Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: GROUNDSTROEM, Christoffer Andreas v R [2013] NSWCCA 237 Hearing dates: 14 August 2013 Decision date: 31 October 2013 Before: Macfarlan JA at [1] Adams J at [2] Button J at [67] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against conviction - sexual assault - historical sexual assault - husband rapes wife - issue of consent - delay in complaint - whether significant forensic disadvantage - lack of medical records of the complainant in documenting the complaint - admissions of husband to counsellor and the police - effect of delay rather than length important - directions - counsel must apply with details of forensic disadvantage alleged Legislation Cited: Evidence Act 1995 Criminal Appeal Rules Cases Cited: R v WSP [2005] NSWCCA 427 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521; (2007) 82 ALJR 250 Texts Cited: Stephen Odgers, Uniform Evidence Law, 9th ed (2010) Thomson Reuters Category: Principal judgment Parties: Christoffer Andreas Groundstroem (Appellant) Regina (Crown) Representation: Solicitors: Nyman Gibson Stewart (Appellant) Director of Public Prosecutions (Crown) File Number(s): 2010/112633 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-09-26 00:00:00 Before: DCJ O'Connor File Number(s): 2010/112633 Judgment 1MACFARLAN JA: I agree with Adams J. 2ADAMS J: Introduction 3The appellant was charged with four counts of aggravated sexual assault (described as representative) of his then wife, the complainant, between 1 March 1992 and 31 December 1992, 1 June 1992 and 30 April 1993 (two offences) and 1 April 2003 and 30 April 2003. The alleged circumstance of aggravation was that, at the time of the assault, the appellant maliciously inflicted actual bodily harm on the complainant (in respect of the first assault, bruising and the others, internal injuries causing bleeding). In respect of each of the four counts, the appellant was convicted on 26 September 2011 of the statutory alternative of sexual assault. He was sentenced to an overall term of imprisonment of 7 years and 6 months with a non-parole period of 5 years commencing 26 September 2011. There is only one ground of appeal, namely that the learned trial judge erred in failing to inform the jury of the significant forensic disadvantage suffered by the appellant as a consequence of delay. The nature of the case 4It is necessary, in order to appreciate how the complaint of the appellant arises, to briefly summarise the Crown and defence cases. The complainant's evidence 5The complainant and the appellant met in 1986 when the former was 16 and the latter 17 and then in high school in Finland. The appellant left Finland and came to Australia, where his parents and sister were living but was unable to find work and returned to Finland in 1987 or 1988. On 5 May 1989 the complainant and the appellant married and their son Nicholas was born in Finland on 31 July 1990. The family moved to Australia in October 1991 when Nicholas was about 18 months old. The complainant's knowledge of English was poor when she arrived, although the appellant's English was fluent as he had been to school in Australia. 6The assault comprising the first count involved forcible, non-consensual vaginal intercourse in the bedroom of their home, shortly after the couple moved into a unit at Collaroy. On the following day the complainant noticed bruising to the inside of her thighs, around her vagina and the pubic bone and on her wrists and upper arms. She told the appellant that he had raped her, to which he replied, "I'm sure it happens in marriages, it's just not talked about". A few days later, the appellant saw the bruises on the inside of the complainant's legs and said that he did not think that he was "that rough". The complainant did not make any complaint about this attack as she knew no one in Australia and had very little knowledge of English. 7The appellant, shortly after obtaining work at a sex shop, started demanding sex when he came home and kept harassing the complainant until she gave in. She said that this resulted in many arguments. Their sexual intimacy changed. The appellant brought home pornographic magazines and videos and began to insist on sexual experimentation with some of which the complainant was not comfortable. After a time, the appellant raised the subject of anal sex with the complainant, attempting to persuade her to try it. The complainant did not wish to but, feeling pressured by the appellant, tried it and hated it, complaining that it was disgusting and hurt. She told him she did not want to try it again. 8The assault giving rise to count 2 occurred a couple of months after the first rape. It commenced as consensual sex but the appellant then withdrew and attempted to insert his penis into the complainant's anus. The complainant ineffectually resisted, asking him to stop because it "hurts so much", but the appellant did not do so until after he had ejaculated. He then left the bedroom. The complainant went to the bathroom and noticed semen and blood coming from her anus. She asked the appellant what could she do, that she needed to go to the doctor as she might need stitches. The appellant simply responded, "It was your own fault because you didn't relax". The bleeding continued for several days, gradually reducing. The complainant did not go to a doctor. 9So far as count 3 is concerned, the assault occurred when Nicholas was about two years of age. The appellant came into their bedroom, where the complainant was making the bed, and demanded sex, which the complainant refused. The appellant pushed her onto the bed and pulled her clothes off, the complainant saying, "No, no, no, don't do it". Whilst anal intercourse was occurring, Nicholas came into the bedroom and asked the appellant what he was doing. The complainant said she stopped resisting and held her son's hand and told him that it would soon be over. She felt a very painful tearing in the anus but intercourse continued until the appellant ejaculated. On subsequent occasions, when Nicholas walked into the room whilst the appellant was having sexual intercourse with the complainant, the appellant stopped. The complainant said after this occasion she tried to be as quiet as possible to avoid disturbing their son. She told the appellant she would never forgive him. 10Whenever the complainant complained to the appellant, he responded that, as she consented to vaginal sex initially, it would not be considered as rape. The complainant thought for some years that this was so. 11Contextual evidence was given that the appellant had penile anal intercourse with the complainant against her will every three weeks or so. The appellant did not ask the complainant if she wanted to have anal sex and she never consented to it. On each occasion she bled for a couple of days and sometimes up to several weeks, the longest period of bleeding lasting three and a half weeks. She said that she was in pain all the time, had trouble sitting and was frightened because she did not know what had happened inside her. After some time she decided, "trying to not resist and just do my duty" which reduced the amount of bruising and enabled her to sit. She resisted during arguments however. 12Eventually, the appellant stopped working at the sex shop and the couple bought a cleaning business with the proceeds from the sale of some land which they had earlier bought. The appellant worked in the business during the day whilst the complainant remained at home with their son. There was an improvement in the relationship, the arguments were fewer, as were the anal rapes, although they were still continuing. The complainant became pregnant but this did not stop the appellant from anally raping her. When she was four months' pregnant, and the complainant bled afterwards, she told the appellant that if he continued she would lose the baby and he stopped. About this time, Nicholas was taken to hospital and diagnosed with a brain tumour, requiring surgery. The complainant lived with him at the hospital until she was about eight months pregnant and they returned home. At about this time, the complainant's mother came over from Finland to stay with them. Shortly afterwards the family moved to a house in Frenchs Forest. The mother stayed for about a month, visiting regularly, and then returned to Finland. 13Whilst the complainant's mother was here, the rapes stopped. However, after their second son was born in July 1993 the appellant resumed anally raping her every week or every couple of weeks. So far as vaginal intercourse was concerned, the complainant said that the appellant raped her several times a week, especially on Wednesdays and Saturdays and sometimes more often. It would occur after work and even when she was having a nap with Nicholas, who was not yet two years old when this began. These rapes always resulted in bruising in between her legs, such that she had trouble sitting down. 14Nicholas continued with chemotherapy and, sometime in 1994, the family moved to another house in Frenchs Forest. The complainant suggested marriage counselling but did not mention the rapes to the marriage counsellor "as I was too scared". They attended three or four sessions. The counsellor pulled the complainant aside towards the end and told her that she suspected domestic violence and that she should leave the appellant. The complainant did not do so, "Because I had no money and I didn't know where would I have gone". 15In 1996 the family moved again. Nicholas was much improved and started school. Their younger son was about three and a half years of age. The appellant was "getting rougher and he was aggressive" and the complainant had begun finding pornographic magazines in the house. She decided to leave and booked tickets to Finland. The appellant had been referred by his general practitioner to a psychiatrist, Dr Cassimatis, for adult ADHD. The appellant begged the complainant to stay and arranged for further marriage counselling in the city, which the complainant reluctantly attended. She had decided to tell the counsellor in the first session about the appellant's first rape of her, but she broke down crying during the session and ran out of time to disclose the incident. The complainant said that she was only going to mention the incidents at Collaroy because of the appellant's comments that if she consented "to vaginal sex initially the anal would not have been considered rape". The couple attended a few more sessions and then had separate appointments. She said that the appellant got numbers from the counsellor to go to some sort of domestic violence support group but she did not know what they did there. She stopped counselling because they could not afford to continue and, as well, Nicholas relapsed, with only six months to live. 16The family then moved to Niagara Park next door to the house occupied by the appellant's sister, Ms Louise Ede. Nicholas died in March 2000, about a year later. When he was really ill, the appellant did not pressure the complainant "to do anything". The couple's daughter was born in July 2001. The complainant described their relationship at this time as good and the appellant as "very supportive". By this time the complainant's English had improved markedly. 17When their daughter was about six or seven months old, the relationship worsened, arguments recommenced and tension returned. Between six months and a year later, the appellant was again forcing the complainant to have anal intercourse, beginning as vaginal sex but then moving to anal sex. The complainant kept telling him that this was causing bleeding for weeks and it was serious: "You cannot keep doing this". At first this occurred about once a month but then two to three times a week. 18The last occasion, which gave rise to count 4, occurred in April 2003. Again, it commenced with vaginal sex and then anal penetration. The complainant felt she had been injured and was in great pain. She tried to push the appellant away but was unable to do so. After the appellant finished she immediately went to the toilet and saw heavy bleeding from her anus, which continued for over three weeks. Two days later the complainant found a pornographic video in the lounge room. The following day she spoke to her sister-in-law, Ms Ede, and told her that the appellant had raped her and she wanted to leave. Ms Ede arranged for a mutual acquaintance, Ms McPherson, to accommodate her. The complainant spoke to an outreach worker and was taken to a women's refuge. She went to a doctor but no rectal examination was undertaken although there was blood in her urine. (I return to this matter in due course.) Ms Ede had often seen the appellant at the house after this event, apparently overnight, but never saw any "relationship type behaviour" and no-one suggested they were back together. 19In cross-examination the complainant said that, after the separation in May 2003, they were not reconciled, although intercourse occurred twice after that date because "he was breaking into the house...coming to the house, and I was scared..." She was afraid that he would sexually assault her. She denied that, after about nine weeks separation, the appellant moved back into the house and they were reconciled. She denied that she had told her sister that she went to the hospital with the appellant's sister and they had a record of her injuries. She said that she received a phone call from a policewoman after the appellant had spoken to the police but she had not wanted to make a complaint. She could not recall any conversation with Ms Ede about ringing Dr Cassimatis and denied asking Ms Ede to call and question him. She did not complain to the police because she was not strong enough, although she commenced Family Court proceedings (which were delayed pending the outcome of the trial). She said that she did not know what the appellant had said to Dr Cassimatis. Complaints 20It is not necessary to go through these in detail. The complainant said she told her mother-in-law that the appellant had been raping her. She was not shocked, simply asking, "What did you do to deserve it?... There must have been a reason for it". She spoke to her about the matter several more times over the years. Mrs Groundstroem gave a similar account, adding that she offered to take up the matter with the appellant but the complainant asked her not to. She denied asking, "What did you do to deserve that?" and that the matter was discussed again. 21Ms Ede and Ms McPherson also gave evidence, which differed in some respects from the complainant's evidence. The complainant told Ms Ede, inter alia, that she had considered reporting the appellant to the police but was concerned that he would go to gaol and be unable to pay the mortgage. Ms Ede spoke to the appellant about this. He asked, in effect, if the complainant was serious about having him charged. Ms Ede told him that she thought so. Ms Ede recalled the occasion when the complainant had come to her house, very upset and saying something to the effect of needing to find passports and wanting to leave the appellant and leave the house immediately. She said, "There was a mention of a rape". When asked to recall this part of the conversation, she said, "I honestly can't recall exactly but it may have been something along the lines of, '[the appellant] has raped me' but I can't remember exactly." Ms Ede also gave evidence about the complainant asking her to call Dr Cassimatis - as she recalled, to establish Dr Cassimatis' opinion as to whether the appellant had any "psychological issues or behavioural problems". This conversation took place in the complainant's presence and the complainant was directing her as to the questions to ask. Ms Ede was asked - "Q. ... Do you recall whether Dr Cassimatis told either you or [the complainant] when you were on the phone to him about things that [the appellant] had said to him regarding a rape? A. I can't recall him specifically saying anything like that, I more felt that he didn't particularly enjoy talking to me about [the appellant]. ... Q. Do you recall [the complainant] asking you when you were on the phone to Dr Cassimatis on her behalf saying words to the effect of, 'ask Dr Cassimatis whether [the appellant] has admitted the rape', do you remember that question? A. I have been trying to remember if that is the case and it is possible, but I can't say for sure that it actually happened." 22In re-examination Ms Ede said that she thought that "from around that time, it is highly likely there was talk of a sexual assault, but I can't remember details of it in addition to the behavioural [diagnosis]." Ms Ede also said that she had a "very vague recollection" of picking the complainant up from hospital once, some time after the separation, after Nicholas had passed away. 23As mentioned, the complainant stayed at a women's refuge after she had complained to Ms Ede. She said that, whilst there, she was convinced that she should see a doctor and did so at the Kariong Medical Centre. She told the doctor that she had been sexually assaulted but did not mention any anal rapes as, "I was still bleeding at that stage, I could not bear that anyone would look in there". She said that no rectal examination was performed but that "later" there was blood in her urine, the source of which the doctor could not determine. The complainant said, "I knew. It was from my anus..." She said that she commenced counselling whilst living at the shelter and appreciated, after this, that the anal penetration was rape because she had not consented to it. She was at the shelter for about six weeks and then returned home. 24Ms Buchert, the complainant's sister, gave evidence at the trial from Stockholm via audiovisual link. The first conversation she had with her sister on the subject of being raped by the appellant occurred over the telephone when Nicholas was about two years old. There were a number of conversations about the appellant raping her, the details of which do not presently matter. In one conversation, Ms Buchert suggested to the complainant that she should go to the Finnish or Swedish Consulate or Embassy. The complainant, in re-examination, said that she had gone to the Consulate (but did not say whether it was Finnish or Swedish) to talk with someone there "about domestic violence". She said that this would have been after 2003, after she had gone to the shelter. 25Ms McPherson gave evidence about meeting the complainant and Ms Ede at a mothers' group and the complainant with her children being brought to her place in the first half of 2003 by Ms Ede. The complainant was very upset and stayed for four nights. After a day or so she told Ms McPherson that the appellant had raped her after watching pornographic videos. Although she gave no timeframe for these rapes, Ms McPherson gathered that they had not been "recent" in the sense of "the past few months". 26Ultimately, the sexual assaults were reported by the complainant to police on 28 September 2009. The officer in charge of the investigation requested a statement from a Dr Thompson at the Kariong Medical Centre concerning the treatment which the complainant said that she had received when at the women's refuge. However, she was advised by another staff member at the centre that Dr Thompson did not wish to complete a statement as the consultations were such a long time ago. Dr Thompson was not called as a witness. The officer also contacted Relationships Australia as to records of the counselling sessions with the complainant and the appellant but was advised that records were not available, as they are only kept for seven years. 27The complainant told the officer, also, that the appellant talked to her about what he had discussed with Dr Cassimatis in his visits. She said that the appellant told her that he told the doctor he had been anally raping the complainant and that Dr Cassimatis would tell him not to refer to such incidents as "anal rapes" but as "rough sex". The appellant's admissions 28Dr Cassimatis deposed that he had been a practising psychiatrist for about 35 years and was first consulted by the appellant in January 2001 who was referred to him to be treated for adult ADHD. He saw the appellant on a number of later occasions, ending in 2005 and on one occasion in 2010, when the appellant approached him regarding the content of his notes, which he seemed to hope or anticipate would be favourable to him. During the consultations, Dr Cassimatis made notes of the appellant's responses to questions. They were paraphrases rather than verbatim. The notes were obtained by police and tendered into evidence. In his first consultation with the appellant on 31 January 2001, which would have taken about 45 minutes, Dr Cassimatis noted, "He is blunt, obnoxious, angry, 1993 maybe he forced himself on his wife and bruised her. He unaware of the force. She threatened police or counseling. It ceased, now he aware it is detrimental." 29In a consultation on 4 June 2003, about 15 to 30 minutes long, Dr Cassimatis recorded - "In 1991 returned from Finland. Wife returned from overseas, then for about one year he forced wife to have sex many times, including anal sex, not for 6 - 7 years he says. But from time to time he'd push her for digital and penile anal sex. Son died three years ago. [The complainant] found porn videos soon after, he gets drawn to videos of victims of senseless, he agrees he raped wife years ago but knows he bruised her and present one week later. Will attend perpetrators program, don't want to be manic, I want to be steady." 30Dr Cassimatis said that the appellant was aware that the bruising was serious. The appellant volunteered the information that he forced his wife to have sex many times, including anal sex. He was clear about that. The appellant saw it as something to which he was entitled in a marriage situation, in his own words, "He went with the intention to have sex on his terms, that's how I understood it". This was so whether she wanted it or not. 31Dr Cassimatis gave evidence of a telephone conversation with Ms Ede in which she asked whether her brother suffered from Asperger's Syndrome. He said that he told her that he didn't know that and he wasn't sure but would have to see him again. The appellant then made an appointment to come and see him for this purpose, as he understood it. This conversation occurred on 28 May 2003. Dr Cassimatis noted that he was told, "He has split up with wife, rape accusation from wife". 32Sergeant Smith deposed that on 6 October 2008, the appellant attended at Gosford Police Station and asked for some advice. After a brief pause, the appellant said, "Back in the early 90s I sexually assaulted my wife, what are the legal ramifications of this, if she reports it?" He paused again and then added, "you see, the bank is going to repossess our house and I want to sell it before the fire sale. My ex-wife doesn't want to sell the house. She is using the sexual assault against me, she said if I go through with the sale she will report the assault to police". The officer obtained some details from the appellant and recorded them in his police notebook. He conducted some checks and informed the appellant that nothing had been reported to the police. The appellant was allowed to leave the station. Sergeant Smith then made an entry on the police COPS database and contacted the complainant, explaining what had happened. The complainant told him, "Yes its true. It happened several times, I've been getting counselling ever since it occurred" and provided some background information. She indicated that she did not wish to make a statement to the police and was "quite upset". In cross-examination, it was put to him that the appellant said - "Hi. Look, I don't know exactly how to talk about this - pause - I mean this is something that's been going on for a long time and I want it to stop, I'm sick and tired of it. Is there any way to force someone to put up or shut up if they've been making threats against you. I want to find out if there's a legal way to do it." Sergent Smith said he had no recollection of this and was fairly sure that it was not said. It was put to him that the appellant told him, "Look, I'd like to talk about a few legal issues" and then the officer interrupted him to ask, "Now, what's all this about", to which the appellant replied, "The issue is about me sexually assaulting my wife. She has been claiming for years that I raped her and has been using it against me and I'm over it, I just want it to stop." Sergeant Smith said that he did not say words like that. He denied that it was reasonably possible that he had made a mistake and left some words out in recording the appellant's comments, although he agreed that the appellant had said words to the effect, "She's been using it against me for years". He said that he understood the appellant perfectly. The defence case 33The appellant gave evidence. Only a truncated account is necessary, given the sole ground of appeal. The appellant said that all sexual intercourse between him and the complainant was consensual although, in late 1993, the complainant accused him of raping her. He said that on one occasion after they had consensual intercourse he noticed some bruising just above the pubic bone on the complainant and she told him that it was from intercourse they had previously had. She continued to complain and the allegations increased. He said, on the occasion when Nicholas walked in whilst they were having sex, they stopped and attended to Nicholas, taking him back to bed. They had anal sex to which the complainant consented and liked. She never bled as a result nor did she seek any treatment because her anus was sore. They separated as a result of arguments but, after eight or nine weeks, they were reconciled and moved back in together in mid to late 2004 for 12 months during which time they had further consensual sex, both vaginal and anal. When the appellant and the complainant separated, the appellant was keen to resume the relationship and asked the complainant, "What can we do to fix this". The complainant told him that he would have to talk to Dr Cassimatis and say that he had raped her. This the appellant agreed to do. He said that when he told Dr Cassimatis that he had raped his wife, it was a lie that he had to tell in order to try "and get my family back", saying he would have done anything to achieve this. 34In October 2008, when the complainant had told him that he was not going to see the children and was making further allegations about him over the separation, the appellant attended Gosford Police Station. He wanted the allegations to stop because he had no access to the children, their relationship had finished and there was no way for him to move on. He said that he went to the police station to see if they could do something about the complainant harassing him with continued allegations. He gave evidence of the matters put to Sergeant Smith, to which I have referred above. He denied admitting to Sergeant Smith that he had raped his wife. 35The appellant said that the complainant blamed him for Nicholas' illness and the first allegations of rape were made when Nicholas was undergoing chemotherapy. He said that she made the complaint to police in September 2009 when he had threatened to sell the house as debts were piling up. The complainant would not agree to this sale so the appellant stopped paying the mortgage to force one. She complained to police, she said, a week after he stopped paying the mortgage. She had said to him that, if the house was sold and he didn't pay the bills, she would go to the police. 36The appellant gave evidence that he and the complainant were reconciled in 2003 after they had been separated for eight to nine weeks. (The complainant denied this.) The appellant's father gave limited evidence of reconciliation. Mr Monk, called primarily as a character witness, also gave evidence in cross-examination that he often went to the house both for social occasions and to do their plumbing. He could not remember precisely the last time he visited but guessed that it would be "three, four years ago" (which would make it 2007 or 2008) though he could recall the last job he did (about which he was not asked). He said that the complainant had told him they had separated but the appellant was "there quite often". He added - "In fact almost every time I was there [the appellant] was there. Either he turned up while I was still working there because he had been at work in Sydney or he'd be there when I got there... I didn't stay late enough to see if he stayed there but he was certainly there when I left." This was so at the time when the complainant told him that they were separated. He was asked in re-examination - "Q. What would make you think they were together? A. Well [the appellant] was always there. It always seemed much the same as when they were together to be honest.... I never really saw any evidence of them being apart. Q. Could you tell any difference between when they were supposedly together and supposedly apart? A. Not really, no, apart from [the complainant] telling me." 37The appellant's father gave evidence in which he said he kept a diary in which he noted that the complainant had left the matrimonial home on 26 May 2003 and returned on 20 June 2003. He said that the appellant moved out at that time but the couple had an on and off relationship and the appellant returned and they resumed living together. In August 2004 he and his wife stayed with the appellant and the complainant. He wrote a letter on 20 September 2004 referring back to the visit the previous month. Directions on delay 38Before the close of the Crown case, after Sergeant Smith had completed his evidence, the judge asked counsel for submissions concerning the directions which each side wished to be given to the jury. His Honour referred to s 165B(2) of the Evidence Act 1995, and asked Mr Doyle for a "bullet points" summary of the particular forensic disadvantages which it was alleged had occurred, noting that this was not a situation where a witness had died or was unable to be located or any potential evidence had been lost. 39Following some brief discussion involving the Crown prosecutor, Mr Doyle of counsel for the appellant referred the judge to s 165B(7)(b) (concerning the consideration that potential evidence has been lost or is otherwise unavailable), and mentioned two areas of evidence, which he called "forensic evidence" and "medical evidence". In respect of the former, he referred to semen. The judge (with respect, rightly) said it was immaterial as the only issue was consent rather than the fact of intercourse. This was conceded by Mr Doyle. As to medical evidence, Mr Doyle submitted there was no possibility, or not a useful possibility, of obtaining medical evidence about anal bleeding or the alleged bruising. He submitted that, because of the long delay in complaining, it was impossible to corroborate (or disprove) the complainant's evidence about these matters. The appellant was further disadvantaged by his not having any fresh recollection of what had occurred and, in respect of the bruising on the complainant's arms, no possibility of getting any independent evidence from any witnesses who may have observed her. In relation to this last matter, his Honour pointed out that the appellant had informed Dr Cassimatis that he had observed bruising. (The notes, however, do not state where the bruising was, the appellant conceding the complainant was bruised in her pubic area.) The next matter raised by Mr Doyle concerned the evidence of the appellant's sister about the complainant telling her she had visited a hospital - although this was denied by the complainant. Mr Doyle submitted that the medical records of all the hospitals in the relevant area at the time could have been subpoenaed but the effluxion of time meant that it was highly unlikely that those records still existed. Mr Doyle then asked to reserve his position and that is where the matter rested until after addresses. 40After addresses the judge again raised s 165B of the Evidence Act and the directions about delay, asking Mr Doyle for "a careful note as to what you say the forensic disadvantage is, the significant forensic disadvantage rather". The weekend ensued and, on the Monday, Mr Doyle produced to his Honour a note in response to this request. It was marked MFI 7. Regrettably this document, which was handwritten, has been mislaid and the parties have not retained a copy. However, in a brief judgment given immediately after submissions, his Honour summarised the points made by Mr Doyle, which covered three areas described as "having an adverse effect in the way in which the accused could conduct his defence". The first matter identified was that delay had affected the appellant's ability to provide alibi evidence because of the uncertainty of the dates of the alleged assaults; the second matter was the potential availability of "fresh forensic evidence (say, blood on the sheets) if complaint was recent"; and, lastly, that witnesses may perhaps have forgotten important exculpatory material. 41The judge stated that it was common ground that "from the outset of the allegations, the complainant informed the accused that his conduct amounts to rape, namely non-consensual sex, so he was aware of the complainant's complaint from the very beginning of the allegations". His Honour therefore concluded - "Having regard to the way in which the trial has been conducted and the evidence elicited thus far I am unable to see the disadvantage to the accused on an ability to provide an alibi, or in relation to the ability to gather fresh forensic evidence." 42As to the last point referred to by counsel, the trial judge asked whether he could suggest any particular material. Mr Doyle replied - "I can't think of any example off the top of my head but if there was fresh complaint there may have been witnesses that could give evidence that provided some sort of exculpatory material that I can't describe your Honour, I just can't think of an example." It was Mr Doyle's inability to point to any specific matter in this regard which led his Honour to dismiss it as simply being another way of complaining about "the mere existence of a delay" vide para 165B(6)(b). 43It is clear, from the summary set out by his Honour, that counsel for the appellant had not pressed the matters to which he had referred when the matter was first raised and which are set out above, namely the absence of medical evidence of anal bleeding, the absence of the ability to obtain some independent evidence about bruising on the complainant's arms and the difficulty (described as "highly unlikely") of obtaining records from the hospital which the complainant's sister said she was told by the complainant she had attended. 44In the result, the trial judge made no reference in his summing up to the issue of delay in the context of the appellant suffering a forensic disadvantage. As it happened, Mr Doyle did not himself refer to this matter in his address, although of course, he was perfectly entitled to do so (and the judge must then have referred to the argument in the course of summarising the defence case). The appellant's submissions on the appeal 45Mr Brady of counsel for the appellant submitted that the forensic disadvantages which ought to have been put to the jury by the trial judge concerned the lack of medical evidence, lack of evidence about counselling, aspects of the evidence of Dr Cassimatis, the circumstances of the complainant's attendance at the Consulate, occasions of failed memory and the circumstances of the reconciliation. 46So far as the medical evidence is concerned, the appellant points to the evidence of the complainant, in respect of count 1, that she was bruised on the public bone, the inside of her thighs, her wrists and upper arms, while the appellant also gave evidence that he noticed some bruising above the pubic bone. The complainant also gave evidence, that following the offence comprising count 2, she went to the toilet and noticed she was bleeding heavily from the anus and said to the appellant that she needed to go to the doctor and might need stitches. This bleeding continued for a few days. The appellant denied that the complainant ever bled from her anus as a result of anal sex. So far as count 3 is concerned, the complainant said that she was seriously injured ("tearing really bad" in her anus). She also said that this happened during the assault comprising count 4 and that there was heavy bleeding from her anus that went on for over three weeks. Furthermore, the continuing acts of forceful anal intercourse also resulted in anal bleeding, which made the consultation at the Kariong Medical Centre significant. Lastly, counsel referred to the evidence of Ms Buchert that the complainant had told her that she had attended hospital after the first rape and that the hospital had documented her complaint. 47The appellant contended that the significant forensic disadvantage caused by the lack of any complaint, at least to police or a doctor, was that no independent medical assessment of the injuries that she allegedly suffered was made. Counsel pointed out that whether the complainant bled as she described was relevant not only to the question of aggravation but plainly went to her credibility and the issue of consent, one of the reasons given by her for objecting being the pain that it caused. Of particular significance was the complainant's evidence of attending the Kariong Medical Centre. Her evidence that she had not raised the question of anal rape did not assist the Crown case, of course, but the significance of that omission may well have been greater had there been records kept of the consultation and/or the attending doctor recalled it and, as well, the source of the bleeding (if any) identified. 48In relation to counselling, the evidence of the complainant was that she attended counselling with the appellant but did not disclose the appellant's misconduct. The disadvantage was the inability of the defence to obtain the records of these counselling sessions. There was an enquiry made by the officer in charge of the Relationships Australia (the name, it seems, suggested to police by the complainant although she gave no direct evidence of it) but records are not kept for more than seven years. The officer also searched for a counselling service based upon the description given by the complainant, of where it was, but it could not be located. 49The next matter identified arose out of the evidence of Dr Cassimatis, whose notes of conversations were not "all verbatim" but rather a paraphrase of what was said. The disadvantages identified were not inaccuracies in Dr Cassimatis' notes as a fair (enough) record of what was said but, rather, it being the appellant's case that his admissions to the doctor were lies told because the complainant imposed the condition for reconciliation that he should admit to raping her and one of the factors pointing to the truth of that assertion was Ms Ede's call to Dr Cassimatis at the complainant's instigation. He agreed that he had spoken to Ms Ede and made a note about that conversation dated 28 May 2003 (not part of the exhibited notes), which stated "He has split up wife, rape accusation from wife". This was in quotation marks and the doctor said, hence, this was one of the questions asked of him: the phrase "rape accusation from wife" meant that Ms Ede told him words to the effect that the appellant's wife was making an accusation of rape. In answer to Mr Doyle, Dr Cassimatis said that she asked several questions, the details of which he could not remember. He said that she talked mostly about the appellant's behaviour and some of his symptoms and his upbringing and father's behaviour, in relation to (as I understand it) whether the doctor thought her brother suffered from Asperger's syndrome. He was asked whether Ms Ede asked him if her brother had admitted any rapes. He said that he did not recall that, but it was quite possible. It is submitted that the fact that Dr Cassimatis could not remember whether Ms Ede had asked him this question was a significant forensic disadvantage to the appellant. 50In relation to an attendance at the Consulate or Embassy, the appellant submits that there was no real opportunity to obtain independent evidence about whether the complainant had done so and, if so, what she had complained about. It was a significant part of the defence that the complainant did not leave the appellant though she had suffered from his gross misconduct, nor did she seek assistance from friends or the police. The delay in learning of the claimed attendance at the Consulate denied the appellant the means of testing the complainant's evidence that she spoke to someone there "about domestic violence". 51The additional matter relating to failed memory concerned the lack of precision in the evidence of Ms Buchert and Ms Ede about what they were told by the complainant. 52So far as the alleged reconciliation is concerned, the disadvantage contended for is that the delay in complaint affected the ability to obtain evidence of it and in the inability of the witnesses who stated there was or they believed there was such a reconciliation to recall specific dates. This was important because, it is submitted, the fact of reconciliation supported the appellant's case and contradicted the complainant's evidence. The Crown submissions 53The Prosecutor in this Court did not take issue with the appellant's submissions as to the potential disadvantages that had been identified as resulting from delay. Rather, it was contended that these matters had not been brought to the trial judge's attention and, in effect, leave to rely on them should be refused pursuant to r 4 of the Criminal Appeal Rules. Alternatively, defence counsel's address to the jury did not refer to delay or its possible significance in relation to any matter, let alone the matters now relied on and the strength of the Crown case, especially in light of the appellant's admissions to Dr Cassimatis and Sergeant Smith, was such that, if leave were given, the Court should conclude that there was no substantial miscarriage of justice and dismiss the appeal. The application of s 165B of the Evidence Act 54Section 165B is in the following terms - "(1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section: (a) delay includes delay between the alleged offence and its being reported, and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. (7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following: (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable." 55It will be seen from subsection 165B(5) that the section is the sole source of a judge's authority either to warn or inform the jury about any forensic disadvantage that a defendant or accused may have suffered because of delay. Of course, this would not prevent a judge from putting these matters to the jury as a part of the defence case if counsel had addressed the jury to that effect. Indeed, there would be a duty to do so. 56It also appears that the duty arises only on application (as here) by the appellant and thus that the particular significant forensic disadvantage must form part of that application. An accused's lawyers will have obtained instructions as to the issues in the case and, accordingly, be aware how delay had given rise to any particular forensic disadvantage. This is a matter peculiarly within the accused's knowledge or, perhaps more likely, that of his or her legal advisers. For example, if an important witness had died, it could very well seem that the inability to obtain his or her evidence would place the defence at a substantial disadvantage but, if the defence was aware that the witness' evidence would, say, have assisted the prosecution or not assisted the defence, it would not be proper for counsel to rely on the death for the purpose of seeking a warning. Of course, it may be that a judge might think it right to raise particular matters with counsel so that, if they might have been overlooked, the matter could be made right in the interests of a fair trial but I do not think that a trial judge has a duty, as it were, to second guess counsel. 57This conclusion is similar to that applying to a "request" for a warning under s 165 concerning unreliable evidence. Such a request "would involve counsel making the request identifying what the 'kind' of evidence was, why it was unreasonable, and what the terms of the warning requested were": Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521; (2007) 82 ALJR 250 per Heydon J at [232]. 58It seems to me, therefore, that the only matters which could have been considered by the trial judge on the appellant's application were those which were raised by Mr Doyle. The matters he referred to when the question first arose were not the same as those articulated on the second occasion. Perhaps the most significant of these was the inability to obtain medical evidence as to any injury to the complainant which gave rise to the repeated bleeding to which she referred. It is not clear why that matter was not pressed. In my view, however, the judge was entitled - indeed, bound - to act on the basis that the later list (which, after all, was produced after a period of reflection) superseded the former. In the result, the only matters ultimately identified as constituting significant forensic disadvantage arising from delay (with consequent imprecision as to dates) were the appellant's inability to obtain alibi evidence, the impossibility of gathering "fresh forensic evidence, say blood on sheets" (emphasis added) and, lastly, the possibility that witnesses "have perhaps forgotten important exculpatory material" of which Mr Doyle was unable to give an example. 59The trial judge, in referring to the appellant's awareness of the complainant's complaint, at least in respect of count 1, from the very beginning, cited R v WSP [2005] NSWCCA 427, and quoted a passage from Odgers, Uniform Evidence Law, 9th ed, (2010) Thomson Reuters at [1.4.3200] - "Of course, very long delay will not always lead to a conclusion of significant forensic disadvantage. For example, an initial complaint may have been brought to the attention of the defendant soon after the relevant events, notwithstanding the fact that the police were not informed for many years, so that no forensic disadvantage was caused to the defendant." For which proposition R v WSP (supra) at [151] - [158] is cited. 60WSP was a case in which it was common ground that, shortly after the alleged offences were said to have occurred, the complainant made some complaint in a family context which was brought to the appellant's attention. When the trial judge raised the question whether there had been any significant loss of the means of testing the complainant's allegations flowing from the delay (of some 13 years) in charging the appellant, his counsel said that he did not make such a submission. The complaint to the police was the first occasion when the appellant (as Spigelman CJ characterised it at [30]) "was first required to answer the allegations in a forensic context". Spigelman CJ continued - "Clearly, this delay is within the scope of the circumstances in which a Longman [v The Queen (1989) 168 CLR 79] warning has come to be required. It is the forensic disadvantage to which the warning is directed". R S Hulme J (with whom Sully J agreed) considered that the period between the first, early informal complaint and the time of complaint to the police was so extensive as to have required a Longman warning. 61WSP is therefore not authority for the proposition that, where an early informal complaint is made, the fact that there is a significant delay before the alleged offender is confronted with the complaints by the police is irrelevant. The significance of delay will plainly always be a matter of fact and degree and whether a warning should be given will depend upon whether a significant forensic disadvantage has been identified. If it has been identified then it is clear that the warning ought to be given, simply because it is or can be a very important factor to be taken into account when assessing the respective prosecution and defence cases and its importance may not be appreciated by the jury. The fundamental question is whether there has been a significant forensic disadvantage, which will depend on the nature of the complaint and the extent of the delay in the circumstances of the particular case. The extent of delay is not the test. Rather, it is the consequence of delay which is decisive. The focus on the length of delay has, I think, arisen because of the notion of presumptive prejudice, especially as to reliability of recollection, which was earlier regarded as giving rise to the need for a warning. 62Accordingly, the trial judge's dismissal of the significance of the delay in reporting the alleged misconduct to the police because the complainant immediately complained to the appellant about his misconduct is, with respect, an error of law. However, this does not dispose of the matter. As I explain below, the matters ultimately identified by the counsel for the appellant at trial did not identify any forensic disadvantage which could fairly be regarded as significant. Were significant forensic disadvantages identified? 63I return, therefore, to the particular matters identified in the written submission provided at the trial judge's request. Given that the appellant did not deny anal intercourse, so that the sole issue was consent, the question of an alibi simply did not arise. The proposed fresh forensic evidence, such as blood on the sheets, which might have been able to be collected if complaint had been immediately made to the police, on its face might have created a significant forensic disadvantage. The defence case could only be assisted if (there being no staining) this was inconsistent with the complainant's evidence. The complainant was not cross-examined as to whether the sheets were stained. As the evidence stood, therefore, there was no significant forensic disadvantage demonstrated by the appellant being unable to procure an examination of the bedding. Lastly, the mere reference to difficulties of recollection without specifying the particular witness and the significance of the problem with memory did not give rise to the need to direct the jury about this matter. 64Some discussion, I think, is appropriate about the matters first raised by Mr Doyle for the appellant when the subject was initially broached by his Honour. As I have already said, the first matter (concerning semen) was immaterial. However, the ability to obtain medical evidence about anal injury or bleeding, either from the records of Kariong Medical Centre or from the doctor seen by the complainant, was certainly capable of giving rise to a significant forensic disadvantage. The same applies to the inability to obtain medical records of the visit (denied by the complainant but said by her sister as having been stated by her), which was, at least prima facie, capable of amounting to a significant forensic disadvantage. However, counsel's submission on this matter relied on "the effluxion of time... [meaning] that it's highly unlikely that those records will still exist." It seems to me (though it is not necessary to decide) that this merely speculative possibility as to the availability of records made it difficult, if not impossible, for this submission to succeed. Where the proposed significant forensic disadvantage comprises loss or unavailability of evidence, it will be necessary in most cases to establish that this is in fact the case rather than leaving it to supposition. The third matter relied on was that, had there been an immediate complaint about the first incident, then some evidence would have been likely to have been forthcoming - at least from police sources - as to the presence of bruising. This contention is weakened somewhat by the fact that, in 2001, the appellant told Dr Cassimatis that in "1993 maybe he forced himself on his wife and bruised [her], he unaware of the force." On 4 June 2003 Dr Cassimatis noted, "He agrees he raped wife years ago, but knows he bruised her and present one week later". Accordingly, the potential evidence would, on the appellant's account to Dr Cassimatis, show that indeed the complainant was bruised as a result of his "forceful" intercourse. (I have already mentioned the additional complication that the appellant conceded in his evidence the presence of bruises, though not on the arms.) In the result, the only matter which, had it been pressed, would have required an appropriate warning to the jury, was that relating to the visit of the complainant to the Kariong Medical Centre and, possibly, the absence of hospital records. However, for the reasons I have given, in light of the way in which the application was ultimately made, no occasion for a direction in relation to these matters arose. The application of Rule 4 of the Criminal Appeal Rules 65So far as the additional matters contended on the appeal as amounting to significant forensic disadvantage are concerned, it is necessary to obtain leave to rely on them at this stage: r 4 of the Criminal Appeal Rules. Were the question not governed by s 165B(2) and (5), these matters, or at least some of them, were of sufficient moment to have been required to be the subject of a warning, even though no direction was sought in respect of them and I would have granted leave to raise them on the appeal. However, since they were not raised below and, hence, could not have been the subject of directions, leave must be refused. Conclusion 66I propose that leave to appeal be granted and the appeal be dismissed. 67BUTTON J: I agree with Adams 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: 05 November 2013