected Ms Karamalakis. Grounds of appeal against conviction 43Both appellants rely on the following four grounds of appeal against conviction: Ground 1: The trial judge erred in (a) The application of the rule in Browne v Dunn (1893) 6 R 67 in allowing the Crown to address on the issue of counsel's failure to cross-examine a witness; and (b) In reinforcing the Crown's address by repetition and expansion in his direction to the jury; and the trial miscarried as a result. Ground 2: The trial judge misdirected the jury on the element of detention in Count 3 leading to a miscarriage of justice. Ground 3: The trial judge erred in failing to warn the jury under Section 165 of the Evidence Act 1995 that the hearsay evidence of Fadia Bekdache may be unreliable. Ground 4: That the verdicts are unreasonable and not supported by the evidence. Credibility issues 44Before considering individual grounds of appeal, it is helpful in my opinion to have an overview of credibility issues that were raised at the trial. The contention of the appellants is that the complainant's evidence was so unreliable that there was a significant possibility that innocent people had been convicted. The contention of the Crown was that central aspects of the appellants' evidence were so unbelievable that the jury could reasonably be satisfied beyond reasonable doubt that their account of what happened, particularly on the Thursday night and Friday morning, was a complete concoction. 45It was clear that either the broad account given by the complainant, or that given by the appellants, or possibly both, must be an elaborate concoction. 46In order to contend that the complainant's evidence was unreliable, counsel for the appellants made the following submissions in relation to her cross-examination: 10. The cross-examination of the complainant covered the following areas: a. People who came to the house A. Until the complainant was cross-examined in the trial in October 2009 she had never mentioned that anyone had come to the house during the period she was allegedly being detained. She was taken through the numerous opportunities she had to tell someone that people had come to the house (T 65-67). B. The cross examination about people who came to the house was then taken up again at T140. The complainant agreed that she had never told police that she had shown the appellant Homsi's mother and brother bruises. (T141) She was certain that the appellant Homsi's brother came on the Tuesday night and not on Wednesday. She denied that she had said to him "don't forget our presents. (T 142). C. She denied that someone came for some eBay purchases during the time (T 143). It was suggested that a man called Greg Gillan had attended, and the complainant said she did not see him. The complainant further denied that the appellant Homsi's brother Aladean and Adam Wasi came to the house at about 8:30 PM on Monday, 20 October 2008. She further denied that Danny Kourouche came to the house at about 4 PM on 21 October 2008 in company with the appellant Homsi's brother Aladean. D. She further denied that at 10:30 AM on Thursday, 23 October 2008 a female attended to pick something up that had been purchased over eBay. It was put to her that seven different people came to the place between Monday and Thursday which she denied. (T 145-146) b. Relationship with the appellants A. The complainant gave evidence that she and the appellant Homsi had separated in 2004 (T 67), and they were no longer in a relationship at 20 October 2008. B. In cross examination it was being suggested that the complainant and the appellant Homsi was still in a relationship as at October 2008. In particular the fact that: 1. The complainant's clothes were in the main bedroom, contrary to her evidence that the appellants shared the main bedroom (T 69) 2. The appellant Homsi's clothes were in the same cupboard as hers (T 70) 3. That the appellant Homsi is the father of her youngest child who was born to [sic] February 2006, two years after she said she was separated from the appellant Homsi (T 70) 4. That the electricity at at the house in which she was living was connected in the appellant Homsi's name (T 70). 5. The complainant stated that the family knew that she was separated from the appellant Homsi (T 68). 6. The complainant agreed that the appellant Homsi paid for her mother to travel from Lebanon to Australia in April 2007 (T 80) 7. The complainant was shown a Western Union document which showed money had been sent to her father in Lebanon in February 2007 and 2008. It was put to her that was money that was given to her by the appellant Homsi to transfer to her father. The complainant initially stated, when shown the Western Union document, "this document is a fake document". The document had been produced under subpoena. (T 81) 8. The complainant was shown a video of her mother arriving in Australia in 2007 which showed complainant's [six] auntie hugging the complainant's mother as well a [sic] showing the appellant Homsi and his brother at the airport (T 85). There is further video from the following day which was a party for her mother showing various members of the appellant Homsi's family there as well (T 85) C. It was further suggested in cross examination that she and the appellant Karamalakis were good friends including: 1. The complainant had known the appellant Karamalakis since late 2000 (T 70) 2. The complainant denied that she had asked the appellant Karamalakis to move into the house in August of 2008, to assist in looking after the children (T 71) 3. The complainant agrees that a photo of the previous house in which she lived showed a car belonging to the appellant Karamalakis in the driveway and the complainant's car was on the front lawn (T 73). 4. That the appellant Karamalakis had taken the complainant to hospital and was nominated as her next of kin in May 2008 (T 194-196) c. Friends and family in Australia A. The complainant gave evidence that she did not have any family living in Sydney (T 75) B. She was cross-examined about the fact that her auntie lived in Wiley Park (T 75). That she went to her auntie's wedding in Lebanon (T 75). That her auntie's husband Hassan Kourouche lived with her auntie in Wiley Park and photos were tendered of the wedding with the complainant standing next to her auntie's husband (T 76). C. The complainant agreed that Jasmine Kourouche was also related to her and was born and raised in Australia (T 77) D. The complainant agreed that her mum's uncle also lived in Australia, as well as her uncle. She had in fact stayed at her uncle's house previously (T 78). The complainant denied that she had lied when she said she did not have any family here because those people were related to her mother not to her (T 78). E. The complainant agreed that she had a number of friends living in Sydney (T 78-79). d. Prior inconsistent statements A. The complainant was cross-examined extensively about numerous prior inconsistent statements. The cross-examination of inconsistencies between the various statements that she made to the police, the family court affidavit, the evidence she gave on the last occasion and the evidence before this jury commenced on page T 91 through to page T 135. B. A summary of the various major inconsistencies is as follows: 1. The complainant's first statement to the police does not mention anything that occurred before the evening of 23 October 2008. 2. For Count 1 the complainant gave evidence in chief that she was sitting down when the appellant Homsi got her by the hair and punched her. In her statement to the police of 29 October 2008 she said she was standing up when the appellant Homsi slapped her. 3. For Count 2 the complainant gave evidence in the previous trial that she was punched more than five times to the head and her hair pulled when she said that she would not hand over her jewellery. In her evidence in chief, when describing the incident of being asked to hand over her handbag she did not mention being hit at all. 4. For Count 3 there is no mention in her initial statement that she was detained other then from the evening of 23 October 2008. Further, in her affidavit to the Family Court she says she is detained for 12 hours commencing 23 October 2008. 5. For Count 4 in her statement to the police she said that no violence occurs until she goes into the house, however she told the jury that she was dragged from the car and kicked and punched. 6. Further, the complainant told the jury she was hit with the stool then with the stick, however the previous jury she had told she was hit with the stick and then the stool. She further stated that she was hit with a stick a second day when being cross-examined which had not been mentioned to anyone previously. 7. For Count 5 the version changes from being hit 3 or 4 times to being hit 15 times, and from going to the ground after one hit, compared to remaining standing for a number of hits before going to the ground. Further she could not recall the juice bottle when shown photos of it when giving her statement to the police on 7 January 2010 (T 198). 8. For Count 6 the complainant said that the appellant Homsi punched her in the head with both appellants blaming her for using the hot water. The complainant didn't even mention to the police that the appellant Karamalakis was present. 9. For Count 7 the complainant stated that the appellant Homsi's mother was present however she never mentioned that to the police. Further she said in her Family Court affidavit that the appellant Homsi threw their son against the wall, with no mention of that in any statement to the police. 10. For Count 15 there was no mention to the police that the appellant Karamalakis left to go and get scissors to cut up her clothes. 11. For Count 10 the complainant in her affidavit stated that the appellant Homsi urinated on her twice, including on the face, with no mention of twice, nor on the face, in her statements and evidence. e. Opportunities to Leave A. The complainant was cross-examined about her ability to leave during the period of time that she was allegedly detained. That cross-examination commences at page T 159. The following concessions are made: 1. She could have left the house if she wanted to (T 159.37) 2. She took the children to school on Tuesday morning (T 159.42) 3. She told the police in her statement of 29 October 2008 in relation to 21 October 2008 that "I went back home thinking that perhaps I could work it out" (T 160.1) 4. She could have left the house on Wednesday, 22 October 2008 when the appellants took the children to school (T 160.16) 5. She had ample opportunity to leave the house if she wanted to (T 160.43) 6. On Thursday night she could have left, but she said she was too scared to leave because she believes that the appellant Homsi would kill her (T 161.11) 7. Most of the time she did not want to leave because she didn't have the children (T 161.41) B. The complainant denied taking [her son] to the doctors on the morning of 21 October 2008. She said "That's a lie" (T 165.50) 47The appellants also relied on the evidence of defence witnesses, in particular: (1) Mr Homsi's mother, particularly her denial of any complaint to her or showing of a bruise, and of Mr Homsi hitting the complainant in her presence, and also her evidence that Mr Homsi was at her house between about 1 am and 6 am on Friday 24 October. (2) Evidence of Aladean Homsi and Danny Kourouche of their visit from 4 pm to 6 pm on Tuesday 21 October, when they were with Mr Homsi and the complainant appeared normal. (3) Rabi Homsi's evidence that the complainant was normal when he visited the house, which was on Wednesday 22 October not Tuesday 21 October. (4) The evidence of a number of witnesses that Mr Homsi did not move to the Condell Park house after the complainant, but at the same time and with her. (5) Evidence of many witnesses that up to the week in question the complainant and Mr Homsi were not separated but had a happy marriage. 48The matters raised in cross-examination could significantly affect the credibility of the complainant, although in my opinion it was well open to the jury, having seen her give evidence, to accept the substance of it. I would also make the following three comments: (1) As regards the appellants' point b.B.1., the complainant's evidence (in particular, her diagram exhibit H9) was that, at the time of the alleged offences, her bedroom was the main bedroom, and the appellants slept together in bedroom 4. (2) As regards their point c.B., the complainant's auntie was married to Mr Homsi's uncle, and both of them gave evidence for Mr Homsi. (3) As regards point e.A., it was submitted for the appellants that there was no indication why suddenly the complainant was able to leave on Friday morning as opposed to any other time. However, the complainant did give one significant answer, namely that "the morning that I left that was the morning that I had enough from that night" (T 181), suggesting that she then had greater fear about staying than about leaving. 49Some of the evidence of Mr Homsi's witnesses, if considered as having some credibility, would count strongly against the complainant's evidence. However, it was well open to the jury to consider that their evidence had no credibility. One matter of some significance was that Mr Homsi's mother had, on 25 June 2009, made an affidavit in the Family Court proceedings answering an affidavit by the complainant dated 19 June 2009, in which the complainant alleged assault by Mr Homsi during the morning of 24 October; and in that affidavit, Mr Homsi's mother had denied seeing Mr Homsi assault the complainant but had not said that Mr Homsi could not have assaulted the complainant during the morning of 24 October because he was at her house, an omission which she explained in terms of no one having asked her. 50If what the appellants said was substantially true, then what must have happened was that the complainant, having been extensively injured by Ms Karamalakis when the complainant had twice attacked Ms Karamalakis, and having been rejected the next morning by Mr Homsi when she approached to kiss him: (1) Waited until both appellants happened to fall asleep; (2) Cut up some of her clothes and some of Ms Karamalakis' clothes and strew them about; (3) Found and successfully concealed car keys, house keys, passports and birth certificates; (4) Did not drive away but walked out of the house with the four children, and obtained transport from a neighbour she happened to encounter and whom she hardly knew; (5) Told police that both Mr Homsi and Ms Karamalakis had been bashing her; (6) Told police and others that Ms Karamalakis was Ms Homsi's girlfriend (when in truth Ms Karamalakis was the complainant's best friend, having no affectionate relationship with Mr Homsi); and (7) Told police and others that assaults by both had occurred over a 12-hour period from 7 pm the previous night (when in truth Mr Homsi had been absent from the house from about 12.30 am to about 6 am, and could have an alibi for those hours). 51Also, if what the appellants said was substantially true: (1) The very extensive and varied injuries observed on the complainant and photographed by police must have been caused in two relatively short incidents, by Ms Karamalakis acting in self-defence. (2) Ms Karamalakis, having been attacked by the complainant with a knife leading to a hectic fight causing extensive injuries to the complainant, then went into her bedroom and locked the door, leaving the complainant and the children in the house, making no attempt to contact Mr Homsi or the police, and also making no mention of these circumstances to Mr Homsi when he returned in the morning, or to police when arrested, or when seen at the hospital (where she displayed no injuries other than mild tenderness to the abdomen region). (3) Entirely coincidentally with the complainant's untrue allegation to police and others on 24 October that Ms Karamalakis was Mr Homsi's girlfriend, and although Ms Karamalakis had until 24 October not been in any affectionate relationship with Mr Homsi, Ms Karamalakis on 25 October nominated Mr Homsi as her next of kin with the relationship of fiance. (4) That circumstance occurred because, when both appellants were held in the police van, Mr Homsi asked Ms Karamalakis out, and Ms Karamalakis, as a Muslim, took this to mean that they were engaged to be married (and Ms Karamalakis' suspected pregnancy just a few days earlier was due to a relationship with a man, not otherwise mentioned in evidence, who had since returned to Morocco; and her reference to "withdraw method" in the hospital must have been, not to any current practice, but rather to what her practice with that man had been some weeks earlier, before their relationship ended in early October). 52In those circumstances, without any need to rely on the complainant's evidence, it was well open to the jury to conclude beyond reasonable doubt that the appellants' version of events, particularly the events of Thursday night and Friday morning, was so implausible that it must be a concoction. This of course would not be sufficient to establish guilt; but in my opinion, it is a factor to be taken into account in assessing the appellants' grounds of appeal. Ground 1: Browne v Dunn 53During the Crown's final submissions, the Crown Prosecutor, after referring to Mr Homsi and others driving in (or "around") the Bankstown area on the morning of 24 October, said this: And then when they come back and are arrested by the police Constable Sands is the officer speaks to Houssam Homsi outside or in the vicinity outside the house. Said, "You're under arrest for assault" the accused said, "I didn't touch her" and I suggest that on the face of it he's denying doing anything but it has in it knowledge that [the complainant] - who it's about, that's [the complainant] and that she would be suggesting he hit her. It's a denial on that but the extraordinary thing is both accused and witnesses who were there, the mother and Aladean said that was never said. The police officer never even said, "You're under arrest for assault" and the accused never said, "I didn't touch her". The accused himself said I didn't say that. As you've seen witnesses get cross-examined and things are put. There was no suggestion to the police officer that he was incorrect about that. You might think other than he's investigating, he's got to arrest someone, nothing there said is other more than him saying at that time, "I didn't do anything" denying. So you wouldn't think the police officer would be just making that up. It certainly wasn't suggested he'd made something up or was in fact wrong, but it wasn't said apparently according to the defence case. And the concern the accused has is because it shows he knows exactly who is hurt and who hurt her. 54In his summing up, the trial judge said this: Indeed what the Crown points to is the evidence of Officer Sands who said that when he arrested Houssam Homsi he said, "You're under arrest for assault". To which Houssam Homsi replied, "I didn't touch her" indicating that he knew full well that this was all about. Of course both he, and Ms Karamalakis, and Mrs Kourouche, deny that those words were said, just as Mrs Kourouche denies that she asked for the details of the police officer. The police officers were not cross-examined about these things. It was not suggested to them that they had made up these exchanges, and the Crown suggests, in consequence of that, that you would have a reasonable doubt about the veracity of the accused and Mrs Kourouche because they deny these things which the police said happened. If you got the impression, so this argument runs, that they were lying to you about that, then you might think that their evidence did not carry much weight in respect of other things. 55There was no complaint about this, and no request for a re-direction. 56Before this Court, an affidavit by Mr Homsi's counsel at the trial was read. He said he had instructions from Mr Homsi that Mr Homsi had not stated "I did not touch her" at the time of his arrest by SC Sands, but that counsel made a forensic decision not to cross-examine on this because he did not want it disclosed to the jury that a struggle had occurred at the time of the arrest. Counsel also gave evidence that it was his oversight that he did not complain about the Crown's comments or the trial judge's directions, or seek any re-direction. 57It was submitted for the appellants that the trial judge erred in repeating the Crown's submissions, thereby giving them the weight of judicial authority; and indeed, in going further, and suggesting that the jury could use this failure to cross-examine to support a conclusion that the appellants' evidence did not carry much weight about other things. It was submitted that, consistently with R v Manunta (1990) 54 SASR 17 and RWB v R [2010] NSWCCA 147, the trial judge should at least have told the jury that the absence of cross-examination of SC Sands on this issue could have explanations that did not reflect on the credibility of the appellants. 58I agree that the process of reasoning associated with the case of Browne v Dunn (1893) 6 R 67 should be used only with much caution and circumspection in criminal trials. As pointed out by King CJ in Manunta at 23, there may be explanations for failure to cross-examine which do not reflect on the credibility of witnesses; and where the possibility of drawing an adverse inference is left to the jury, the jury should generally be assisted by reference to such possible explanations - for example, misunderstanding of instructions by counsel, looseness or inexactitude in framing of questions, or oversight. And as pointed out by Simpson J in RWB at [101], it may be quite unfair to suggest to a jury that they should draw the inference that, because the witness was not cross-examined on a contentious matter, the witness must have failed to include that matter in his/her instructions or statement. 59In deciding whether to allow an appeal on a ground such as this, there are a number of steps that may arise: (1) If the ground does not involve a question of law, there is a question whether leave should be granted: Criminal Appeal Act 1912 s 5(1)(b). (2) If the ground relates to a direction, omission to direct or decision as to the admissibility or rejection of evidence, to which objection was not taken at the trial, there is the question whether the Court should give leave for this ground to be taken: Criminal Appeal Rules r 4. (3) Then there is the question whether there was a "wrong decision on any question of law" or "on any other ground whatsoever ... a miscarriage of justice": Criminal Appeal Act s 6(1). (4) Then there may be the question whether the Court considers that "no substantial miscarriage of justice has actually occurred": proviso to s 6(1) of the Criminal Appeal Act . 60No point is taken by the Crown that leave is required on this matter under s 5(1)(b). 61Rule 4 does apply, and I will return to this. 62Ground 1 does not involve a wrong decision on any question of law. "Miscarriage of justice" in the body of s 6(1) has been interpreted as extending to " any departure from trial according to law, regardless of the nature or importance of that departure": Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [18]. However, where what is complained of is not "a departure from applicable rules of evidence or procedure" ( Weiss at [19]), but rather a comment in the summing up that could be inadequate or misleading or unfair, in my opinion there is no miscarriage of justice unless it appears that there is some realistic possibility that the comment could have influenced the jury verdict. If there is such a possibility, then the Court would need to consider the proviso, in accordance with Weiss . 63As submitted for the Crown, the comments complained of were not directions; and they could not in my opinion be considered as involving a departure from applicable rules of evidence or procedure, or a departure from trial according to law; and in my opinion, they could not give rise to a miscarriage of justice unless, in all the circumstances of the case, there was a realistic possibility that they could have influenced the verdict. 64In this case, it would have been preferable that the trial judge point out that there were alternative potential explanations for failure to cross-examine SC Sands on this point; although there could not in my opinion be a miscarriage arising from failure to point out the possibility of inadvertence or misunderstanding of instructions, when counsel's affidavit shows that these were not factors. However, any effect of SC Sands' evidence on the jury's view of the credibility of Mr Homsi (and thus indirectly on that of Ms Karamalakis) would in my opinion be wholly insignificant, having regard to the totality of considerations going to their credibility. I do not consider that there was any miscarriage of justice, within that phrase as used in the body of s 6(1). 65In any event, I would not grant leave under r 4. I accept that counsel's failure to take objection was due to inadvertence; but this in itself confirms the minimal significance of the matter in the whole context of the trial, and supports the view that it did not give rise to any miscarriage of justice that could justify the grant of leave under r 4. 66Accordingly, there is no need to consider the proviso. Ground 2: Misdirection on detention 67Count 3 was a charge under s 86 of the Crimes Act 1900, which relevantly provides: 86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person's consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. ... 68There is the following definition of "detaining" in s 86(7): detaining a person includes causing the person to remain where he or she is. 69In his summing up, the trial judge gave the following direction in relation to detaining: The first point I should make I suppose is that whilst the Crown casts the net for this charge as between 20 October and 25 October as the Crown made clear both in his opening and closing addresses, it is not necessary for the Crown to establish beyond reasonable doubt that for the entirety of that time [the complainant] was detained. You might think that the detention if you are satisfied beyond reasonable doubt about all the other elements to which I will come in a moment the detention started on the 21st, or you might come to the conclusion that you are not persuaded beyond reasonable doubt that it started until the 22nd or the 23rd namely the twelve hour period which elapsed on what you might call the final period of conflict in this household at Condell Park. You will not be asked how long the period was if you find there was a detention if you so find. It is enough from the Crown point of view if you find that there was some period during which she was detained with all of these other elements being established beyond reasonable doubt. Now what does detain mean? I know counsel have bandied around the word "kidnapped" a few times. You will notice this charge does not use the term kidnapped. Nobody is suggesting she was picked up, thrown in a car and taken somewhere else. This is a detaining. It might in common parlance sometimes be referred to by ignorant laymen as kidnapping, but it is detaining. What does detain mean? It means to interfere with the liberty of somebody to leave when they want to. That is all detaining means, it means preventing a person from leaving should they wish to do so. It is sufficient if the person is detained for only a very short time, there is no minimum period involved. The Crown here says, as I understand the way in which it puts its case, that the detention was constituted by the acts of the two accused taken together with in the case of Mr Homsi uttering threats about what would happen if - first of all telling her to stay inside the house. Secondly uttering threats of what would happen if she left the house. She told you at various times that he had said bad things would happen to her, that he would find her and kill her and so on. So it is the uttering of the threats. It is the physical violence which she says was inflicted upon her which of course would give very much practical resonance to the threats that something bad would happen to her if she did disobey this direction. It is the deprivation of the means of escape if you like, as I understand the way the Crown puts it, first of all she was stripped of her driver's licence and then her credit cards and Medicare card and so on were taken from her so that she was less able to move out into the world and support herself. So she was handicapped to that extent and then finally there is this element of separation from the children. The children, apart from some times to which we will come when I am dealing with counsel's arguments on Monday, the children were often separated either at school or with [...] the young boy at home. So they were not all together very often, so she says she could not leave without taking all four of them, that is part of the array of actions on which the Crown relies to say that she was in fact being detained. The Crown has to prove that this was done on the part of each accused in the company of the other. 70During the trial judge's summing up, in the absence of the jury, there was the following exchange: LITTLE: Your Honour I had a point that's outside that. It's to deal with count 3. In the situation that [the complainant] decided as a result of actions directed towards herself not to leave because she couldn't take all of the children with her at the same time then that would not amount to detention. That's the direction I'm asking your Honour to give. Your Honour just talking about it, there's no doubt that she could use children as a vehicle to detain but in the factual matrix of this case that hasn't been what's happened and as such, the direction I'm putting is appropriate. Don't you leave this house, this sort of thing, or I'll bash you, or things like that are the sort of things that lead to the detention. HIS HONOUR: Except that I don't think you can really take one element - one strand out of that mix. LITTLE: But if the sole reason she doesn't leave. HIS HONOUR: Well did she ever say that was the sole reason she didn't leave? LITTLE: She said that was the reason she didn't leave. HIS HONOUR: Sure, she agreed that that was a reason she didn't leave. LITTLE: So if that is the reason she doesn't leave, then in those factual circumstances that could not amount to detention. HIS HONOUR: Well look, had you got her to say there were times when I was not worried about the threats and the only thing that stopped me from going was the children, I'd agree with you entirely. But can you really quarantine that element to the point where I can give them a meaningful direction? LITTLE: Well if they form a view the sole reason was that she didn't leave was because of the fact that she couldn't take all four children at once, yes, you can quarantine it. If there's a mixture, yes. HIS HONOUR: That would require the most extraordinary mental gymnastics, would it not? They would have to reject her fears but accept her complaint that she wouldn't leave without the kids? LITTLE: Well that's part of the usual function that they're capable of accepting or rejecting the evidence of a witness-- HIS HONOUR: Well I hear what you say, what do you say Mr Crown? HARRISON: Your Honour I agree with my friend's last submissions. I'd submit that it invites the jury to draw an unfair inference against Mr Homsi in terms of he was using the children in some way to detain [the complainant]. Her evidence was that Mr Homsi had said to her that she's not to leave the house essentially so that no one would see her injuries or bruises. She went on further in her evidence to say - in prefacing her evidence with. 'I'll be honest, I wasn't going to leave without my children.' Now that is nothing to do in her evidence there with Mr Homsi. HIS HONOUR: Yes but you see the Crown case is rather broader than that. The Crown, as I understood the way in which this was put, was that not only were there threats, there were actions taken in depriving her of a licence, a credit card, a Medicare card and so on, which made her less independent and it's in those circumstances that the fear about leaving the children there resonates, you see. HARRISON: I can understand that point in terms of depriving her of things means to be independent, but at no stage does she suggest that it's intentional in terms of what's happening with taking the children to school. She says, I didn't want to leave without my children. She doesn't draw any sort of inferences or conversations from Mr Homsi towards her in regards to, well I'm going to take the children now, I'm going to take one of the children now. That certainly doesn't come up at all in her evidence. In my submission it's totally independent as to what she is saying as to the reasons why she doesn't leave the house. Her evidence was she's not leaving because - her evidence being that Houssam is saying to her, don't leave the house because I don't want anyone to see your bruises. She's not saying that she-- HIS HONOUR: I don't think she ever said that actually - I don't want you to leave because I don't want anybody to see your bruises. HARRISON: I think that was the tenor of her evidence. HIS HONOUR: Well it might be the tenor, I don't recall her saying that in terms. But that's splitting hairs. If all you want me to say is if you ever got to the stage of believing that her sole reason for not leaving the house was because she wouldn't leave the children, then that doesn't amount to detention. If that's all you want me to say. What do you say Mr Crown? CROWN PROSECUTOR: Well in my submission it doesn't follow because the clear evidence of [the complainant] is that - only that she wanted to get out of the house is because these things had happened. This is more going to an opportunity, they're saying you had an opportunity when they're out of the house. She'd already at that stage wanted to - felt that she was detained, but she couldn't leave or couldn't take an opportunity because the children weren't altogether. That's it in effect, so it's really flowing already from her saying, because of the violence, the threats, threats not to leave and the stripping of her identity, that she was detained there and when there was an opportunity that arose, she couldn't go, one being because all the children weren't together and I didn't want to leave the children. So in my submission, it is splitting hairs, it's really if a jury are coming down to that - considering whether she didn't leave at that stage because all the children weren't together, they must really have found that she wanted to leave and felt detained there by things that had already happened to her. HARRISON: Your Honour I'd submit it goes further than opportunity, it goes to the very reason. CROWN PROSECUTOR: But why does she want to leave - that's the only reason. 71Subsequently, in the summing up, the trial judge said this: Now I told you the way in which the Crown relies on a combination of things to represent the act of detaining. It is the threats, the actual physical violence, the deprivation of independence by the removal of the car, the licence, and so on, and into that mix there was also the fact that [the complainant] said that she did not want to leave without her children. If you got to the stage - I do not suggest you would get to this stage, I do not know how you would get to this stage, but I am required to try and cover all possibilities and eventualities - if you ever got to the stage of believing that her sole reason for not leaving was because of the children, that is excluding these other elements on which the Crown relies, then that probably - in fact I would have to tell you that as a matter of law - would not amount to detention, that single element, by itself, if it was the exclusive reason why she did not go at an earlier time. But how you would tease that out of the other combining factors on which the Crown relies would be a matter entirely for you and I give you no advice or assistance in that regard. 72It was submitted for the appellants that there were three errors in this direction: (1) It suggested to the jury (especially by the words "I do not know how you would get to this stage") that the jury should not accept that the complainant stayed for reasons other than threats and violence. (2) It reversed the onus of proof, suggesting that in order to acquit, the jury had to come to believe that the complainant's sole reason for not leaving was because of the children. The judge should have directed to the effect that the jury must acquit if the Crown had not excluded beyond reasonable doubt that the complainant's sole reason for staying was because of the children. (3) It indicated that, even if the complainant would have left but for the children, the jury could still find she was detained. The trial judge should have directed that the jury must acquit if the Crown had not excluded beyond reasonable doubt that the complainant would have left but for not wanting to leave without the children. 73As conceded by the appellants, there does not have to be an actual physical detention to satisfy the requirement of detaining: it can be as a result of threats and/or violence depriving the complainant of her liberty. 74In my opinion, the appellants' third complaint about the trial judge's direction is incorrect. In my opinion, so long as threats and violence materially contributed to detention of the complainant (and were intended to do so), it would not matter that the threats and violence would not have been effective but for the additional influence of the complainant's concern about her children and her not wanting to leave without the children. 75I accept that the Crown had to prove beyond reasonable doubt that the threats and/or violence of the appellants materially contributed to the detention of the complainant (and were so intended), so that if the jury had a reasonable doubt that this was so, the appellants were entitled to an acquittal. However, if the jury were satisfied beyond reasonable doubt of the substance of the complainant's evidence, it is very difficult indeed to see that they could have had such a reasonable doubt. It is true, as put for the appellants, that the complainant said on a number of occasions that she would not leave the house without her kids; but it was not put to her that at any time she was not motivated at all by the threats and violence but remained only because of the children, and certainly that position was never expressly or impliedly suggested by the complainant's evidence. In those circumstances, the difficulty perceived by the trial judge in giving the directions requested by the appellants' counsel is understandable. 76I accept that, if read in isolation, the part of the direction complained about might conceivably be taken as suggesting that it was not enough for acquittal that the jury had a reasonable doubt as to whether the complainant's only reason for not leaving was because of the children, but that rather it was necessary that they "come to the stage of believing that her sole reason for not leaving was because of the children". However: (1) The direction was given in response to a submission by counsel for Ms Karamalakis that included the assertion "if they form a view the sole reason was that she didn't leave was because of the fact that she couldn't take all four children at once, yes, you can quarantine it." (2) The trial judge indicated in the discussion that he was contemplating saying "if you ever got to the stage of believing that her sole reason for not leaving the house was because she wouldn't leave the children, then that doesn't amount to detention"; and counsel for the appellants raised no submission against that proposal. (3) The part of the summing up should not be read in isolation. The trial judge had directed the jury that the Crown has to prove beyond reasonable doubt the essential elements of each charge, and that if any of those essential elements is missing in the sense of not being proved beyond reasonable doubt, then the jury must acquit; and he repeated this direction in relation to detaining. The part of the summing up complained of could not reasonably be understood as a retraction of these directions. (4) No complaint about this part of the direction was made at the trial. 77In these circumstances, although it may perhaps have been preferable for the trial judge to say that detention is not proved beyond reasonable doubt if it is not proved beyond reasonable doubt that it was not the case that the complainant's sole reason for not leaving was because of the children, the trial judge's formulation had the merit of avoiding a confusing double negative, and of drawing the jury's attention to a situation which would not amount to detention; and the general directions concerning proof beyond reasonable doubt would have appropriately alerted the jury to the need for this situation to be excluded beyond reasonable doubt. 78As regards the first complaint, insofar as this part of the summing up included comments by the trial judge indicating a view of the facts, those comments were not inapposite. If the jury accepted beyond reasonable doubt the complainant's evidence that Mr Homsi threatened her that if she went out, the appellants would take her to the cemetery and bury her there, threatened to kill her if she left or called the police or told anyone about what was happening, and that in conjunction with those threats there was extensive application of actual violence, and that the complainant was scared to leave because of threats that Mr Homsi would do something bad to her, it is difficult to see how they could not be satisfied beyond reasonable doubt that these threats and actions made a material contribution to her not leaving. On her account, the question of her staying solely because of the children, in the absence of the threats and their influence on her, did not actually arise. Thus it was a purely hypothetical question; and even if that hypothetical question could be given the answer that she would not have left without the children, this would not mean that, as things actually occurred, the threats did not make a substantial contribution to her not leaving. Further, the trial judge gave an appropriate direction to the jury that they were the sole judges of facts, and that if he expressed any opinion on the facts, the jury was obliged to disregard it unless it happened to coincide with the view they had themselves independently formed. 79In my opinion, this part of the summing up did not amount to a wrong direction on any question of law, nor any departure from trial according to law, nor any departure from applicable rules of evidence or procedure. In my opinion in its context it was not a misdirection as to the onus of proof, nor such as could mislead the jury or otherwise be unfair. Even if it were considered a misdirection in any respect, in my opinion it is not one which could as a reasonable possibility have influenced the verdict. In my opinion it gave rise to no miscarriage of justice, within that phrase as used in the body of s 6(1). I would not allow this ground of appeal. Ground 3: Unreliable evidence 80Section 165 of the Evidence Act 1995 provides as follows: 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person-evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3). Note . The Commonwealth Act does not include subsection (6). 81In the course of his summing up, the trial judge said this: On the question of Fadia Bekdache who figured in not only the Crown's address but also the address of defence counsel, she apart from the professional witnesses, like the police, the ambulance and the social worker, and Mr Gillan, appears to be the only non-family member whose testimony is before you in any form. I could be wrong about that, I am not sure about the relationships which were described by each of the witnesses but I rather thought they were all related in some fashion. She on the other hand seems to be a witness of no apparent bias, she was simply caught up in the events of the day by being outside when [the complainant] was out in the front yard with her children looking for a lift. Nonetheless what she said in her evidence, admittedly you have not had the chance to see her but what she said about telling the accused, Houssam Homsi, directly about how she had given [the complainant] a lift is denied by everybody who was present on the defence side, if you like. That is both accused, Mr Kourouche, Mr Aladean Homsi, they all claim to have been present and that there was no contact between Fadia Bekdache and Houssam Homsi. Whether that is of any importance to you or not is a matter entirely for you. I simply point out that that is a direct conflict between those grouped on the defence side, if you like, and Ms Bekdache who does not appear to have any axe to grind but you did not get to see her, so you will have to make of that whatever you see fit. 82At the conclusion of the summing up, and in the presence of the jury, the trial judge asked if there were any applications, and counsel for Mr Homsi responded that "I'd take a warning under s 165 in regard to Ms Bekdache's evidence given that counsel haven't had the opportunity to cross-examine her". The trial judge did not give that warning and the jury retired. The following exchange then occurred: CROWN PROSECUTOR: Your Honour there is just one matter, only because my friend Mr Harrison made a request for a warning under 165 in respect of Ms Bekdache her evidence being admitted. Just that looking at subs (3) it says "The judge not need comply with subs (2), that is the warnings, if there are good reasons for not doing so". It may require your Honour to provide some reason for the record. HIS HONOUR: Well because there is nothing to suggest that Mrs Bekdache was in any way a partial witness, I do not see any reason to warn the jury about accepting her evidence in that respect. Nor could it be thought that her reluctance to come is entirely devoid of any attitude of the accused or those in support of him. So I don't propose to warn about a witness whose reluctance to come may at least in part be traceable to the activities of the accused. It may at least be in part be attributable. HARRISON: Well your Honour the section addresses whether the evidence may be unreliable and obviously the reading of her statement is really hearsay evidence. HIS HONOUR: There is no reason to suggest that her evidence would be unreliable is there Mr Harrison? HARRISON: Well your Honour the evidence is that there was a conversation taking place at the house between a number of persons which including Ms Bekdache's husband. Now the issue is and has been in this trial is to who was speaking to Mr Homsi directly, whether it was the husband or whether it was the wife and essentially this is hearsay evidence whether she's possibly told something by her husband as opposed to whether she's had conversation directly with Mr Homsi. HIS HONOUR: Is there anything critical about her evidence? Is there any basis upon which you can suggest that she might be confused about whether she spoke directly to Mr Homsi? HARRISON: Not that I can point to in her statement. That's the whole point your Honour, I haven't had the opportunity to obviously cross-examine her in regards to how she come to have that knowledge that she's actually, or the conversation that she's attributed to Mr Homsi in her statement. Whether that's possibly come from something that her husband has told her. HIS HONOUR: Well anyway I haven't give a warning and I don't propose to. 83The statement by the trial judge that the reluctance of the witness to come "may at least in part be traceable to activities of the accused" appears to have been based on paragraphs in a signed statement of the witness that was before the primary judge, and is also before this Court as an annexure to an affidavit of Maria-Rosa Etnasios dated 3 June 2011, which was read at the hearing of the appeal. This affidavit also annexed a medical report supporting the unavailability of the witness to give evidence. The relevant paragraphs of the statement made assertions to the effect that there had been threatening conduct by Mr Homsi towards the witness, which had caused the witness to be scared. 84It was submitted for the appellants that the trial judge erred in not giving the direction requested, in particular for the following reasons: (1) The statement was hearsay and was therefore within s 165(1)(a), and as such was "evidence of a kind that may be unreliable" within s 165(1). (2) Accordingly, a direction having been requested, the judge was required to give the warning unless there were "good reasons for not doing so". (3) The judge did not address the question whether there were good reasons for not giving the warning, but rather considered whether there were reasons for giving the warning. (4) One of the reasons referred to by the trial judge was erroneous because there was no evidence that the witness's reluctance was traceable to the activities of the accused. (5) The circumstances that there was nothing to suggest the witness was partial, or that on the face of the statement there could be no confusion about whether she spoke directly to Mr Homsi, were not reasons for not giving the warning, in circumstances where defence witnesses asserted that Ms Bekdache did not speak to Mr Homsi and defence counsel were precluded from exploring her recollections. (6) The need for such a warning was supported by the cases of Henriques v R (1991) 93 Cr App Rep 237 and Mendham & Foster v R (1993) 71 A Crim R 382. 85In relation to point (4), it is clear in my opinion that the trial judge could not rely on the relevant paragraphs of the witness' statement as reasons for not giving the warning. Although those paragraphs could be considered evidence, they were not evidence that the appellants had any opportunity to contest; and it would in my opinion be a denial of natural justice to rely on them. It was submitted for the Crown that the judge could take the paragraphs into account to the extent of supporting a view that the witness' reasons for failure to attend did not affect the reliability of her statement. However, in my opinion even to do that would involve a denial of natural justice. Accordingly, to the extent that the trial judge did rely on those paragraphs, it was an error for him to do so. 86However, this does not necessarily mean that the trial judge erred in not giving the warning. 87The first question is whether the mere fact that the evidence was hearsay meant that the warning must be given unless there were good reasons for not doing so, or whether there was a preliminary question whether the particular hearsay evidence tendered in this case was "of a kind that may be unreliable". There is in fact clear authority of this Court that, quite apart from the effect of s 165(3), a warning is not required by reason of the evidence falling within a category in s 165(1) unless that evidence is of a kind that may in fact be unreliable by reason of being within that category: R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166, Derbas v R [2007] NSWCCA 118, and GAR v R (No 2) [2010] NSWCCA 164. 88In the light of that authority, any question as to the interpretation of what Howie J said in R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 and any doubts expressed by Smart AJ (Giles JA and Dunford J agreeing) in R v Harbulot [2003] NSWCCA 141 need no longer be considered. The following clear statement by the Court (Tobias JA, James and Howie JJ) in Fowler at [187] must be considered authoritative. [187] If, for example, the Crown relies upon a lie allegedly told by an accused as evidencing a consciousness of guilt, the lie will amount to an admission for the purposes of Pt 3.2 of the Act. Whether a warning under s 165 should be given about that evidence depends upon the issues raised in relation thereto during the trial. If there is no issue that the accused made the statement upon which the Crown relies, it is unlikely that any warning will be required. The directions to be given to the jury identifying the pre-conditions that must be fulfilled before the statement can be used as evidence of a consciousness of guilt would be sufficient to fully alert the jury as to the way in which they are to consider that evidence and determine the issues raised before them. In such a case, there will usually be no risk of unreliability notwithstanding that the statement may amount to an admission for the purposes of the Act. A warning is not required where, even though it falls with the ambit of s 165(1)(a), the evidence is not "of a kind that might be unreliable" (applying Clarke ), or where there are good reasons for not giving a warning (applying s 165(3)). If the accused denies making the statement relied upon by the Crown, the question of whether a s 165 warning is required will depend upon the nature of the attack made upon the evidence of the making of the disputed statement. 89There is of course a sense in which any evidence may be unreliable; but plainly s 165 is directed towards evidence in relation to which there is such reason to suspect unreliability that caution should be exercised in relation to it, over and above the ordinary scrutiny that should be exercised in relation to all evidence. 90However, hearsay evidence does generally have characteristics such that it is "of a kind that may be unreliable", in the sense in which that phrase is used in s 165(1). As was said in R v TJF [2001] NSWCCA 127; (2001) 120 A Crim R 209 at [55], in relation to evidence of a complaint: [55] By its very nature, evidence of complaint, being hearsay evidence, may be unreliable for a number of reasons expressed in the report of the Australian Law Reform Commission which led to the enactment of the Evidence Act 1995. Those reasons are identified in Uniform Evidence Law by Odgers, 4th ed at p413 and may be restated as follows: "(a) The potential compounding of weakness of perception, memory, narration skills and sincerity when evidence of the fact is given second hand. (b) The statement to the witness not be testable by cross-examination. (c) The statement made to the witness not being made in a court environment and thus potentially more susceptible to pressures which might result in a false account. (d) The statement made to the witness not being made on oath or affirmation in the solemn context of proceedings in court." 91In the present case, consideration (a) did not apply to any significant extent. The hearsay evidence was in the form of a detailed and signed statement, so that there was no danger that words spoken might be inaccurately recalled or expressed, or might not have been intended by their source as sincere and considered assertions of fact; and no danger of any compounding of weakness of perception, memory, narration skills or sincerity, by reason of the assertions being relayed second-hand. The statement was made on 9 March 2009, a little under five months after the event, so the danger of weakness of memory skills was not only not compounded, but was also less than that for evidence given orally in the case in 2010. 92Consideration (b) did apply. However, this of itself does not suggest unreliability, but rather means that factors indicating unreliability that may exist are not disclosed: see R v Nemeth [2002] NSWCCA 281 at [10]. Such possible factors concern Ms Bekdache's honesty, perception of events and accuracy of recounting them. There was in this case no basis for suggesting partiality or dishonesty; and while it is true that cross-examination may have disclosed such a basis, this possibility is remote in the extreme. However, in circumstances where there was a conflict between Ms Bekdache's statement and evidence of defence witnesses as to whether Ms Bekdache spoke directly to Mr Homsi, cross-examination might possibly have raised a question as to whether this was something she clearly remembered or had reconstructed. 93Consideration (c) did not apply to any significant extent. There is no reason to think that Ms Bekdache may have been susceptible to pressures in making her statement to police. 94Consideration (d) did apply, but can be considered of less force in relation to an independent witness such as Ms Bekdache. 95In this particular case, accepting that absence of cross-examination does not of itself suggest unreliability, I am not satisfied that a conclusion that the evidence was not of a kind that may be unreliable was a wrong conclusion. 96A requirement of s 165(2) is that the judge inform the jury of the matters that may cause the evidence to be unreliable. In the present case, the matters that could possibly fall within that requirement would be the facts that the evidence was by way of a signed statement and was not sworn or solemnly affirmed in court, and that it was not the subject of cross-examination that could disclose potential unreliability. I do not think that either of these matters, as such, indicates that the evidence is of a kind that may be unreliable within s 165(1); and in any event, both would have been apparent to the jury. 97In my opinion also, having regard to the above considerations, to warn the jury that this evidence maybe unreliable, to give those reasons, and to warn the jury of the need for caution in relation to it, would not have been warranted in this case, particularly having regard to the relatively minor significance of points of conflict between this evidence and that of defence witnesses; so that there were good reasons within s 165(3) for not giving those warnings. 98I note that in Mendham at 388, Gleeson CJ (Handley JA and Grove J agreeing) said this, in relation to a deposition of evidence given by a police officer Sergeant Hain at committal proceedings, which over objection had been read at the trial in purported reliance on s 409 of the Crimes Act (since repealed): The authorities make it clear that, even if Sergeant Hain's deposition had been admissible under s 409, the trial judge should have given the jury an appropriate warning of the approach to be taken of that evidence. His Honour was asked to give such a warning but declined to do so. In Henriques (1991) 93 Cr App R 237 at 242 the Privy Council said: "When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffiths said in Scott and Barnes [1989] AC 1242 at 1259; (1989) 89 Cr App R 153 at 161: 'in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination.'" The present case involved a good example of the sort of thing to which Lord Griffith [sic] was referring. There was a clear and important conflict between the evidence of Hain and the evidence of Eastwood, relating to the matter of Hain's notebook. This is just the sort of matter that should have been dealt with in the course of an appropriate warning. The reference to the evidence of Eastwood was a reference to evidence given at the trial by another police officer, which conflicted in an important respect with that of Sergeant Hain. 99That decision pre-dated the Evidence Act 1995; and it is important that the only significant evidence against the appellant in that case was a statement he was alleged to have made in a conversation described by Gleeson CJ as rather extraordinary, asserted by the deposition and by the evidence of Constable Eastwood, and that there was a conflict between the deposition and that evidence in a vital respect. In those circumstances, a decision that a warning was required is entirely unsurprising. 100In my opinion, that decision is not apposite to the construction of s 165, and does not affect the views I have expressed above on its application in this case. 101Nevertheless, on the basis of the considerations discussed in Henriques and Mendham , it may have been desirable that the trial judge point out to the jury that: (1) Ms Bekdache's statement was not sworn or solemnly affirmed in court. (2) The jury did not have the benefit of seeing her or hearing her evidence tested in cross-examination. (3) There was a conflict between her statement and the evidence of defence witnesses as to whether Ms Bekdache spoke directly to Mr Homsi, and the defence had not been able to test by cross-examination whether this was something she remembered clearly or had reconstructed. Of course, the trial judge could at the same time have pointed out, as he did, that Ms Bekdache appears to have had no axe to grind. 102However, to the extent that what the trial judge did fell short of this, it did not in my opinion amount to a departure from trial according to law or give rise to a miscarriage of justice, within that expression in the body of s 6(1) of the Criminal Appeal Act , particularly having regard to the circumstance that Ms Bekdache's evidence was, in comparison with other matters concerning credibility to which I have referred earlier in this judgment, not of major significance in the case. 103Accordingly, even if an argument based on this view of Henriques and Mendham was within this ground of appeal, I would not accede to it. In my opinion this ground of appeal fails. Ground 4: Unreasonable verdict 104For the appellants, it was submitted that the Crown case relied almost entirely on the word of the complainant, and that her evidence was wholly unreliable in the following ways: a. Inconsistencies through various statements, her Family Court affidavit, and her previous evidence as set out above. b. Inconsistencies with numerous other witnesses (including some of her family and friends), in various aspects from her relationship with the appellants, to attendance of people to her home, to seeing people away from home and attendance at the Doctors during the time of detention. c. The injuries, while severe, not being consistent with constant punching to her face alleged, and being consistent with the evidence of the appellant Karamalakis. d. The numerous opportunities to leave, and no indication why suddenly she was able to leave on Friday morning as opposed to any other time. 105The appellants also referred to M v R [1994] HCA 63; (1994) 181 CLR 487 at 493-5, Rasic v R [2009] NSWCCA 202 at [29] and State Rail Authority of New South Wales v Earthline Constructions Pty Limited [1999] HCA 3; (1999) 160 ALR 588 at [88]. 106Mr Hamill SC for the appellants also relied on the verdict of not guilty on count 10, as indicating that the jury had not accepted the complainant as a reliable witness. He submitted that, particularly in the light of the trial judge's directions on the matter, the jury would have found urinating on the complainant was an act of indecency on the complainant, if it occurred as the complainant alleged; and so on that matter at least, the jury must have disbelieved her. 107I have already expressed the view that the jury could reasonably have concluded beyond reasonable doubt that the version of events given by the appellants was a concoction. However, it is still necessary to consider whether the positive evidence led by the Crown made it reasonable for the jury to be satisfied beyond reasonable doubt of the guilt of the appellants. As submitted for the appellants, there were inconsistencies in the complainant's evidence which the jury may have considered significant. However, there was also substantial evidence supporting her, including the following: (1) Descriptions and photographs of extensive injuries suffered by the complainant all over her body, with bruising of different colours (yellow, blue and purple) supporting her evidence that the injuries were the result of assaults over an extended period of time. (2) Clumps of the complainant's hair scattered round the house, found by the social worker and police when they first entered the house, along with expert evidence that the recovered hair had been pulled out. (3) Cut up clothing found at the same time. (4) The circumstance of the complainant's flight from her house, with virtually nothing apart from her children, badly injured and making largely consistent complaints to Ms Bekdache, the police and the social worker. 108In my opinion, having regard to this supporting evidence, it was well open to the jury to accept beyond reasonable doubt the substance of the complainant's evidence, notwithstanding inconsistencies in it. 109As regards the not guilty verdict on count 10, it is a little surprising that there should have been this not guilty verdict and no others; but this does not in my opinion show that the jury did not accept the complainant as a reliable witness in such a way as to raise a doubt about the verdicts on other counts. 110There was some independent corroboration of count 10 (smell of urine described by some witnesses), but the defence sought to explain this as possibly due to the complainant carrying the youngest child. There were also variations in the complainant's account of the incident. 111One other possible explanation is that, after the jury had retired to consider its verdict, it sent a note asking that the trial judge define "assault". In response, the trial judge gave an answer in which he included, as one of the necessary elements of assault, that there "has to be the application of some force or pressure to the person of another"; and it is conceivable that the jury took the view that the direction of urine on to a person did not satisfy that requirement. 112In any event, for the reasons I have set out above and notwithstanding the verdict of not guilty on count 10, having assessed the sufficiency and quality of the evidence in the case, my opinion is that it was well open to the jury, as a matter of fact, to be satisfied beyond reasonable doubt of the guilt of both appellants. I do of course take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the consideration that the jury had the benefit of seeing and hearing the witnesses. 113Accordingly, I would reject this ground also, and I would dismiss the appeal of both appellants. Proviso 114For reasons I have given, it is my opinion that any shortcomings in the trial judge's directions did not occasion any miscarriage of justice, as that expression is used in the body of s 6(1) of the Criminal Appeal Act , or otherwise come within the body of s 6(1); so it is not necessary to consider the proviso. 115However, it does follow from my discussion that I am of the view that any such shortcomings had no significance in determining the jury's verdict, and that there was no such shortcoming that the appellants were deprived of a trial according to law. Having independently assessed the evidence, and having taking account of the jury's verdict, I consider that the appellants were proved beyond reasonable doubt to be guilty of the offences on which they were found guilty by the jury, and I am affirmatively satisfied that no substantial miscarriage of justice actually occurred. Appeals against sentence 116In his remarks on sentence, the trial judge made the following findings and observations concerning the objective seriousness of the offences: The litany of [the complainant's] injuries is a lengthy one. The Crown summarises it and I propose to adopt the phrase as indicating only that she had bruises and grazes from her head to her legs. She had clearly been the victim of prolonged and widespread violence. She had been detained from some time after two o'clock on 21 October to about seven o'clock on 24 October when she made her escape. That is a period of about sixty-five hours during which time she had been bashed, terrorised by threats and deprived of the means of escape. Her detention had been achieved; that is the interference with her liberty to move away from her home had been achieved by a combination of factors, namely those threats, the actual assaults and the fact that she had been handicapped by removal of the car keys, her bankcards and Medicare cards so that she had no means to travel and no means either to identify herself or to access any funds. Overall the submission made by both counsel is that this act of detainment falls not, as the Crown suggests above the middle level of objective criminality. And, as well, Mr Little for the offender Karamalakis, suggests that because she is charged as a principal in the second degree, her sentence should be less than that imposed on Homsi. The Crown appears to accept that that is so, although the consensus between them is that the difference should not be a significant one. The evaluation of criminality involved in a charge of detaining includes consideration of the duration of the period and the extent to which fear was occasioned. This was a prolonged period and the level of violence, actual and threatened, was such as to engender very grave fears on the part of the victim. In all this was a very serious abuse of the liberty and person of the victim. It occurred in her own home. It was, at least on one occasion, witnessed by at least one of the children who protested at the violence being administered to her mother. These latter factors are aggravating elements pursuant to s 21A(2). The actual and threatened violence are not themselves elements of the offence and are at least theoretically available as aggravating factors also. But because actual bodily harm is already included in the offence I have deemed it appropriate to disregard these matters in the sense of not finding them established under s 21A(2). As to the level of harm, emotional and physical, it is clear that the victim suffered significantly and is left with ongoing anxiety. To her credit in her victim impact statement she asserts that things are getting better and I am not therefore prepared to find that the level of harm she suffered amounted to a separate aggravating element over and above the level to which any victim of a prolonged and violent detention would be expected to suffer. I have been referred, understandably, to the statistics, but more so in this case than in some others they are of really little value. The act of detainment can range from a momentary detention to a very prolonged period. The level of violence and fear can vary widely. In all circumstances I find this offence falls comfortably within the middle range of objective seriousness. Whilst there is no standard non-parole period applicable to this crime, the maximum sentence of twenty-five years means that such a finding should result in a very significant term of imprisonment. I note that both offenders have maintained their innocence. This is their right and no criticism is made of that. The only relevance in making that observation is that such a stand negates any contrition or remorse and this forecloses any prospect of additional leniency on that basis. 117He then considered the subjective case of Mr Homsi, noting evidence that he had a dysfunctional childhood because of an abusive alcoholic father; that his father was murdered when Mr Homsi was 16; and that he had the trauma of seeing his father's body. The trial judge referred to Mr Homsi's criminal antecedents, and also to a suggestion from a report of a psychologist, tendered on behalf of Mr Homsi, that this crime may be related to Mr Homsi's heavy cannabis use. (I note that the trial judge did not refer to another part of the psychologist's report, in which Mr Homsi is reported as smoking cocaine from the age of 19, and doing so three times a week up until the time of his arrest.) The trial judge referred to the psychologist's view that the risk of violent recidivism was low to moderate and that Mr Homsi's prospects of rehabilitation were good. The trial judge referred to references given for Mr Homsi; and he concluded that Mr Homsi's prospects of rehabilitation were average. 118The trial judge noted that this was Mr Homsi's first time in custody and that he had lost contact with his children; and he considered it appropriate to vary the proportions of his sentence because of those circumstances. 119The trial judge then considered the subjective case of Ms Karamalakis, noting that she had a dysfunctional and abusive early family environment, and that she suffered from having married a man later convicted of terrorism offences. He said she was young and pregnant to Mr Homsi, and that this was her first time in custody; and he found that a substantial reduction should be made in her non-parole period to reflect these circumstances. Submissions for Mr Homsi 120It was submitted for Mr Homsi that the assaults (counts 1 and 2) could have been dealt with by the Local Court, where statistics showed that only 7 per cent of cases are dealt with by way of full-time custody, and only 0.06 per cent dealt with as harshly as this case. Even in the District Court, only 27 per cent receive full-time custody, and only 10 per cent received a term of 7 months or more. There was nothing in the assaults in this case that would put them at the top of the range of seriousness. 121As regards the detain count, statistics showed that the sentence imposed was in the highest 18 per cent of sentences; and having regard to the trial judge's assessment of objective seriousness as being in the middle of the range, the sentence was outside the accepted pattern. The excessiveness of the sentence for assault, although concurrent, contributed to the excessiveness of the overall sentence. Submissions for Ms Karamalakis 122It was submitted for Ms Karamalakis that the malicious damage charge could have been dealt with at the Local Court, where of 17,068 offenders not one received more than 12 months fixed term or non-parole period. Even in the District Court (where there were no limits on the value of the damage) only three of 51 received a fixed term or non-parole period more than 12 months. There was nothing in this case to put it at the top of the range of seriousness. As regards the detain offence, the role of Ms Karamalakis was less than that of Mr Homsi; and it was difficult to see how her prior good character, background and prospects for rehabilitation had been properly taken into account. The excessiveness of the sentence for malicious damage, though concurrent, had contributed to the excessiveness of the overall sentence. Decision 123The maximum penalty for assault is two years imprisonment ( Crimes Act s 61); for malicious damage five years ( Crimes Act s 195(1)(a)); and for specially aggravated detain for advantage 25 years ( Crimes Act s 86(3)). 124I accept the Crown's submission that sentencing statistics are of limited use. I also note that, in circumstances where it would have been pointless to fix a non-parole period for the assault and malicious damage charges, the appropriate comparison would be with fixed terms and head sentences, not with fixed terms and non-parole periods. 125In relation to the assault and malicious damage offences, it is legitimate to take into account that they were not isolated incidents, but were committed in the context of extensive, prolonged and serious wrongdoing perpetrated on the victim. In relation to these, as well as the main offence, it is to be taken into account that the appellants have not shown any remorse. In those circumstances, I am not satisfied that the sentences imposed for the assault and malicious damage offences were excessive. 126As regards the detain for advantage offence, I accept the Crown's submission that these are serious examples of a serious offence. Although Mr Homsi was the principal in the violence shown towards the complainant and in her detention, Ms Karamalakis was also an active participant. The substantially lower non-parole period in her case appropriately reflected her lesser role, and also her prior good character, her youth and her pregnancy. 127I am not satisfied that the sentences for the detain for advantage offences were excessive. Orders 128In the case of each applicant I propose the following orders: (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted, and appeal against sentence dismissed. 129HOEBEN J: I agree with Hodgson JA. 130GROVE AJ: I agree with Hodgson JA. ********** 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: 28 July 2011