Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Soames v R [2012] NSWCCA 188 Hearing dates: 18 July 2012 Decision date: 29 August 2012 Before: Allsop P at 1 Latham J at 4 Davies J at 112 Decision: Appeal dismissed Catchwords: CRIMINAL LAW - appeal against conviction - sexual intercourse without consent -whether unreasonable verdict - whether trial miscarried by denial of procedural fairness Legislation Cited: Crimes Act 1900 Evidence Act 1995 Criminal Procedure Act 1986 Cases Cited: SKA v The Queen [2011] HCA 13; 243 CLR 400 M v R [1994] HCA 63; (1994) 181 CLR 487 MFA v R [2002] HCA 53; (2002) 213 CLR 606 R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8 R v GAR (No 3) [2010] NSWCCA 165 R v Teasdale [2004] NSWCCA 91 ; 145 A Crim R 345 Livermore v R [2006] NSWCCA 334 ; 67 NSWLR 659 R v McCullough (1982) 6 A Crim R 274 KNP v R [2006] NSWCCA 213 R v Joseph Attallah [2005] NSWCCA 277 R v Liristis (2004) 146 A Crim R 547 R v Rugari (2001) 122 A Crim R 1 MWJ v The Queen [2005] HCA 74 ; 222 ALR 436 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Category: Principal judgment Parties: Natham Soames - (Applicant) Regina - (Crown Respondent) Representation: P Hamill SC - (Applicant) T Smith - (Crown Respondent) Nyman Gibson Stewart - (Applicant) S Kavanagh - Solicitor for Public Prosecutions - (Crown Respondent) File Number(s): 2008/75615 Decision under appeal Before: D Woodburne SC DCJ File Number(s): 2008/75615 Judgment 1ALLSOP P : From my examination of the evidence, I do not hold a doubt about the finding of guilt by the jury. I agree with the expression of the matter by Latham J. The crucial consideration is what happened at the house. That was addressed by oral evidence of a number of people including the complainant. No particular aspect of the video recording of the complainant's evidence was said to inform the existence of any doubt. In those circumstances, the caution expressed by French CJ, Gummow and Kiefel JJ in SKA v The Queen [2011] HCA 13; 243 CLR 400 at 410-411 [28]-[31] about viewing the recording of her evidence is warranted here. The conclusion which is available from the transcript (and which was clearly drawn by the jury having the advantage of seeing and hearing the evidence of all the witnesses in context at the trial) is that those who were in the house, from what they heard and saw, recognised the complainant's distress. That was not only consistent with, but also emblematic of what she said, there and then, to the appellant's friends, almost in terms: no means no. 2All the criticisms of the complainant's evidence were put to the jury. The jury had the advantage of immediate assessment of all witnesses. If I had a doubt from the evidence, it would be a doubt that would be resolved by the jury's advantage. I have, however, no such doubt. 3I agree with the reasons of Latham J on the procedural fairness grounds, for which leave should not be given. 4LATHAM J : The appellant was found guilty by a jury on 31 March 2011 of one count of sexual intercourse without consent (s61I Crimes Act 1900) after a trial before Woodburne SC DCJ. The appellant appeals against his conviction on the ground that the verdict is unreasonable and cannot be supported by the evidence at trial. There is also a complaint that the trial miscarried because of a submission by the Crown Prosecutor to the jury, to the effect that the evidence of two Crown witness (Gavin Duncan and Scott Buckley) was calculated to assist the appellant, when that proposition was not put to the witnesses. 5There is no appeal against sentence. 6The events giving rise to the charge commenced late in the evening of 11 October 2008 at Penrith Panthers Leagues Club, when the appellant and his friend, Gavin Duncan, offered the complainant EF, and her friend, Ms Munro, a lift home. The complainant and Ms Munro accepted the offer. However, Mr Duncan drove to a house in South Penrith where he and the appellant were staying the night. Ms Munro and the complainant went inside the house. There were two other young men in the house, namely Scott Buckley and Shane Lee. The Crown case was that the complainant entered a bedroom in the house alone, with the intention of getting some sleep. The appellant entered the bedroom and engaged in sexual intercourse with the complainant against her will. The Evidence at Trial 7The complainant (then aged 19) and Ms Munro arrived at the Panthers Leagues club about 9 pm. They entered the nightclub "Lynx" and over the course of the evening consumed some alcohol and danced with friends. The complainant said she was not affected by alcohol. Ms Munro and the complainant spoke to Gavin Duncan and the appellant (then aged 21). They had previously met Mr Duncan at another club in Penrith. The complainant met the appellant for the first time at the Panthers Leagues club approximately 4 weeks earlier. 8During the time the complainant and Ms Munro were at the club, the complainant attempted to call and sent several text messages to her boyfriend. The complainant had arranged to meet him at the club but he did not arrive. 9CCTV footage obtained from the nightclub depicted the complainant, Ms Munro, Gavin Duncan and the appellant in each other's company from time to time. Despite the complainant being left alone by Ms Munro for approximately 45 minutes, the complainant was not involved in any significant discussion or interaction with either the appellant or Mr Duncan. 10The complainant left the dance floor to find Miss Munro. The latter was in the female toilets in an intoxicated state and almost asleep. They remained inside the toilet for about half an hour, until security guards knocked on the door and told them to leave. When they left the toilets at about 2 am, they were asked to leave the club. At this point, Ms Munro had a conversation with Mr Duncan and the appellant. 11All four persons left the nightclub together. The appellant and Mr Duncan stayed inside the club premises for a short time, whilst Ms Munro and the complainant moved outside to a nearby taxi rank. When Mr Duncan and the appellant came outside, Ms Munro walked towards them and they had a conversation. CCTV footage from the taxi rank area depicted Ms Munro, Mr Duncan and the appellant in the vicinity of the taxi rank, whilst the complainant stood some distance away. 12Ms Munro called the complainant over and indicated that Mr Duncan would give them a lift. The complainant said she initially refused but when Ms Munro pointed out the length of the taxi queue, she relented. The complainant said that Mr Duncan told her he would take her home. She replied "Are you sure?" 13CCTV footage of the taxi rank area and of the car park depicted all four persons walking together to the far corner of the car park. The complainant said in evidence in chief that they were walking towards the car and the appellant was next to her on her left side. After crossing the road and entering the car park, the appellant put his arm round her and began to grab her breast. The complainant said he placed his hand down the front of her top or dress and into her strapless bra. She said that she attempted to move in front of him as they were walking. When the CCTV footage was played to the complainant in cross-examination, she agreed that it did not demonstrate that the appellant was near her when they entered the carpark, rather he was walking ahead of her. The complainant insisted that the appellant did grab her breast on the way to the car, but she was unable to "pinpoint the time" when he did so. There was nothing visible on the CCTV footage that demonstrated the alleged sexual conduct by the appellant towards her. 14Mr Duncan gave evidence that the appellant began to undo his pants when they reached the car, apparently with the intention of urinating nearby. Mr Duncan stopped him from doing so. The appellant later confirmed this incident to police. The complainant told Mr Duncan that she would not get in the car if the appellant's pants were undone. When this episode was put to the complainant at trial, she could not remember it. 15The complainant's evidence was that when they reached the car, she and the appellant climbed into the back seat. Mr Duncan and Ms Munro were in the front seats. The complainant said that the appellant started to touch her leg and tried to lift her dress and touch her breast. She moved his hand away and told him that she did not welcome his advances. She said that his left hand was up her dress and on top of her underwear, with his right hand grabbing her breast. The appellant's right arm was draped around her shoulder. She said she continued to move his left hand away, but at one point his hand got inside her underpants to her vagina. The complainant said that she kissed the appellant on the lips for about five seconds, while attempting to pull his hands away. She said that she kissed him only because she thought it would stop him from touching her. She agreed that she made no complaint about the appellant's conduct either before she entered the car or during the journey. She said she felt uncomfortable. 16The complainant denied that she was continuously kissing the appellant during the journey to South Penrith. Mr Duncan gave evidence that, during the journey, he had looked in the rear vision mirror and observed the complainant and the appellant kissing and touching each other all the way to the house. Ms Munro also gave evidence that the appellant and the complainant were kissing each other in the car. 17The complainant said that when she arrived at the house in South Penrith she did not know where she was and had not been there before. She asked Mr Duncan where they were and he told her it would not take long. In cross-examination, the complainant maintained that during the walk to the car they had told her they were going to a friend's house, but that Mr Duncan said he would take them home. The complainant also acknowledged that she was aware that she was not going directly home, before she got into the car. She agreed in cross examination that her statement to the police in her record of interview ("We were driving. I thought we were home but we weren't. I got out and it wasn't my home") falsely suggested that she was unaware that they were going to another house. 18The complainant's account was that as they walked to the front door of the house, Mr Duncan entered first, followed by herself and Ms Munro. The appellant was the last to enter the house. 19Mr Duncan's evidence was that the appellant and the complainant were close together, touching each other, and that they both walked towards the spare bedroom. He claimed to have seen them enter the spare room, although he conceded that he could not see around corners and that it was not possible for someone in his location to see the entry to the spare room. The entry to the bathroom was immediately opposite the door to the spare room. Both doorways were not visible from Mr Duncan's position. 20According to the complainant, after they entered the house, Mr Duncan went to the bathroom, which was some distance further into the house along the hallway and to the right. The complainant said the appellant went with him and stood in the hallway. The complainant and Ms Munro went to the lounge room, which was immediately to the left of the front door, where they spoke to Scott Buckley who was seated on the lounge. Ms Munro then walked to where Mr Duncan was in the hallway and the complainant followed her. 21Mr Buckley's evidence was that, from his position in the lounge room, he saw the appellant and the complainant walk in the direction of the spare room, but he could not see the door to the spare room. Mr Buckley said he saw Mr Duncan and Ms Munro walk towards the main bedroom of the house, which was to the right of the front door, opposite the entry to the loungeroom. 22According to the complainant, Mr Duncan said to her "There's the bedroom if you want to have a lie down, it won't take long". (Mr Duncan maintained that he did not need to tell her that.) This was apparently a reference to Ms Munro and Mr Duncan intending to have intercourse before taking the complainant home. (Ms Munro said to the complainant on entering the house that she "needed to get it out of her system.") The complainant said that the appellant went into the bathroom at this point. The complainant went into the bedroom that had been indicated by Mr Duncan, where she removed her sandals and belt, turned the light off and got into a fold-out lounge bed, facing the wall. She left the bedroom door slightly ajar, but the bedroom itself was dark. She covered herself with the doona. 23The complainant heard the door to the bedroom open and shut. She turned around and saw the appellant enter the room. He was on her right side on the bed. He said to her "You didn't come here for sleeping and we're going bareback". (The term "bareback" was a reference to having intercourse without a condom.) The complainant replied "No, I'm sleeping; I didn't come here for this." 24The appellant then rolled the complainant onto her back and climbed on top of her, pulling her dress straps and her bra down. The appellant put his hand up her dress and started rubbing her vagina. The complainant said she tried to stop him and that she pushed him off and said "No". At this point the appellant put his hand over her mouth. He grabbed her breast and attempted to force her legs open with one hand. The complainant was struggling to keep her legs shut. The appellant moved her underwear to one side and put his penis into her vagina. The complainant was trying to stop him with her hands by attempting to push him off her. The complainant started to cry. The appellant continued to have sexual intercourse with her until she pulled herself up into a sitting position. 25She did not scream or cry out for help because she was petrified and crying. She agreed that at some point the appellant raised her legs above her head when he was attempting to penetrate her. 26The appellant removed his penis and put his fingers into her vagina and then placed them in her mouth. He pulled her legs down and resumed sexual intercourse. The appellant had his hand over her mouth. At one point the appellant had his hands around her neck and at some stage during intercourse, he placed a pillow over her face. 27Mr Duncan's evidence was that after seeing the appellant and the complainant walk towards the spare room, he entered Shane Lee's bedroom, which was at the end of the hallway past the entry to the bathroom. Mr Duncan said that when he came out of Shane's bedroom a short time later, he saw the appellant come out of the spare room and they had a conversation about finding a condom. Mr Duncan told the appellant to look in his (Mr Duncan's) bag. The appellant went to the loungeroom, asked Mr Buckley about a condom, then returned towards the spare room. 28Mr Duncan claimed that he and Ms Munro were in the loungeroom, after the appellant had asked for a condom, for some minutes. They then went to the main bedroom for ten minutes, but were asked to leave by Mr Buckley, who was acting on the instructions of Mr Lee. Mr Duncan and Ms Munro went to the back patio where they remained for half an hour. Ms Munro's evidence was that she and Mr Duncan entered the main bedroom soon after entering the house, and then went to the back patio. She was not challenged on this aspect of her evidence. 29Mr Buckley's evidence was also broadly consistent, in so far as he saw the appellant in the loungeroom asking for a condom. Mr Buckley went to the main bedroom and told Mr Duncan to leave. However, Mr Buckley's evidence that he then went with Mr Duncan to Mr Lee's bedroom, where all three of them sat and listened to "moaning" and "panting" sounds from the spare bedroom, was inconsistent with Mr Duncan and Mr Lee's evidence in that regard. 30Mr Duncan went to the bathroom. When he came into the hallway, he saw Ms Munro near the spare room. The complainant gave evidence of hearing Ms Munro open the door, turn the light of the bedroom on momentarily and say "What are youse doing?" The appellant replied "Yeah, boy". Ms Munro then left the room. At this time, the appellant still had his penis inside the complainant's vagina. Mr Duncan and Ms Munro both saw the appellant lying on top of the complainant. They then went to the loungeroom. 31According to the complainant, the appellant told her he was going to get a drink and he left the bedroom. She covered herself with the doona. Shortly thereafter, Ms Munro returned to the bedroom, turned the light on and asked the complainant what was wrong. The complainant looked distressed. She said that the appellant wouldn't get off, that she did not want to be there and wanted to go home. She started to cry then began sobbing. She was fixing her dress, saying that this was not what she had wanted. 32Ms Munro tried to call the complainant's boyfriend about five times, before leaving the room. 33On leaving the bedroom, the complainant and Ms Munro walked into the hallway, where they saw Mr Duncan. Mr Duncan asked the complainant what was wrong and the complainant repeated that she did not want to be there and wanted to leave. The complainant said to Mr Duncan "When someone says no it means no". Mr Duncan said that the appellant "was his best mate and he wouldn't to that". 34Mr Duncan told the complainant he would take them home. As they started to leave the house, the appellant, who was standing naked near the kitchen, ask the complainant what was wrong and where she was going. Mr Duncan told him to go back inside. At this point, the appellant screamed out "What, wasn't it big enough for you?" 35Mr Duncan then left the house and drove the complainant and Ms Munro to the complainant's home. The complainant gave evidence that she sustained bruising to the inner side of her right breast, neck, cheek and her inner thigh, near her vagina. 36Mr Lee's evidence was that he was asleep in his bedroom before the arrival of the group who had come from the club. He was woken by the appellant asking if he had a condom. The appellant had jeans on, but no shirt. He went back to sleep but was woken again by Mr Buckley who was looking through his window into the back patio area. He again fell asleep and woke to the sound of a girl crying and some commotion in the loungeroom. He went to the loungeroom and heard the appellant say in a raised voice "Wasn't it big enough for you?" 37The complainant and Ms Munro arrived at the complainant's home at about 4 am. Mr Duncan walked the complainant to the front door where he asked her if she had told the appellant to stop. Mr Duncan's statement to police recorded the complainant saying that she had told the appellant "no" once. However, at trial, Mr Duncan said that the complainant's response was "Oh no, not really." 38When Mr Duncan returned to the Lee's house, Mr Lee heard Mr Duncan say to the appellant "I think Nathan could be in a bit of trouble here, I think you've done something that she doesn't want you to do." The appellant replied "I don't think that happened, ... that's not the feeling I got." Mr Duncan gave evidence that he said to the appellant "Mate, she's accusing you of some pretty serious stuff." That comment was based upon what the complainant had said to Mr Duncan at her home. 39On entering her home, the complainant and Ms Munro went to sleep. Ms Munro left the house at about 7:30 am. The complainant sent a text to her sister at 7:50 am on 12 October 2008 asking her to call the complainant as soon as possible. She rang the complainant, who was in a distressed state, and asked her what had happened. The complainant said "Someone came on to me". When asked if someone had forced themselves on her, the complainant said yes. She was asked if she had been raped and the complainant said yes. There was no further discussion. The complainant's sister then contacted her sister-in-law and asked her to see the complainant straight away. Shortly afterwards, the complainant's brother and sister-in-law arrived at her home. 40The complainant was examined by a doctor in the Sydney West Area Health Unit at Nepean Hospital on 12 October 2008 at about 6 pm. The complainant gave the doctor a history of sexual assault. The doctor saw a round purple bruise over the complainant's right breast. The complainant said at trial that the appellant had bitten her right breast at some point during intercourse. The doctor agreed that the bruise to the breast may have been the result of being grabbed or sucked or by way of a love bight. The doctor noted two small abrasions just inside the opening of the vagina and a circular purple bruise on the outer part of the vagina in the groin area, between the thigh and the vagina. 41The complainant reported the matter to Penrith police after leaving the hospital. Photographs taken by the complainant's sister on 14 October 2008 were e-mailed to police at Penrith. Further photographs were taken by the police on 16 October 2008. Some of these photographs were before the jury, including the photograph of the complainant's right breast. One of the photographs depicted a linear bruise on the inner thigh in the area of the groin, consistent with the application of pressure from the complainant's underpants being forced to one side (Ex J). The Appellant's Account to Police. 42The appellant was interviewed by police on 13 October 2008. He said that he had consumed six or seven drinks over the course of the evening but was not "absolutely smashed". He did not remember putting his arm around the complainant on the walk to the car but he acknowledged that it was possible. He doubted that he had put his hand down the front of her dress. He said that he and the complainant kissed in the car on the way to the house, that he had placed his hand on her breast and that physical contact between them was consensual. 43He said that when they arrived at the house, he invited the complainant into the bedroom and showed her where it was. He said that he entered the bedroom and the complainant lay on the bed. He removed his shirt and told her he was going to get a condom. He left the room and spoke with Mr Buckley, Mr Duncan and Mr Lee in succession about getting a condom. He returned to the bedroom where the complainant was still on the bed. He told the complainant he did not have a condom and used the words "I'll have to go bareback". 44He said that they were mucking around on the bed and he said "I'm going to go to sleep". According to the appellant, this was a sarcastic remark. The appellant removed his jeans and underpants and started to finger the complainant. The complainant helped him insert his penis into her vagina, did not tell him to stop and did not say no or pull away from him. The complainant still had her dress on, although she had pulled it up and had pulled her underpants to one side. She did not appear to be upset. He did not put his hand over her mouth at any time. 45He agreed that Ms Munro opened the door and turned the light on. He saw Mr Duncan behind Ms Munro. The appellant yelled out "you know it". After they close the door he continued having sex with the complainant until he went to get a drink in the kitchen. The complainant walked out, crying. The appellant said he did not know why the complainant was crying. He agreed that he called out "wasn't it big enough for you" but that he meant it as a joke. 46The appellant did not give evidence at trial. He relied upon the record of interview and upon character evidence from his sister and Mr Duncan's father. Through his counsel, he asserted that the complainant was a liar, who had made a false complaint about non-consensual intercourse because she was humiliated by the appellant's boastful behaviour towards his friends ("Yeah, boy" ; "you know it" : "Wasn't it big enough for you?") and because she wished to preserve her relationship with her boyfriend. Unreasonable Verdict ? 47The principles to be applied in a consideration of this ground are well settled : M v R [1994] HCA 63; (1994) 181 CLR 487, MFA v R [2002] HCA 53; (2002) 213 CLR 606; SKA v R [2011] HCA 13; (2011) 243 CLR 400, and R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8. 48In M v R, at 493, and 494 - 495, the High Court stated :- Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt... 49It is not sufficient in order to discharge this function to determine whether there is evidence upon which a jury could have convicted. The question is whether the jury ought to have experienced a reasonable doubt. 50The appellant's submissions on this ground mounted a sustained attack on the complainant's credibility, concentrating on a number of features of her evidence that were also the focus of his counsel's closing address at trial. Those features are :- (i)The complainant's evidence in chief to the effect that she and the appellant were kissing in the car "for about five seconds" was contradicted by her evidence in cross-examination where she was said to concede that they were kissing for "much longer" than five seconds. (ii)The complainant's representation to police, and in her evidence in chief, that she thought that Mr Duncan was driving her home directly from the Penrith club, was contradicted by her evidence in cross-examination where she conceded that she knew before they got into the car that they were first going to another house. (iii)The complainant's concession that her representation that she did not know of the proposed destination before entering the car was not true and that she knew that to be the case when she gave that evidence. (iv)The complainant's inconsistent evidence with respect to the appellant placing a pillow over her face. (v)The complainant's inconsistent accounts with respect to the injuries that she sustained. (vi)The absence of any depiction on the CCTV footage of the appellant placing his arm around her and trying to grab her breast as they crossed the road and entered the car park. (vii)The contradiction of the complainant by the evidence of Mr Duncan, who did not see the appellant and the complainant touching, notwithstanding that they were walking in front of him as they walked to the car. (viii)The contradiction of the complainant by the evidence of Mr Duncan and Ms Munro, to the effect that the appellant and the complainant were kissing continuously in the course of the journey to the house. (ix)The contradiction of the evidence of the complainant with respect to her entry into the spare room alone, by the evidence of Mr Duncan, Mr Buckley and the appellant, to the effect that they entered the room together. (x)The contradiction of the evidence of the complainant, that the appellant did not leave the room after he entered and before engaging in sexual intercourse, by the evidence of the appellant, Mr Buckley, Mr Duncan and Mr Lee, to the effect that the appellant went looking for a condom after entering the spare room. (xi)The failure on the part of the complainant to call for help or leave when Mr Duncan and Ms Munro came to the door of the spare room, turned the light on momentarily, and observed the appellant and the complainant apparently engaged in intercourse. (xii)The existence of a motive on the part of the complainant to make a false accusation against the appellant, namely, her relationship with her boyfriend and the humiliation aroused by the appellant's conduct. The Complainant's Credibility on Peripheral Issues : (i), (ii), (iii), (vi), (vii) and (viii). 51With respect to (i) and (viii), the full context of the evidence on (i) is :- Q : Now you said in your evidence that you gave him a kiss on the lips - A : Yes. Q : - and that that was for five seconds, is that right? A : I kissed him while I moved his hands off me or tried to. Q : Well, you said that it was for five seconds, it was for longer than that, wasn't it ? A : No. Q : if I suggested to you that you were kissing him all the way back to the other house, what would you say about that? A : No. Q : You say that's not true? A : Yes. Q : If I suggested to you that it could be described as, to use old person's terms, I don't know whether it's still used nowadays, that you were pashing? A : No. Q : And that's definitely not true? A : To the best of my knowledge. Q : What does that mean to the best of your knowledge? A : I was kissing him so he would stop touching me. Q : Well your evidence was that it was for about five seconds? A : Yes, I kissed him to stop touching me while I moved his hands off me. Q : If you notice my question is about time, not why, so if we can just stick to time, five seconds. Was it longer than five seconds? A : It could have been. Q : When you say "it could have been" it was much longer than five seconds - A : Yes. Q : - wasn't it, we are into minutes, aren't we? A : I don't know. Q : If I was to suggest to you that the kissing went on for five to ten minutes, what would you say about that? A : No. 52The complainant's answers clearly demonstrate two things : first, that she was not able to give an accurate account of the time during which she was kissing the appellant, but she was prepared to concede that it was longer than five seconds, and second, that she rejected the proposition that it lasted for five to ten minutes. Whether or not the complainant embraced the proposition that it was "much longer" than five seconds, she was unable to say how "much longer" it was. 53The significant feature of this part of the cross examination is that the complainant's evidence of her conduct during the car journey was inconsistent with Mr Duncan's evidence that he observed the complainant and the appellant kissing and touching for the entirety of the journey (a period of ten to twelve minutes). The partisan nature of Mr Duncan's evidence (which is dealt with below, under ground 2 of the appeal) provided a basis for rejecting this aspect of his evidence as an exaggeration. 54Ms Munro's evidence was not specific as to the duration of her observations. Her evidence was that she remembered the appellant and the complainant kissing in the back of the car on the two or three occasions that she looked back. Ms Munro agreed with the description "pashing" put to her in cross-examination. Ms Munro gave no evidence of the interval of time between the occasions on which she made these observations, or the duration of the observations themselves. 55In any event, there was no issue that the complainant and the appellant were kissing during the car journey and that the complainant said nothing to indicate that the appellant's conduct was unwanted. Assuming that the appellant believed at that time that the complainant was consenting to some degree of sexual activity, and that he had grounds for that belief, the events during the car journey bore no necessary relationship to the critical events founding the charge against the appellant, namely, what occurred in the spare room at the house. 56Similarly, whether or not the complainant in fact consented to some degree of sexual activity in the car, that said nothing about her alleged consent to much more extensive sexual activity later in the night. 57The same observation applies to the argument underlying (vi) and (vii). The appellant himself acknowledged to police that it was possible he placed his arm around the complainant during the walk through the carpark. The Court took the opportunity to view the CCTV footage of the taxi rank and car park (Exhibit 7). It may be accepted that there is no physical contact between the complainant and the appellant depicted on the film. However, there is a considerable portion of the distance from the entry into the carpark to the far corner of the carpark where the relative positions of all four persons becomes unclear on the footage. 58To the extent that the complainant's account of the beginning of the physical contact between herself and the appellant was not supported by Ex 7, it did not preclude a finding on all of the evidence (including the appellant's concession in the record of interview) that there was some physical contact at some stage before the complainant and the appellant entered the car. Once again, it was open to the jury to reject Mr Duncan's evidence in this respect. 59Whatever the nature and extent of the appellant's sexual advances towards the complainant within the carpark, the jury were required to focus on the evidence pertaining to the sexual activity in the bedroom. Moreover, the jury was entitled to conclude that these aspects of the trial went no further than casting doubt upon the complainant's capacity to give accurate evidence of the events preceding the sexual assault. The Complainant's "Unreliability" : (ii) and (iii). 60The complainant's evidence-in-chief in relation to this matter included the following :- [ after questions relating to the conduct of the appellant in the car] Q. Okay and then what happened ma'm? A. The next thing I remember was that we got to a house and it wasn't my house. Q. Okay, did you know where you were? A. Only that I was in South Penrith but I didn't know where. Q. Had you ever been to that house before? A. Never. .......................................................................... Q. You got to this house you didn't know, what happened then? A. We had gotten out of the car, I had said "where are we?", Gavin [Mr Duncan] said "it won't take long", that - and Brooke [Ms Munro] said "I just need to get it out of my system", implying that she needed - wanted to sleep with Gav. 61In cross-examination, the following appears :- Q. See, if I suggest to you that that conversation occurred while you were there [ the conversation relating to the house in South Penrith] what would you say about that? A. They had said they were going to a friend's house, but he did say to me he would take us home. .................................................................................. Q. So you were aware that you were going to go to this other house prior to getting into the car? A. I was when we got closer yes. Q. I'm saying prior to getting into the car you knew that? A. Yes Q. So it wasn't the case that you were in the car and all of a sudden find "we're not going anywhere near my house", that's right isn't it? You knew before you got into the car? A. Yes 62Further still in the cross-examination, the complainant was questioned in relation to her interview with police, wherein she stated "then we got into the car, I kind of gave in and just started kissing him. We were driving. I thought we were home but we weren't. I got out and it wasn't my home. My friend Brooke just said 'Come on, it won't take long, I just need to get this out of my system with Gavin', so I went in." Q. Why did you say that? A. In my head I was hoping that I was going home. Q. But why did you say that at the time to the police? That was the next day - the same day? A. Yes Q. At about 10 o'clock that night. So you knew when you said that - what you were saying there was wasn't it "I thought I was going home and I got there and it wasn't my home"? A. Yes Q. That's exactly what you were saying. That wasn't true was it? A. In my head I wanted to be going home but if - Q. I didn't ask you that question? A. What I said in that is what I said but I knew that we weren't going home. Q. If you could just answer my questions. My question was that wasn't true was it? A. No Q. And you knew when you were saying it that it wasn't true didn't you? A. Yes. 63Finally, at the very end of the cross examination, these questions and answers appear :- Q. So, you agree then don't you that when yesterday you said in your evidence that you didn't know that you were going to this house, that that was a lie? A. I had said I did know. Q. No, but in your evidence in chief you said you didn't know, that was a lie wasn't it? A. I don't know. Q. Well, you understand you said yesterday in your evidence that you knew it wasn't true when you said it? A Then yes. Q. Then it was a lie? A. I can't remember. Q. Well, what I am suggesting to you is that you are a liar? A No I'm not. 64Having regard to these questions and answers, I am not persuaded that it is strictly correct to characterise the complainant's evidence in chief on this matter as a lie. Leaving the police interview to one side, what the complainant said in the passage at [60] was that they arrived at an unfamiliar house in South Penrith. She did not know where precisely in South Penrith it was. There was nothing false about those answers. The complainant did not say in her evidence in chief that she didn't know they were going to another house. 65The lie that the appellant's counsel cross examined upon was the complainant's representations to police. Counsel extracted an admission to that effect from the complainant in the passage at [62]. There was a discussion between the trial advocate and the judge at the conclusion of the summing up that drew attention to this issue. 66Nevertheless, following a request from the appellant's counsel, the judge gave a direction to the jury pursuant to s 165 of the Evidence Act 1995. That direction followed upon a conventional warning to the jury that they were obliged to exercise caution before convicting the appellant on the evidence of a single witness and that they were required to be satisfied beyond reasonable doubt that the complainant was both honest and accurate before they could find the appellant guilty. The judge then said :- In considering whether you can accept the evidence of [the complainant] beyond reasonable doubt I must warn you that her evidence may be unreliable. The particular matter which may cause it to be unreliable arises from evidence given by the complainant in this court. You heard Mr Massey refer to this issue in his address to you yesterday. Briefly stated, it relates to the topic of when [the complainant] became aware that they were going to the Joanna Street house and whether or not [the complainant] told a lie about it. Now, so you can understand what I am referring to I'm going to refer to evidence that was given in the case about this issue [The judge then distributed copies of extracts of the evidence which included the extracts set out above.] Now, you would have heard during the evidence there is a portion in cross-examination where the complainant agrees that in her record of interview with police and in her evidence in chief she said that she did not know she was going to the house, whereas she did know before she got into the car, and as such she knowingly told the police and you an untruth or a lie about that issue. Because of that evidence I must warn you that you need to exercise caution when determining whether or not you accept [the complainant's] evidence and the weight to be given to it. As you are the judges of the facts in this trial, whether and to what extent you accept the evidence of any witness in this trial is entirely a matter for you. The purpose of the directions I have just given you is to warn you of those matters that you must take into account when assessing the evidence of [the complainant] upon whom the Crown case depends. (italics not in original) 67This direction, in my view, was unduly favourable to the appellant. The italicised portions of the direction were not an accurate summary of the evidence. More importantly, s 165 directions are generally restricted to circumstances that are capable of affecting the reliability of a witness when those circumstances are beyond the experience of ordinary members of the community. Matters such as prior inconsistent statements by a witness are capable of being understood and applied by a jury in their assessment of the credibility of that witness : R v GAR (No 3) [2010] NSWCCA 165 at [84] to [86]. 68Paying full regard to these directions, the jury clearly accepted the complainant as a witness of truth on the substance of the charge against the appellant. The complainant's misrepresentation to police of the true position with respect to her knowledge of their destination when they entered the car was not considered fatal to the credibility of her account of the sexual assault. In my view, not only was it open to the jury to come to that conclusion, but in the light of the whole of the circumstances surrounding the events in the house, it was entirely justified. The Circumstances of the Sexual Assault : (iv), (v), (ix), (x) and (xi). 69The complainant was further cross-examined with respect to her interview with police, wherein she said that she had "like the pillow" over her face at the point in time when Ms Munro first entered the spare room. The complainant said by way of explanation in cross-examination "like a pillow, the doona". She confirmed she was trying to put the doona over her face. She was asked :- Q. So he never tried to put a pillow over your face? A No. 70She was then reminded of her evidence on an earlier occasion wherein she said "he put his hand on my mouth, hand around my throat, he bit me and put a pillow on my face". Having been reminded of that evidence, it was again suggested that the appellant never put a pillow on her face, to which she replied "I don't remember." She was further reminded of her earlier evidence relating to the length of time during which the pillow was on her face. She confirmed that she did not remember how long the pillow was there, but she remembered there being a pillow and a doona. 71There was some confusion in the questioning between the complainant pulling the doona over herself and the appellant placing a pillow over her face. Ultimately, the jury was made aware that the complainant had given that account to police and during her evidence on a previous occasion (in September 2010). The complainant's failure to give that evidence during examination-in-chief could legitimately be considered a lapse in the complainant's memory. 72Similarly, the appellant maintains that the complainant gave inconsistent evidence on the subject of bruising. It is submitted that she told the police of bruising on her collarbone and her breast, but did not mention bruising or soreness on her neck or inner thigh. The complainant's explanation was that she was in shock at that time. I am not persuaded that the partial provision of information of this kind to police that is later supplemented at trial is necessarily an inconsistency of the kind that inevitably reflects on a witness' credibility. There was photographic support for the bruising to the thigh. 73Next, it is submitted that the observations of the examining doctor on 12 October 2008, namely the round purple bruise over the right breast, the circular purple bruise on the outer diameter of the vaginal area and the abrasions inside the labia, were equally consistent with foreplay and penetration. It is submitted that the absence of evidence in the Crown case that these findings were consistent with forceful sex or a lack of consent compromises the complainant's credibility. 74The submission made by the appellant's counsel at trial was that the complainant's account of forceful vaginal intercourse would necessarily produce evidence of more injuries than were represented by the photographs and observed by the examining doctor. That proposition was not put to the examining doctor in cross-examination. 75The trial judge directed the jury that the evidence from the examining doctor of the presence of bruises and abrasions did not provide proof, without more, that there was in fact non-consensual intercourse. The judge correctly observed that "all the doctor can say is that the abrasions are strongly suggestive of penetration. Penetration however is not really in issue in this case." 76The real import of the appellant's submissions on the extent of the complainant's injuries is that the medical evidence did not provide support for the allegation of sexual assault. That was conveyed by the judge's direction. The absence of medical evidence tending to support the proposition that the sexual intercourse was non-consensual does not necessarily raise a doubt about that fact. If that were the case, no conviction for sexual assault could be sustained without it. The critical evidence was what the complainant said and did in order to convey her lack of consent to the appellant. 77The alleged "contradictions" referred to in (ix) and (x) above may be sensibly reconciled by a proper reading of the evidence. The complainant's account of entering the spare room on her own was squarely contradicted by the appellant's account to police, but on a proper reading of the evidence, Mr Duncan's and Mr Buckley's evidence went no further than asserting that the complainant and the appellant walked towards the spare room together. The jury were entitled to find that each of them could not have seen the door to the spare room from their respective positions. 78There was another uncontradicted piece of evidence that provided support for the complainant's account. The appellant's case (supported by the evidence of Mr Duncan) was that the appellant had wanted to urinate in the carpark. The complainant's evidence that, on entering the house, the appellant had gone with Mr Duncan to the hallway outside the bathroom, while she and Ms Munro spoke to Mr Buckley, was consistent with the appellant needing to urinate as soon as he got to the house. On the appellant's account, the appellant had engaged in sexual intercourse for some period of time, and had then gone to the kitchen for a drink, without entering the bathroom at any stage after arriving at the house. It would not be surprising if the jury regarded this scenario as inherently unlikely. Accordingly, there were ample grounds for rejecting the appellant and Mr Duncan in respect of the entry into the spare room by the complainant and the appellant at the same time. 79The more plausible interpretation of events, consistent with the complainant's evidence and the appellant's need to urinate, was that Mr Duncan went to the bathroom, followed by the appellant. While the appellant was in the bathroom, Mr Duncan showed the complainant the spare room. After she went in and lay down, the appellant came out of the bathroom, where Mr Duncan spoke to him about finding a condom. The appellant's enquiries of Mr Lee and Mr Buckley were consistent with the appellant's intention of having intercourse with the complainant. Not finding a condom, he went into the spare room and told the complainant he was "going bareback". 80Mr Duncan and Ms Munro entered the main bedroom after the appellant had spoken to Mr Duncan about finding a condom. After approximately ten minutes, they went to the back patio, where they were observed by Mr Buckley from Mr Lee's room. Any "pleasurable moanings" that were heard by Mr Buckley more likely emanated from Mr Duncan and Ms Munro, not from the complainant and the appellant. 81These were findings of fact that were well open on the evidence. To the extent that they necessitated the rejection of certain apects of Mr Duncan's evidence, Mr Buckley's evidence and the appellant's account to police, that was entirely consistent with the judicial instruction to the jury that emphasised the primacy of their role as judges of the facts, including their prerogative to accept parts of a witness' evidence and reject other parts. 82The failure of the complainant to call out for help or attempt to leave the room when Ms Munro opened the door was explained by the complainant in her evidence. It was an explanation the jury were entitled to accept. The law recognises that a failure to complain at the earliest opportunity does not necessarily indicate that the allegation is false, although it is a matter that may, in limited circumstances, be taken into account when assessing the complainant's credibility : s 294 Criminal Procedure Act 1986. No direction was sought or given in relation to the failure of the complainant to complain at this point. Motives to Lie : (xii). 83The proffered explanations for a false allegation were not put to the complainant in terms. Rather, it was suggested to the complainant that her humiliation was the reason that she began to cry. Inferentially, the appellant's counsel was submitting that the complainant was also motivated to make a false complaint. These suggested motives are not easily reconciled with the whole of the evidence and the appellant's case. 84According to the appellant and Mr Duncan, Ms Munro saw the complainant's sexual interest in the appellant during the car journey. That conduct alone potentially put the complainant's relationship with her boyfriend at risk even before they arrived at the house. 85The complainant's distress was obvious to Ms Munro as soon as she entered the spare room. Her distress increased to the point of sobbing. It was apparent to every occupant of the house as soon as she left the bedroom. This occurred well before the appellant made the humiliating remark "Wasn't it big enough for you?" 86On the appellant's case, the complainant was a keen participant in sexual intercourse, yet she was sufficiently distressed by the appellant's response "yeah, boy" or "you know it" (when Ms Munro and Mr Duncan first looked in on them) to make a false complaint. If, as the appellant maintains, he went looking for a condom to the knowledge of the complainant, she would have been acutely aware that the appellant's friends knew that she and the appellant were intent on intercourse, long before Ms Munro came to the door. Determination. 87Making full allowances for these inconsistencies, omissions and contradictions, both individually and taken together, and after undertaking my own assessment of the evidence at trial, I am not persuaded that there is a significant possibility that an innocent person has been convicted. 88All of the matters now relied upon, which are said to cast doubt on the jury's verdict, were brought to the attention of the jury during the cross examination of the complainant, during counsel's closing address and again in the summing up. The jury's observation of the complainant under cross examination was obviously critical to their assessment of her honesty and accuracy. Notwithstanding the matters that legitimately affected her reliability in relation to the events in the carpark and during the car journey, I am of the view that her account of the events in the bedroom of the house was credible. 89The complainant's immediate distress as soon as Ms Munro entered the room, followed by her immediate complaint that she did not want to engage in intercourse with the appellant, her obvious desire to leave the house immediately and her physical presentation to the doctor the following day were compelling, unchallenged items of evidence. 90It should be made clear that I have reached this conclusion without viewing the complainant's evidence at the trial, which was recorded and made available to the Court. I appreciate that the High Court in SKA v The Queen [2011] HCA 13 dealt with the legitimacy of this Court viewing a recording of the complainant's evidence-in-chief alone. However, French CJ, Gummow and Kiefel JJ at [29] to [31] generally deprecated "undue focus" on the complainant's evidence, unless a viewing of the recording was necessary to identify something that could not be appreciated from a reading of the transcript. In the absence of the identification of a forensic purpose in viewing the evidence, this Court ought refrain from that course. Denial of Procedural Fairness ? 91Before the empanellment of the jury, the trial advocate foreshadowed that there were potential applications pursuant to s 38 of the Evidence Act, relating to, amongst others, the evidence of Mr Duncan and Mr Buckley. 92This arose from the nature of the evidence given at committal in early 2010 by those two witnesses, in so far as that evidence departed in certain respects from the contents of their respective statements to police. As it transpired, there was no application made in respect of Mr Buckley. 93Mr Buckley gave evidence at trial that while he was in the loungeroom watching television, he occasionally muted the sound of the TV. When he did so, he heard a female moaning, that it sounded "happy" and it was coming from the direction of the hallway. Mr Duncan walked into the loungeroom and they moved into Mr Lee's bedroom, where all three of them listened to more moaning and panting coming from the spare room. The extent to which this evidence was inconsistent with other evidence in the trial has been outlined above. 94Mr Duncan was called to give evidence after Mr Buckley. Following Mr Duncan's evidence of the events of that evening, from their departure from the club until he took the complainant home, the trial advocate made an application under s 38 of the Evidence Act. A copy of Mr Duncan's statement was provided to the judge and the inconsistencies between the statement, his evidence at committal and his evidence at trial were outlined. 95After some further discussion, the judge acceded to the application and provided reasons. No point is taken in relation to the basis of the application or her Honour's ruling. Suffice to say that the judge was satisfied that Mr Duncan's evidence was relevantly unfavourable to the Crown in a number of significant respects, including that he had made prior inconsistent statements. The appellant's counsel at trial conceded these matters. 96In the course of the trial advocate's cross-examination of Mr Duncan, a number of important criticisms of his evidence emerged. Mr Duncan marked a plan of the house and a photograph of the lounge room and hallway of the house to indicate the position in which he was standing when he saw the appellant and the complainant enter the spare room. That evidence was not consistent with Mr Duncan having any line of sight to the doorway to the spare room. That proposition was squarely put to Mr Duncan. 97Next, Mr Duncan was confronted with his evidence at committal which established that he was walking into Mr Lee's bedroom when he passed the appellant and the complainant as they were entering the spare room. Mr Duncan acknowledged that a reading of his statement suggested that the appellant was asking for a condom after the complainant had entered the spare room. Mr Duncan also acknowledged that, contrary to his evidence at trial, there was nothing in his statement or his evidence at committal to the effect that the complainant and the appellant were kissing as they walked up the hallway to the spare room. 98In his evidence at trial, Mr Duncan claimed he did not see any tears in the complainant's eyes. However, in his statement to police he said he saw tears in her eyes before they left the house. He agreed that he saw the complainant crying outside the house as they were leaving. Mr Duncan also acknowledged that in his statement to police it was recorded that the complainant told him she had said "no" to the appellant. That differed from his evidence at trial in a material respect. 99On a number of occasions when these discrepancies were pointed out to Mr Duncan, the trial advocate asked him whether there was any reason why his evidence differed from earlier accounts and whether his memory of the events was clearer at the time he made his statement to police. On one occasion, Mr Duncan responded by saying that his earlier evidence was "clouded" rather than wrong. 100In the course of his closing address, the trial advocate said of Mr Buckley and Mr Duncan :- He [Scott Buckley] describes moaning, we know of course that consent or the knowledge of the lack of consent is a central issue and the only description that we can get is that it was happy moaning. That is obviously a matter that is going to go towards whether there is consent, happy moaning. .......................................................................... He was certainly asked about it, he was asked to describe the nature and quality of it and he just provided a moniker description that it was happy. Ladies and gentlemen, you know that Scott Buckley and the accused are friends. You might think that that description of the moaning is an unreliable part of the evidence and I would suggest that that's what you would find. That it is designed to assist his friend. If I could turn now to Gavin Duncan, you might recall as I said earlier that the Crown not only led evidence from Gavin Duncan but also cross-examined Mr Duncan on some areas. Those questions I hope gave you the opportunity of assessing his evidence and I hope the questions I asked allowed you to do that and this is where you need to use, as her Honour said to you at the outset, your life experience to assess not only what was said, but how it was said. Again, it is the Crown position that you would reject the evidence of Gavin Duncan because it is designed to assist his friend, particularly in these key areas that relate to the assistance he gives in his evidence that goes towards consent. And that evidence which on his own admission, to some extent as to his position where he is, just doesn't make sense. [The trial advocate then referred to the evidence of Mr Duncan's position in the hallway and his observations of the appellant and the complainant. Next, there is a reference to Mr Duncan omitting to give evidence of the appellant saying "Wasn't it big enough for you ?"] You might think that's because, the way he is giving his evidence, he is trying to assist his friend. [The discrepancy between Mr Duncan's statement to police and his evidence concerning the appellant and the complainant kissing in the hallway was referred to.] Again that's another reason why the Crown would say you could not rely upon the evidence in these critical areas of Mr Duncan. [Mr Duncan's differing evidence of his observation of the complainant crying and of her statement to him that she told the appellant "No" was outlined.] Ladies and gentlemen, for all of those reasons that I just outlined, including the entry to the bedroom, but for all of those individual areas, no mention of the derogatory comments. The difference in the description of the contact and the conduct between the complainant and the accused in the hallway and from the car to the hallway, the minimising of the evidence of crying and the minimising or the changing of the evidence in relation to the comments specifically related to consent, I would suggest to you and it's certainly a matter for you to assess that evidence, but I would suggest that you tread very carefully and not rely upon the evidence of Gavin Duncan on those critical areas. There is no doubt at the club, that part of the focus of least of Mr Duncan was to go home with [Ms Munro]. You might also think that once he was at the house, part of his focus was being with [Ms Munro]. (Italics not in original) 101The appellant now complains that the trial advocate did not put to the witnesses that they were lying or that they were exaggerating or qualifying their evidence in favour of the appellant. It was not put by the trial advocate to Mr Duncan and Mr Buckley in terms that their evidence was "designed to assist" the appellant. No objection to the tenor of these submissions or to the failure by the trial advocate to put to Mr Duncan and Mr Buckley that they were lying was made at trial. Rule 4 applies. 102The only direction given by the judge in the summing up (about which no point is taken on the appeal) on this aspect of the trial was :- Now you would have recognized that Mr Duncan gave a different account of [the complainant] entering into the spare bedroom. He said that he saw the accused and [the complainant] shortly after their arrival at the house walk from the hallway into the spare bedroom. You will recall that during the trial the prosecutor was allowed by me to cross-examine Mr Duncan. I explained that to you at the time. The Crown pointed to Mr Duncan's evidence about the entry to the bedroom, the fact he made no mention of hearing derogatory comments made when he was in a position to hear those comments, his minimisation of the evidence of [the complainant's] crying and in particular his evidence that when he asked [the complainant] if she said no she answered "no, not really" when in fact in his statement he said she did say no once. The Crown pointed to those matters and submitted to you that you would tread carefully and not rely on his evidence in those critical areas. 103Contrary to the appellants' submissions on this ground, there was no relevant unfairness in the trial advocate's conduct. A consideration of the authorities relied upon by the appellant demonstrates as much. 104As noted in R v Teasdale [2004] NSWCCA 91 ; 145 A Crim R 345, per Tobias JA (Adams J and Smart AJ agreeing) :- 21 In Kennedy, a witness was called in the Crown case and, in his address, the Crown Prosecutor asserted that the witness was endeavouring to protect the accused and doing her best to look after his interests. However, the Crown Prosecutor did not put any questions to the witness that would have afforded her the opportunity to answer that suggestion. Like the present case, the Crown had not sought to lay any groundwork for questioning the veracity of the witness by making an application under s 38 of the Evidence Act. In these circumstances, it was held that the Crown Prosecutor's conduct amounted to a serious irregularity. 22 Studdert J, with whom Heydon JA and Greg James J agreed, stated the position in the following terms ([37]): "There can be no question but that the Crown Prosecutor had a responsibility to present the Crown case properly and fairly. Unfortunately what the Crown Prosecutor did in relation to this appellant required that the witness should have been afforded the opportunity to address the substance of the critical submissions later made to the jury. Since the Crown Prosecutor did not afford the witness the opportunity to meet these assertions later put to the jury, there was no justification for their being made." 105The Court in Livermore v R [2006] NSWCCA 334 ; 67 NSWLR 659, following a review of R v McCullough (1982) 6 A Crim R 274, KNP v R [2006] NSWCCA 213, R v Joseph Attallah [2005] NSWCCA 277, R v Liristis (2004) 146 A Crim R 547 and R v Rugari (2001) 122 A Crim R 1, concluded at [31] that there were :- a number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure of this Court. They are:- (i) A submission to the jury based upon material which is not in evidence.(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.(iii) Comments which belittle or ridicule any part of an accused's case.(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.(v) Conveying to the jury the Crown Prosecutor's personal opinions. 106It is also relevant to refer to the High Court's observations in MWJ v The Queen [2005] HCA 74 ; 222 ALR 436 at [39] of the rule in Browne v Dunn :- One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. 107There was no failure by the trial advocate to cross-examine Mr Duncan and provide him with the opportunity to deal with the substance of an attack upon his credit before the submission in the closing address was made. The cross-examination itself provided notice of the trial advocate's intention to invite the jury to reject parts of his evidence. The groundwork for the later submission was laid by the detailed references in the cross examination to Mr Duncan's statement to police and his evidence at committal, where it differed from his evidence at trial. Mr Duncan was invited to explain the reasons for those departures, which materially assisted the appellant's case. 108It was not necessary, in order to comply with the rules of procedural fairness, to put to Mr Duncan in terms that he was a liar or that he had deliberately tailored his evidence to assist the appellant. The trial advocate never suggested that the entirety of Mr Duncan's evidence ought be rejected on the basis that he was a liar. Whether the jury ultimately regarded him as a liar or whether the jury merely considered him unreliable because he was a partisan witness, that was a matter for their assessment as judges of the facts. At the end of the day, the appellant's counsel, the jury, the judge and Mr Duncan were under no misapprehension that the point of the cross-examination was to impugn Mr Duncan's credit. 109Although no application to cross examine Mr Buckley was made, the trial advocate's submission essentially drew attention to the unreliability of a very discrete aspect of his evidence. The basis of that unreliability was said to be his friendship with the appellant. Mr Buckley acknowledged in his evidence that the appellant was "a really close friend". That was a factor which the jury were entitled to take into account in their assessment of Mr Buckley as a reliable witness, that is, whether he was a witness who was uninfluenced by feelings of personal loyalty to the appellant. It has never been the law that a Crown prosecutor is prohibited from suggesting to a jury that there may be reasons why a witness in the Crown case is unreliable, where there is a basis in the evidence for such a submission. 110The appellant's counsel at trial saw no unfairness to his client in the trial advocate's submissions. There is no merit in this ground. I would refuse leave to rely upon it. 111I would dismiss the appeal. 112DAVIES J : I have read in draft the judgment of Latham J and the additional remarks of Allsop P. Latham J has identified the matters said by the appellant to have cast considerable doubt on the complainant's evidence. None of these matters involved incontrovertible facts or undisputed testimony: (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at [93]). All of them involved assessment by the jury of the reliability and credibility of the complainant and the other witnesses. 113It may be accepted that there were some inconsistencies in accounts given by the complainant and that her account in her evidence differed from evidence given by some of the other witnesses in the case on particular matters. In respect of her knowledge of the proposed destination on the night concerned the complainant conceded that her representation was untrue. 114Nevertheless, for the matters that transpired at the house, in contradistinction from matters earlier in the evening, there were explanations consistent with the complainant's evidence which it was open to the jury to accept. As both Latham J and Allsop P have pointed out the inconsistencies generally in the complainant's evidence were put to the jury by counsel for the appellant. In addition, her Honour gave appropriate warnings to the jury about the complainant's evidence. Despite the inconsistencies and the concession it was open to the jury to accept the complainant's account of what happened at the house. The most significant matter was the uncontested distress and upset of the complainant both at the time the Ms Munro entered the spare room and afterwards as the complainant was leaving the premises. 115I do not have a doubt about the verdict. In my opinion it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. Put another way, I do not think that there is a significant possibility that an innocent person has been convicted in the present case. 116I otherwise agree with the reasons of Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2012