Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Norman v R [2012] NSWCCA 230 Hearing dates: 27 August 2012 Decision date: 09 November 2012 Before: Macfarlan JA at [1] Price J at [64] McCallum J at [65] Decision: The appellant's appeal against conviction and application for leave to appeal against the sentences imposed upon him are dismissed. Catchwords: CRIMINAL LAW - appeal against conviction - three counts of sexual intercourse without consent s 61I Crimes Act 1900 - whether trial judge erred in admitting evidence of prior non-sexual domestic violence as relationship evidence - whether miscarriage of justice resulted - whether miscarriage of justice resulted from absence at trial of 'fresh evidence' of appellant's Asperger's Disorder CRIMINAL LAW - application for leave to appeal against sentence - sexual intercourse without consent - appellant sentenced to seven and a half years imprisonment with four and half years non-parole period - whether sentences were manifestly excessive - whether objective seriousness of offences was assessed in context of marital relationship between appellant and complainant Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: BBH v R [2012] HCA 9; 86 ALJR 357 Bellchambers v R [2011] NSWCCA 131 DJV v R [2008] NSWCCA 272; 200 A Crim R 206 Markarian v R [2005] HCA 25; 228 CLR 357 NM v R [2012] NSWCCA 215 Patel v R [2012] HCA 29; 86 ALJR 954 Pfennig v R [1995] HCA 7; 182 CLR 461 Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 Roach v R [2011] HCA 12; 242 CLR 610 RG v R [2010] NSWCCA 173 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Dan Hendricks [2011] NSWCCA 203 R v Mark Andrew Grech [1999] NSWCCA 268 Weiss v R [2005] HCA 81; 224 CLR 300 Wilson v R [1970] HCA 17; 123 CLR 334 Wiren v R (1996) 5 NTLR 211; 89 A Crim R 356 Category: Principal judgment Parties: Christopher Robert John Norman (Appellant) Regina (Respondent) Representation: Counsel: S Odgers SC (Appellant) R A Herps (Respondent) Solicitors: Legal Aid NSW (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/646380 Decision under appeal Jurisdiction: 9101 Citation: R v Christopher Robert John Norman Before: Wells SC DCJ File Number(s): 2009/646380 Judgment 1MACFARLAN JA: Following a trial in the District Court before a judge and jury, the appellant was convicted on three counts of sexual intercourse without consent (Crimes Act 1900 s 61l). The offences were alleged to have occurred during the course of the appellant's marriage to the complainant. The trial judge sentenced the appellant to an overall term of imprisonment of seven years and six months with a non-parole period of four years and six months. 2The appellant appeals against his conviction and seeks leave to appeal against his sentence, on the following grounds: "Appeal against Conviction 1. The trial judge erred in declining to admit evidence of a 'gang rape' of the complainant. 2. 'Relationship' evidence should not have been admitted. 3. The trial judge erred in admitting evidence of the appellant 'laughing'. 4. A miscarriage of justice resulted from the absence at the trial of fresh evidence. Appeal against Sentence 1. The sentences are manifestly excessive". 3For the reasons given below, I consider that, whilst his other grounds of appeal fail, the appellant has established, under Ground 2, that certain relationship evidence should not have been admitted. However as I consider that no substantial miscarriage of justice has occurred, the appeal against conviction should be dismissed. Furthermore, as I do not consider that the sentences imposed upon the appellant are manifestly excessive, his application for leave to appeal against those sentences should also be dismissed. THE CROWN CASE AT TRIAL 4The complainant gave evidence that during the course of her 13 year marriage to the appellant, commencing in 1995 and ending in 2009, she and the appellant had anal intercourse five times, but only twice with her consent. The complainant's evidence concerning the three non-consensual incidents, the subjects of the charges against the appellant, were summarised by the Crown on appeal as follows: "i) 20 September 2002: Count 1: The birthday incident so-called because it occurred on the appellant's birthday. The incident began with consensual vaginal intercourse. Then the appellant wanted to have anal intercourse and the complainant said 'no'. 'He had lowered his penis down to my anus. As soon as he did that I said 'no', I said 'no, I don't want to'. And he had turned around and he had made the comment that it would only take a minute from there. He started inserting it into my anus and I said, 'stop'. I turned around and I was trying to push him off me and I was saying, 'stop, no, it's hurting'. I was trying to push him on his chest to push him up off me. Once he ejaculated he'd stop. He withdrew his penis from my anus and from then I got up and I got dressed and I wanted to leave the premises. I actually went down to where my local shops is down the road and I sat behind the shops on the concrete and just cried. When I returned he asked me if I wanted him to leave and I said yes at the time. He did leave.' ii) 2004: Count 2: 'The massage incident'. 'I had been suffering from back pain ... Chris offered to massage my back so I laid on the bed. I didn't have clothes on. He got some oil and rubbed it onto my back ...At some point he started to insert his penis into my anus I said 'no' and I said 'stop' and I had actually tried to push my body upwards to try and get him to hop off me at the time. I'm sure that he had said that its okay and that he'll just be a minute ... I tried to push myself to get him off me and I was turning my head and saying no, stop. He continued until he ended up ejaculating again into my anus ... I had pain on the left side of my stomach. I got dressed and went out on to the veranda to have a cigarette.' iii) 2005: Count 3: 'What had happened in 2005 was that Chris and I had gotten into bed and tried to be intimate and again we started to have vaginal sex and from there again he had stopped and slid his penis down to my anus and started to insert it and again I had said stop. He continued ... It wasn't that long. It was probably a couple of minutes or so. Yeah, it wasn't that long and then-and then he ejaculated into my arse and then, yeah, once he stopped, he hopped off ... I got dressed and went out for a cigarette'" (Crown's Written Submissions [7], Transcript page references omitted). 5At the trial the Crown also led evidence from four witnesses of admissions made by the appellant that he had had sexual intercourse with the complainant without her consent. 6Evidence of another witness, Ms Kelly-Anne Blinman, was summarised by the Crown as follows: "It was the evidence of Kelly-Anne Blinman that she had been told about the happening of certain things in the marriage, and that there was a time in 2009 where there was a conversation in the garage when the complainant, who was upset and yelling, said to the appellant, 'If I don't satisfy you, you will just take it' (meaning sex). When asked if there was any response to this remark she said 'I believe Chris spoke. I cannot remember what he said, but I remember him laughing'" (Crown's Written Submissions [8], Transcript page references omitted). 7The Crown also called evidence from three witnesses, two of whom had given evidence of admissions by the appellant, of complaints made by the complainant that the appellant had had sexual intercourse with her without her consent. THE APPELLANT'S CASE AT TRIAL 8Evidence given by the appellant at the trial included the following: "Q. Okay. Now, can you tell the Court what your practice would be like before you would engage in any sexual intercourse. What things would you do? A. I would ask her what she would like to do, whether she would like to have sex. I would talk to her about - okay, well, I wouldn't talk to her. I'd ask her, 'Do you want to have sex?'" (Transcript p 405). 9On appeal, the Crown summarised the appellant's evidence concerning the three charges against him as follows: "Count One 'A. As I explained before, we went to bed. It wasn't usual that we went to bed naked, due to our children, and our children were at my parent's house. So I asked her whether we could do anal. She said, 'No'. 'Vaginal?' She said, 'No'. She said yes to 'cheeky'. And we got into position for cheeky, which is on her hands and knees, and then I asked her again about anal and she said, 'Okay, just don't hurt me', and then I proceeded with the preparation of anal.' He then admitted he had anal sex with her that night and said that at the conclusion that she 'got up out of the bed. I asked her if she [was] okay, which was a normal thing that I asked her, and she said 'yes'. She went out of the room and said she wanted to go for a walk, which was okay with me considering the circumstances of the relationship. And that was the last I saw of her until three hours later.' He denied that the complainant had ever said words like 'stop' or 'don't' or '[it's] hurting' or anything like that, and he denied that she ever tried to push him off her. Count Two He said he could not specifically recall the incident she referred to. He did say that they had anal sex a great deal within the relationship so that he could not recall every time that he had anal sex with the complainant. He denied that there were any times during the relationship when she said 'no' to sexual intercourse but he went ahead and did it anyway. Count Three Again the appellant could not particularly identify this count because 'it's really difficult because we have anal sex so many times in our relationship to recall individuals - we would perform anal sex basically once a month'" (Crown's Written Submissions [10], Transcript page references omitted). 10The appellant's summary of his evidence in his written submissions on appeal included the following: "The appellant initially denied in cross-examination ever engaging in anal sex with her after she had said 'no' or 'stop'. However he modified this answer by saying 'sometimes we would continue, she would be all right with continuing'. Defence counsel had put to the complainant, presumably on instructions, that, on the occasions when she 'said no' to anal intercourse, the appellant 'only continued with your consent ... and that consent was either oral or by your body language'. The appellant claimed he often had anal sex with her consent although on the majority of occasions when he asked for anal sex she said 'no'. He denied ever admitting that he had 'raped' or 'sexually assaulted' the complainant except in a sarcastic way" (Appellant's Written Submissions [8], Transcript page references omitted). 11The evidence referred to above in the second sentence of [10] was given in the following context: "Q. Chris, during the times that you had anal sex with [the complainant] in 2004 was there any time where she said the words 'no' or 'stop'? A. Yes. Q. All right, and what happened when she said the words 'no' or 'stop'? A. I stopped. Q. All right. Were there any times where she said 'no' or 'stop' where you continued? A. No. Q. So when she says 'no' or 'stop', you say you stop. A. Yes. Q. Is that only in 2004? A. No, that was the entire time we were performing anal sex, and sex. Q. All right. So whenever she says something like 'no' or 'stop', is it your evidence you said you stop? A. Yeah. Q. And that's all the time? A. Yes. Q. Right, and what do you do after that, when you stop? A. I talk with her on, 'What's the matter?' You know, 'Okay, what' - whether it was the position. I can't go into - okay. Just what was the issue and why did she say stop. Q. All right. Now, after you talked to her, what happens then? A. Sometimes we would continue, she would be all right with continuing. Other times she would not be all right with continuing and that would be over" (Transcript pp 411 - 12). GROUND ONE: THE TRIAL JUDGE ERRED IN DECLINING TO ADMIT EVIDENCE OF A "GANG RAPE" OF THE COMPLAINANT 12At the trial the appellant sought to cross-examine the complainant about a gang rape of her by six men when she was aged 17, two years prior to her marriage to the appellant. The rape involved acts of anal intercourse. In a judgment published on 2 November 2010, the trial judge described the appellant's submissions and her Honour's response as follows: "It is submitted on behalf of the accused that the complainant expressed a particular reluctance to engage in that form of sexual act with him because of what had happened when she was seventeen. After that disclosure, it is submitted for the accused, he would always be careful when having sexual intercourse with the complainant and would seek her permission both before and during sexual intercourse in regard to having anal intercourse or any sexual act at all. ... It is contended on his behalf that the jury might find this strange or bizarre behaviour, that is, his seeking the permission of the complainant as the accused says he did on each occasion that they had sexual intercourse. Consequently, the jury might not accept his evidence as accurate if they are not to be made aware of the background and the reasons why he would ask, or be so careful to ask the complainant for her permission. In my view, this evidence is not relevant to any fact in issue in the trial. On the Crown case there is no issue at all that he did not ask her about engaging in particular sexual activity when they had sexual intercourse. The complainant essentially agrees that is what would occur. I refer in that regard to the Crown case statement at paragraphs 5 and 9 and to the complainant's statement, particularly paragraphs 8, 9, 10, 13 and 28" (Judgment 2 November 2010). 13On appeal, the appellant accepted that, as the trial judge said, it was not in issue at the trial that the appellant's practice was to seek permission before engaging in certain kinds of sexual activity with the complainant (Appellant's Written Submissions [13]). He did not renew the submission, rejected by the trial judge, that the evidence of the gang rape was relevant to explain what might otherwise be seen by the jury as "strange or bizarre" behaviour. The appellant submitted that the evidence was however relevant in other ways. 14First, he submitted that it was relevant to show that the complainant was opposed to anal sex because of her memories of the traumatic gang rape. However why the complainant was opposed to anal sex was not in my view relevant when her opposition to it was not in doubt. 15Secondly, the appellant submitted that the evidence was relevant to his state of mind as it showed that he was aware of the complainant's general reluctance to engage in anal sex. However, the evidence was not relevant on this basis either as there was no doubt of the appellant's awareness of this. 16The appellant further contended that "in circumstances where [the complainant] had been anally raped when an adolescent, 'sexual communication would at best be confused and confusing, and ... messages particularly if expressed ambivalently, might be misunderstood" (Appellant's Written Submissions [16]). The appellant made this submission by reference to a report of a psychiatrist, Dr John Pickering, which the appellant sought to have admitted on appeal (as to which, see below [49]). In this context the appellant did not rely upon Dr Pickering's comments as evidence but "as a useful guide to the relevance of the gang rape incident to the state of mind of the appellant" (ibid). However, the point made by Dr Pickering does not in my view assist the appellant as on neither the appellant's nor the complainant's version of events were messages "expressed ambivalently". This is discussed further below at [53]. 17The appellant also submitted that it was unfair to him for the jury to be left in ignorance of the gang rape incident in light of the following question put to the appellant in cross-examination by the Crown: "In particular you asked her on one occasion whether she would want to have anal sex, and she said that she thought she might struggle with it physically and emotionally" (ibid [18]). 18The appellant answered this question in the affirmative (Transcript p 421). The reason why the complainant "might struggle" with anal sex was not relevant when it was accepted by the appellant that that was the case. The absence of unfairness to the appellant is confirmed by his counsel's failure to put this submission at the trial. 19Accordingly, I conclude that the trial judge was correct to regard evidence of the complainant's gang rape as not relevant to any issue in the trial and therefore to exclude it. GROUND TWO: "RELATIONSHIP" EVIDENCE SHOULD NOT HAVE BEEN ADMITTED 20On appeal the appellant challenges the trial judge's ruling of 26 October 2010 that evidence of (non-sexual) domestic violence between the appellant and the complainant should be admitted "for the purpose of showing the relationship between the [appellant] and the complainant". This decision was made by reference to a summary of evidence which was Exhibit 5 on the voir dire at the trial. 21This summary included the following: "The relationship between the complainant and the accused was a troubled relationship which included a lot of arguments. The complainant asserts that at times the accused was physically and verbally violent towards her. On occasions when the complainant said she did not want to have sex the accused would say things like 'I might as well go and sleep with a prostitute'. The accused would talk about sex a lot, in front of others ... " (Exhibit 5, paragraphs [2] - [3]). 22The summary also included reference to an incident in 1999 when the appellant was alleged to have slapped the complainant and kicked her after she fell to the ground, and to another in 2001 in which the appellant was alleged to have grabbed the complainant by the hair, dragged her into a bedroom and pushed his fingers into her throat. 23At the trial the Crown disclaimed reliance upon this evidence as indicating a propensity on the part of the appellant which rendered it more likely that he had committed the crimes with which he was charged. As a result, sections 97 and 101 of the Evidence Act were inapplicable, as was the test stated in Pfennig v R [1995] HCA 7; 182 CLR 461 concerning the admissibility of such evidence. 24As pointed out in Roach v R [2011] HCA 12; 242 CLR 610, evidence which incidentally shows propensity but which is otherwise relevant will not be excluded provided that the jury is properly warned against its use as propensity evidence (see also BBH v R [2012] HCA 9; 86 ALJR 357 at [146] - [149]). 25A basis upon which relationship evidence may otherwise be relevant is that it assists in the evaluation of other evidence such as that of a complainant, as it did in Roach v R which concerned charges of non-sexual domestic violence: " ... Here the complainant gave direct evidence both of the alleged offence and of the "relationship" evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury" (at [42], citation omitted). 26In other words, relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context. 27In Wilson v R [1970] HCA 17; 123 CLR 334, the accused claimed that the discharge of a gun that killed his wife was accidental. There were no eye witnesses to the incident. Determination of the accused's guilt required an evaluation of his uncorroborated evidence that the gun had accidentally discharged while resting on top of a load of hay, shooting the victim in the back of the head as she was driving a tractor. The trial judge was held to have properly admitted evidence of the nature of the relationship between the accused and his wife. In a passage cited with approval in Roach v R (at [44]), Menzies J said: "To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly ... the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide" (at 344). 28As noted by Barwick CJ (at 337), the nature of the "relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility". 29On a number of occasions this Court has however emphasised that it is necessary to consider carefully the basis upon which "relationship" evidence is relevant in a particular case (see Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [112]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28] - [30] and RG v R [2010] NSWCCA 173 at [36] - [37]). In RG, for example, the basis of relevance was described as follows: "The evidence of which complaint is now made, if believed, established a pattern of behaviour in which the complainant was relatively unsurprised by the conduct the subject of the charge, and made no response, nor any subsequent report. In that respect, it explains her behaviour, which may otherwise have appeared surprising and therefore implausible to the jury" (at [38]). 30Evidence led from the complainant in chief at the present trial included the following: * The complainant and the appellant were married in 1995. * The marriage lasted nearly 14 years. * Difficulties concerning their first child caused difficulties in their relationship. * There were two occasions upon which the appellant was violent towards the complainant (see [22] above). * The complainant and the appellant discussed anal sex "off and on over a fair few years" (Transcript p 52). * The complainant and the appellant argued more frequently after the birth of their second child in 2000, with a further deterioration after their third child was born in 2001. The complainant said that at that time "[w]e were fighting a lot more, arguing" and that led to the incident of physical violence in which the appellant put his fingers in the complainant's throat (see [22] above) (Transcript pp 54 - 55). * The complainant gave evidence of the incidents which were the subject of the charges against the appellant. 31No evidence was led from the complainant that her responses to the appellant's desire for, or initiation of, anal sex with her were dictated, or influenced, by a fear of the appellant deriving from his prior physical violence. Nor did her evidence in cross-examination suggest that this was the case although she did say in relation to one instance of anal sex "Well, I might as - he's going to take it anyway, so why not just give it to him" (Transcript p 67). 32Similarly, no evidence was led from the complainant to suggest that her failure to report the appellant's sexual assaults to the police prior to the end of their relationship was the product of fear deriving from the two incidents of violence. Nor did the complainant's evidence in cross-examination suggest this to be the case. The reasons she proffered for her delay were entirely different: fear of losing family support, self-doubt, religious beliefs and ignorance of the law (Transcript pp 72, 74). As a result, I reject the Crown's submission that the evidence of the appellant's violence towards the complainant was relevant to demonstrate why the alleged sexual assaults were not reported earlier (Crown's Written Submissions [17]). I note that the Crown did not rely in this context upon the police evidence that the complainant told police when she first reported the incidents that she did not do so earlier because: "I was afraid that he would assault me. We've had a really violent relationship. He's hit me a few times" (Transcript p 334). 33The Crown also submitted that the evidence was relevant to demonstrate "the nature of the relationship" (Crown's Written Submissions [17]) but, consistently with the approach taken by this Court in Qualtieri and DJV, it is insufficient to rely solely upon such a proposition. Evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context": DJV per McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed. As indicated by McClellan CJ at CL in DJV, in many cases the evidence will be relevant to explain a lack of a timely complaint (at [28]) but, in light of the way the Crown put its arguments, the present is not such a case (see [32] above). 34Nor can it be said that the evidence would have assisted the jury, in any permissible fashion, in evaluating the complainant's evidence. The evidence of the violent assaults was of two incidents occurring between one and six years prior to the sexual assaults. Whilst there were undoubtedly many arguments between the parties, the two physical assaults stood as isolated incidents, unrelated to the sexual assaults. Unlike the position in Roach and Wilson, it could not be said in the present case that the evidence of prior domestic violence was "necessary to better explain the complainant's account of what occurred" (BBH at [149]). The complainant's evidence of the sexual assaults had not been provided in a vacuum, but in the context of "off and on" discussions about anal sex throughout the course of their marriage. 35Accordingly, evidence of the two isolated incidents of non-sexual domestic violence was not necessary to place the sexual assaults within a meaningful context. As the appellant submitted on appeal, it is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning that the appellant was the type of man who might have sexual intercourse with a woman without her consent. Whilst the trial judge directed the jury not to reason in that way, there was unfairness to the appellant in the evidence being before the jury when it was not relevant on any basis. 36In my view therefore, the evidence of the two physical assaults by the appellant upon the complainant was not relevant (other than for the impermissible purpose of proving propensity or tendency) and should not have been admitted. 37Although Ground 2 of the appeal therefore succeeds, I nevertheless consider that the appeal should be dismissed because "no substantial miscarriage of justice has actually occurred" (s 6(1) of Criminal Appeal Act 1912). 38In my view, the Crown case against the appellant was of such overwhelming strength that there is no significant possibility that if the evidence the subject of Ground 2 had not been admitted, the jury would have acquitted the appellant. Further, having reviewed the record of the trial to make my own independent assessment of the evidence, I consider that "the evidence properly admitted at trial proved, beyond reasonable doubt, the [appellant's] guilt of the offence[s] on which the jury returned its verdict[s] of guilty" (Weiss v R [2005] HCA 81; 224 CLR 300 at [44]; Patel v R [2012] HCA 29; 86 ALJR 954 at [120]). 39Of particular importance in this regard is the following evidence of admissions made by the appellant. 40First, Ms Marcia Grayson, a friend of the appellant, gave evidence that the appellant came to stay with her after the complainant had asked the appellant to leave their home. After a conversation with someone else, Ms Grayson asked the appellant if he had raped the complainant, to which the appellant replied that he had (Transcript pp 213 - 214). The appellant then moved out of Ms Grayson's house because she felt uncomfortable with him staying there. 41Secondly, Mr Timothy Hollier, a friend of the appellant and the complainant, gave evidence of admissions by the appellant including the following: "I forced my wife to have anal sex with me. It hurt and upset her to the point that she ran out of the house screaming and crying, that I did it because I felt that I deserved it and was owed it because it was my birthday" (Transcript pp 222 - 3). 42Thirdly, Ms Helen Stringer, a family adviser with the Family Relationship Centre, gave evidence that the appellant acknowledged in a consultation with her that he had raped the complainant (Transcript p 276). At the time of this conversation Ms Stringer made a note reflecting that acknowledgement. 43Fourthly, Mr Ian Bartley, a couple's therapist, gave evidence of admissions by the appellant including the following: "I hurt Carol and I've hurt Carol. I had sex with her, and she didn't consent, and I forced myself upon her and I penetrated her anally" (Transcript p 289). A contemporaneous note of Mr Bartley stating the following was admitted into evidence: "Over the last two sessions 15/6/09 24/6/09 Chris has revealed to me that he has raped his estranged wife 4 times and committed [an] act of violence towards her ... " (Exhibit 1). 44Nothing in the cross-examination of these witnesses or in the appellant's evidence denying the admissions causes me to doubt the veracity of their evidence. It was strongly supportive of the complainant's evidence. Taken as a whole, the evidence proved the appellant's guilt beyond reasonable doubt. GROUND THREE: THE TRIAL JUDGE ERRED IN ADMITTING EVIDENCE OF THE APPELLANT LAUGHING 45As noted earlier, the Crown led evidence from Ms Blinman that in her presence the complainant had said to the appellant, referring to sex, "[If] I don't satisfy you and give it to you, you'll just take it". The witness could not recall the terms of a statement that the appellant made in response but did recall that the appellant was laughing (Transcript pp 189 and 206) (see [6] above). 46In her Summing-Up, the trial judge drew the jury's attention to the issue of whether or not Ms Blinman's inability to recall what the appellant said rendered his laughter equivocal (p 29). His laughter could have represented an acknowledgement of the truth of the complainant's statement, or as the appellant asserted, it could have represented his resignation at what he claimed were his wife's constant false allegations against him. As the evidence was clearly equivocal, I can see no reasonable prospect that the jury placed any weight on it, particularly in light of the evidence from other witnesses of explicit admissions by the appellant. Accordingly, I would reject this ground of appeal upon the basis that, whilst it would have been preferable to instruct the jury to disregard the evidence altogether, no miscarriage of justice resulted from that not occurring. GROUND FOUR: A MISCARRIAGE OF JUSTICE RESULTED FROM THE ABSENCE OF FRESH EVIDENCE AT THE TRIAL 47The appellant was diagnosed with Attention-Deficit Hyperactivity Disorder ("ADHD") when he was 13. In 2009 he was referred by his general practitioner to a psychiatrist, Dr John Pickering, "for review of his ADHD". He was seen and treated by Dr Pickering on a number of occasions prior to his trial in October 2010. After the appellant's trial and for the purposes of his sentencing hearing, Dr Pickering assessed the appellant for Asperger's Disorder, resulting in a diagnosis of a mild form of that condition. 48The appellant sought to have admitted on the appeal as "fresh" or "new" evidence a report of Dr Pickering dated 31 May 2011 which included the following opinions based upon his diagnosis of Asperger's Disorder: "It [is] ... understandable, given the history of his wife repeatedly changing her mind, that Mr Norman was confused about what was acceptable to his wife and what was not. ... The writer would expect that under such circumstances, sexual communication would at best be confused and confusing, and that messages particularly if expressed ambivalently might be misunderstood. This may have been magnified greatly by Mr Norman's difficulty perceiving social cues and slowness at information processing ... He is ... someone who is not good at perceiving social cues, and as such may have misread his ex-wife's non-verbal cues and even misinterpreted what she said if it was less than a clearly-stated request for him to cease doing what he was doing during sexual encounters. In the overall context of the vacillation of his wife with respect to anal sexual encounters and the confusion that he reportedly (and indeed understandably) described, but I would certainly see it as being highly consistent with his character, his confusion, and his blunted perception of non-verbal social cues that he may have persisted with having anal intercourse with his former wife that actually went against her wishes because of his psychological/social difficulties stemming from his psychiatric disorders" (p 5). 49Dr Pickering was cross-examined extensively, including on the assumptions he had been asked to make concerning the evidence given at the appellant's trial and also on whether he had suspected prior to the trial that the appellant had a form of Asperger's Disorder. 50The principles relating to the admission on appeal of "fresh evidence" (evidence not available to the accused at the time of trial, either actually or constructively) or "new evidence" (that which does not qualify as "fresh evidence") were authoritatively summarised by Kirby J (with whom Mason P and Levine J agreed) in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63]. This summary included the following propositions: * "Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence". * "Great latitude must be extended to an accused in determining what evidence by, reasonable diligence, could have been available at his trial". * "The Court is ultimately concerned with whether there has been a miscarriage of justice". * The evidence must be "credible", or "at least capable of belief". * "If it is, would that evidence in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused ... or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused?" (citations omitted). 51Assuming, without deciding, that the evidence now sought to be tendered is "fresh" and credible, I nevertheless do not consider that it would, if before the jury, have been likely to have caused the jury to entertain a reasonable doubt about the guilt of the appellant. Nor do I consider that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if this evidence had been before it. 52The reason for these views is that Dr Pickering's evidence is founded upon the possibility that the appellant misunderstood "non-verbal cues" given by the complainant about her willingness to engage in the conduct the subject of the charges against the appellant or "even misinterpreted what [the complainant] said if it was less than a clearly-stated request for [the appellant] to cease doing what he was doing" (Report p 5). However the complainant did not give evidence that she gave non-verbal cues to the appellant, that might have been misunderstood by someone with mild Asperger's Disorder, or made statements that might have been misread by such a person. The complainant gave evidence in relation to the incidents in question that she clearly communicated her lack of consent by using words such as "no", "I don't want to" and "stop". As Dr Pickering accepted in cross-examination, communications such as these, if they occurred, were not capable of being misunderstood, even by a person with the appellant's condition. 53The appellant denied ever having sexual intercourse with the complainant after she said "no" (Transcript p 409) but relied on appeal particularly upon the following evidence given by the complainant in cross-examination: "Q. ... at times whilst you were having sex together he would stop and he would ask you if it's okay to continue sex. A. Yes, there were times. Yes, there were times. Q. Those times were because you would say something or do something and he would stop. Is that correct? A. Usually it was because I would express some concern in some way and he would stop, yes. Q. Then he would ask permission to continue. Is that correct? A. No. Q. No? A. No. Q. All right. What I'm saying to you, ma'am, is that on those times he would ask you permission to continue. A. On those times it was usually something that, if there was a problem I would say something, and then from there - there were some times where he'd stop completely and go out of the room, and then there were other times where he just, you know, whether by my body language he would obviously see that I'm feeling more comfortable and he'd start again. He wouldn't necessarily ask me, no" (Transcript pp 69 - 70). 54However the questions asked in this exchange were general questions concerning the sexual relations between the complainant and the appellant. They did not relate to the specific occasions of anal sex that were the subject of the charges against the appellant. In respect of those occasions, the complainant's evidence was that she clearly indicated her lack of consent by unequivocal words such as "no" or "stop". If the jury believed this evidence, there was no room for misunderstandings or misinterpretations by the appellant of the type to which Dr Pickering referred. If the jury had not accepted that evidence, it would have returned a verdict of not guilty. The prosecution put no alternative case which relied upon communications falling short of adamant refusals of consent. APPEAL AGAINST SENTENCE: THE SENTENCES ARE MANIFESTLY EXCESSIVE 55As noted earlier, the overall sentence imposed upon the appellant was seven years and six months imprisonment, with a non-parole period of four years and six months. The maximum penalty for each offence was 14 years imprisonment. No standard non-parole period was prescribed at the time of the first offence but a standard non-parole period of seven years imprisonment was applicable to the second and third offences. 56In her Remarks on Sentence, the sentencing judge (who was also the trial judge) referred to the appellant having had a difficult childhood due to learning difficulties and social problems at school, leading to an ultimate diagnosis of Attention Deficit Hyperactivity Disorder ("ADHD") that affected his schooling and his self-esteem. Her Honour referred to the appellant having remarried, with his wife remaining supportive. She further noted a pre-sentence report indicating that the appellant does not have alcohol or drug problems but has a history of psychiatric treatment dating from 1996, with a recent diagnosis of mild Asperger's Disorder. Whilst her Honour found that there had not been any "clear expression of remorse" by the appellant, she saw signs of "some slowly changing attitudes on the part of [the appellant] to his culpability for these offences" (p 10). 57On the appeal, the Crown summarised as follows the factors that led the sentencing judge to find that the appellant's offences fell "below the mid-range of objective seriousness for offences of this kind but not at the lowest end of the range" (p 15): "i) that the force or coercion used was not greater than that required to achieve sexual penetration ii) no humiliating threats or insults were uttered, although the offences were committed in the context of ongoing arguments iii) although the incidents caused pain and discomfort, they did not result in physical injury iv) it was a degrading and serious form of sexual assault 'particularly in light of the offender's knowledge of his wife being a victim of forced anal intercourse when she was much younger' v) the offences were opportunistic only vi) each episode was not 'unduly lengthy in duration' vii) the effect or impact these matters had on the victim viii) consideration was given to the appellant's problem with ADHD and Asperger's syndrome, noting that he has, throughout his life, struggled emotionally and socially, and that, to a limited extent, this would mitigate the objective seriousness of the offences (ROS 13). Even so, 'the offender generally understood what he was doing' (ROS 14), which was evidenced by the admissions he made to [counsellors] and interveners" (Respondent's Written Submissions [31]). 58The sentencing judge noted, by reference to authorities such as R v Grech [1999] NSWCCA 268, that the "fact that the offender and the victim were married or had been in a prior relationship is not a mitigating factor" (p 15), that she saw no reason why the appellant could not be rehabilitated and that he had no prior record of offences of a sexual nature. Her Honour found special circumstances on the basis that it was the appellant's first time in custody and he would require a significant period on parole in order to access the courses that would assist with his rehabilitation. 59On appeal the appellant submitted that the sentences imposed by her Honour were manifestly excessive. He did not assert that he was entitled to leniency by virtue of his marriage to the complainant but did contend that the objective seriousness of the offences had to be assessed in the context of a relationship in which the complainant consented to sexual intercourse during the marriage and, on her evidence, consented to anal intercourse on two occasions. He also submitted that the relatively short duration of the offending acts of intercourse was relevant. 60Whilst it is correct that the circumstance of marriage or a prior relationship does not of itself represent a mitigating factor, as I pointed out (with the concurrence of McCallum J and Grove AJ) in NM v R [2012] NSWCCA 215 at [53] - [60], the objective seriousness of offences such as the present need to be assessed in the context of the relationship between the offender and the complainant. No specific complaint is made by the appellant that her Honour failed to do that in the present case and I think it is implicit in her reasons that she did. Furthermore, in her assessment of the objective seriousness of the offences, her Honour noted that the acts of intercourse were not "unduly lengthy in duration". 61As sentencing involves a discretionary judgment, the question for an appeal court where no specific error is shown is whether the sentence is "unreasonable or plainly unjust" or, as it is usually put, manifestly excessive (Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). As pointed out in Markarian, "a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion" (at [28]). 62In my view the sentences imposed upon the appellant are not manifestly excessive as they fall within the range of sentences that were reasonably open to the sentencing judge to impose. ORDERS 63For the reasons that I have given, the appellant's appeal against conviction and application for leave to appeal against the sentences imposed upon him should be dismissed. 64PRICE J: I agree with Macfarlan JA. 65McCALLUM J: I agree with Macfarlan JA. ********** Amendments 05 December 2014 - Erroneous section number Amended paragraphs: [23] 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: 05 December 2014