Supreme Court New South Wales Medium Neutral Citation: GAR - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734 Hearing dates: On the papers. Decision date: 04 December 2014 Before: Adamson J Decision: Application dismissed Catchwords: CRIMINAL LAW - application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for sexual intercourse without consent - no doubt or question as to the applicant's guilt Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules Evidence Act 1995 (NSW) Cases Cited: Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 252 GAR v R [2003] NSWCCA 224 GAR v R (No. 1) [2010] NSWCCA 163 Category: Principal judgment Parties: GAR (Applicant) Regina (Respondent) Representation: Counsel: D Dalton SC (Applicant) A Mitchelmore (Respondent) Solicitors: Crown Solicitors Office (Repsondent) File Number(s): 2014/73048 DECISION Introduction 1By application dated 2 March 2014, the applicant sought, pursuant to Division 3 of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), a further inquiry into his conviction in 2002 for the offence of sexual intercourse without consent. The applicant was sentenced in respect of that offence to imprisonment for a term of six years commencing on 5 April 2002 and expiring on 4 April 2008, with a non-parole period of four years and six months. 2The applicant's appeal against his conviction was dismissed and leave was refused to appeal against his sentence: GAR v R [2003] NSWCCA 224 (the Original Appeal). In February 2009, Barr J referred the case pursuant to s 79 of the Crimes (Appeal and Review) Act to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The Court of Criminal Appeal dismissed the appeal: GAR v R (No. 1) [2010] NSWCCA 163 (the Review Appeal). 3The applicant seeks a further order under s 79(1)(a) of the Crimes (Appeal and Review) Act that an inquiry be held, or in the alternative, an order under s 79(1)(b) that the matters be referred to the Court of Criminal Appeal to be dealt with as an appeal pursuant to the Criminal Appeal Act 1912 (NSW). The Court's discretion to make an under s 79(1) arises only "if it appears that there is doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 252 Johnson J summarised the relevant authorities and referred at [8] to the need for there to be "available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet". 4The present application was based on the following two pieces of evidence: (1)An affidavit of RM sworn on 15 July 2012 in which RM deposed that when he spoke to ER on the morning of 14 January 2002, she did not say anything to him about the applicant sexually assaulting her; and (2)A page from a medical report of Dr Sterrett, who had examined ER on 14 January 2002. 5The applicant contended that the effect of (1) was that there is no evidence of consistency of complaint. He submitted that the effect of (2), which his representatives previously overlooked, was to indicate that the medical evidence did not corroborate the entirety of ER's evidence, and in particular her evidence that the applicant scratched her face. 6In order to assess the relative importance of these items it is necessary to consider the factual background, what occurred at the trial and subsequently. Factual background The trial 7The applicant was charged on indictment as follows: 1.That he on 13 January 2002 at Doonside did without consent detain ER with the intention of obtaining an advantage, namely to keep the said ER in his custody and under his control. 2.Further that he on or about 14 January 2002 at Doonside did have sexual intercourse with ER without her consent and knowing that she was not consenting. 8On 21 October 2002, the trial commenced in the District Court before Judge Naughton and a jury. On 1 November 2002, the jury returned a verdict of not guilty on the first count and guilty on the second count. 9I am indebted to the summary of the trial contained in the reason for decision of Miles AJ, who, together with Spigelman CJ and Bell J, constituted the Court of Criminal Appeal in the Original Appeal. The Crown case at trial 10The complainant, ER, and the applicant were divorced shortly before 13 January 2002, after having been married for approximately 20 years. They had a son and a daughter, E, who, in January 2002, was 12 years old and lived with ER at Doonside. On the morning of 13 January 2002, the applicant went to ER's home. E was at home when he arrived. ER arrived later in response to a phone call. 11When ER arrived home, the applicant swore and shouted at her. After they went inside, he pinned her against the kitchen sink for about an hour and a half, during which time he moved back and forth approximately a foot and a half away. ER remained in the kitchen for a further period, during which the applicant did not allow her to move from the area. They moved into the dining room. Throughout this period, the applicant was abusive and made threats against her and a man referred to as RM. 12Between lunch time and approximately 5 pm, the applicant was alternatively calm and abusive. He refused ER's request that he leave and, when she wanted to go for a walk with E, he said they could only go if he went with them. 13At about 11 pm, E went to bed. ER again asked the applicant to leave and he refused. At around midnight ER went to bed. She remained fully dressed. 14About 15 minutes later, the applicant came into ER's bedroom. ER said "Don't do this to me G. Please don't do this to me." The applicant responded by threatening to silence ER, and then threw her back on the bed, removed her clothing and had forced penile intercourse with her. Afterwards, he threatened her and followed her to the bathroom. On returning to the bedroom, the applicant set ER's alarm clock and lay on the bed next to her. When the alarm sounded at 4 am, the applicant left, but threatened to return. 15After the applicant left, ER went to the bathroom where she vomited and then showered. After she had dressed she sat in the dining room for some time, before calling RM. At about 6 am, E came into the dining room and spoke to ER. She then rang the police who came to her home at approximately 11.20 am. One of the officers gave evidence about the content of the conversation with ER. Later that afternoon, ER attended Westmead Hospital, where Dr Sterrett took a history from her, examined her and prepared a report which was tendered. 16The evidence in the Crown case was given by ER, E and the police officers who attended the Doonside home and carried out the investigation. The Crown also relied on the report of Dr Sterrett. Photographs of ER's injuries were admitted into evidence. RM was not called as a witness. Detective Senior Constable Crompton gave evidence that he had been unable to contact him for a statement. The defence case at trial 17The applicant, who gave evidence, said that he went to ER's house for the purpose of inviting his daughter on an outing, and that he became concerned about what she told him about herself and RM, who was much older that she was. When ER returned home, the applicant discussed his concerns with her. He acknowledged that the discussion was at times heated, particularly in relation to RM (whom he suspected of abusing his daughter). He neither restricted ER's movements nor prevented her from leaving. As the afternoon wore on, the applicant and ER became more conciliatory. When E went to bed ER invited him to have intercourse with her in her room. Consensual intercourse then took place several times. The applicant left early in the morning. ER's evidence at trial regarding contacting RM 18Because of its importance to the present application I shall summarise the evidence at trial of ER's communication with RM on 14 January 2002. 19In her evidence in chief, ER stated that, after the applicant left the house, and she had vomited and showered, she rang a friend. At that stage of her evidence, she did not say that she had said anything to RM about what occurred. 20In cross-examination, ER was asked a series of questions about RM. It was part of the defence case that the applicant had attended the Doonside residence because he was concerned about the nature of RM's relationship with his daughter and wanted to discuss it with ER. E had previously made a complaint in the presence of her parents and others that RM had sexually abused her. Although E subsequently admitted that this claim was false - an admission she adhered to in her evidence during the trial - the applicant's evidence was that he remained concerned about RM's contact with her. In the context of questions as to why she would ring RM before checking on the welfare of her daughter, the applicant's counsel put to ER in cross-examination the following part of her statement to police: "later on that morning I called my friend, RM, and told him what happened." 21ER agreed in cross-examination that she had done this. Shortly afterwards she reiterated that she had rung her friend (RM) "and told him what the applicant had done to me". Dr Sterrett's report 22Because of the importance placed by the applicant on a page of Dr Sterrett's report, I propose to set out its significance in the context of the evidence given at trial by ER and other evidence in the Crown case. 23ER gave evidence at trial that her injuries included: "scratches where he'd dug his fingernails into the, on my face when he had his hand over my face". 24On the morning of 15 January 2002 photographs were taken of ER, including a photograph of ER's face. ER identified herself in the photograph. In answer to a question in chief as to whether she recognised anything of significance in terms of the incident on 14 January 2002 she referred to scratches and marks on the left-hand side of her face, on the lower cheek. When asked how extensive the scratches were, ER stated: "My face was sore, it was more internally than the scratches. The scratches were there but my face internally was very, very sore." 25ER was cross-examined about the injuries to her face. It was put to her that she had not told Dr Sterrett about the scratches; that Dr Sterrett had not said anything to her about them; and that there was no evidence of scratching to her face. It was also put to her that the only thing he noted about her face was that there was redness to her left eye. She denied each of these propositions. The foundation for this cross-examination appears to have been the page of Dr Sterrett's report, which forms part of the basis of the present application, which was where Dr Sterrett's relevant finding on examination was recorded. 26In closing address the applicant's counsel referred to this evidence in support of a submission that the sexual assault did not take place. He made specific reference to the fact that there was no mention of scratches in the medical documentation. Original Appeal 27One of the grounds in the Original Appeal was that the trial judge erred in law in directing and/or failing to direct the jury adequately or properly as to complaint and/or the effect of complaint. In addressing that ground, Miles AJ (with whom Spigelman CJ and Bell J agreed) referred to the following aspects of the evidence that the trial judge summarised, in his directions, as complaint evidence: 1.ER's evidence in relation to ringing RM, and, in cross-examination, that she had "told him what had happened." 2.The evidence of the daughter, E, that after she woke and saw her mother in the dining room, she said "Mum I'm calling the police." ER replied "No, don't." The daughter responded "I know he raped you." ER replied "Yes he did." The daughter then rang the police. 3.Evidence about which his Honour said there was no dispute, namely that the police "received a complaint from the complainant that morning she had been raped by the accused." 4.Evidence of Constable White, who accompanied Constable Wharfe to the house about 11.30 am on 14 January 2002 and heard ER say to Constable Wharfe, "He wouldn't let us leave the house, and I couldn't call anyone, when I went to bed, he came in and raped me". This evidence was also not challenged. 5.A certificate admitted under s 177 of the Evidence Act 1995 (NSW) signed by Dr Sterrett, recording that ER arrived at the Westmead Hospital on 14 January 2002 and gave a history of abuse by her ex-husband including "threats against her life, holding her down with physical force (hand on face and throat) and vaginal rape with penile penetration and, she believed, ejaculation". 28The Court concluded that the trial judge's directions in relation to the evidence of ER said to amount to a complaint to RM were inaccurate. Miles AJ referred to relevant authorities, and said: "evidence of complaint is no longer admitted in effect to bolster or strengthen the credit of the complainant, but as evidence of the facts intended to be represented". Miles AJ said further at [47]: "The fact of the telephone call in itself was irrelevant. Arguably it might have been relevant for her to say in evidence that she 'told him what happened', but the probative value of her telling RM 'what happened' was well outweighed by the likelihood of unfair prejudice, the jury being invited in effect to speculate upon what it was that she said to RM. Hence evidence that she told him 'what happened', if it had been objected to, was likely to have been rejected on discretionary grounds under s 135 or 137 of the Evidence Act. Since the evidence went no higher than establishing that the complainant told RM 'what happened'. The jury should not have been left in the situation where they had been instructed that the complainant had made a complaint to RM." 29Notwithstanding Miles AJ's conclusion that the directions on the complaint evidence were inaccurate in so far as ER's statements to RM were concerned, rule 4 of the Criminal Appeal Rules was applied and leave was refused in respect of that ground on the following bases: (1)the evidence was not objected to; (2)ER was cross-examined about her statement to RM, presumably to impugn her credit by investigating possible inconsistency; and (3)no direction was sought at the end of the summing-up. Review Appeal 30The basis for Barr J's referral of the matter to the Court of Criminal Appeal for the Review Appeal was a statement that E was said to have made to her father, on a visit to Long Bay Gaol (in the company of a friend of her father's, John Carroll), that she had not heard anything that night and that her mother had told her to say that she had on the grounds that that the police "wouldn't believe her [ER] by herself". It was also alleged that E had made a similar statement to the applicant's sister, JC, and to a former friend of ER. 31The applicant initially contended that ER had procured E to give fabricated evidence at the trial which implicated him. However, following E's oral evidence on the appeal, the applicant reframed this ground to allege that E had given false evidence against the applicant "at the behest of" ER. He argued that in light of the fresh evidence about E having lied in her evidence, the Court should be satisfied as to his innocence or at least entertain a reasonable doubt about his guilt so as to warrant quashing the verdict and ordering a retrial. The applicant contended: (i)E's evidence on which reliance was placed, was "fresh"; (ii)E's evidence was credible, cogent and plausible; (iii)in the context of the evidence given at trial, the fresh evidence was likely to have caused the jury to entertain a reasonable doubt as to the applicant's guilt; (iv)alternatively, there was a significant possibility that the jury, acting reasonably, may have acquitted the applicant on the basis of the evidence as a whole, including the fresh evidence. 32Both E and ER gave evidence at the hearing of the Review Appeal. 33At the Review Appeal, E recanted her evidence at trial that she had heard noises at 2am, including her mother saying, "Please don't [GAR], please don't". The Court noted that the applicant's counsel did not put to E at trial that she had not heard her mother say those words. At the Review Appeal E also recanted her evidence at trial that she had heard her father say to her mother: "I don't care what you call it but I call it revenge" and that she had also heard her father say at 4am before slamming the front door, "Well, I'm fucking going". E also recanted the evidence she had given at trial that when E had got up the following morning she found her mother in the dining room, crying, and told her mother that she was calling the police. E's evidence at trial was that her mother said, "No, don't" to which E responded, "I know he raped you", to which her mother responded, "Yes, he did." E's evidence at trial was that, after this exchange, she called the police immediately. 34At the Review Appeal, E gave evidence that she discussed the contents of her police statement with her mother and that she had felt pressured to help her mother at trial. 35The Court on the Review Appeal found the evidence that E gave in the Review Appeal (which, if accepted, would have seriously undermined the Crown case and ER's credibility), to be "neither cogent, credible nor plausible" (at [151] (c)). The Court considered that E was prepared to agree to anything that was put by the applicant's counsel which reflected favourably on the applicant. In any event, the Court considered that, even without E's evidence, there was sufficient evidence to satisfy the jury of the applicant's guilt beyond reasonable doubt. 36By contrast, the Court found ER's evidence given on the Review Appeal that she did not know what her daughter had or had not heard in the early hours of 14 January 2002 and denied having seen E's statement or discussed its contents with her "not only credible but cogent" (at [151] (c)). 37The Court dismissed the appeal. Previous applications for review of conviction 38The applicant has made two applications to the Court for a review of the conviction, each of which has been declined. The present application 39As referred to above, the present application is based on the following two pieces of evidence, which will be considered in turn: (1)An affidavit of RM sworn on 15 July 2012 in which RM deposed that when he spoke to ER on the morning of 14 January 2002, she did not say anything to him about the applicant sexually assaulting her; and (2)A page from the medical report of Dr Sterrett that recorded his findings on examination of ER on 14 January 2002. The affidavit of RM sworn 15 July 2012 40The applicant contended that the effect of the affidavit was that there was no evidence of consistency of complaint. The Attorney-General contended that, apart from the evidence of the fact that ER had complained to RM, there was other evidence of complaint which was of greater probative value and remains unchallenged. 41I accept the Attorney-General's submission. The evidence of ER's reporting of the matter to police on the morning following the alleged offence is powerful evidence of complaint. Whether or not she chose to tell RM is not to the point, except in so far as it had some potential to reflect on the credibility of her evidence in cross-examination that she told him "what happened". However, since the contents of her conversation with RM that morning were not explored, it is difficult to see how it could affect her credibility that she did not tell him (assuming RM's evidence is accepted) that she had been sexually assaulted. 42The applicant submitted that RM's evidence bolstered the credibility of E's evidence on the Review Appeal. The evidence given by E and ER on the Review Appeal and the Court's assessment of it are referred to above. 43 In my view, RM's evidence cannot affect the assessment by the Court on the Review Appeal of the relative credibility of E and ER. Further, the Court on the Review Appeal excluded from its consideration ER's evidence that she had rung RM and told him "what happened". 44In these circumstances, evidence from RM that ER did not tell him that she had been sexually assaulted does not, in my view, give rise to any doubt or question as to the applicant's guilt. Dr Sterrett's report and the evidence of ER about scratches to her face 45The applicant submitted that the effect of Dr Sterrett's report, which his representatives previously overlooked, was to indicate that the medical evidence did not corroborate the entirety of ER's evidence, and, in particular, her evidence that the applicant scratched her face. 46The first answer to this submission is that it was not overlooked. The applicant's counsel used the report to cross-examine ER at trial about her injuries. There was no error in the applicant's counsel's closing submission and, accordingly, the jury was not misled. 47In the Original Appeal, Miles AJ, in summarising the Crown case said, erroneously, that Dr Sterrett's report had included a reference to scratches on the left side of ER's face. It is difficult to see what difference that error could have made to the reasonableness of the conviction since the error was made on appeal. Although Miles AJ's summary was accepted by the applicant and the Crown for the purposes of the Review Appeal, the Court that heard the Review Appeal engaged in debate with the Crown about whether there was evidence, other than ER's evidence, of injuries to her face. The Crown accepted in argument that it was not possible to ascertain from the photograph whether ER's face was scratched. The Crown did not refer to Dr Sterrett's report in this context. In these circumstances the Review Appeal Court cannot have been misled by the error in the summary. 48At [37] of the reasons in the Review Appeal, the Court said: "Annexed to Dr Sterrett's report are diagrams where he indicated the location of two abrasions, one to each elbow posteromedially and each about 1 cm long and 3 cm wide and contusions to the inner aspect of her legs at the position of ER's knees. Accordingly, it is clear that the physical evidence of the injuries to ER as described by Dr Sterrett is entirely consistent with the injuries ER said she sustained during the struggle with the applicant." 49In my view, a fair reading of this paragraph indicates that the Court was relying upon the consistency between Dr Sterrett's report of injuries to ER's elbows and the inner aspect of her legs and her evidence of those injuries. The absence of reference to scratches on ER's face showed, in my view, that they did not form part of the Court's conclusion about the consistency between ER's description of her injuries and Dr Sterrett's report. 50As referred to above, the applicant's counsel at trial put to the jury the submission now sought to be agitated. I do not regard this matter as giving rise to any doubt or question as to the applicant's guilt. Conclusion 51The applicant submitted that the evidence of RM and the relevant page of Dr Sterrett's report supported E's claim that she was manipulated to give false evidence to support her mother; demonstrated that ER lied about telling RM "what happened"; and that she lied about there being scratches to her face that were pointed out to her in hospital. For the reasons given above, I do not consider either of these matters to be capable of affecting the jury's assessment, or for that matter the Court that heard the Review Appeal, of the credibility of either E or ER. 52I am not satisfied that any of the matters relied upon by the applicant gives rise to any doubt or question about his guilt. Accordingly the application is dismissed. ********** 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: 18 December 2014