Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Golossian v R [2013] NSWCCA 311 Hearing dates: 5 and 6 November 2013 Decision date: 10 December 2013 Before: Leeming JA at [1]; Johnson J at [112]; RS Hulme AJ at [113] Decision: An extension of time to appeal is refused. Catchwords: CRIMINAL LAW - appeal against conviction - application for extension of time - unsatisfactory explanation for delay - prejudice occasioned by bifurcation of appellate process in respect of appeal against conviction by co-accused and risk of inconsistent decisions CRIMINAL LAW - appeal against conviction - whether guilty verdict open to jury - whether trial judge's summing up unfair and unbalanced - refusal of application to recall complainant late in the trial Legislation Cited: Crimes Act 1900 Cases Cited: Abdul v R [2013] NSWCCA 247 Alpha v R [2013] NSWCCA 292 AP v R [2013] NSWCCA 189 Bailey v Director of Public Prosecutions [1988] HCA 19; (1988) 78 ALR 116; (1988) 62 ALJR 319; (1988) 34 A Crim R 154 BCM v The Queen [2013] HCA 48 Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 Domican v The Queen (1992) 173 CLR 555 Edwards v R [2009] NSWCCA 199 Etchell v R [2010] NSWCCA 262 FP v R [2012] NSWCCA 182 Gilham v R [2012] NSWCCA 131 Grey v The Queen [2001] HCA 65; 75 ALJR 1708. Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen (1994) 181 CLR 487 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ngo v R [2013] NSWCCA 142 R v Courtney-Smith (1990) 48 A Crim R 49 R v Germakian [2007] NSWCCA 373; 70 NSWLR 467 R v Inamata (2003) 137 A Crim R 510 R v Livingstone [2004] NSWCCA 407 R v Meher [2004] NSWCA 355 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 SKA v The Queen [2011] HCA 13; 243 CLR 400 Tonari v R [2013] NSWCCA 232 Category: Principal judgment Parties: Tony Golossian (Applicant) Regina (Respondent) Representation: Counsel: Mr E Conditsis (Applicant) Ms S Dowling SC (Respondent) Solicitors: Conditsis Lawyers (Applicant) Ms Gabrielle Drennan, Solicitor for Public Prosecutions (Respondent) File Number(s): 2008/00082733 2009/00080543 Publication restriction: None Decision under appeal Date of Decision: 2010-12-15 00:00:00 Before: Hock DCJ File Number(s): 2008/00082733 2009/00080543 Judgment 1LEEMING JA: The applicant, Mr Tony Golossian, was found guilty by a jury on 15 December 2010 of 24 sexual offences following a trial lasting 50 days. He was sentenced by Hock DCJ to an aggregate sentence of 20 years dating from 4 November 2010, with a non-parole period of 15 years also dating from 4 November 2010. 2The applicant seeks an extension of time to appeal his conviction on four grounds. Grounds 1 and 2 complain that the verdicts of guilty in relation to the counts relating to each of the two complainants ("MM" and "MP") were unreasonable and/or cannot be supported by the evidence. Ground 3 is narrow, and challenges a refusal by the trial judge, late in the trial, to recall MM to give evidence about messages left on the answering machine of the applicant's co-accused, ("AP"). Ground 4 complains that the trial judge's summing up was unfair and unbalanced. 3Leave is required for all aspects of the proposed appeal. The application was made late, its lateness was only partially explained, and in addition to the ordinary prejudice to the community and the administration of justice generally, it presents a particular prejudice, because it caused a bifurcation of the criminal appellate process. The third co-accused, ("FP"), convicted by the same jury on the same evidence, also appealed against conviction (as well as her sentence) and the grounds of her appeal overlapped with the applicant's. 4For the reasons which follow, I propose that leave be refused in relation to all four grounds. I deal with each ground in turn, as well as giving my reasons for joining in the Court's order made on the second day of the hearing refusing leave in relation to a proposed fifth ground. But, given the nature of Grounds 1, 2 and 4, I must start with an overview of the case. Overview of facts, parties and principal witnesses 5Early in her summing up to the jury, the trial judge said: "There has been evidence about "mayia" or black magic ... It is irrelevant whether you have such a belief, whether it is your personal belief, or whether you regard such a belief as nonsense or silly. What is important is the evidence from the witnesses about what they told you about their beliefs at the relevant time of the issues concerned with this trial and of course whether you accept what they told you about their belief or beliefs. ... Similarly ... you have evidence of sexual behaviour which perhaps is outside the realm of many people in the community. As I told you at the time of this evidence this is a criminal court concerned with the criminal law. It may well be that some or all of you feel that you would not have acted as [MM] or [MP] did. Or that some or all of you disapprove in [MM's] behaviour in engaging what has been described as "the threesome". Or you might disapprove of [AP's] behaviour in having undisputed sexual intercourse with [MM] when he was married to [FP]. You may not regard that behaviour as morally acceptable but the cases are not concerned with issues of morality, you are concerned with criminal offences only and all moral judgments must be put to one side. All people are entitled to be treated equally before the law no matter what their cultural background and beliefs are or their sexual behaviour is." 6As that passage reveals, the facts giving rise to the convictions are highly unusual, something which is of considerable importance in relation to all of the proposed grounds of appeal. 7The applicant, who was 63 when tried, was known as a "holy man" with power to break black magic and curses, known in the Greek community as "mayia". He had a "prayer room" at the back of his home at Dulwich Hill, and would regularly conduct prayer sessions there and elsewhere. He claimed to be able to speak with angels. 8His co-accused AP and FP were husband and wife. They, and the complainants MM and MP, were of Greek heritage. All had strong religious beliefs. MM and MP claimed to be in fear of black magic, or mayia. The applicant and AP were charged with sexual assaults committed upon MM between 2001 and 2005, and all three co-accused were charged with sexual assaults committed upon MP in 2008. Both MM and MP claimed to have been sexually assaulted by the applicant in a context when the applicant was praying over them in order to remove a curse. 9Between 2001 and 2003, MM's boyfriend was SP, who was a childhood friend of AP. SP introduced MM to AP and FP and, later, to the applicant. SP gave evidence that he was of the Greek Orthodox faith, but also believed in curses and the evil eye. The Crown case was that the applicant and AP had preyed upon MM's belief in black magic or mayia, in order to sexually assault her. 10The complainant MP's husband GK was FP's brother. There was evidence that when GK was around 12 years old and his sister FP was around 6, he had sexually assaulted her. In the case of MP, the Crown case was that the applicant, AP and FP had preyed upon the beliefs of MP and GK in order to sexually assault MP. In addition, the applicant, AP and FP were charged with obtaining $50,000 by false pretence, namely by stating that the payment would obviate the need for GK to leave his family and become a monk. All three were acquitted by direction on this charge. Application for extension of time - factual background 11This is not an appeal, and should not be resolved as if it were. It is an application for a substantial extension of time within which to appeal from the applicant's conviction, which was opposed by the Crown principally on the basis that cause to do so had not been demonstrated. It follows that it is necessary to address the procedural history. 12Each of the three people convicted by the jury on 15 December 2010 (that is, the applicant, FP and AP) filed Notices of Intention to Appeal from their convictions. During the second half of 2011, two days (31 January and 1 February 2012) were allocated for the hearing of all three appeals. 13All three appeals were listed for directions before the Registrar of the Court of Criminal Appeal on 10 November 2011. The Registrar was told by the solicitor then appearing for the applicant that a "negative merit advice" had been provided by senior counsel, with the result that there would not be a grant of Legal Aid. He appears also to have said that he had applied to extend the Notice of Intention to Appeal to permit the applicant to decide what he would do; either expressly or implicitly he advised that his firm would not be acting for the applicant. Counsel appearing for FP appears to have submitted that her appeal had been filed months earlier, that the hearing date should be retained and that his client would be disadvantaged if it were changed. The solicitor for the Crown observed that there was no application to vacate the hearing date for FP, that that date should be preserved, and asked that the applicant's proceeding be listed for callover on 1 December 2011. 14On 1 December 2011, the applicant's proceeding was adjourned for mention to 16 February 2012, and on that date the proceeding was stood out of the list because the Notice of Intention to Appeal had expired without the filing of a Notice of Appeal. The applicant's original Notice of Intention to Appeal had been filed on 6 May 2011. In the ordinary course it would have expired six months later, but an application to extend its life was filed on 4 November 2011, and the Registrar granted an extension until 30 January 2012. By 16 February 2012, a grant of leave extending the time within which to commence an appeal was required. FP's appeal had been heard and judgment was reserved. That judgment was delivered on 23 August 2012: FP v R [2012] NSWCCA 182. 15In early June 2012, the applicant's current lawyers were retained to explore his prospects of appeal. They had received the trial judge's summing up on 22 March, and received the file from the applicant's former solicitors on or about 15 June. Quite promptly, Mr Conditsis identified as a potential ground of appeal, the alleged wrongful exclusion from evidence of an audio tape (which had been VD 14) whose transcript became VD 17 (this is relevant to proposed Ground 3). However, there was no communication with the Office of the Director of Public Prosecutions advising even of the potential for an application for leave to appeal prior to a letter dated 21 December 2012. 16Mr Conditsis said that three things caused the delay until 21 December 2012. The first was that there was delay in paying his costs. The second was that he needed, on two occasions, to visit the applicant who was being held at Goulburn Correctional Facility, and the third was the volume of material to be digested. 17The evidence does not disclose what time of the day on Friday 21 December 2012 Mr Conditsis' letter was sent to the "Managing Lawyer" at the Office of the Director of Public Prosecutions (less unhelpfully, it was copied to the detective who had been in charge of the investigation). It seems likely that it was sent in the morning, because the letter concluded with a Christmas message and advice that Mr Conditsis' office would close from 12pm Friday 21 December 2012 and reopen on Monday 7 January 2013. 18No Notice of Application for Leave to Appeal was filed until 31 May 2013. In the intervening five months there was correspondence directed to obtaining a copy of the audio tape. That tape was never produced. But in any event, by letter dated 1 February 2013 Mr Conditsis unequivocally maintained that: "One of the grounds of appeal will inter alia, assert that the trial judge erred in refusing to allow [MM] to give evidence about the tape before the jury and in refusing to admit the tape into evidence." 19What follows from the foregoing is this. First, from the moment Mr Conditsis was retained it was necessary for the time within which to appeal to be extended; he was (or at least ought to have been) aware of this. 20Secondly, when in June 2012 one ground of potential appeal had been identified by Mr Conditsis, judgment in FP's appeal was reserved, and it would have been open for application to be made for the same bench to hear another appeal from conviction by the same jury on the same evidence, which had originally been the intention of the parties and the Court. There are obvious efficiencies in that course and, more importantly, it would avoid the possibility of inconsistent decisions of the Court of Criminal Appeal, differently constituted, hearing appeals from the same trial, in accordance with the procedural directions initially put in place. As it is, six judges have each sat for two days hearing applications arising out of the same highly unusual facts. That said, there would have been difficulties with that course, and it might be expected that FP would oppose the determination of her appeal being delayed. 21Thirdly, there is no evidence one way or the other as to whether the applicant accepted the advice of senior counsel as to the prospects of his appeal. Even if an applicant is without legal representation and has difficulties with written English, it is not unusual in this Court for affidavits to be sworn in support of an application for extension of time explaining the position prior to the current solicitor being retained. It is not necessary to draw an inference as to the applicant's state of mind in November and December 2011; it is sufficient to observe that the onus rests with him to establish, by way of evidence, that his is an appropriate case for the significant extension of time sought by him. Applicable legal principles for extension of time 22This Court is required to heed time limits which are, after all, imposed by the Legislature. There must be an end to litigation, even to a serious criminal prosecution. It is to be borne in mind that the sexual assaults of which the applicant was convicted took place between 7 and 12 years ago. Memories fade. One of the complainants, MP, who was recalled during the trial, has already endured the stress associated with FP's appeal. 23Authority is not lacking. As was said in Ngo v R [2013] NSWCCA 142 at [83] (Simpson J, Johnson J and Grove AJ agreeing): "Time limits are fixed by legislation for the making of applications (of any kind) for good reason. While it is relatively commonplace for this Court to permit a substantial degree of latitude in sentencing matters, there must be boundaries. The Court will, especially in cases of substantial delay, look for a satisfactory explanation for the failure to pursue a remedy at the appropriate time: see Edwards v R [2009] NSWCCA 199; Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424." 24In Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 Johnson J said, with the agreement of McClellan CJ at CL and James J, at [38]-[39]: "There is a clear public interest in the avoidance of delay in bringing appeals to this Court against conviction and sentence. The time limit for the bringing of an appeal to this Court under the Criminal Appeal Act 1912 reflects the principle of finality in litigation: R v Unger [1977] 2 NSWLR 990 at 995-996; R v Gregory at [39]-[41]. There is provision for extension of time to appeal and this power should be exercised with the interests of justice in mind, given the usual consequences of conviction following trial on indictment. However, the longer time passes without an appeal being filed, the more solid ought be the expectation of the community, witnesses, victims and the families of victims that the criminal proceedings are over. This is a significant consideration to be taken into account on a leave application. Should an appeal against conviction succeed and a retrial is ordered, witnesses will be required to testify once again, with the further passage of time resulting from a delayed appeal having the potential to affect detrimentally the administration of justice. This Court has recently refused an extension of time to appeal against conviction for murder because of the absence of any satisfactory explanation for the delay and the lack of merit in the proposed grounds of appeal: McCall v R [2010] NSWCCA 174. When considering the interests of justice in relation to an application for leave to appeal, regard should be had to the interests of the Crown (representing the community) and the administration of justice generally, as well as the interests of the applicant for leave: R v Gregory at [41]; McCall v R at [6]." 25The applicant in Ngo had at least sworn an affidavit seeking to explain the delay, even though it was found to be "entirely unconvincing": at [85]. Here, the applicant swore no affidavit explaining his state of mind. He abandoned his appeal after receiving "negative merit advice" from senior counsel. The inference can readily be drawn, and should in the circumstances be drawn, that irrespective of whether the applicant agreed or disagreed with senior counsel's advice on prospects, he was aware that his inaction was causing him to lose his appeal as of right, and splitting proceedings in this Court which had been listed to be heard together. 26In the context of a sentencing appeal, the Court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed: Edwards v R [2009] NSWCCA 199 at [8]. The position is worse in the case of an appeal against conviction where there is a prospect of a retrial, because of the availability of witnesses and the freshness of their recollections: Etchell v R [2010] NSWCCA 262; 205 A Crim 138 at [23]. The Australian legal system places a high value upon fair procedure and correct outcome, a point emphasised very recently by Basten JA (with the agreement of Bathurst CJ, Beazley P, Price and Beech-Jones JJ) in Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 at [47]. 27This Court reviewed the authorities relating to extensions of time following the change in law identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, and in Abdul v R [2013] NSWCCA 247 at [31]-[53]. It is sufficient to note the conclusion at [53], that where there had been a change in the law: "[A]ll relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time." 28In Alpha v R [2013] NSWCCA 292 at [1] and [15] this Court confirmed, if it was not already clear, that the same principles applied in all cases where an extension of time is required. 29The delay is considerable, and contains three periods for which there is no satisfactory explanation. The first is that there is no explanation for the delay from late 2011 until June 2012, when the applicant's appeal was permitted to lapse. The second is that there was no explanation for the delay from June 2012 (when Mr Conditsis had identified a potential ground of appeal) until Christmas 2012 when he first advised of the possibility of an application for an out-of-time appeal. The third is from January 2013 until May 2013 when an application was filed (the communications concerning the audio tape VD 14 do not amount to a satisfactory explanation, for the letter of 1 February 2013 makes it plain that obtaining access to the exhibit was not necessary). 30There were two discrete matters of prejudice occasioned by the applicant's unexplained, or unsatisfactorily explained, delay. One was that it is at least possible that the delay contributed to the inability to locate VD 14. (It is one thing to retain exhibits while an appeal, or a notice of intention to appeal, is on foot; it is another to do so when the time for any appeal has expired - it may be noted that VD 14 was not relevant to FP's appeal.) The second is that the applicant is to be taken knowingly to have caused the bifurcation of the criminal appeal process by separating his application from FP's appeal on the same evidence by the same jury. 31In accordance with Sinkovich, Abdul and Alpha, even though the delay by the applicant is significant, and in large measure unsatisfactorily explained, it remains necessary to examine the merits of the proposed appeal. However, that is to be done in a more summary fashion than would be the case on the hearing of an appeal. If that were not so, the time limits imposed by the Legislature would become entirely otiose: Etchell at [24]. 32All of that said, the trial occupied 50 days, the facts are highly unusual, and even in dealing with them as I propose to do more summarily than would be the case on an appeal, it will be necessary to address some questions of detail. In the reasons which follow, I have confined the description of the facts to what is sufficient to address the strength (or more accurately, absence of strength) of each of the proposed grounds. 33It is convenient to adopt the following course, which follows the order of the trial, rather than the order of the proposed notice of appeal. First, I deal with proposed Ground 2, which relates to the convictions involving MP. MP was the first witness for the Crown, and her evidence was reviewed in FP's appeal. I then deal with proposed Ground 1, the convictions involving MM. I then address proposed Ground 4, the complaint about the primary judge's summing up. Finally, I deal with proposed Ground 3, which is much narrower: the application late in the trial to recall one of the complainants, and my reasons for refusing leave in respect of (the related) Ground 3A. Proposed Ground 2: Verdicts of guilty in relation to the MP counts were unreasonable and/or cannot be supported by the evidence 34The starting point is that MP and to a lesser extent her husband GK claimed to be in fear of black magic, which they described as "the evil eye". They regarded the applicant as a holy man who could communicate with angels. Likewise, the applicant and AP and FP all claimed to believe in the evil eye. The testimony of MP and GK does not make sense unless one accepts that their beliefs were sincerely held. 35MP believed that a curse had been laid upon them, which, if not broken, would cause MP to die from cancer, GK to die in an accident, and their children to die. The applicant advised that there were "mayias" (or curses) in the front yard of GK's and MP's home, and objects were found there, one of which contained MP's hair and underwear, the other contained some small bones with fine writing on it. MP described the latter as "like a voodoo doll of some sort". MP said that the applicant told her that the only way to remove the curse was for him to do a prayer over her while she was naked. 36There was some objective evidence supportive of their testimony. MP and GK gave evidence that on 29 March 2008, at 9.06pm, she received a text message: "I am the red evil I want you to wait for me after 12 o'clock I will be inside your house I want you and your wife 2 be naked & stay in the bed." 37The applicant told GK to change his phone so that it could receive pictures, which he did. GK received many text messages, including the following: "Angel. I want u 2 listen 2me & not change what 4 say this is very important & whatever we ask u 2do u must say yes & not complain even with the evil spirit.don't say no just listen 2them & pray if u make them upset they will harm ur family specialy your daughter & fatherinlaw. They try 2 put the baby inside maria & make her sick by deseas & cancer & the baby will look like an animal & all the people will talk about her. I want 2tell u because she [sic]" 38The jury convicted the applicant of all seven primary counts in the indictment concerned with offences against MP. Those counts related to three prayer sessions conducted on 5 April, between 16-20 April and around 1 May 2008. In each case FP picked up the applicant and took him and MP to a rented room (the Marco Polo motel at Summer Hill for the first session, the Ashfield Motor Inn for the second and third). On each occasion FP was sent to buy food and drink, including orange juice. On each occasion MP was told to drink the orange juice after the applicant had prayed on it. She did so, and on each occasion, she said that she felt dizzy. MP gave evidence that on each occasion, she was sent to the bathroom, where she undressed, returned wearing a towel, and was sexually assaulted. There is little point reproducing the detail of this evidence once more; it has been described by RA Hulme J in FP v R [2012] NSWCCA 182 at [29]-[49]. 39The applicant was charged with administering to MP an intoxicating substance (Zolpidem) with the intention of enabling him to commit a sexual assault (Crimes Act 1900, s 38(a)), and with committing assault (in two cases penile/vaginal intercourse, in one case oral intercourse). The applicant was also convicted on a count of conspiring with AP to enable AP to sexually assault MP. 40The principal evidence in support of those convictions was that of the complainant MP. MP had made complaint to GK and to her friend HD immediately after the first prayer sessions. Following the third prayer session MP bought a recording device and recorded telephone calls made to her by AP. Those tapes were in evidence and included these words: "I am the red evil. We can't work with you in that way. We are the fire, we are the sickness, we are death. If you make any mistake...we will take part of your father health every time". 41Telephone records tendered at the trial appear to establish that that call (transcribed as 7 minutes and 13 seconds) was made on AP's mobile phone on 30 May 2008 at 8.51pm. AP admitted to making the calls; he said he was acting at the request of GK who "was sick and tired of his wife bossing him around and basically treating him like a woman in the house and he wanted to scare her into listening to him so he can wear the pants instead." 42MP gave evidence that she had never knowingly ingested Zolpidem. There was unchallenged chemical evidence that although Zolpidem is eliminated from the body in about 2.5 hours, it remains detectable in the hair. Unchallenged expert toxicology evidence from MP's hair confirmed that she had ingested Zolpidem in the period from January to May 2008 (the period in which all three prayer sessions occurred). At each of those prayer sessions, MP gave evidence that she had drunk orange juice and that she felt dizzy and heavy after doing so on each occasion. Applicant's submissions 43The focus of the applicant's submissions on Ground 2 was inconsistencies in the evidence of MP. Many of these were minor in the extreme. For example, it was said that "MP was not able to satisfactorily explain why she did [not] heed the advice of the priest" (her Greek Orthodox priest had advised that mayias and the evil eye was "rubbish"). However MP gave an explanation, namely, that she believed in curses and was told by the applicant and AP and FP to disregard the priest's advice. Further, the trial was replete with witnesses who adhered to the Greek Orthodox religion but had strongly-held views about curses, and white and black magic. 44Another example was that it was said that MP "did not offer a strong denial" to other evidence that during the first prayer session she had said that two other men had raped her. However MP's evidence, consistently, was that she could not remember saying those words, but did not deny it. This is consistent with the effects of Zolpidem (there was unchallenged evidence that Zolpidem caused memory loss). The written submissions advanced the possibility that MP had "likely delusional beliefs" and might have been prescribed a drug which included Zolpidem. But as in so many aspects of this trial, the jury was in a substantially superior position to observe MP and each of the accused. 45The applicant and MP said they believed in curses, black magic and white magic. It was open to the jury to accept that those beliefs were genuinely held, notwithstanding MP's high degree of education and the various managerial positions she held with major banks. From that premise, it was not unreasonable for the jury to have accepted MP's evidence, the minor inconsistencies to which the applicant points notwithstanding. 46Mr Conditsis was asked to identify his strongest points. He gave a deal of attention to the COPS record made on 2 June 2008 which referred to MP only being given apple juice, not orange juice at the prayer sessions. Of course, the COPS record does not purport to be a verbatim account of what MP said. That level of inconsequential detail is illustrative of much of the attack upon MP's evidence. 47Mr Conditsis' submissions were, in substance, the submissions which would be put to a jury, in an attempt to reduce the credibility of the Crown case so as to establish a reasonable doubt. They resemble those advanced without success at trial. They failed to grapple with the different task which fell upon him in seeking to establish this ground of the proposed appeal. 48This Court would be required, if hearing an appeal, to weigh the competing evidence and to make its own independent assessment as to the sufficiency and quality of that evidence: see SKA v The Queen [2011] HCA 13; 243 CLR 400 at [24], Gilham v R [2012] NSWCCA 131 at [465], BCM v The Queen [2013] HCA 48 at [31]. But the question would remain whether it was open to the jury to be satisfied of guilt beyond reasonable doubt "which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt": Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J with whom Gleeson CJ and Heydon J agreed). 49Of course there were inconsistencies in the testimonial evidence of MP. But as McHugh J said in M v The Queen (1994) 181 CLR 487 at 534, "[i]t is the everyday experience of the courts that honest witnesses are frequently in error about the details of events". Further, as Johnson J noted Tonari v R [2013] NSWCCA 232 at [192]: "victims of sexual assault do not necessarily respond in ways that accord with some mechanical or pre-determined view as to how a victim should respond." 50But this is not an appeal. In the course of a lengthy oral hearing, and extensive written submissions, nothing was put that gives me any concern that the jury must have entertained a doubt. In short, it was open to the jury to be persuaded beyond all doubt that MP and GK believed in mayias and evil spirits: that was their sworn evidence. Once it be accepted that the jury was persuaded beyond reasonable doubt that MP and GK believed in curses and black magic, it was a small step to conclude that the applicant had drugged MP and sexually assaulted MP at the three prayer sessions in April and May 2008, exploiting her belief. 51It follows that I would refuse leave in relation to proposed Ground 2. 52Although I had read the entirety of FP prior to the hearing of the application, and have returned to it subsequently, I have reached the conclusion that proposed Ground 2 does not warrant a grant of leave independently of the conclusions reached by this Court in that appeal. Were I not of that view, it would then be necessary to consider what was the appropriate level of regard to be had to the overlapping conclusions in that case. The level of overlap is high (for FP challenged her convictions for sexual assaults upon MP and administering an intoxicating substance to her on the same three occasions). In particular, RA Hulme J said at [274]: "I am satisfied that it was well open to the jury to be satisfied beyond reasonable doubt that MP was sexually assaulted in the manner in which she claims on each of the three occasions of the prayer sessions. Insofar as one can glean from reading a transcript, her evidence was cogent and consistent. It was supported by the fact of her prompt complaints to her husband of having been sexually assaulted on each occasion. It was further supported by the detail of her complaint to HD. In relation to the latter, I do not think the fact that HD's account did not include MP saying that a penis was forced into her mouth at the second prayer session detracts from the cogency of this evidence, as there is so much in her account that is consistent with MP's evidence. The transposition of apple juice and orange juice in her account is too trivial to be of any concern." 53For completeness, I note that there is no inconsistency in my conclusion and the fact that the Court in FP acquitted FP of a charge of conspiracy. That acquittal was on the basis of an absence of evidence linking FP to this aspect of the conspiracy. Proposed Ground 1: Verdicts of guilty in relation to the MM counts were unreasonable and/or cannot be supported by the evidence 54The convictions sought to be impugned by proposed Ground 1 were based on sexual assaults by the applicant and by AP upon MM, between 2001 and 2005. There were similarities with the charges involving MP. The similarities included: * The location of prayer sessions in rented rooms (notwithstanding the fact that the applicant had a prayer room at his home), including the Marco Polo motel at Summer Hill; * Both complainants' partners were told to stay some kilometres away from the motel during the women's prayer sessions so that the curse was not transferred; * Both complainants were told to undress and shower and wrap themselves in a towel; * Both complainants were told to shave their body hair, which was burnt at the first prayer session; * Both complainants were blindfolded during prayer sessions and later told to shower and dress while blindfolded; * Both complainants were told that the prayer sessions would feel "100% real" but were a dream; * Both complainants were told to drink beverages provided for them; * Both complainants felt dizzy and heavy during and after the prayer sessions; * Both complainants described the applicant's penis as small and struggled to maintain penetration; * Both complainants were told by the applicant to choose third persons to have sexual intercourse, including AP; * Both complainants and their partners received phone calls from demonic voices outside the prayer sessions directing them to participate in prayer sessions with the applicant. 55Some of the details in the evidence of MM and MP were very closely aligned. For example, MM gave evidence that, prior to Count 6, she was instructed by the applicant, who spoke in a different voice which was identified as "King Russell" (there were various spellings of this name proffered during the trial however this was the agreed version). King Russell told MM that she must have sex with one of two people, either her father or AP. She said she was given instructions to go to the Marco Polo motel, to invite AP to come and meet her at the hotel room, that when he arrived she was to knock on the back of her room door three times before she was to open it, naked. She was to say "I want you to have sex with me" and, when he declined, she was to say "If you don't I will scream, the neighbours will hear me and I will cause trouble for you". She was to have oral sex with AP, and was to pinch his nipples, and was told that if she knocked on the door three times as he arrived and left it would erase his memory. 56On 4 June 2008, AP was recorded by MP, introducing himself as "the red evil"; as noted above, the transcript of the recording was in evidence and AP accepted (as he had to) that he made the call, at the end of which he was arrested. She was told to meet AP, to say his name three times, that he would have a shower, and while he was doing that, she was to go to his room, take off her clothes, and wait for him behind his door. She was told that he would not agree, and "The only way to make him agree is to say, "if you do not fuck me, I will run outside and scream". She was told to "Suck him and pinch his nipple", not to stop until he says to stop and "When you leave the house, say his name three time again" because "When you say his name three time he will be erase everything from his mind by us" [sic]. 57MP gave evidence that she did not know and did not recall ever meeting MM. MM said she did not know MP, that her name came to her attention when (in 2008) she was talking with police detectives, and that she was told her name but nothing else. It was put to her in cross-examination that the police detectives "told you chapter and verse about these allegations", and that she had "adopted those details I suggest to you to make a story up regarding [the applicant and AP]". She denied this. It was open to the jury to accept her denial. 58Despite those similarities, it should be acknowledged that there were differences between the histories of MM and MP. Those differences were, understandably, at the forefront of the applicant's submissions. Although there were only three prayer sessions with MP (all in 2008), the events relating to MM occupied 2001 to 2005. There was no toxicology evidence in respect of MM, and something must be said of Exhibit J and the more extreme conduct involving MM. Exhibit J 59In 2002, MM said that the voice of King Russell called her and required her to ask AP to bring his video camera with him so that he could film their sexual activities. He said "through the camera and through [AP] he was able to use his power to break the mayia". He said that "if you don't do this...your sister will not make it home tonight". When MM protested about there being a tape, he said: "When [AP] is finished ... ask him to go to the car and when you get to the car ... ask him for the tape ... On your way home stop at the Cooks River on Canterbury Road", get out of the car...pray the prayer Our Father once and throw the tape into the river." 60MM met AP at the Marco Polo motel but AP claimed he had been followed and they travelled to the Best Western at Ashfield. Their sexual activities were filmed. During the session, FP called her husband AP. On the way home, MM requested and received a video tape from AP which she threw into the Cook's River. 61MM was asked once again to be filmed having sexual intercourse with AP by King Russell, and she did so at the Marco Polo motel. That occurred, after which SP arrived. MM gave evidence that: "SP and I argued briefly about why I was there. I didn't provide an answer and eventually just left the Marco Polo and didn't discuss that incident again." 62Exhibit J at the trial was a videotape which contained 22 minutes of footage from those two occasions (in reverse order); AP had given MM a different tape which she had thrown into the Cook's River. 63Exhibit J supported AP's defence that the sexual assaults against MM with which he had been charged were consensual. In any ordinary trial, it might be thought difficult for a jury to convict in the light of Exhibit J. But this was no ordinary trial. The essence of the charges were that the applicant and AP had preyed upon MM's belief in black magic and curses to cause her, without her consent, to have sexual relations with AP. The entire Crown case turned upon the jury being persuaded to the criminal standard that MM and MP believed in evil spirits and were acting under compulsion from King Russell, "the angels" or "the red evil". The threesomes involving MM 64In 2002 King Russell instructed MM that she was to have unprotected sex with someone else. "He said that the reason I needed to do this was the help that I was receiving from [AP] was no longer enough to break the mayia." She chose a work colleague, Darren, and followed King Russell's instructions. She was told by King Russell that on the second occasion, "he was going to send someone to catch me". MM expected that it would be her boyfriend SP, and said: "I wanted to get caught. I wanted to be able to tell someone what I was going through. I wanted - I had been isolated from everything and everyone in my life, and I saw this as an opportunity, hopefully thinking that he would just drag me by the hair out of there". 65No charges were laid in respect of those occasions with Darren, but counts 12 and 14 of which the applicant was convicted were charges of penile intercourse by Darren at hotels in the CBD and in Coogee, in which MM participated in sexual acts with Darren and Larissa, a former girlfriend of Darren's. King Russell told MM to ask Larissa if she was interested in a threesome with someone else, namely AP. That took place at the Marco Polo motel in the middle of 2002. MM's reporting of the assaults to the police 66Ultimately, in July 2007, explicit photos of MM were sent to her husband at the time. MM saw a police officer and gave an interview shortly afterwards. The COPS entry was in evidence, and included: "In January 2001 the VIC met [AP] and [the applicant] through SP which was her boyfriend at the time. The VIC was told by [AP] and [the applicant] that if she did not pay [the applicant] money her family would be hurt, as the family was cursed under black magic. This continued to occur over a period of a year and the VIC paid [the applicant] a large amount of money over this period. The VIC could not tell police exactly how much she paid [the applicant] in total. As time went on the threats towards the VIC family increased in the severity of violence and this is why the VIC continued to pay [the applicant]. Unknown males who called themselves 'The spirits' were contacting the VIC stating that she had to pay [the applicant] money to stop the curse. [The applicant] never threatened the VIC, he stated he was just doing what the spirits wanted. The VIC did not believe in black magic but was scared what the males would do to her family. ... If the VIC did not do what the so called 'Spirits' wanted then they would call her and say that she did not comply with them and as black magic punishment they would bury bones in the VIC front yard and pins and blood would be found on the front steps. ... Towards the end of 2001 'The spirits' have contacted the VIC and stated that she had to now have sex with [AP] for the curse to stop. The VIC told them she would not do this. The callers have told the VIC that her sister would not live. Each time 'The spirit' callers would call and the VIC would refuse to comply with them, the threat towards the VIC family would increase. The VIC has had intercourse with [AP] on several occasions as she states she was scared that her family would be hurt. [AP] has filmed the sexual intercourse each time it happened with the VIC. The VIC was told by the male 'Spirit' callers that if she told anyone or stopped doing what they said her sister would not make it past 2004 and that the photos of her would be sent to her parents and any future husband." 67It may be noted that this complaint, although referring to AP, made no allegation of sexual assault against the applicant. Applicant's submissions 68Proposed Ground 1 was the subject of 22 single-spaced pages of submissions directed to emphasising inconsistencies and improbabilities in the Crown case, especially, the reliability of MM. 69Once again, many of the inconsistencies the subject of written submissions were minor. For example "by inference [MM] did not know before the meeting that she would be required to be topless. However, [SP] said that he thought there was a mention of it in the park, prior to the meeting" (para 4.8). 70On any view, aspects of MM's account were improbable. However, there were remarkable similarities between MM's account and that of MP, as set out above. It was open to the jury to find that the complainants did not know each other, and that their testimony was wholly independent. It was also open to the jury to accept that MM and MP genuinely believed in the power of black magic or mayias. Once that is acknowledged, the superficially improbable accounts were capable of being accepted. 71There were discrepancies in the interviews given by MM in 2007. In particular, Mr Conditsis relied heavily upon the fact that, when interviewed by Constable Passlow, she made no accusation of sexual intercourse with the applicant, only with AP. Little turns on that. MM's husband had had explicit pictures of his wife and AP sent to him. MM was eight weeks pregnant with the couple's child and her marriage was dissolving. MM also gave candid evidence that with her mother present at the interview "the last thing I wanted her to know was that I had engaged in sexual acts with an old man". 72It is entirely understandable that MM confined her complaint to what was evident from the pictures. In any event, all that matters is that it was open to the jury to believe her testimony, notwithstanding the fact that her complaint in 2007 did not accuse the applicant of any sexual assault. 73The applicant's submissions made much of what was said to be the inherent unlikelihood of the Crown case. For example, it was said (paras 4.48 and 4.68): "It is not credible that MM, an intelligent woman, who on her own evidence had been raped by the applicant in two prior prayer sessions and did not like [AP], would subsequently accept and act upon messages from a Spirit concerning [the applicant and AP]" Even allowing for MM believing in communication be a "spirit", the assertion that anyone with reasonable intelligence would believe that a "spirit" would communicate with them via the telephone is absurd. The suggestion that MM believed this to be the case, following all that had allegedly happened to her, cannot be accepted." 74But once it is accepted that MM, notwithstanding her education, believed in curses and black magic and the applicant's power to remove them, it was open to the jury to convict. For my part I see no enormous leap of credulity from the premise that there are malevolent spirits to the conclusion that the spirits can communicate by telephone. It was open to the jury to believe the woman's evidence. 75Similarly, it was said of Exhibit J that (para 4.75): "It is notable that, notwithstanding these further alleged rapes, MM appeared to enjoy the sexual encounter and did not appear to exhibit signs of distress." 76It is to be recalled that this jury saw MM over 7 days, and saw Exhibit J, engaging in the actual sexual acts that constituted some of the counts, and saw her answering questions as to why her seeming willing participation came about. This is a trial where the jury had an overwhelming advantage over the appellate court. 77It was also put that from time to time, MM "pushed back" from what the applicant was telling her. She realised that AP did have a memory of the Count 6 when he said "I had a great time". She was reluctant to engage in sexual acts with Larissa. Representative of the submissions is para 4.89: "MM was able to assert herself and said to the the Spirit: Fuck that .. There isn't any way I am going to do this. ... Leave me the fuck alone and stop calling me". MM then told the jury that The Spirit responded that he would "stop [her] heart right now" if she spoke to [it] like that again. It is submitted that MM's evidence, and in particular her alleged belief in the matters she attributes to the Spirit, is simply fantastical." 78Again, I do not think there is any significant additional force in this submission. Belief in the supernatural need not be unquestioning, or constant over time. The absence of logical coherence with the physical world is of the essence of such a belief. 79However, I would readily acknowledge that if the Crown case were based merely on MM, then there would be a real question whether the convictions could be sustained. But it was open to the jury to find that the Crown case was established in respect of the sexual assaults upon MP in 2008, based upon her testimony, the toxicology evidence and the telephonic records. There is a remarkable degree of similarity between the account of MM and that of MP. The judge gave a warning about coincidence evidence about which no complaint was or is made. It was open to the jury to conclude that those accounts were wholly independent. Then the only question is whether the presence of Exhibit J, the more extreme nature of the account of MM and the inconsistencies in her evidence disentitled the jury to convict. 80I conclude that despite being given very full opportunity to demonstrate arguable error, the applicant has failed to demonstrate any substantial prospects of success for proposed Ground 1. In light of the unsatisfactorily explained delay and prejudice, I would refuse leave. Proposed Ground 4: The learned trial judge's summing up was unfair and unbalanced resulting in a miscarriage of justice 81Throughout her Honour's summing up, which occupied two days, counsel for the accused persons were invited (in the absence of the jury) to make any submissions about errors or omissions. Immediately before the conclusion of her summing up, senior counsel then appearing for the applicant complained that her Honour's treatment of the applicant's defence case was inadequate. He said that it was a strong plank of his case that MM's version of events given to Constable Passlow raised 12 issues which would cause the jury to have doubts. He said he had raised a number of matters which were inherently improbable, which had not been dealt with. He submitted that the retraction statement to Detective Kelly, Exhibit 4, was in fact the truth. He said that although her Honour had addressed the similarities between the complainants' evidence, her Honour had said nothing about the dissimilarities. He said that her Honour had not dealt sufficiently with the matters of improbability asserted in relation to his address to the jury, or the differences in relation to the COPS report to Detective Hind-Spiteri. He concluded, respectfully, that her Honour's summing up had not been a balanced one. 82Save in one respect, this complaint was repeated as proposed Ground 4. 83Much of the complaint made at trial, and reiterated in this Court, is without factual foundation. For example, her Honour dealt expressly with Exhibit 4 as follows, as the very first example of the inconsistencies between the various accounts given by the complainants. Her Honour said: "Let me give you an example of that. You will recall that Exhibit 4 is the statement by [MM] in October 2007 to Detective Matthew Kelly in effect saying that she was a willing participant in the sexual acts with the accused [AP]. Obviously that is inconsistent with the evidence that she gave here that at no time did she consent to the acts of sexual intercourse with [AP] and I will be coming to that later." 84Her Honour then summarised the Crown argument (that Exhibit 4 was to be assessed in light of the fact that MM's marriage was over and she was pregnant and could be discounted in light of her evidence at trial), and the defence case, namely that Exhibit 4 was clear evidence that the acts of intercourse were consensual. Her Honour then said: "So that is an example of an issue that you have to decide. Do you accept [MM's] explanation for that statement that she made at the time, or does that statement cause you to doubt her reliability in the account that she has given you here in the witness box?" 85Her Honour reminded the jury that the applicant had called evidence to establish he was a person of good character, with no prior criminal convictions, and her Honour gave the usual direction (about which no complaint is made). Her Honour then summarised his case: "Very briefly, I will just remind you of his evidence to this extent, members of the jury, and I will say this, and here I am expressing an opinion, despite the length of time these trials have taken, the issues are really, you might think, quite simple. [The applicant] denied in the witness box that he had ever had sexual intercourse with either of the complainants in the way that they allege, in other words, there was a total denial that he had ever had sexual intercourse with either of the complainants; and in respect of [MM] his sworn evidence was that he had only ever conducted two prayer sessions. Again you have the evidence of [the applicant] already, and I do not propose to summarise his evidence to any extent." 86In relation to the inconsistencies and improbabilities in the complainants evidence, her Honour summarised the applicant's counsel's address as follows: "Mr Greenhill, in respect of [MP] suggested that she would have gone to the police if she had really been sexually assaulted in the way she suggested. He suggested her behaviour was inconsistent with someone who had been sexually assaulted and he reminded you of the terms of her complaint to her husband after the first prayer session, which again, he suggested was inconsistent, or not the words of someone who had truly been sexually assaulted... Mr Greenhill suggested [GK's] behaviour was inconsistent with such a complaint in that he did not go to the police that day, indeed he went to church. Mr Greenhill also suggested that the fact that [GK] and his wife did not go to the police when they began receiving the text messages which they told you about and which are recorded 23 March 2008, that you would not accept that that was because they were afraid. Mr Greenhill also reminded you that what MP said to Detective Hind-Spiteri on 2 June was that she was digitally penetrated. There was no mention in that account of oral intercourse; that was the second prayer session. And in respect to the third prayer session she said it was apple juice she drank, and she did not mention that someone different entered the motel room. She also mentioned in that account a different hotel or motel. All matters which Mr Greenhill suggested would make you doubt [MP's] reliability. In respect of [MM], Mr Greenhill took you to the differences or inconsistencies between her account and that of [SP] and many of you were making notes at that point, and I'm not going to take you through those. That you would not believe she did not tell anyone out of fear, because she had told [SP] in the early days, on her account, at the beginning after the first two encounters. He suggested [MM's] account about King Rasoul, was simply incredible as was her account that she had to choose between her father and [AP], someone to have sex with, and that this was how she commenced to have sex with [AP]. Mr Greenhill reminded you that when [MM] first spoke to her mother about what had allegedly happened she did not mention his client, only [AP] and you would not accept her explanation for that, he said. He suggested that the reason that there was no mention of his client was that the allegations are false. He, in conclusion, suggested that your verdicts would be not guilty in respect of all counts involving his client. 87It will therefore be seen that many of the specific matters of which counsel complained at trial, which are reiterated in this application, were addressed, squarely, by the primary judge. Further, as is apparent from her Honour's summing up, her Honour was conscious that there had been four days of addresses by the Crown and counsel for the accused persons. Her Honour was well placed to assess how effectively the particular jury had understood the evidence, and counsel's addresses. The reference to "many of you were making notes at that point" reproduced above is an indication of that. 88Ultimately, her Honour was well placed to say, as she did, that in relation to the applicant, the case was straightforward. The impression obtained from reading the closing addresses of the Crown and the defence is that the jury well understood, in relation to the applicant, the relatively straightforward issues for them to decide. There was no question of consent, in contrast to the Crown case against AP; the essential issue was whether, as the complainants asserted, and as the applicant denied, acts of sexual intercourse had taken place at the various prayer sessions. It is clear beyond argument that the jury understood the submissions made on behalf of the accused persons to detract from the credibility of the complainants. 89Throughout the summing up the trial judge reiterated the simplicity of the issues. For example her Honour said: "I remind you as I have already reminded you it is very much disputed by [the applicant] that there were any sexual acts at all and only ever two prayer sessions with [MM]. And of course you are well aware that [AP] accepts the sexual intercourse but disputes that it was ever without the consent of [MM]." 90In relation to dissimilarities, her Honour reminded the jury that some of the similarities were disputed on the facts. For example, her Honour said: "You would be aware that it is in dispute, [the applicant] told you that [MM] was not naked and there were only ever two prayer sessions in any event and that [MP] requested or decided of her own volition to be naked in the prayer session, so that is an example of a live issue that you have to decide what you accept." 91The obligation upon a trial judge is to sum up in a way that is fair, balanced and impartial: Domican v The Queen (1992) 173 CLR 555 at 560-1. It is not the length of time devoted to the Crown case or the defence case which matters; it is the "fairness, balance and impartiality of the summing up which the appellate court must review and safeguard": R v Inamata (2003) 137 A Crim R 510 at [29], citing R v Courtney-Smith (1990) 48 A Crim R 49. One aspect of Mr Conditsis' complaint is that "all but about 7 of the approximately 120 pages of her Honour's summing up, other than brief passing references to the applicant's case, dealt with the Crown case". But as was noted in R v Meher [2004] NSWCA 355 at [86]: "Almost inevitably, the bulk of the evidence is led in the prosecution case, and more often than not more time will need to be spent on it." Moreover, often the most effective way of the judge fairly putting the gravamen of the defence case to the jury is in the course of summarising the issues for their determination: AP v R [2013] NSWCCA 189 at [24]. 92The exception referred to above is a written submission made by Mr Conditsis that the trial judge was unjustifiably harsh towards FP when, during the cross-examination of GK and in the presence of the jury, FP yelled out to him from the dock: "What did you do to me all those years, what did you do to me [GK]". In the absence of the jury, her Honour said "I'm not interested in how distressed she is, she must not yell out across the Court". 93Mr Conditsis complains that that incident "perhaps indicated that the learned trial judge was unimpressed with the cases of each of the accused". The complaint is baseless, unrelated to any proposed ground of appeal and on the material before this Court, could have had no material bearing on the conduct of the trial. The transcript in context (which was not reproduced in Mr Conditsis' submissions) reveals a rapid intervention by her Honour ("just a moment, this isn't between the two of you"), and an immediate adjournment in measured terms ("Step out of the witness-box for a minute. We will take a short break"). Then, in the absence of the jury, her Honour is recorded as saying: "Mr Evans, you might tell your client she must remain silent at all points. I'm not interested in how distressed she is, she must not yell across the Court to a witness in this case at all. I will adjourn for five minutes." 94There is nothing in this additional submission, which was not the subject of complaint at the trial. 95More generally, no appellable error has been disclosed in her Honour's summing up. This proposed ground is without merit, and I would not grant leave to raise it. It follows that, once again, it is not necessary to address the situation that would arise if there were an inconsistency with what had been held by this Court in FP (where one ground of appeal was that the summing up was unbalanced and unfair). Ground 3: The trial miscarried due to the learned trial judge wrongly refusing the application by the accused to allow MM to be recalled before the jury to give evidence as to whether she had left four telephone messages for the co-accused, [AP], two of which, inter alia, invited [AP] to participate in a threesome with MM and another female 96On 22 November 2010, the trial judge refused leave for MM to be recalled. That occurred on Day 40 of the trial, after the close of the Crown case, and while AP was giving evidence. Her Honour stated that she would give reasons at a later time, which she did on 7 December 2010, two days before she summed up to the jury. 97The ruling followed MM being cross-examined on the voir dire in relation to an audio tape which had been seized pursuant to a warrant from AP and identified in the list of items seized as "1 x mini cassette tape MC-30 Sanyo" taken from under AP's bed. AP instructed that all four messages recorded on it were MM. The transcript of those messages (VD 17) was as follows: "21st April at 9:59am Hey it's me um just wanted to let you know um it it's possible for you to leave work and knock off earlier and to come and meet me at the hotel that we were at the room is room number 20, 1-2-5, and it'll be me and you and um another girl. So yeah you can bring um today as well that would be great. Um yeah so leave home work work home work early that'd be great. Anyway um I'll...to you later. Okay cheers. Bye. 24pm [sic] Hey. Hey it's me um just wondering what's taking so long. Um I'm here with another girl and um it's just the two of us and we're going for it with each other and um we just wanted you to hurry up and come and joins us and um yeah. So can you come quick and um be with the both of us. We'll see you soon. Um I think that's it. Yeah, we really want you to come and fuck us both but obviously to fuck me more than her. Anyway I'll see you soon. Bye. 16th May at 3:36pm Hi. Hi [AP], it's me, [MM]. Um, listen I need a favour. Can you please give this message to Tony for me? Um I'm about to leave a message can you please get it to him so he can hear it? Um it's obviously very difficult for me to speak to him so can you please pass this on. Here goes. Hi Tony. It's me, [MM]. Um please I'm calling to ask you for your help. I need your help and I need you to please accept to come and help me to pray on me. I know this is difficult for you and I know that I can be a headache sometimes, asking you all the time to come and pray for me but please I need your help and I need you to accept to do this help for me. I feel much better when you pray on me and you give me advice for my life to be able to help me. Please Tony I need your help please accept to help me and to come and to pray on me. I please I need your help. Um I feel much better when you pray and I really need your help. Please accept this. God bless you. Thank you. Bye bye. June at 5.56pm [sic] Hey it's me um listen I was hoping to come down for a little while and um maybe the two of us can have a bit of fun. Anyway, um yeah...shortly be done here shortly. Bye." 98MM testified on the voir dire that the third message was her voice, as, perhaps, was the fourth, but that the first and second were not. 99Initially counsel for the applicant opposed the application to recall MM. Ultimately, he supported it, but made no separate submissions. Counsel for AP said that if the jury accepted that the first and second messages recorded MM, then that would damage her credibility and support his client's defence that the sexual relationship between MM and AP was consensual. 100The trial judge noted that MM had been in the witness box for six days, that the tape had been in the possession of AP when it was seized and that the matter was raised in Court for the first time on the thirty-eighth day of the trial, MM having been excused on the nineteenth day. Her Honour then stated: "Even putting those matters to one side, in my view the tape, exhibit 14 on the voir dire, has little probative value. Even if it is accepted by the jury that [MM's] voice is on all calls contrary to her sworn evidence, it does no more than establish that there was an invitation to the accused [AP] to join her and another woman at a hotel. The date is unspecified, as is the place. [Counsel for AP] said from the bar table that his client had declined the invitation. There is already evidence before the jury of a "threesome", when [MM] arranged for Larissa to be present. The jury also has exhibit J from which they could infer that [MM] was a willing participant in the sexual activity with the accused [AP], if they did not accept her evidence as to the circumstances in which those sexual encounters took place. Finally, having regard to s. 192 of the Evidence Act, the evidence would necessarily add to the length of the hearing. Whether it would do so unduly is not clear. [Counsel for AP] has engaged an expert in voice identification, although no report was available as at Monday 22 November 2010. The ten week estimate the jury was given at the start of the trial is already likely to be exceeded by at least two weeks. In addition, were [MM] to be recalled and the tape admitted, the Crown has flagged a possible application for a case in reply. In my view, as I have already indicated, the evidence is not particularly important in terms of the fact in issue. Having regard to all these matters, the application to have [MM] recalled and for the tape to be tendered is refused." 101No appellable error is disclosed by that ruling, for these reasons. First, the trial judge, who had the benefit of seeing MM give evidence in relation to the tape on the voir dire, was well placed to assess the probative value of the evidence, to an extent that warrants considerable deference from an appellate court. 102Secondly, counsel for AP had told the Court that an expert had been retained to provide evidence on whether the voice recorded was that of MM. He said that "I was hoping to have an oral opinion this morning, I still do not have one as yet". At no stage in the trial did counsel advise that an expert opinion had been obtained. Had it been obtained, and if it were favourable to AP, it would have been open to counsel to revisit the question. No evidence was led by the applicant in relation to what had occurred in this respect. 103Thirdly, there is self-evident force in the second paragraph of her Honour's reasons extracted above. The jury had heard from both MM and Larissa about the threesome in which they had participated with AP. The jury also had been shown Exhibit J. Only if the Crown could persuade the jury beyond reasonable doubt that those seemingly consensual encounters were brought about by reason of the compulsion by the applicant and AP could there be a conviction. On any view, even if, contrary to what she had said on the voir dire, MM accepted that the first or second recordings were of her voice, it would make no practical difference to the strength of AP's defence. Once again, there is no merit in the proposed ground of appeal. I would refuse leave in respect of it. Late Amendment 104On the morning of the second day of the hearing of the application for leave, the applicant sought leave to include a further proposed ground: "There was a miscarriage of justice to the Applicant arising directly from the Prosecution's failure to comply with its duty of disclosure, in not disclosing to the Applicant the existence of the audio tape (VD 14) and the nature of its content before trial or at least prior to the evidence in chief of MM." The application was advanced unsupported by evidence, or the precise submissions sought to be made. The application was opposed by the Crown on the basis that no point had been taken at trial, and that it would be necessary to investigate and perhaps put on evidence as to the course of disclosure during the trial. After hearing from the applicant in reply, the Court indicated that leave would be refused, with reasons to be given later. My reasons for joining in that order are as follows. 105The applicant did not dispute that it was appropriate for the Crown to investigate and quite possibly adduce evidence in order to respond to the new ground. In my view, that was no mere hypothetical speculation. Counsel for AP, who had made the call at the trial for the audio tape, and ran the point at trial, was well placed to make submissions as to whether there had been any breach. Not only was no submission that there was a breach of the prosecution's duty of disclosure made, but he, repeatedly, was neutral in his explanations for the lateness of his application. He said "it is not squarely at the feet of the accused because there was a call, and both of us it would appear missed it. There was a call made and it hasn't been an issue for the simple reason that the Crown much to her credit has been very co-operative". There was a statement from the Crown that all audio and all video recordings had been brought in "and the defence were notified that they were available to be viewed and as I understand it two dates were booked for the viewing of that material and it did not eventuate". In response, counsel for AP said "in my submission blame is really neutral in this circumstance". 106This is not a case where the facts said to constitute the alleged breach of the prosecution's duty of disclosure were unknown until after the trial. There is no need to speculate what would or would not have been uncovered by the exercise of reasonable diligence; cf Grey v The Queen [2001] HCA 65; 75 ALJR 1708. In Grey, Gleeson CJ, Gummow and Callinan JJ observed at [23] that: "...there was no reason why the defence in a criminal trial should be obliged to fossick for information ... to which it was entitled." The applicant emphasised the passage, but what amounts to "fossicking" - in a large trial, where senior and junior counsel have been briefed - falls to be determined by reference to what appears in the immediately following sentence, where their Honours rejected the proposition that reasonable diligence on the part of that appellant's legal advisors would or might have elicited the information, as was noted by Simpson J in R v Livingstone [2004] NSWCCA 407 at [56]. 107This serves to illustrate the factual inquiries required. When was the Crown brief provided to counsel for the applicant? What form was the list of exhibits contained? What level of sharing of information was there between counsel for the applicant and counsel for his co-accused, under whose bed the tape had been found, and in whose presence it had been seized pursuant to warrant? (I interpolate that my reading of the transcript tends to confirm what one would expect, namely, that counsel at the very least shared a common understanding about how they would approach witnesses. In particular, senior counsel for the applicant made it plain that he did not expect to cross-examine MM first, in the event that she was recalled: "Your Honour, I would anticipate my learned friend would cross-examine first about the tapes seeing he's had it in his possession, his client recorded it". No evidence from the applicant's former senior counsel was supplied at all, and although an affidavit from his former junior counsel was read, it did not adequately address these questions.) 108It is trite that "the requirements of r 4 [of the Criminal Appeal Rules] do not constitute some mere technicality which may simply be brushed aside": R v Germakian [2007] NSWCCA 373; 70 NSWLR 467 at [10]. No evidence was adduced explaining why the ground had not been advanced prior to the hearing of the application. The applicant maintained that the submissions and authorities were those contained in his submissions which had been filed on 31 May 2013; it follows that the proposed further ground should have been notified months before the hearing. 109Further, it is to be recalled that this is an application for leave to extend, very substantially, the time within which to appeal. It is quite different from an application to add a new ground to an existing appeal as of right. 110In my view, bearing in mind that this is merely an application for leave to appeal from a long and factually intensive trial, which had until the second day of the hearing been prepared on a particular basis, it would have been wrong to grant leave to raise a new issue which raises question of fact, which was not taken at trial, which would necessitate an adjournment, and which does not appear in any event to have significant prospects of success. Orders 111For the reasons I have given, none of the proposed grounds of appeal has any substantial prospect of success. That, coupled with the lengthy and largely unexplained delay, causes me to propose that an extension of time to appeal should be refused on all proposed grounds. 112JOHNSON J: For the reasons expressed by Leeming JA, I agree that an extension of time to appeal against conviction should be refused. 113RS HULME AJ: I also agree with the orders proposed by Leeming JA and with his Honour's reasons. ********** 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: 10 December 2013