Franklin v Regina

1. [1]

   THE COURT: This appeal concerns convictions entered following a trial by jury that concluded over 12 years ago. The applicant, Craig Franklin, was charged with four domestic violence and sex offences alleged to have been committed against his then girlfriend on the morning of 9 April 2007. He pleaded guilty to one, an assault occasioning actual bodily harm (slapping or punching her in the face causing her nose to bleed) but denied the remaining charges. He was arraigned in the District Court on 4 February 2009 on an indictment containing those three counts, as follows:

   1. (1)

      common assault contrary to s 61 of the Crimes Act 1900 (NSW);

   2. (2)

      detaining a person with the intent of obtaining an advantage (sexual gratification) contrary to s 86(2)(b) of the Crimes Act; and

   3. (3)

      aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act (the circumstance of aggravation being the infliction of actual bodily harm).

2. [2]

   The trial proceeded before Nicholson SC DCJ and a jury at the Goulburn District Court between 4 and 17 February 2009. The jury found the applicant guilty on all counts. He was sentenced for all four charges on 18 September 2009 to a total term of imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months. The sentences had expired by some years by the time the appeal was commenced.

3. [3]

   The applicant requires leave to appeal as none of the grounds of appeal involves a question of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). An additional hurdle to the appeal is the fact that it is out of time. A notice of intention to seek leave to appeal was filed within time. However, following two extensions of the time within which that notice had effect, it expired on 29 October 2010. The notice of appeal was filed almost 10 years later, on 9 September 2020.

4. [4]

   The Crown acknowledged that the Court has a wide discretion to extend the period for which a notice of intention to apply for leave to appeal has effect: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [12]-[13]. In particular, the Crown accepted that the determination as to whether it is in the interests of justice to grant the extension sought requires the Court to consider the prospects of success of the appeal. As in many cases, it is not possible to undertake that assessment without in effect conducting the substantive appeal and determining the applicant’s grounds of appeal on their merits.

5. [5]

   The applicant, who is legally trained, provided detailed submissions and also sought to rely on fresh evidence in the appeal. In order to determine whether to grant the extension of time sought, it has been necessary for the Court to consider and assess the entirety of that material. Having done so, we have reached the conclusion that the appeal should be dismissed. Having regard to the seriousness of the charges and the detail in which the issues in the appeal have been addressed by both parties, the appropriate course is to grant the extension of time needed to commence the appeal and to deal with each ground on its merits. Our reasons for concluding that the appeal must be dismissed are as follows.

Evidence at the trial

1. [6]

   The applicant and the complainant met in April 2003 and were in a relationship (with some breaks) until 9 April 2007 when the incidents giving rise to the criminal charges occurred. The applicant became a barrister during the period of their relationship.

2. [7]

   In early 2005, the applicant had a one-night sexual affair with another woman. When told of the affair, the complainant was very upset and demanded that the applicant leave her house. She subsequently inflicted deliberate damage on his barrister’s wig and wrote insults in his legal textbooks with a red marker. After numerous phone calls from the applicant, she allowed him to move back into her flat in June or July 2005. The relevance of those matters of background is that the defence argued at trial that she had a tendency to act in a particular way when she was angry and resentful and that there was a reasonable possibility that she had done the same on the occasion of the assaults alleged in the indictment. The argument was that she was angry at having been assaulted (in the admitted charge) and reacted by spontaneously making up false allegations against the applicant by way of revenge.

3. [8]

   The applicant and the complainant had further periods of being together and then separated before re-establishing their relationship for the last time in early 2007, a few months before the alleged offences.

4. [9]

   On Friday 6 April 2007, the complainant stayed at the applicant’s flat in Sydney. They decided to take a trip to the Canberra region the following day. The complainant gave evidence in the trial that the purpose of the trip was to get things right with their relationship, “to try to get it solid.” The complainant booked accommodation at the Rydges Eagle Hawk Resort. They left Sydney on the Saturday morning and arrived at the hotel at around 5pm that afternoon, having done some sightseeing along the way.

5. [10]

   The following morning (the Sunday), they engaged in consensual oral intercourse. They then spent the day sightseeing. They had some verbal disagreements throughout the day.

6. [11]

   That evening, the applicant purchased two or three bottles of wine. He and the complainant had dinner at a restaurant and returned to their room at around 9pm where they got into a spa together. From this point onward, there are significant differences between their accounts.

7. [12]

   The complainant gave evidence that she and the applicant drank wine while in the spa. She said she did not finish her first glass, while the applicant had more than one glass. She said there was no sexual intercourse in the spa. The applicant’s evidence was they had sex in the spa (“incomplete”). He also said that the complainant fell as she got out of the spa (which would explain some of her bruising). In her evidence, the complainant denied that. She said she went to bed at around 11pm while the applicant continued to watch television in the lounge.

8. [13]

   The complainant said she was woken by the applicant joining her in bed when the alarm clock radio beside the bed displayed a time of 12:44am. The applicant began to touch her intimately, to which she responded, “no baby, I’m trying to sleep”. By the smell and the behaviour of the applicant, she thought he was quite drunk at that time. The complainant said that the applicant got upset and began calling her names before punching the bed next to her body and tightly grabbing her bicep. She tried to ignore him. However, the verbal insults continued and she eventually moved to the lounge room with the intention of sleeping on the sofa bed.

9. [14]

   The complainant said that, after she had settled in the sofa bed, the applicant came and sat next to her making further offensive statements. After a few minutes he went back to the bedroom. She went outside for a cigarette, taking a key with her. The applicant followed her and told her to return to the room.

10. [15]

    The count of common assault was based on what was alleged to have occurred when the complainant went back into the motel room. She said they sat on the sofa bed together and the applicant was “saying offensive things”. She said he slapped her around five times before she pushed him in the chest. She said that the applicant then hit her again and that she recoiled into a foetal position using her hands to protect herself. He continued to insult her throughout. After around three minutes, he went into the bedroom, slamming the door behind him.

11. [16]

    The complainant said she remained on the sofa bed for around two and a half hours, unable to sleep. Eventually she got up and quietly opened the bedroom door to see if the applicant was asleep, as she wanted to use the toilet and then leave without him hearing her. After using the toilet, she returned to the lounge and got dressed, with the intention of leaving.

12. [17]

    At around that time, which she estimated to be approximately 5am, the complainant heard the applicant go into the bathroom. He told her that she should come back to the main bed. She suggested they should instead leave and beat the traffic, to which he ultimately agreed in “kind of an aggressive tone.”

13. [18]

    The complainant drove with the applicant sitting in the front passenger seat. They stopped at the motel reception. An invoice tendered at the trial indicated that they checked out at 5:34am. The complainant went into the reception area. She said the applicant followed her into the reception area but stayed near the entry door. The complainant settled the account and asked the night manager if there was a train station nearby. In her evidence she explained that she was thinking that, if the applicant was going to be “objectionable and offensive and insulting”, it would be better if he made his own way home on the train. The manager told her there were trains out of Canberra.

14. [19]

    After the complainant returned to the car, the applicant said, “just drive” and started giving directions. The complainant said that, once they left the motel, he started slapping her across the face while she was driving and told her to pull over. The complainant said that, after she had pulled over, the applicant continued to slap her, breaking her glasses in the process. The applicant then told her to keep driving and to take the next exit. She said that while she was driving along the Federal Highway, the applicant continued to hit her and yell “nasty things”.

15. [20]

    The count of kidnapping was based on the complainant’s evidence concerning that leg of the trip. In her evidence at the trial, she drew a diagram of the roadway off the Federal Highway which was the exit she said the applicant directed her to take. She estimated that, after leaving the hotel, she had been driving for less than 10 minutes before turning off, around 8km. She said the roads they passed before that point appeared to be private, dirt roads. The evidence at trial established that the first major turn-off was Sutton Road.

16. [21]

    The complainant said that, once she had pulled over and turned the lights off, the applicant demanded that she get in the back seat of the car. She expressed concern as she believed he intended to drive and she thought he would have been well and truly over the limit and that it would have been very unsafe for him to drive. He said “just get in the fucking backseat”. She turned the car off, pulled out the keys and got out of the driver’s side door. As she opened the rear driver’s side door, she grabbed her handbag and started running back towards the T-intersection where she had turned in. While she was running, she was trying to get her phone out of her pocket to call police. However, her phone was locked and she was unable to make a call before the applicant caught her, around 15 to 20 m from the car.

17. [22]

    The complainant said the applicant then grabbed her by the arm and roughly pulled her back to the car, telling her to get into the back seat by the rear driver’s side door. She said she opened the door and that, before she could get in, he kicked her at the top of her left thigh, forcing her into the back seat and closing the door.

18. [23]

    The complainant said the applicant then got in the back seat by the rear passenger’s side door and started punching her face and head with closed fists. She tried to protect her head with her arms. At one stage, she was able to pull her left foot up and push it against the applicant’s chest. He momentarily stopped hitting her before saying “move your fucking foot or I’m going to kill you”. She removed her foot and the punching resumed for a short period while the applicant said some “offensive, awful things” to her. The complainant noticed at that point that her nose was bleeding.

19. [24]

    The complainant said the applicant then undid his pants and demanded that she perform fellatio on him. She said, “I can’t, I can’t, I don’t even have any saliva”, to which he responded, “I don’t care, just suck it” and then, “And I don’t want any of that shit you did last time, just sucking on my knob, put my whole cock in your mouth.” He also told her to wipe the blood off her nose and let her have a sip of water. She wiped her nose with her hand. After a while, the applicant complained that she did not have his “whole cock” in her mouth. She tried to take more but was having difficulty breathing. She said the applicant then pushed the back of her head with his hand, causing her to gag. She pulled her head off to get some air and he pushed it back down.

20. [25]

    The complainant said that the effect of his forceful pushing was that she couldn’t breathe, her head was hurting, her body was shaking and she was having little tremors. She said to him “I can’t, I can’t, my head”. The applicant was asking her offensive questions and leaning over to punch her in the head in between. He told her to lick the blood off his knuckles, which she did. She said the applicant did not ejaculate. The complainant said that she performed fellatio on the applicant because he told her he was going to kill her and “just for survival I was doing whatever he said.”

21. [26]

    The complainant said the applicant then told her to get back into the driver’s seat, which she did. He moved back into the front passenger’s seat. She said that, once she started driving, the applicant punched her in both eyes causing her to “see stars” and struggle with visibility. She continued driving. He slapped her and continued to make offensive comments.

22. [27]

    The complainant said she ended up stopping at the Charles Anderson VC Reserve after the applicant said that he needed a drink of water. She got a bottle of Coke out of the boot and gave it to him. She said that, when she got back into the driver’s seat, the applicant hit her with an open hand to her face and head approximately 20 to 30 times and continued with the verbal abuse. That was the basis of the charge of assault occasioning actual bodily harm to which the applicant pleaded guilty.

23. [28]

    The complainant said that the applicant made her look at her face in the mirror and she could see that she was coloured and had big bumps on her forehead. She did not try to run as there was nowhere to go and her previous attempt to escape had been unsuccessful. The applicant continued to verbally abuse her and she was saying “I’m sorry, I’m sorry” to try to placate him. She went to the toilets to get some water but it was not fit for drinking. They remained in the rest area for around an hour.

24. [29]

    The complainant said that she started driving again, planning to stop in Goulburn for water. Before they arrived in Goulburn, the applicant changed into a different pair of trousers that were in the back seat. They stopped at the Goulburn McDonalds as the applicant was hungry. The complainant said the applicant told her to clean herself up while they were there. She took the keys to the car and walked directly to the toilets. She saw a woman through the first door and asked if she could call the police.

25. [30]

    That woman was Ms Carmel Shaw, who gave evidence in the trial. Ms Shaw said she was in the ladies’ toilets at McDonalds with her two young daughters at about 7:50 that morning when a lady approached her and asked her to call the police. She said the lady was crying and “very agitated” and that she had blood on her face and hands. Ms Shaw said the lady said “my boyfriend has attacked me” and said “don’t let anyone see you make the call”. Ms Shaw said the lady went into the toilets while she (Ms Shaw) remained in the vestibule and called triple 0 to say that a lady had been attacked, but she didn’t know much more.

26. [31]

    It is clear that the lady described by Ms Shaw was the complainant. The complainant said she entered the ladies’ toilet and locked herself in the cubicle furthest from the door before also calling triple 0. Some time later, the police knocked on the toilet door and she spoke with them in the vestibule. She could see the applicant sitting some metres from the car. The complainant told the police officers that the applicant had “beaten [her] up”. It is common ground that she made no allegation of sexual assault at that stage.

27. [32]

    The complainant followed the police back to Goulburn police station in her car and they took the applicant in a police wagon.

28. [33]

    The applicant participated in a recorded interview (ERISP) with police that morning which was admitted into evidence at the trial. He also gave evidence at the trial.

29. [34]

    In the ERISP, the applicant agreed that he drank about two bottles of wine that night. He said that he did not recall everything that happened the night before his arrest. He could not recall what time he went to bed. He remembered that the complainant had not slept in the bedroom the whole night. He could not remember why but thought it might have had something to do with the alcohol he had consumed. He denied that there was any name-calling or physical assault in the motel (count 1).

30. [35]

    The applicant remembered that they had left the motel early to beat the traffic. He said the complainant woke him up. In his evidence in the trial he said she shook him to wake him up. He said she was the one who honked the horn at the motel reception (her evidence was that it was him). He denied that he followed her into the reception area. He denied calling her names or saying offensive things.

31. [36]

    The applicant’s evidence was that, after they left the motel, he fell asleep in the car. He said the complainant woke him and he asked how long they had been travelling, to which she responded “45 minutes”. He said the first place they stopped was at the rest area at Lake George. The applicant denied that the couple had stopped at any point before the Anderson VC rest area and denied any sexual assault.

32. [37]

    In his ERISP the applicant accepted that they had an argument there and agreed that it did get “a little physical”. He said the argument was about their relationship. He admitted that he slapped the complainant across the face and to her head about 10 to 15 times. He gave similar evidence in the trial. He said the argument began over the fact that they had left so early and she told him it was because she was sick of going to places he had been to with a previous girlfriend (that was put to the complainant and she denied it). The conversation turned to a relationship the complainant had with another man during a break in her relationship with the applicant. According to the applicant, the complainant said he (the applicant) was “dull and boring” and the other man was “a lot of fun”. He said the complainant told him “extremely detailed experiences” and that he couldn’t bear it any longer and he “tried to stop her mouth from talking and that degenerated rapidly into slaps and finally a wild swinging of [his] arms”. In his evidence in the trial, the applicant said that he had punched the complainant with a closed fist a couple of times and slapped her about 10 times. The complainant in cross-examination denied that there was any punching at the Anderson VC rest area; she said the punching occurred earlier.

33. [38]

    The applicant said in his ERISP and in evidence in the trial that he changed his pants when they reached McDonalds as they had blood on them, which had come from his hand and the complainant’s nose when he struck her at the rest area. He denied any physical assault of the complainant other than at the rest area and denied any sexual assault.

34. [39]

    The complainant was examined by Dr Patricia Whelan at 11:30am on 9 April 2007 at Goulburn Hospital. Dr Whelan gave evidence that the complainant gave a history of having been hit at a motel at Rydges at Eagle Hawk, followed by further physical assaults in a car, forced fellatio in the back seat of the car and other hitting after that.

35. [40]

    Dr Whelan ascertained that the complainant suffered from Sjojrens syndrome, a disease of the salivary glands which impedes the production of saliva. She said that sufferers need to drink to alleviate dryness of the mouth. She said that, while the complainant presented as being shocked, she related in a logical and consistent manner.

36. [41]

    Dr Whelan carried out a complete physical examination using a three-page form to note the complainant’s injuries. The detail of her evidence is considered below in the discussion of ground 2(a). In short, the doctor’s evidence at trial was that the complainant’s injuries were consistent with having received multiple blows to the head, her glasses being broken, trauma to her nose and the assaults that she described. Dr Whelan said it was unlikely that the bruising was consistent with a fall onto a hard surface.

37. [42]

    Four police officers gave evidence at trial: Senior Constables Franca and Gray, Leading Senior Constable White and Detective Roberts. Their evidence is summarised as necessary in the discussion that follows.

Ground 1: Errors of Law

1. [43]

   Ground 1 asserts a series of errors of law. Ground 1(a) is that the trial judge erred in admitting a statement made by Constable Gray concerning the circumstances in which the complainant first came to make a complaint of sexual assault. That ground was formally abandoned at the hearing of the appeal but the applicant said the point may arise in the context of other grounds. In short, it was the applicant’s case at trial that, when the complainant spoke to police to report the assault at the Anderson VC rest area (which he admits), Constable Gray improperly invited her to make a complaint of sexual assault in response to which she fabricated the allegations that supported counts 2 and 3.

Ground 1(b) – DNA Report

1. [44]

   A number of the applicant’s grounds concern the DNA evidence adduced in the trial by the Crown. Ground 1(b) (considered here) contends that the primary judge erred in admitting the DNA evidence. Ground 2(a) (considered later in this judgment) contends that fresh evidence in the report of Professor Duflou refutes the inferences available from that evidence while ground 2(d) (also considered later) contends that the DNA evidence indicating the presence of the complainant’s blood on the fly of the applicant’s trousers was planted there by corrupt police.

2. [45]

   The DNA analyst, Mr David Bruce, produced three reports. The applicant’s complaints are concerned with the third, which reported the results of the analysis of samples taken from of the pants worn by the applicant at the time of the alleged offences. The report ultimately relied on by the Crown as the basis for the evidence given in the trial is referred to by the applicant as “Report 2” because it superseded the second report. There was no factual issue in the trial as to the existence of blood on the applicant’s pants. As already noted, the applicant himself told police he had changed pants at Goulburn because the pants he was wearing that morning had blood on them. Those were the pants seized by police and tested by the DNA analyst. The factual issues in the trial were whose blood it was and how and when it might have got there.

3. [46]

   In that context, the applicant did not suggest at trial that the DNA evidence was not relevant. He applied to have it excluded at the trial in the exercise of the trial judge’s discretion under s 135 or s 137 of the Evidence Act 1995 (NSW). Following a voir dire during which Mr Bruce was cross-examined by junior counsel then appearing for the applicant, the trial judge rejected that application. His Honour gave ex tempore reasons for that ruling.

4. [47]

   Ground 1(b) contends that the ruling entailed error:

5. [48]

   As expanded in the applicant’s written submissions, the error alleged is that the trial judge failed to undertake the balancing exercise required under ss 135 and 137 of the Evidence Act 1995 (NSW). Those sections provide:

6. [49]

   Section 135 provides:

7. [50]

   Section 137 provides:

8. [51]

   In order to determine this ground, it is necessary to explain the probative value of the evidence in more detail and to understand the way in which the applicant contends it carried a risk of unfair prejudice. It may be noted that it was no part of the application at trial to have the evidence excluded on the basis that the blood was placed on the trousers by corrupt police.

9. [52]

   As already explained, the sequence of events described by the complainant was that, before she and the applicant reached the Anderson VC rest area (where the admitted assault occurred), they stopped at an earlier point along the Federal Highway. She said the applicant told her to get in the back seat of the car, assaulted her in such a way as to make her nose bleed and then forced her to perform fellatio on him. She said, after her unsuccessful attempt to escape and when they were both in the backseat, the applicant started punching her with closed fists and that “at one stage [she] noticed that [her] nose was bleeding”. She then described the applicant directing her to perform oral sex but before she did so she had to “wipe the blood off [her] nose” with her hand. After that, she performed oral sex by putting her mouth over his penis. She said that later, when they were at the McDonalds restaurant at Goulburn, she wiped away blood from around her face.

10. [53]

    The applicant told police during his ERISP that he thought the blood on his pants would be his blood but he agreed that the complainant had “a little bit of blood around her nose”. He gave similar evidence before the jury; that he had changed his pants because they had blood on them. However, in that evidence (following the admission of the DNA evidence), he said he thought the blood had come from his hand and also from the complainant’s nose which he said was bleeding when they were at Lake George. He was asked to describe the flow of the bleeding from her nose and said it was “running”. That was contrary to what the applicant had told police during the interview about her having only “a little bit of blood around her nose”.

11. [54]

    The DNA analyst tested five areas on the applicant’s blood-stained pants. Exhibit J at the trial were photographs of the applicant’s pants showing the location of those blood stains, as follows:

12. [55]

    The significance of the DNA evidence was that it supported a finding that the complainant’s blood was found on the applicant’s pants in the area of the fly, which tended to support her account that she had been forced to perform fellatio after being assaulted in a way that caused her nose to bleed. DNA testing of areas iii, iv and v revealed a DNA profile mixture from two individuals. It was determined that it was approximately 1 in 700 million times more likely to obtain the profile if it originated from the applicant and the complainant than from the applicant and an unknown unrelated individual. In areas iii and v, human blood was detected; in area iv, a screening test for blood was positive.

13. [56]

    The cross-examination on the voir dire was directed to the amount of DNA found in each sample. Mr Bruce agreed that, in sample iii (from the waistband of the pants), the ratio of male DNA to female DNA was roughly one to one, with possibly slightly more male DNA. He agreed that, if the complainant “had a bleeding nose and the blood nose came into contact with any part of the trousers or dripped onto any part of the trousers”, he would expect the complainant’s DNA to be a “significantly high percentage” of the blood stain. However, he could not say that the percentage of her DNA found in area iii was inconsistent with her nose dripping onto the trousers or coming into contact with that area. It may be noted that at no stage had the complainant given evidence that her bleeding nose dripped onto or came in direct contact with the waistband of the applicant’s pants.

14. [57]

    Importantly, Mr Bruce said, if the assumption was that the blood of the complainant was transferred onto the applicant’s hand and became mixed with the blood of the applicant and that the applicant then used that hand to undo his trousers, it would be impossible to say whether the proportion of DNA should be stronger for the woman than the man.

15. [58]

    In area v, the concentration of male to female DNA was between 2:1 and 3:1. Mr Bruce agreed with the following: “if area (v) was created by blood dripping from the female nose or the female nose coming into contact with area (v), if there was only one deposit you would have expected in that situation to find more of the female DNA?” (emphasis added).

16. [59]

    It may be noted that the question asked Mr Bruce to assume there was “only one deposit” (being the drop of blood or contact between the complainant’s nose and the area of the fly). The cross-examiner reiterated the point:

17. [60]

    The stain on the inside back of the fly seam (area iv) was the only stain where there was a greater concentration of female DNA than male DNA. In cross‑examination on the voir dire, Mr Bruce accepted that, if the applicant had both his blood and the complainant’s blood on his hands, and assuming he undid his fly, it would be more likely that the explanation for each of the three the blood stains would be the applicant’s hand depositing them during the act of taking off his trousers by unzipping his fly than “the woman’s nose creating that stain either by dripping onto those areas or by being pressed into those areas”. However, he also agreed that, if the woman had wiped her nose when it was bleeding (as she said she had), she could have transferred some of the accused’s blood and her blood onto her hands and then stained the trousers with her hands while holding his penis. In re-examination, Mr Bruce agreed that there was any number of possibilities as to the way in which both types of DNA came to be on the trousers.

18. [61]

    The obvious relevance of the DNA evidence was that it was at least capable of providing support for the complainant’s evidence of the events relied upon to support counts 2 and 3 because one scenario in which the complainant’s blood might have come in contact with the zipper area of the applicant’s pants was during the act of performing fellatio after having a bleeding nose. There was evidence that she had her blood on her nose and on her hand and that the applicant was also bleeding at that time (shortly after the sexual assault, he asked her to lick the blood off his knuckles).

19. [62]

    The defence objection to the DNA evidence was that, in circumstances where the applicant had admitted hitting the complainant causing her nose to bleed and later removing his pants in order to change them at Goulburn McDonalds, the DNA evidence could not advance the Crown case because it could not rationally advance the conclusion that fellatio took place (since it was capable of being explained by the alternative, innocent hypothesis that the DNA was placed on the pants by the applicant when he changed in Goulburn).

20. [63]

    It is trite that, in exercising his discretion to exclude the evidence, the trial judge was required to assess its probative value at its highest: R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [95]:

21. [64]

    Taken at its highest, the DNA evidence was plainly capable of supporting the complainant’s evidence. On her account, the applicant could have had his blood and her blood on his hands when she says he undid the button of his trousers and lowered his zipper in the back seat of the car. She also could have had his blood and her blood on her hand after she wiped her nose. There could have been transfer of blood from her hands when she had her fingers around the base of his penis. In short, as Mr Bruce said in his evidence, a mixture of the complainant’s blood and the applicant’s might have been wiped on his pants in the area of the waistband and fly in a number of different ways during such activity.

22. [65]

    It is also possible (although it seems less likely) that the applicant still had a mixture of DNA from both sources on his hands when he changed his trousers at Goulburn. The likelihood of that explanation was quintessentially a jury question. That assessment required consideration of a number of features of the evidence including the complainant’s description of the oral sex act; the evidence as to the timing of the alleged sexual assault, the stop at Lake George and the couple’s arrival at Goulburn; the likelihood that a mixture of blood from both sources remained on the applicant’s hands by the time they got to Goulburn; whether that mixture was more likely to be transferred when it was still wet and the absence of blood found on other parts of the pants that might be expected to be touched in order to wholly remove the pants while seated in a car as opposed to only undoing the button and unzipping the fly for the purpose of a forced sex act.

23. [66]

    The danger of unfair prejudice identified by the applicant in the application to exclude the evidence was that, given the existence of the alternative, innocent explanation for the presence of both types of blood on the button and fly areas of the pants, the DNA could not advance the Crown’s case. The applicant submitted that, as it was known that the applicant had removed his pants once he got to Goulburn, the DNA evidence was at best equivocal and accordingly that there was a risk of its being used in an “impermissible” or “speculative” way.

24. [67]

    In the appeal, the applicant made the same point in a slightly different way, contending that the DNA evidence could not assist the Crown case because it could not prove how or when DNA got onto the pants or that “the trouser had been opened twice as required on their case”.

25. [68]

    It may be accepted that DNA evidence cannot, on its own, prove how or when or in what sequence DNA has come to be deposited on an item. It is not at all uncommon for DNA evidence and indeed many other kinds of forensic evidence to be equivocal in that sense. Evidence of an accused’s fingerprint at the scene of a crime is not inadmissible simply because the accused has attended the relevant place on another occasion.

26. [69]

    Nor is relevant evidence inadmissible simply because it is weak (and we do not suggest that the word “weak” applies to the evidence in this case). The correct analysis was explained by Gleeson CJ in Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [14]:

27. [70]

    The applicant’s complaint about the admission of the DNA evidence entails a subversion of that approach. It assumes that evidence is inadmissible unless, on its own, it is unequivocally capable of advancing the Crown case. Standing alone, the DNA evidence established only that the applicant’s fly had come into contact with two high yield sources of DNA which very likely came from the applicant and the complainant. That did not prove there was an act of fellatio but it was capable of supporting that conclusion when considered together with other evidence. As explained by Gleeson CJ in Festa, the fact that it was also capable of an innocent explanation did not make it inadmissible or mean that its use to support the Crown case would be impermissible or prejudicial in the relevant sense.

28. [71]

    In his submissions in the appeal, the applicant submitted that the trial judge failed to undertake the balancing exercise required when considering s 135 and s 137 of the Evidence Act. It may be accepted that the judge did not address that test in terms. However, his Honour’s reasons are to be understood in the context of the argument put. The asserted prejudice was not unfair prejudice in the relevant sense. Upon analysis, the applicant’s real complaint was that the evidence was equivocal and that it might be used to support the Crown case. The trial judge was right to reject that as a basis for excluding the evidence.

29. [72]

    For those reasons ground 1(b) should be rejected.

Ground 1(c) – The Juror’s Note

1. [73]

   Ground 1(c) is:

2. [74]

   This ground should also be rejected. In order to explain why, it is necessary to unpack the assertions on which it is founded. The issue arose during the course of the trial judge’s summing up, which commenced on Friday 13 February 2009. The following Monday, the judge informed the parties that one juror was absent. The relevant exchange was as follows:

3. [75]

   The judge then evidently dealt with some unrelated proceedings. When he returned to the trial, nothing further was said by Mr Barker or the Crown. The judge brought the eleven jurors into Court and sent them home. The following day the injured juror was back and the summing up continued. The jury was sent out to deliberate their verdicts that morning and returned with their verdicts that afternoon.

4. [76]

   The applicant submits that the trial judge “was required to dismiss the affected juror or the entire jury because of reasonable suspicion… that jury impartiality may have become an issue in a fair-minded member of the public.” In oral submissions, the applicant explained that, after the conclusion of the trial, he heard that the juror in question had been “bashed in a pub” the Friday night beforehand. The applicant submitted that was significant for the following reason:

5. [77]

   The applicant put no evidence before this Court to verify his information that the juror had been “bashed in a pub”. Further, there is no basis to conclude that the trial judge had information to that effect. The applicant appears to suggest that can be inferred from the fact that the trial judge asked whether there was “any application” other than for the matter to go over. The applicant’s submission on appeal was that, if it had simply been a case of the juror being unavailable because he was sick, there would have been no occasion to invite any application; the judge would have simply stood the matter over without calling on the parties. The applicant seems to imply that the fact that the judge called on the parties was an indication that his Honour suspected the issue of jury impartiality had arisen.

6. [78]

   As indicated by the terms in which ground 1(c) is framed, the applicant goes so far as to contend that, in calling upon Mr Barker, the judge acted in a way that was “completely inappropriate” and shirked his responsibility to decide the matter himself “while simultaneously refusing to provide the applicant with all the information about the circumstances affecting the juror”. He further submitted that the prosecutor had attempted to prevent the judge from fulfilling his obligation to consider whether to discharge the juror.

7. [79]

   Those were extraordinary allegations. They were without foundation and should not have been made.

8. [80]

   There was nothing sinister in asking Mr Barker (and the Crown) whether there was any different application before standing the trial over to the following day. It is entirely appropriate for a judge presiding over a criminal trial to give the parties an opportunity to be heard before taking any step in the trial, even if that step seems obvious or inevitable. That is simply an incident of the obligation to afford procedural fairness so as to ensure that the trial is fair. It is quite wrong to characterise that step as one taken by the judge to avoid the responsibility to decide the matter, let alone to suggest the judge improperly required the applicant to make the decision for him.

9. [81]

   Further, it is positively mischievous to suggest that the judge took that step “while simultaneously refusing to provide [the applicant] with all the information about the circumstances affecting the juror”. As the transcript plainly reveals, the judge offered the parties the opportunity to obtain more information in chambers. It was entirely appropriate for the protection of the juror’s personal information not to reveal more in open Court.

10. [82]

    In oral submissions, the applicant indicated that, in contending that the juror should have been discharged, he relied on s 53B(d) of the Jury Act 1977 (NSW). It is appropriate to set out the whole of s 53B:

11. [83]

    The applicant submitted that s 53B(d) was engaged. That was on the basis of the unproved assertion that the juror had been “bashed in the pub”. Even if that allegation had been proved, it would afford no basis to apprehend that the juror would not perform the functions of a juror in an impartial manner.

12. [84]

    For those reasons ground 1(c) should be rejected.

Ground 2: Fresh Evidence

1. [85]

   Ground 2 of the appeal is entitled “fresh evidence”. As explained below, the applicant seeks to tender various reports and other evidence annexed to his affidavit sworn 3 September 2020 that were not adduced at his trial to demonstrate that a miscarriage of justice occurred.

2. [86]

   Subsection 12(1) of the Criminal Appeal Act confers on this Court the power to receive further evidence “if it thinks it necessary or expedient in the interests of justice”. This is not a free-standing power to receive evidence, but one which must be exercised having regard to the particular ground of appeal: Xie v R [2021] NSWCCA 1 at [437] (Xie). If the substance of the ground of appeal involves an attempt to contradict the jury’s verdict, then the rules concerning the admission of fresh or new evidence are engaged (Xie at [438]). This is the case for the bulk of the evidence sought to be tendered in support of ground 2 although the material sought to be tendered in support of ground 2(c) also concerns the fairness of the applicant’s trial.

3. [87]

   In MRW v R [2011] NSWCCA 260 at [46] (MRW), Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely:

4. [88]

   In relation to whether the material in question is evidence that was not available as at the time of the trial, the relevant issue is whether that material “could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case”: Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at 516 per Barwick CJ (Ratten). If the material sought to be relied upon does not satisfy that test and is only new evidence, then to demonstrate that there was a miscarriage of justice the applicant must satisfy this Court that the new evidence is such that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520; Xie at [433] to [434]).

5. [89]

   As already noted, the material sought to be relied on in support of this ground of appeal was annexed to an affidavit sworn by the applicant on 3 September 2020. The Crown objected to the tender of those annexures on the basis that they did not meet the tests for the receipt or consideration of fresh or new evidence outlined above. However, it was accepted that the evidence would have to be considered and the Court would rule on its admissibility in its reasons. Otherwise, the applicant contended that the application of the above tests for fresh or new evidence in relation to any particular report or item of evidence should consider the combined force of the relevant report or item of evidence when considered with the other material sought to be tendered. We will adopt that approach without necessarily accepting it as correct.

Ground 2(a) – Professor Duflou

1. [90]

   Ground 2(a) of the appeal states:

2. [91]

   This ground can be taken to be asserting that a miscarriage of justice was occasioned by the absence at the trial of evidence from Professor Duflou in the form of the report dated 6 February 2017 which is annexure B to the applicant’s affidavit. Before addressing that report, it is necessary to describe the evidence adduced by the Crown from Dr Whelan and to revisit the DNA evidence.

3. [92]

   As already noted, the complainant was examined by Dr Whelan at Goulburn Base Hospital at 11.30 am on 9 April 2007. Dr Whelan had considerable experience in examining victims of sexual assault. An expert “certificate” from Dr Whelan was tendered at the applicant’s committal hearing. In that statement she recounted the complainant’s complaints to her in terms that were consistent with the complainant’s evidence at trial. Dr Whelan described the complainant’s injuries as follows:

4. [93]

   Dr Whelan gave evidence at the applicant’s trial. By reference to a diagram showing the position of the complainant’s injuries, Dr Whelan explained her observations of the complainant in terms that were consistent with paragraphs 8 to 13 of the above statement. Photographs of the complainant were tendered that were consistent with Dr Whelan’s evidence.

5. [94]

   At the trial, objection was taken to Dr Whelan giving evidence in accordance with paragraph 14 of her statement and that evidence was not led. Instead, she was asked and answered as follows:

6. [95]

   In cross‑examination, Dr Whelan agreed that she did not see any recent injuries to the complainant’s thighs.

7. [96]

   The complainant’s evidence as to what happened in the backseat of the car is summarised above. Importantly for present purposes, she said that after she tried to push the applicant away with her foot, he punched her some more for a short period and that at one stage she noticed that her nose was bleeding. She then described the applicant directing her to perform oral sex but before she did so she had to wipe the blood off her nose with her hand. After that she performed oral sex by putting her mouth over his penis. She said that later, when they were at the McDonalds restaurant at Goulburn, she wiped away blood from around her face.

8. [97]

   The DNA evidence is summarized in detail above. As in the voir dire, the focus of the cross-examination of Mr Bruce in the trial was that if events had transpired as the complainant said, there would have been a higher proportion of female DNA in the blood stains on the applicant’s pants. The defence case sought to undermine the complainant’s evidence by suggesting that, on her version, if she was forced to perform oral sex on the applicant then her bleeding nose must have dripped directly onto the applicant’s trousers but that was not supported by the DNA evidence.

9. [98]

   However, in cross‑examination, the complainant did not accept that her nose must have been in contact with or bled directly onto the applicant’s trousers while she performed oral sex:

10. [99]

    Hence the evidence was that, when the complainant was forced to perform oral sex on the applicant, his fly was fully unzipped and his trousers had been pulled down to the extent necessary to expose his penis.

11. [100]

    Professor Duflou was provided with various documents including Dr Whelan’s statement noted above, various photographs of the complainant and the applicant, the applicant’s ERISP and extracts from the transcript of the trial and the committal hearing. Professor Duflou opined that the injuries he observed in the photographs “largely correspond with those described by Dr Whelan”.

12. [101]

    The balance of Professor Duflou’s report addresses various questions which purport to, but in many respects do not, correspond with the complainant’s evidence at trial. It is necessary to address them in some detail.

13. [102]

    First, by reference to a photo of the complainant and the other evidence, Professor Duflou was asked whether the complainant was “punched to both eyes sufficient ‘to see stars’”; ie did her injuries suggest that or were they consistent with that. Professor Duflou stated as follows:

14. [103]

    In her evidence at the trial, the complainant said that the applicant “punched me squarely in my left eye”. She was then asked:

15. [104]

    After giving this answer, the complainant said the applicant leaned over and “punched me in the right eye and said, “How’s that then?’”.

16. [105]

    Hence, contrary to the question posed to Professor Duflou, the applicant did not say that she was punched in both eyes sufficient “to see stars”. Professor Duflou’s answer supports the suggestion that the blow to her left eye was sufficient for her to “see stars”. His evidence is otherwise consistent with blows having been administered to both eyes although not sufficient to fracture the complainant’s eye sockets.

17. [106]

    Second, Professor Duflou was asked “was [the complainant] punched to [the] face and head 20 times?”. To that question Professor Duflou said that he had “no doubt that [the complainant] has sustained blunt force to the head” but if she was punched then it “would almost certainly be much less in number than 20”. At the trial, the complainant did not say she was punched 20 times. Instead, she said she was “hit” to the the face and head prior to running from the car, punched a number of times in the backseat of the car prior to the forced fellatio, hit with an open hand and closed fist after getting back into the front seat and then punched once to each eye whilst driving. She said that, at the Anderson VC Rest Area, she was hit “more with an open hand …. 20 to 30 times.” In cross‑examination the applicant said "/ slapped her 10 times and I may have hit her with a closed hand up to five times". Professor Duflou’s answer to this question is consistent with the complainant’s evidence.

18. [107]

    Third, Professor Duflou was asked whether the complainant was punched and slapped on her hands 60 times. Professor Duflou noted some discoloration on the complainant’s hand consistent with the administration of an intravenous sedative (as she said had occurred the week before) and that her injuries “would be most unlikely to be the result of being punched or slapped to the hands 60 times”. This takes the matter nowhere as in her evidence at the trial, the complainant did not say she was punched or slapped on her hands 60 times or at all.

19. [108]

    Fourth, Professor Duflou was asked whether the complainant was injured “by her glasses impacting her face bruising her left eye, the bridge of [her] nose, scratching the left side of her nose and causing the inside of her nose to bleed”. Professor Duflou answered by providing his opinion that the “bruising to the right upper eyelid, the left lower eyelid and the bridge of the nose together with a small laceration on the left side of the bridge of the nose and bleeding of the nose are best explained by a blow of some type to the face while the glasses are being worn”.

20. [109]

    As noted above, the complainant’s evidence at the trial was that, as she left the hotel and entered the Federal Highway, the applicant started slapping her to the left side of her face and he continued slapping and demanded that she pull over. She said he was slapping her on the left-hand side of the face, which was the side closest to him, but that when she pulled over, he slapped her on both sides of her face. She then said that her glasses fell off and went on the floor underneath on the driver’s side floor. Professor Duflou’s answer is consistent with this aspect of the complainant’s account.

21. [110]

    Fifth, Professor Duflou was asked what amount of bleeding “is expected to a nose injury as alleged by [the complainant] and does a bleeding nose stop immediately by either itself or after blood is wiped away with a hand. Professor Duflou noted that bleeding from the nose as a result of injuries was highly variable in quantity and depends on the nature of the injury and the individual circumstances. He said that, once bleeding has commenced from the nose, it typically continues for a number of minutes “usually in the form of slow dripping of blood from a nostril” and added that it is uncommon for the bleeding to stop practically immediately after the injury was sustained”. He said that wiping away blood from a bleeding nose does not cause the bleeding to stop, and in fact it may encourage the bleeding to continue.

22. [111]

    This aspect of Professor Duflou’s evidence has some significance in relation to the applicant’s attempts to rely on the evidence of Professor Pandy which is considered next. The complainant’s evidence about her nose bleeding is set out above. Ultimately, there was no issue at the trial that, at some point on the return journey to Sydney, the complainant’s nose was bleeding. In his evidence, the applicant accepted he had blood on his trousers which he said came from “my hand and also from [the complainant’s] nose”. He said her nose bled when he “struck her at Lake George”. When asked about the flow of that bleeding, he said, “it was running”.

23. [112]

    Professor Duflou’s evidence concerning the flow of blood does not contradict any aspect of the complainant’s description of the injuries she suffered set out above. The real alleged significance of this evidence, however, concerns the amount of blood found on the applicant’s trousers, a matter that is addressed below.

24. [113]

    Sixth, Professor Duflou was asked whether a large triangular bruise on the complainant’s left wrist was “more likely caused by being dragged to [her car] as alleged by [the complainant]” or was the result of an alternative explanation such as her slipping when exiting a spa bath or her wrist colliding with her vehicle’s handbrake. Professor Duflou responded by stating that the bruising was “almost certainly the consequence of an insertion of an intravenous canula” during a colonoscopy procedure performed on the complainant about a week prior to the events in question. In her evidence at the trial, Dr Whelan stated the fact that the bruise was not tender was consistent with her having had that drip inserted. Contrary to the assumption in the question, the complainant did not say that the bruise was caused by her being dragged to the car.

25. [114]

    Seventh, Professor Duflou was asked whether the bruises to the complainant’s right wrist were “more likely caused by being grabbed and swung around and then pulled back towards the car with sufficient force that her feet barely touched the ground” as alleged by the complainant, or an alternative explanation such as the altercation between the applicant and the complainant in the front of the car at the Anderson VC Rest Area. In answering that question, Professor Duflou identified three small bruises in the region of the complainant’s right wrist and forearm, but opined that “if the hand and wrist were grabbed very forcibly and [the complainant] was swung around to the extent that her feet barely touched the ground, I would expect there to have likely been more extensive bruising to the wrist, likely abrasion and potentially laceration to the skin underlying the bracelet, and possibly breakage of the bracelet”. In fact, in describing how she was dragged back to the car, all that the complainant said at the trial was that the applicant “grabbed me by the arm and pulled me around”, “grabbed me and I think he was in front of me and was pulling me” and “it was a very, very fast pace and I could hardly keep my feet on the ground”. Hence, the complainant did not describe being grabbed by the wrist, and otherwise gave a description of being dragged back towards the car at a fast pace. Professor Duflou’s evidence does not undermine her evidence in any respect.

26. [115]

    Eighth, Professor Duflou was asked whether the bruise and abrasions to the complainant’s forehead were caused by punches as alleged by her, or “an alternative such as slaps and clawing … as explained by [the applicant]”.

27. [116]

    Professor Duflou observed that abrasions are relatively infrequently caused by punches to the forehead although they can cause abrasions to other parts of the face. Professor Duflou opined that it was “entirely possible” for the injuries depicted in the photographs to the complainant’s forehead to be the result of contact with fingernails. Both the question and the answer are irrelevant given the evidence that was adduced at the trial. At no point during the trial did the applicant state or “explain” that he scratched the complainant. To the contrary, in his ERISP the applicant accepted that it was “possible” that he hit her with a closed fist several times at the Anderson VC Rest Area. In his evidence‑in‑chief, he was asked whether he punched her with his closed fist and he said “yes” and said he did it a “couple” of times. He also said that he slapped her, but at no stage did he say that he “clawed” the complainant.

28. [117]

    Tenth, Professor Duflou was asked whether the injuries and bruises to the applicant’s hands were evidence of “punching by [the applicant] as alleged by the complainant or an alternative explanation of slapping and clawing scratches such as provided by [the applicant]”. Professor Duflou noted that there were injuries to the applicant’s hands that consisted of “minor bruises and abrasions” and that the bruises “indicate blunt force impact of some type” but that most commonly “in injuries seen… following forceful punching there … typical fractures of the fourth and fifth metacarpal bones which was not present here.”

29. [118]

    Again, the question and answer are irrelevant given the evidence at the trial in which the applicant accepted that he did punch the complainant and at no stage did he say that he clawed her.

30. [119]

    Eleventh, Professor Duflou was asked whether Dr Whelan’s medical report enabled her to conclude [the complainant’s] injuries are consistent with forced oral sex as opposed to a non-sexual physical altercation”.

31. [120]

    By reference to Dr Whelan’s statement, Professor Duflou considered the various external and internal injuries to the complainant’s mouth and stated as follows:

32. [121]

    The Crown objected to so much of this evidence as concerned the DNA evidence on the basis that it was outside Professor Duflou’s expertise, a matter noted below. It is not necessary to address this at this point because the question proceeds upon the false premise that Dr Whelan expressed the conclusion in her evidence at the trial that the complainant’s injuries were consistent with forced oral sex. Dr Whelan said that in her statement but, as already noted, that was not her evidence at the trial.

33. [122]

    Twelfth, Professor Duflou was asked to provide any further observations in relation to the medical evidence and his knowledge of the evidence given at trial. He opined that to the extent that the applicant gave evidence that he punched the complainant “a couple of times” and slapped her about ten times, then that was “entirely consistent with the injuries observed on both [the complainant and the applicant]”. He also observed that the complainant had been diagnosed with Sjogren Syndrome which manifests predominantly with dry mucosal surfaces including eyes, nose, mouth and the vagina. He stated that the dryness to the nose can lead to an increased propensity to have nose bleeds. Accepting both matters, it does not assist the applicant.

34. [123]

    Professor Duflou also stated as follows:

35. [124]

    As noted, the Crown objected to so much of this evidence as involved a consideration of the DNA evidence on the basis that Professor Duflou expressly disclaimed any expertise in DNA testing or interpretation of results. However, we do not interpret this paragraph as involving an expression of opinion outside his area of expertise in that it is more addressed to the likelihood that the injuries shown would have led to substantial bleeding. To the extent it refers to the applicant’s DNA being the dominant component, it is supportable on the basis of the evidence of the DNA expert that was led at the trial. That said, this opinion takes the matter no further because it is not in any way inconsistent with the evidence given by the complainant at the trial.

36. [125]

    The Crown contended that the evidence of Professor Duflou was available to the applicant at the trial (in the sense explained above) and was therefore not “fresh evidence”. We agree. It was always available to the applicant to retain his own forensic expert to review and consider the Crown material and, if necessary, to give evidence at the trial.

37. [126]

    In any event, there is no merit in ground 2(a). The applicant submitted that Professor Duflou's evidence clearly demonstrates that the complainant was not struck or dragged by the arm, that she did not bleed from the nose as she alleged, that this destroyed her credibility and that his evidence renders the convictions unsafe. It follows from the above that we do not accept that submission and that is so even if Professor Duflou’s evidence is considered in combination with the other material the applicant seeks to rely upon. Accordingly, we do not accept that Professor Duflou’s evidence is such that it raises “a significant possibility that the jury acting reasonably would have acquitted” the applicant (MRW at [46]), much less is it evidence from which, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520).

38. [127]

    The conventional approach where that conclusion is reached is to reject the tender of the evidence. There does not appear to be any binding authority requiring that course and it would be open alternatively to receive the evidence (on the basis that it is relevant to a ground of appeal) and then to determine whether to accept or reject that ground.

39. [128]

    In the present case, the ground based on the evidence of Professor Duflou has no merit. Further, it does not involve a question of law and thus leave to raise the ground is required (Criminal Appeal Act 1912, s 5(1)(a) and (b)). Accordingly, we reject the tender of Professor Duflou’s report and refuse leave to raise ground 2(a).

Ground 2(b) – Professor Pandy

1. [129]

   Ground 2(b) of the notice of appeal states:

2. [130]

   As with Professor Duflou, this ground can be taken to be asserting that a miscarriage of justice was occasioned by the absence of evidence from Professor Pandy at the trial.

3. [131]

   Professor Pandy is the Chair of Mechanical and Biomedical Engineering in the Department of Mechanical Engineering at the University of Melbourne. He prepared a report dated 1 August 2017. He was asked to provide answers to various questions that the applicant contends arise out of the evidence given by the complainant at his trial. It is appropriate to address each in turn, although three qualifications to his answers identified by Professor Pandy should be noted. First, he referred to the relative simplicity of the biomechanical models that were developed. Second, Professor Pandy noted that his calculations assume that force transmitted to the upper body remains constant over time “whereas in reality the impact force may vary considerably over time”. Third, he noted that the “values of the co-efficient of restitution and the duration of impact are largely unknown” and were based on estimates derived from literature, although they were tested via a sensitivity analysis.

4. [132]

   The first question that Professor Pandy was asked to determine was “whether a kick to the top left thigh on entry to the rear passenger driver side door of the vehicle would result in a person being propelled across the rear passenger seat of the vehicle, as alleged by [the complainant]” (emphasis added). Professor Pandy addressed this question by determining the impact force that would result “as a result of maximum effort kick” which had a mean force of 5250 Newtons. (A Newton is a measure of force whereby one Newton equals the force that gives a mass of one kilogram the acceleration of one metre per second, per second.) Professor Pandy concluded that “it would appear unlikely that [the complainant] was subjected to large impact forces (on the order of 5250 N) arising from a kick delivered to the upper thigh or lower pelvic region” because that level of force may be sufficient to have broken her femur or at least bruised the complainant’s skin and underlying tissue.

5. [133]

   However, the question posed of Professor Pandy did not reflect the evidence adduced at the trial. The complainant gave evidence that, after running from the car, she was dragged back to the rear driver’s side door and told to get in. The complainant said “I opened the door and before I went to sit down in that backseat he kicked me to my thigh which forced me in and then he slammed the door behind me”. The complainant said as a result of the kick she “kind of fell into the car” and the top half of her body went towards the middle of the car. The complainant’s suggestion that she was “forced” in is not the same as saying she was “propelled” and does not justify an analysis by reference to the “maximum force kick”. This aspect of Professor Pandy’s report has no bearing on the complainant’s evidence.

6. [134]

   The second, third and fourth questions put to Professor Pandy asked him to determine:

7. [135]

   Not surprisingly with the first question about force applied to the neck, Professor Pandy opined that it depended on the “maximum isometric strength” of the neck extensor muscles. He concluded that, assuming the maximum isometric strength of the neck extensor muscles for a “young healthy female subject” lies between 21 Newton-metre (“Nm”) and 33Nm, the force needed to overcome the resistance ranges from 47.5 newtons (“N”) to 111.0N. (A Newton-metre is a measure of torque. One Nm is the torque resulting from a force of one Newton applied perpendicularly to the end of a moment arm that is one metre long.)

8. [136]

   With the second question about force applied to the neck, Professor Pandy modelled forces of between 51N and 115N to move the head 100mm downwards. With the third question about force applied to the neck, Professor Pandy modelled forces of between 51N and 115N to move the head 100mm downwards.

9. [137]

   Leaving aside the assumptions and qualifications that accompany these opinions, the first issue to address is their relevance. This was taken up in oral argument on the appeal. The applicant referred to the evidence of the complainant noted above that he forced the complainant’s mouth onto his penis. Ultimately, the applicant submitted that these parts of Professor Pandy’s reports demonstrate that it was “impossible for the complainant to be able to have resisted the forceful pushing down of her head and to have used any of the available muscles in her body to stop her head making heavy contact with the trousers”. From this point it was contended that, if her evidence was to be believed, then the complainant’s bleeding nose must have come into contact with the applicant’s trousers and that was supposedly inconsistent with the DNA evidence and her evidence.

10. [138]

    Other than stating the applicant “pushed” her head down, the complainant did not give any evidence about the degree of force that was applied to her to force her to perform oral sex on the applicant or the level of resistance she was able to provide. Leaving that aside, this submission wrongly assumes that the effect of the complainant’s evidence was that in performing oral sex on the applicant her nose was directly above the applicant’s trousers and continuously bleeding. In fact, the complainant said that by the time her mouth was forced onto the applicant’s penis he had fully unzipped his trousers and pulled his pants down to at least the level that allowed them to be fully unzipped. In the circumstances described by the complainant it was neither inevitable or even likely that her nose would come into contact with applicant’s trousers or bleed directly onto them. Thus, the opinions of Professor Pandy on the application of force to female neck muscles adds nothing to any attempt to undermine the complainant’s evidence.

11. [139]

    Two further matters should be noted. First, Professor Duflou’s evidence about whether the complainant’s nose bled after it was wiped is set out above. His evidence does not establish that it would have continued to bleed. Second, in his written submissions the applicant referred to the complainant’s evidence at the committal hearing. However, that was not in evidence at the trial and, in any event, was no different to the evidence set out above.

12. [140]

    Professor Pandy was also asked to “determine whether it is possible for a person to lift their left leg up, move it in a leftward direction and strike the top part of a person's chest while seated in the rear passenger seat, as alleged by [the complainant]”. Using the same make and model of car as the complainant’s car, Professor Pandy made various measurements of the rear passenger area in which the complainant was seated. Based on various calculations, he concluded that “it would be difficult, if not impossible, to raise one’s left leg high enough to clear the driver’s seatback in order to place that leg onto the chest of another individual seated in the rear on the passenger’s side, as [supposedly] alleged by [the complainant]” during the trial.

13. [141]

    The difficulty with this evidence is that Professor Pandy assumed that the complainant lifted her leg from a position whereby she was sitting in the rear seat behind the driver with her feet on the floor of the car and the driver’s seat fully pushed back. Hence, he prepared calculations that assumed “that the leg is constrained to move in a space defined by the distance between the hip joint … and the driver’s seatback, which is calculated to be 59cm” and “[t]hus, any movement of the leg resulting in a foot position greater than 59cm is considered not possible”.

14. [142]

    As noted, the complainant’s evidence was that the applicant entered the rear passenger side of the vehicle, whilst she was in the rear driver’s side, and began assaulting her. She was then asked as follows:

15. [143]

    Hence the assumption behind Professor Pandy’s calculations, namely that the complainant moved her leg from a position of being seated behind the driver with her legs located between the front of the rear seat behind the driver and the rear of the driver’s seat to a position whereby her foot was pushed against the applicant’s chest was not consistent with the complainant’s evidence. Instead, her evidence suggests that, in response to the assault, she found herself in a defensive position with her back “on the seat part of the car” which at the very least meant that she was up on the seat. This meant that her left leg was not between the front of the rear seat and the back of the driver’s seat and her left foot was not on the floor of the car before she raised it to his chest. This aspect of Professor Pandy’s report does not undermine the complainant’s evidence.

16. [144]

    Professor Pandy was also asked to “determine whether it is possible for a person to enter and sit in the rear passenger seat when the front passenger seat is in a retracted position and the front seatback is reclined”. In his report, Professor Pandy stated that, using the same make and model car as the complainant’s car, he attempted to do so but found it “difficult”. His report also included a photograph which purported to show the applicant seated in the rear passenger seat. The photograph shows the applicant having to separate his legs to sit. Based on the photograph, Professor Pandy purports to state that “it would have been difficult for a man of [the applicant’s] stature to sit in the rear passenger’s seat with the front passenger seat in a retracted position and the front seatback reclined” and that would have been made more difficult by the presence of a pair of boots lying in the floor of the car immediately behind the front passenger’s seat.

17. [145]

    The Crown objected to this part of Professor Pandy’s report on the (further) basis that it does not involve him expressing any expert opinions as a biomechanical engineer. Even though he is called as an expert, Professor Pandy is also capable of providing evidence of his direct observations although that makes it that much harder to contend that this evidence is “fresh”. Anyone could have made observations of the rear passenger area before the trial and given evidence about those observations. Professor Pandy is not, however, an expert in interpreting photographs and is not qualified to given an opinion about what is depicted in the photograph which is said to be of the applicant sitting in the rear passenger seat. Even if that it is a photograph of the applicant there is no evidence that his “stature” when the photograph was taken was the same as at April 2007.

18. [146]

    It is unnecessary to consider this further because the foundation for Professor Pandy’s observations namely that the front passenger seat was pushed all the way back was not the subject of any evidence from the complainant, the applicant or any other witness at the trial. At the hearing of the appeal, the applicant conceded that was so but asserted that as he was relatively tall and had been sitting in the front passenger seat that his seat must have been pushed back and reclined. That is not any evidentiary foundation for the premise of the point sought be made based on Professor Pandy’s observations. Similarly, there is no evidence that at the relevant time there was a pair of boots located on the floor behind the front passenger seat of the car.

19. [147]

    This aspect of Professor Pandy’s report does not undermine the complainant’s evidence.

20. [148]

    Professor Pandy was also asked to determine whether it is possible for a person seated in the front passenger seat of the complainant’s car, with the seat reclined, to see the clock on the driver's instrument panel. Based on his own attempts Professor Pandy concluded that whether the clock can be seen “depends on the position of one’s head while seated” with it being difficult to see if the seat is reclined and the passenger’s head sits on the head rest.

21. [149]

    The Crown took the same objection to this part of Professor Pandy’s report as it did to that part of his report which addressed the capacity of the applicant to sit in the rear seat behind the front passenger seat. However, the more elusive issue is the relevance of Professor Pandy’s observations on this topic. As best as can be ascertained it appears to relate to evidence that the applicant gave at his trial in which he estimated that he and the complainant were at Anderson VC Rest Area for “at least an hour and 20 minutes”. He explained that a statement he made during his ERISP that he was there for 40 minute was an “error” and that he had “no basis of the time upon which to calculate” time and he “wasn’t wearing a watch so I had no idea”. He was cross‑examined on this change by the Crown Prosecutor in the context of the estimate of time he gave to drive from leaving the motel to the reserve during which he said he was asleep.

22. [150]

    Even if Professor Pandy’s evidence is capable of showing that a person asleep in the front passenger seat, as the applicant claimed he was, could not see the dashboard clock it still has no relevance to any assessment of the applicant’s evidence. Even on his version he had numerous opportunities to observe the clock on entering and leaving the vehicle.

23. [151]

    This aspect of Professor Pandy’s report does not undermine the complainant’s evidence.

24. [152]

    Lastly Professor Pandy was asked to “determine the amount of force required to bend the frame of [the complainant's] spectacles as illustrated in the forensic photograph provided by the police”. He concluded that the “magnitude of force needed to bend the left temple was found to be relatively small, approximately 20N … suggesting that a relatively small force delivered by, for example, a slap may have been sufficient to cause the damage depicted” in the police photograph. This conclusion is consistent with the complainant’s evidence. She said that on the drive back to Sydney the applicant slapped her to the left side of the face and that as she pulled over he “slapped both sides” of her face and her glasses fell off.

25. [153]

    As with the evidence of Professor Duflou, the evidence of Professor Pandy could have been adduced at trial and accordingly it is not “fresh evidence” in the required sense.

26. [154]

    In his written submissions, the applicant contended that Professor Pandy's evidence “clearly demonstrated that the complainant was not kicked to the thigh, able to resist downward pressure to her head, prevent her [bleeding] nose making contact with trousers, nor undertake the movements in the rear of the vehicle as she alleged in her false allegation of sexual assault.”

27. [155]

    It follows from the above that we do not accept that submission and that is so even if Professor Pandy’s evidence is considered in combination with the other material the applicant seeks to rely upon.

28. [156]

    Further, as with ground 2(a), ground 2(b) does not raise involve a question of law and thus leave to raise the ground is required. As this ground is without merit, we reject the tender of Professor Pandy’s evidence and refuse leave to raise ground 2(b).

Ground 2(c) – Professor Young’s Report

1. [157]

   Ground 2(c) of the notice of appeal states:

2. [158]

   This ground can be taken to be asserting that a miscarriage of justice was occasioned by the absence of evidence from Professor Young at the trial.

3. [159]

   Professor Young is a professor in psychology at Flinders University in South Australia. She is also a Registered Clinical Psychologist. Professor Young provided a report dated 3 September 2020 and was briefly cross‑examined. Her evidence was received provisionally.

4. [160]

   In her report Professor Young sets out the Diagnostic Statistical Manual of Mental Disorders, 5th Edition (“DSM- 5”) criteria for ASD and applied them to her observations of the applicant. She considered that he displayed persistent deficits in social communication and social interaction across contexts manifested by deficits in social-emotional reciprocity, deficits in non-verbal communicative behaviour and deficits in developing, maintaining and understanding relationships. Professor Young concluded that the applicant partially met the criterion of stereotyped repetitive motor movements, use of objects or speech in that he has a stutter, he met the criterion for insistence on sameness and inflexible adherence to routines, restricted and fixated interests and having hyper and hypo reactivity to sensory input. Professor Young noted that he had difficulties in his childhood and was currently unable to work. Professor Young concluded that the applicant has ASD and added that “[a]lthough ASD is a pervasive development disorder, due to his intellect [the applicant] has been able to direct his interests in a way which has compensated for his deficits”.

5. [161]

   Having diagnosed the applicant with ASD, Professor Young then addressed in general terms the potential for a person with ASD to experience difficulties in a Court setting. By reference to various research papers and other sources Professor Young noted four potential adverse effects of a person’s ASD condition on a jury. The first was that “[t]here is considerable evidence to suggest that when people do not behave as one might expect they are judged harshly”. Professor Young postulated that the jury’s assessment of the demeanour of a witness with ASD could be adversely affected, in that autistic individuals may be perceived as less credible and more deceptive than non-autistic individuals. Professor Young nominated the types of behaviours that can lead to that result as “gaze aversion, stereotypical motor movements, unusual speech and atypical emotional reactions.”

6. [162]

   Second, Professor Young opined that what was “arguably ... problematic” are the difficulties with “pragmatic language” often experienced by people with ASD which is a reference to the “social function of language” such as having the “ability to stay on topic”, understand that “word or phrase meanings might differ according to context” and an inability to speak in a manner that addresses the needs of the listener.

7. [163]

   Third, Professor Young noted that “[a]mong non-autistic individuals, failing to comply with standards for emotionally appropriate behaviour has been shown to significantly reduce perceptions of credibility in the criminal justice system”. She noted research that people with “autism have deficits in understanding the social guidelines governing how, when and why certain emotions should be displayed.”

8. [164]

   Fourth, Professor Young noted that autistic individuals “may exhibit a complete lack of facial expression” or “flat affect” and that a “defendant lacking emotional expression may be perceived as uncaring and non-remorseful.”

9. [165]

   Given the emerging understanding of ASD, the fact that it is a spectrum with great variances in its effect on a person’s functioning and presentation and the multitude of factual and legal issues that evidence of the condition could be relevant to, it is not possible to specify any firm rules concerning the use of evidence of the kind set out in Professor Young’s report. Instead, it suffices to state that evidence that, unknown to the participants in the trial, a convicted person was affected by ASD is potentially relevant to this Court’s function in at least three ways. The first is in considering the evidence of the applicant’s actions that were said to have constituted the offences. The second is in considering the manner in which the person interacted with those investigating the offences. The third is in considering the conduct and fairness of the trial. On its face the use of such evidence for the first two reasons would appear to engage the rules concerning fresh or new evidence in that their overall objective is to contradict the jury’s verdicts (Xie at [438]).

10. [166]

    However, the use of the evidence for the third reason may not be so confined because it is directed to the fairness of the trial (Xie at [439]). Although a complaint that a person’s ASD affected the fairness of the trial does not allege any “irregularity” or “failure to strictly comply with the rules of procedure and evidence” (GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40 at [24]), it may nevertheless fall within the third limb of s 6(1) of the Criminal Appeal Act 1912, such that the issue is whether the relevant act or omission occasioning unfairness “deprived the accused of a chance of acquittal that was fairly open” (TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26] per Gaudron J; see Caleo v R [2021] NSWCCA 179 at [154]-[167] per N Adams J). In considering all such potential uses of the evidence the Court would need to be mindful that there may have been very good reason for such evidence not to be adduced at trial. For example, Professor Young described the applicant as having “rigid ideas regarding how a relationship should operate” and said that rigid thinking is a common feature of ASD. Such a feature affecting an accused person may support an argument that they were more likely to offend if confronted in a social situation when their rigid thinking is challenged.

11. [167]

    An example of a case that involves evidence of an offender’s ASD being used for the first reason is Norman v R [2012] NSWCCA 230 in which the appellant, who was convicted of rape, sought to rely on expert evidence to the effect that due to his Asperger’s’ Disorder he misunderstood "non-verbal cues" given by the complainant about her willingness to engage in the conduct the subject of the charges against him (at [52]). The evidence went nowhere as the complainant did not give evidence that she gave non-verbal cues to the appellant. Instead, her evidence about how she communicated a lack of consent was found “not capable of being misunderstood, even by a person with the appellant's condition” (at [52]). By way of contrast in S v R [2008] EWCA Crim 6 a retrial was granted where the appellant’s diagnosis of ASD was so severe as to have caused him to hold delusional beliefs at the time he was said to have raped his ex-wife (at [29]). They were held to be capable of bearing on whether he had an honest belief about her consent (at [34]) and also capable of explaining his conduct in reading a book at his trial ([id]; see also Thompson v R [2014] EWCA 836).

12. [168]

    In this case some parts of Professor Young’s report and evidence appear to be directed towards the first two matters noted in [163]. Hence, Professor Young described the applicant as “unaffected”, by which she meant not as “emotional as the victim”, during his ERISP and that “[t]his could be due to his lack of appreciating the intent of the police or perhaps the gravity of the situation”. We reject that possibility. The opening statement in the ERISP advised the applicant that he was being interviewed in relation to an allegation of sexual assault. He later confirmed that he understood why he was arrested and volunteered that it was on a charge of assault and sexual assault. At the relevant time, the applicant was a practising barrister. It is inconceivable that he was not aware of the nature and gravity of what he was being questioned about during his ERISP.

13. [169]

    In one part of her report Professor Young recited the applicant’s version of the events the subject of the appeal and said that the diagnosis of ASD “may contribute to the understanding of the applicant’s behaviour in this incident as well as him accepting some of the accusations which he now says were without merit.” Neither in her report, nor her oral evidence before us, did Professor Young nominate the matters the applicant accepted at the time but now said were without merit. Otherwise, this aspect of Professor Young’s report takes the matter nowhere as she simply addressed the matter on the basis of accepting the applicant’s version of events. Hence, she describes the applicant being “confused” when the complainant told him that she was returning to Sydney on the morning of 9 April 2007. However, the complainant’s version was that he had assaulted her the previous evening. On her version he would not have been confused as to why she wanted to leave.

14. [170]

    The applicant contended that because the jury was “without expert evidence of ASD when hearing and observing his evidence, he was denied a fair trial according to law”. He contends that this Court assisted by Professor Young’s evidence “cannot conclude the jury was better placed to assess [the applicant’s] evidence and credibility than themselves.”

15. [171]

    As an example, in his written submissions, the applicant sought to deploy this evidence in support of the contention that his trial was unfair because the prosecutor submitted that the applicant was pretending to be a “quiet and passive man when he knew that [the applicant] presented during [the] ERISP and had to admit as such when informing [the trial judge] that the great difference in loudness between [the applicant] and Detective Roberts resulted in [the] volume being turn[ed] up so high on playback of the ERISP to hear [the applicant] that Detective Roberts that Detective Roberts voice was extremely loud.”

16. [172]

    It is unclear what this is a reference to other than perhaps a reference to a question in cross-examination in which it was suggested to the applicant that “you come across as a calm person here in court?” The trial judge rejected the question. The next question asked whether he was calm on the morning the offences were committed but “lost control suddenly”, a proposition he accepted. This exchange does not reveal a miscarriage of justice and, save for what follows, Professor Young’s evidence does not engage with it. Similarly, the applicant contended that ASD makes him “highly sensitive to social rules” and knowledge of his condition would have assisted the jury in understanding the significance of his conduct in changing his trousers in the McDonalds carpark. Again, Professor Young’s evidence did not address that conduct.

17. [173]

    Otherwise, Professor Young’s report contains a number of particular assertions about the applicant’s ASD which are potentially relevant to an assessment of the fairness of his trial. For example, although Professor Young referred to the potential for aspects of the presentation of ASD to be perceived as deception, the only deceptive “cues” she nominated for the applicant was some literalness in his language and her assessment that he avoided eye contact and fidgeted, neither of which was manifestly obvious to the Court in hearing this appeal. In any event, even if they were displayed at the trial, generalised opinions about the potential for such cues to be treated as possible indications of deception do not establish a miscarriage of justice.

18. [174]

    In describing the applicant’s lack of reciprocity in his conversation (or his “monologuing”) Professor Young asserted as follows:

19. [175]

    With respect to Professor Young this passage significantly misstates what occurred at trial. In his evidence in chief the applicant accepted that, after he physically assaulted the complainant at the Anderson VC Rest Area, he drove off with her in her car and he saw a campervan. He said that he pointed out to the complainant that it “reminded me of the campervans that we had talked about when we were travelling in Europe” but she said nothing.

20. [176]

    The passage from the trial that Professor Young describes occurred during the applicant’s cross‑examination. The applicant accepted that there was silence between himself and the complainant after he physically assaulted her. He was then asked:

21. [177]

    Contrary to Professor Young’s report, this was not a “conversation” but a cross‑examination and the trial judge did not comment on his evidence about discussing the campervan. Instead, it was the Crown Prosecutor who expressed incredulity. The applicant provided his explanation namely that he spoke on that topic as a distraction because he was ashamed of what he had done. In his closing address the Crown Prosecutor did not refer to this exchange. In any event, this was not an example of “monologuing” but at most him recounting an inappropriate conversation and giving his explanation for his conduct. No miscarriage of justice is occasioned by the jury not also being told that people affected by ASD have a tendency to engage in one-sided conversations.

22. [178]

    In describing the applicant’s deficits in non-verbal communication, Professor Young stated as follows:

23. [179]

    The context of this comment is that during his ERISP the applicant was asked as follows:

24. [180]

    In cross‑examination at the trial the Crown Prosecutor took the applicant to this part of the ERISP in an attempt to suggest he misled the investigators about the injury to the complainant’s face after he hit her. The applicant explained that he understood the above questions to refer to that part of the trip to Canberra that preceded his physical assault of the complainant. The applicant’s counsel requested that the context of the questions from the ERISP be read out, which they were. The trial judge then intervened to ensure the Crown Prosecutor clarified whether it was the applicant’s understanding that the questions in the ERISP related to the period prior to when he hit her, which he confirmed. The applicant then confirmed that he did not deny that the complainant had some injuries after he physically assaulted her. The Crown Prosecutor did not cross‑examine the applicant further on the topic. The Crown only made brief mention of it in his closing address and noted the applicant’s explanation.

25. [181]

    Contrary to Professor Young’s evidence, this is not an example of any deficit experienced by the applicant in his non-verbal communication. Nor is it an example of his possessing an “inability to understand the intent of the conversation and poor perspective”. At the trial, he gave a plausible explanation of his answers in the ERISP. The trial judge intervened to ensure that that understanding was conveyed and the cross‑examination did not proceed on a false premise. It is tolerably clear that the trial judge considered that his understanding of context of the ERISP’s questions was reasonably open and the applicant was given his opportunity to explain that to the jury.

26. [182]

    In her report, Professor Young referred to the applicant’s stutter and stated that “[t]hroughout the trial it was suggested that this was an act he was putting on.” However, in cross‑examination in this Court, Professor Young accepted there was no reference to his stutter in the transcript of the trial (although on one occasion when he was asked to keep his “voice up” the applicant said it was a “life long defect”). She stated that the applicant was the source of this assertion and accepted it was only his “perception” of what happened at the trial. The applicant’s perception of his trial is irrelevant to our function.

27. [183]

    In describing the potential for the unusual behaviour of persons with ASD to affect the assessment of them by others, Professor Young noted that “[i]t is concerning that his Honour directed the Jury to evaluate [the applicant’s] behaviour for its credibility and honesty.” It is difficult to know what part of the summing up Professor Young is referring to, but whichever part it was, the criticism is completely without foundation. The trial judge directed the jury that with all the witnesses even if there was something about a witness “who rubbed you up the wrong way” that did not “disentitle them to an honest assessment of what that person has to say.” His Honour directed the jury to “[h]ave regard to the intrinsic likelihood of the account the witness gave” as well as how their evidence “fitted in the with the other evidence”. Specifically in relation to the applicant, the trial judge directed the jury to make allowance for his being nervous, to approach the task dispassionately and, again, to “[h]ave regard to the intrinsic likelihood of the account he has given”. If all these directions constitute “direct[ing] the jury to evaluate [the applicant’s] behaviour for its credibility and honesty” then Professor Young’s concerns are baseless. Beyond that, her point cannot be considered further.

28. [184]

    Lastly, we noted that, in her report, Professor Young referred to various studies concerning the assessments of the credibility of persons with ASD and noted one report that showed that “if provided with an ASD diagnosis, people with ASD are not judged as less credible.” The Crown pointed to a 2019 study involving 125 mock jurors which found that witnesses with ASD were assessed to be “as credible” as “typically developing” witnesses. In that study, when the mock jurors were provided with further information about ASD and that a witness was autistic, the ASD witness was rated as “slightly more credible” than a typically developing witness. [1] Professor Young described that study as “anomaly”. It is unnecessary to resolve any debate about that research especially where it is ongoing. It suffices to state that, at this point, it is not sufficient to demonstrate a miscarriage of justice to simply diagnose the offender as being affected by ASD, describe the effects of ASD generally and then describe the effects of jury studies concerning other persons affected by ASD. Instead, amongst other matters, the specific connection between the diagnosis, its presentation in the particular accused or appellant and its specific relevance to the issues at or the conduct of the trial must be considered. That has been undertaken here and no miscarriage of justice has been demonstrated.

29. [185]

    We accept that the evidence of Professor Young is “fresh” in the sense that the applicant’s condition was undiagnosed at the time of the trial. We further accept that such evidence is potentially relevant in the three ways explained at [165] above. Accordingly, subject to one exception, the evidence should be admitted and considered by this Court for the purpose of determining ground 2(c). The one exception concerns the first two lines of page 4 of Professor Young’s report which contains material concerning the complainant that is inadmissible under s 293 of the Criminal Procedure Act 1986.

30. [186]

    Having considered Professor Young’s evidence, and for the reasons explained above in the analysis of her evidence, we are not persuaded that there was a miscarriage of justice at trial within the meaning of s 6(1) of the Criminal Appeal Act. The evidence has not led us to the conclusion that the applicant was innocent or to experience any doubt as to his guilt. Nor are we persuaded that, had the evidence been before the jury, there is a significant possibility that, acting reasonably, the jury would have acquitted the applicant (MRW at [46]), much less that it is evidence that, when taken with the evidence at the trial, should produce the conclusion that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520).

31. [187]

    As this was a ground involving fresh evidence, leave to raise ground 2(c) should be granted. However, for the foregoing reasons, ground 2(c) should be rejected.

Ground 2(d): Alleged police misconduct

1. [188]

   Ground 2(d) of the Notice of Appeal states:

2. [189]

   The applicant’s written submissions in respect of this ground addressed it by reference to various evidentiary topics. We will do likewise.

3. [190]

   The applicant contends that this Court should receive evidence as to the length of four movies that he contends were playing in the hotel room he shared with the complainant on the weekend of 7 to 9 April 2007. He contends that this evidence demonstrates that the police officers supplied information to the complainant that they obtained from the applicant’s ERISP to bolster her credibility. The contention is without substance.

4. [191]

   This complaint concerns the timing of the events of the evening of 8 April 2007 and the early morning of 9 April 2007 in relation to count 1. As already noted, in her evidence at the trial, the complainant said that they both returned to their room at approximately 9.00pm on the evening of 8 April 2007, they had a spa bath together and she went to bed at “probably about 11.” The complainant said she was woken by the applicant as he came to bed. She said he attempted to fondle her while he was intoxicated but she resisted. This led to the events the subject of count 1.

5. [192]

   At the trial, the complainant was asked what time the applicant came to bed. She answered:

6. [193]

   As noted above, the applicant in his evidence at the trial said that, after they returned from dinner, he and the complainant had sex in the spa bath and then they then watched television in the lounge room before the complainant went to the bedroom. He said he continued watching television. He said he watched three films and could not recall what time he went to bed. He said they argued when he went to bed but denied physically or verbally abusing her. He said he was woken around “5.00 to 5.30” am. The complainant said it was “around 5am”.

7. [194]

   In his ERISP, which was tendered at the trial, the applicant said he and the complainant returned to their room at “approximately 8.30” and that he watched three movies which he estimated were 90 minutes in length but could not remember the time he went to bed. Later in the ERISP he agreed that 1.00am “would be a fair assessment” of the time he went to bed.

8. [195]

   At the trial, neither the complainant nor the applicant were cross‑examined about the time the complainant says she was woken up by the applicant much less the length of any movies he said he watched or that she may have watched.

9. [196]

   Annexed to the applicant’s affidavit filed in this Court is a document entitled “contemporaneous notes” that were written by the complainant and disclosed to the applicant prior to the trial. In relation to the period after the assault that was the basis for count 1, the complainant wrote that she lay on the sofa bed in the lounge room without moving through fear of making any noise and the movie “Black Dahlia” was “on but had finished.” The contemporaneous notes were not tendered at the trial.

10. [197]

    In his written submissions, the applicant says that sometime in the 13 years since the trial he has obtained evidence concerning the actual length of the three movies that he said he watched. This evidence indicates they are 118 minutes, 145 minutes and 143 minutes in length. The applicant contends that it is most likely that they commenced at around 8.30pm and, if they did, they would have finished at around 3.16am. The applicant also obtained evidence of the length of the “Black Dahlia.” Its length is 118 minutes. The applicant says that, if that movie commenced at 3.16am, it would have concluded at 5.14am. He says that this timeline accords with the evidence as to when they returned from dinner on the evening of 8 April 2007 and the evidence about when the complainant woke the applicant to leave in the morning namely around 5.00am to 5.30am. The applicant next asserts that his ERISP on the morning of 9 April 2007 concluded at 11.07am which was allegedly before the complainant told Dr Whelan that she remembered the applicant came to bed at 12.44am. Dr Whelan recorded the complainant saying that she saw the time on a clock radio, something she reiterated in her evidence at the trial.

11. [198]

    The applicant seeks to turn this “analysis” into a ground of appeal by the following submission:

12. [199]

    This grossly speculative submission must be rejected. As the above demonstrates, from the time she was spoken to on 9 April 2007 through to the time of the trial, the complainant said she had a recollection of looking at the clock radio at the time the applicant came to bed and seeing the time “12.44”. There is nothing in any evidence at the trial or any of the material adduced by the applicant to suggest that her recollection of the time the applicant disturbed her was in any way dependent on the applicant’s own estimates of how many movies he watched and how long they were. There is no evidence that any police officer or Dr Whelan supplied the complainant with any information from the applicant’s ERISP. There is no reason to believe that on 9 April 2007 any police officer or Dr Whelan anticipated that somehow the complainant’s credibility needed to be or could be bolstered by her agreeing with the applicant about the time he went to bed. Dr Whelan and the police officers were confronted with a bloodied and injured victim who had approached a stranger at a McDonalds restaurant and complained about physical abuse and soon thereafter disclosed sexual abuse. To anyone in their position her credibility did not need bolstering. The person with the credibility problem was the applicant and not the complainant.

13. [200]

    At most, all of this has only demonstrated that the applicant may have confused himself about his own version of events. The premise of the applicant’s submissions is that he is to be believed about how many movies he watched and what they were and that, based upon that acceptance, the complainant must be a liar. The jury thought the complainant told the truth and he did not. The only likely consequence of the disclosure of this evidence at the trial would have been to cause more doubt about the reliability of his answers in the ERISP rather than occasion any doubt about the complainant’s version of events.

14. [201]

    None of this evidence is “fresh”. The run times of these movies was clearly ascertainable prior to the trial. Further, this material sought to be relied on in relation to this topic does not, considered by itself or with the other material, raise any possibility that the jury acting reasonably would have acquitted the appellant much less warrant a conclusion that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt. The tender of the evidence concerning the run times of these movies, being annexures F to I of the applicant’s affidavit sworn 3 September 2020, is rejected.

15. [202]

    This complaint concerns certain entries in a COPS report made by the police containing their assessment of where the complainant said she was sexually assaulted. Before outlining the matters relied on by the applicant it is necessary to describe the evidence on this topic that was adduced at the trial.

16. [203]

    As already noted, in her evidence in chief, the complainant recalled that after leaving the hotel she drove onto the entry ramp of the Federal Highway and the applicant told her to pull over. She said he pulled the steering wheel towards the left and the car pulled over on the side of the road, by which time she had been slapped and her glasses had been pulled off. She said the applicant continued to abuse her and told her to drive and take the next road off the highway. She said that as she drove, she saw some “roadways on the left-hand side” that she thought were “private roads” which were “more like dirt roads”. She asked the applicant “here” and he said “no”. She then took a “main intersection”. She said she approached a T intersection and the applicant told her to turn left and after that he told her to pull over to the left at which point the physical and sexual assault occurred. Later in her evidence she drew a diagram that was tendered as exhibit A. She said, “I can show the path” but “I don’t know necessarily names”. She said she drove on the highway for “probably less than 10 minutes” and for an estimated distance of eight kilometres before they pulled over. She said that after the assaults they returned to the Federal Highway and she ended up pulling into Anderson VC Rest Area near Lake George at his direction. She said she tried to calm the applicant down by saying she was sorry but he hit her to the head “20 to 30 times” with an open hand.

17. [204]

    In cross‑examination of the complainant, the applicant’s counsel suggested to her that the applicant went to sleep after they left the hotel in her car and that when he awoke, he asked how long she had been driving and she replied 45 minutes, both of which she denied. The applicant’s evidence in chief on this topic was consistent with what was put to the complainant. The applicant said that, after he woke up, he suggested they drive to Anderson VC Rest Area. Contrary to the complainant’s evidence he denied that they pulled over prior to then. He said that at the reserve the complainant mentioned her ex-boyfriend. He agreed he punched the complainant about 10 times at that location.

18. [205]

    As for the location where the complainant stated she was sexually assaulted, Detective Senior Constable Roberts gave evidence that the first major turn off on the Federal Highway after the Hotel was Sutton Road, and that, consistent with the complainant's account, there were a number of "small roads and lanes" between the two locations. Various photographs of the Federal Highway and Google Maps showing the area of the Federal Highway and Sutton Road intersection were tendered at the trial.

19. [206]

    In the end result, the complainant described the location where she was sexually assaulted without specifying the street or road in which it occurred. The effect of Detective Robert’s evidence was that, if her account was accepted, then the location of the assault could have been near the Sutton Road intersection. The applicant denied it occurred and denied there was any stop prior to the Anderson VC Rest Area. Senior Counsel for the applicant did not take up with either the complainant or Detective Roberts the possible locations where the sexual assault could have occurred.

20. [207]

    Annexure J to the applicant’s affidavit sworn 3 September 2020 in this Court, is a COPs entry for this incident. The initial entries record the incident location as “Majura Lane Sutton” with the intersecting street being “Majura Ln, Alfred Rd”. A later entry records the incident location as “Federal Hwy Sutton NSW” with the intersecting street “Federal Hwy, Hume Hwy”. The opening section of the COPs entry contains a narrative that is consistent with the complainant’s evidence and does not identify a location for the sexual assault.

21. [208]

    In his written submissions, the applicant points to various questions posed to him in his ERISP about where the sexual assault occurred suggesting it was near the Eaglehawk Hotel. The submissions assert that Majura Lane is apparently a “close fit to [the complainant’s] description of the alleged assault location.” He refers to a Google map and street view images of the area. The submissions then contend that Dr Whelan recorded the complainant telling her that, on leaving the Hotel on the morning of 9 April 2007, she immediately drove onto the Federal Highway. The applicant contends that this meant that it was impossible to access to the Majura Lane and Alfred Street location.

22. [209]

    The applicant ultimately submitted:

23. [210]

    This contention is without substance. First, in his evidence at trial DSC Roberts did not give any evidence of having obtained from the complainant the location she says she was sexually assaulted.

24. [211]

    Second, much of this submission proceeds upon assertions about what Dr Whelan was told during her examination by the complainant when that was not in evidence at the trial.

25. [212]

    Third, the submission proceeds upon an unproven assertion that at some point the complainant identified a precise location by reference to street locations whereas the only evidence is that she did not purport to provide street locations.

26. [213]

    Fourth, at most the COPS entries simply reflect the police officers’ attempts to surmise the location of the sexual assault in circumstances where they were dealing with a complainant who could not specify the precise location she was sexually assaulted by reference to particular streets or roads.

27. [214]

    Fifth, if Detective Roberts was attempting to alter COPS entries to somehow bolster the complainant’s credit, then he would not have retained the original entries in COPS for Majura Lane.

28. [215]

    Sixth, none of this evidence is fresh. All the material relied on was available to the applicant prior to his trial. This issue was not raised at the trial and presumably for good reason. While Google street view may not have been active in 2007, cameras had well and truly been invented by then. The pursuit of a case at trial that not only was the complainant a liar but the police officers she just happened to encounter that morning were prepared to immediately pervert the course of justice to bolster her credit and convict the applicant would have made his conviction almost inevitable. Instead, the defence case was firmly focused on the differences between the complainant’s account and the applicant’s version of events.

29. [216]

    The material sought to be relied on in relation to this topic does not, considered by itself or with the other material, raise any possibility that the jury acting reasonably would have acquitted the appellant much less warrant a conclusion that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt. It is not fresh or new. It follows that the tender of the evidence concerning this issue, being annexures J and K of the applicant’s affidavit sworn 3 September 2020, is rejected.

30. [217]

    This ground is a continuation of the hypothesis that, while the complainant’s allegation of an assault at the Anderson VC rest area occasioning actual bodily harm consisting of multiple bruises and contusions to the head was true, her other allegations were the product of spontaneous fabrication and that, fortuitously, the detectives who investigated her complaint participated in her falsehoods by manipulating the evidence against the applicant. After going to Goulburn Police Station, the complainant was first taken to Goulburn Base Hospital for medical examination, as is standard procedure where allegations of sexual assault are made. She then returned to Goulburn police station where she waited until a police photographer arrived to photograph the many injuries to her face, head and arms.

31. [218]

    The applicant notes, apparently by way of criticism, that police did not take a statement from the complainant during that interval. At some point (perhaps after leaving the police station), the complainant prepared the contemporaneous notes referred to above. These were apparently later used as the basis for her formal statement. The formal statement is dated 11 April 2007, two days after the assaults.

32. [219]

    The applicant contends that the process of converting the contemporaneous notes into a statement entailed “manipulation” of the evidence by Detective Roberts. The submission is that, whereas the contemporaneous notes included a “large amount of exculpatory information useful to the defence”, that information was not included in the witness statement. The applicant submitted:

33. [220]

    The applicant’s affidavit relied upon in the appeal annexed the contemporaneous notes, the complainant’s formal statement and a document prepared by the applicant comparing the two.

34. [221]

    The variations between the contemporaneous notes and the formal statement highlighted in the comparison document prepared by the applicant do not bear out the assertion that the material omitted from the statement was exculpatory or likely to be useful to the applicant. All that can be gleaned from the comparison document is that the usual process of statement-taking was undertaken. On some issues, further detail was added; on others, information in the notes that was of no particular apparent importance was omitted. Two estimations of time recorded in the notes were omitted from the statement. There is no reason to suspect that was a result of anything other than an appropriate process of checking that the complainant was confident as to the correctness of a note before it was included in her statement.

35. [222]

    One particular complaint the applicant makes is that the notes recorded that, when she checked out of the hotel, the complainant asked the staff member whether there was a train station in Canberra and he responded that there was. In her statement, this was recorded simply as “I then had a short conversation with this man.” It is a common feature of police statements that they record only the fact that there was a conversation and not its content. This practice evidently reflects an understanding (which is erroneous) that the content of a conversation will always be inadmissible hearsay. As it happened, the content of that conversation was led in the complainant’s evidence-in-chief in any event.

36. [223]

    There is no rational foundation for the applicant’s suspicion that the process of converting the contemporaneous notes into a statement was deliberately skewed by the detective with the corrupt intention of fitting up the applicant for offences based on allegations police knew to be fabricated.

37. [224]

    In any event, as already noted, the contemporaneous notes were made available to the applicant in advance of the trial. The process of preparing the statement by reference to the contemporaneous notes was accordingly entirely transparent and able to be tested at the trial. The evidence before the jury was of course the evidence given orally by the complainant in the witness box, not her written statement. Any matter recorded in the notes but not addressed in her evidence could have been addressed in cross-examination. There was no cross-examination of either the complainant or Detective Roberts to suggest that there had been any manipulation of her evidence or any material omission from her statement. The allegation that Detective Roberts intentionally omitted exculpatory information when preparing the complainant’s witness statement in order to assist the success of her false allegations was not put to him.

38. [225]

    This ground should be rejected.

39. [226]

    This ground has even less rational foundation than the last. The applicant submits:

40. [227]

    How Detective Roberts could have known what information any statement from the night manager might contain without speaking to him was not explained. The applicant did not seek to put evidence before this Court as to what the night manager would have said. It is a matter of speculation whether he would have corroborated or contradicted the complainant’s account.

41. [228]

    In any event, the complainant had not in fact said, in either the contemporaneous notes or her formal statement, that the applicant was abusive in the reception area. In the contemporaneous notes, she said the applicant followed her to the reception area but had returned to the car when she was talking to the night manager.

42. [229]

    Perhaps the most bizarre submission made by the applicant under this heading was this:

43. [230]

    Leaving aside the speculation that, on this issue, the night manager would have corroborated rather than contradicted the complainant’s account, the more likely explanation, having regard to the peripheral role of the night manager in the events of that night, was that the detective did not consider him to be a witness of any importance in the case.

44. [231]

    This ground should be rejected.

45. [232]

    This complaint concerns an issue noted above, namely, the period between the applicant and the complainant leaving the motel and just before he and the complainant arrived at the Anderson VC Rest Area at Lake George. In that period the applicant said he was asleep whereas the complainant said he directed her to pull over and physically and sexually assaulted her. Detective Roberts gave evidence at the trial that the distance to drive directly from the Hotel to the Anderson VC Rest Area is “around 18/19 kilometres” which took “approximately … about 12 minutes” travelling at the speed limit of 110 km/hour although “with some slowing down” as he past the exits. He said the approximate time to drive from the hotel to McDonalds was 45 minutes.

46. [233]

    On this application, the applicant sought to tender a “Google maps” record which states that the time to drive from the hotel to Canberra and then to Anderson VC Rest Area is 45 minutes. The basis for adding the trip to Canberra in the estimate is that in her evidence at the trial the complainant said that as she checked out of her room on the morning of 9 April 2007 and settled her account, she asked the night manager “if there was a train station nearby”. He replied “there was one in Canberra”. She was then asked:

47. [234]

    Based upon these answers the applicant submitted:

48. [235]

    This submission appears to submit that this Court should find that, contrary to her evidence at the trial, the complainant drove from the hotel to Canberra then to Anderson VC Rest Area. This contention is without substance. Three matters should be noted.

49. [236]

    First, the complainant’s evidence was directly to the contrary and it was never challenged. She said that immediately upon leaving the motel the applicant abused her and told her where to drive.

50. [237]

    Second, in the relevant part of her witness statement referred to in the above extracts the complainant states that she had a “short conversation” with the person at reception on checking out without elaborating upon the conversation. As explained above, this was not irregular and was not inconsistent with her evidence at the trial. The absence from her statement of any elaboration upon the conversation between her and the reception staff does not of itself or taken with any other material amount to evidence that she drove to Canberra on leaving the hotel.

51. [238]

    Third, none of the evidence sought to be relied on in relation to this topic is fresh. The time taken to drive from the hotel to Canberra and then to Anderson VC Rest Area was easily ascertainable at the time of the trial.

52. [239]

    The material sought to be relied on in relation to this topic does not, considered by itself or with the other material, raise any possibility that the jury acting reasonably would have acquitted the appellant much less warrant a conclusion that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt. It is not fresh or new. It follows that the tender of the evidence concerning this issue, being annexure N to the applicant’s affidavit sworn 3 September 2020, is rejected.

53. [240]

    This contention alleges there was some police impropriety in the procuring of CCTV footage from the McDonald’s restaurant in Goulburn of the complainant and the applicant at the restaurant on the morning of 9 April 2007.

54. [241]

    At the trial, the applicant agreed that after the complainant went into the McDonalds restaurant at Goulburn, he waited a “long time” and that he changed his trousers in the carpark before following her. The Crown Prosecutor suggested that was inconsistent with the CCTV footage of the entrance to the restaurant which only showed a 45 second gap between the complainant’s entrance and the applicant’s entrance. In his evidence DSC Roberts said that he obtained the CCTV footage where the camera is facing the entrance door and the footage was from only one camera. The footage and a written timeline of events were tendered without objection.

55. [242]

    In his written submissions the applicant contends that DSC Roberts “refused to obtain any vision of any other CCTV camera because he knew that it would undermine or disprove the complainant's allegations.” It was submitted that DSC Roberts knew that “it would establish the time the complainant's vehicle arrived at Goulburn McDonalds, and the complainant's actions prior to entering the restaurant's front door”. Annexed to his affidavit are various photographs that the applicant told the Court he obtained when the NSW Bar Association pursued disciplinary proceedings against him. One of those photographs shows an exterior camera on McDonald’s restaurant which is said to be “aimed towards the access roadway and carparking areas.” There is no evidence that that camera was present on 9 April 2007.

56. [243]

    In his oral submissions the applicant attempted to explain this complaint further. He referred to part of DSC Roberts’ statement in which he said he attended the restaurant on Tuesday 10 April 2007 watched the security footage of the restaurant. He said he “saw footage of the time and date that [the complainant] attended the restaurant” and “requested a copy of that footage.” The applicant contended that DSC Roberts saw all the cameras and selected one. Ultimately this complaint reduced to a contention that this Court should infer that there was camera footage taken from the carpark, that it was deliberately not selected by DSC Roberts, that the footage would have rebutted any suggestion the applicant followed the complainant into the restaurant, would have supported the applicant’s evidence about when he changed his clothes, would have revealed the time when the complainant’s vehicle arrived at the carpark and thus undermined the Crown case so far as it rested on there being a period of time between the hotel and Anderson VC Rest Area where the complainant was sexually and physically assaulted.

57. [244]

    Each of these contentions is grossly speculative and highlights that this is addressing material that could have been raised at the trial. It was never suggested to DSC Roberts that there was footage of the carpark much less that he deliberately refused to obtain it. In the absence of any evidence that there was such footage and that was made available to DSC Roberts much less its contents then there is no basis for contending that it would have been exculpatory or for a finding of police misconduct.

58. [245]

    The material sought to be relied on in relation to this topic does not, considered by itself or with the other material, raise any possibility that the jury acting reasonably would have acquitted the applicant much less warrant a conclusion that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt. It is not fresh or new evidence. It follows that the tender of the evidence concerning this issue, being annexures P and Q to the applicant’s affidavit sworn 3 September 2020, is rejected.

59. [246]

    We have already addressed (in the discussion of ground 1) the trial judge’s alleged error of law in admitting the DNA evidence in Report 2. A separate complaint under ground 2 is that the DNA matching that of the complainant identified in Report 2 was planted there deliberately and corruptly by Detective Roberts. The applicant draws that inference on the basis of the sequence of events summarised below (this sequence was outlined in the applicant’s submissions rather than his affidavit; for the purpose of this ground it is convenient to assume it is correct).

60. [247]

    Police did not initially send the applicant’s pants for DNA analysis. The first DNA report addressed other items. In December 2007, apparently in support of an application under the Criminal Procedure Act 1986 (NSW), the applicant submitted, “if the fellatio was performed in the manner described one would expect to find traces of the complainant’s blood on the accused’s trousers at the crotch area and [probably] on the inside of the trousers near the fly.” Police subsequently sent the pants for DNA analysis. The laboratory initially located blood only in areas i, ii and ii identified above. Those findings were reported in the first version of Report 2. The pants were returned to police custody.

61. [248]

    The applicant submitted:

62. [249]

    On that basis, the applicant accuses Detective Roberts of interfering with the exhibit to create false evidence to support the complainant’s allegations at trial. Of necessity, the allegation must be that the detective planted the complainant’s blood on the trousers, perhaps mixed with that of the applicant.

63. [250]

    The allegation is without any proper foundation and should not have been made. It formed no part of the objection to the DNA evidence at the trial. There was no application to cross-examine Detective Roberts on the voir dire, nor was he cross-examined to that effect in the trial.

64. [251]

    This ground should be rejected.

65. [252]

    Finally, the applicant submits that Detective Roberts interfered in some way with the evidence of Constable Gray. That is allied to a complaint that the complainant did not initially make any complaint of sexual assault (only physical assault) and that the allegation of sexual assault was encouraged by a leading question by Constable Gray. The applicant’s submission of this issue is:

66. [253]

    There is absolutely no basis for that allegation in the material before this Court. It should not have been made. This ground should be rejected.

67. [254]

    None of the submissions made by the applicant or material sought to be adduced by him raises any basis for a finding of police misconduct or raises any doubt about the applicant’s guilt. As already noted, the material sought to be tendered in support of this ground is rejected.

68. [255]

    Ground 2(d) does not raise a question of law and thus leave to raise the ground is required (Criminal Appeal Act 1912, s 5(1)(a) and (b)). We refuse leave to raise ground 2(d).

Ground 3: (Allegedly) Unsafe Conviction

1. [256]

   As formulated this ground had three components:

2. [257]

   The alleged police misconduct has been addressed above. No basis has been established for impugning the verdicts of the jury on any such basis.

3. [258]

   Under this heading the applicant raises 10 points concerning the credibility of the complainant’s allegations.

4. [259]

   It may be observed at the outset that the applicant's submissions make a series of assumptions or normative assertions as to how a woman might be expected to behave after being violently assaulted by a drunken boyfriend. Those are the kind of assessments properly assigned to a jury, with its collective experience and knowledge of the ways of the world. A number of the matters raised by the applicant were the subject of cross examination of the complainant by his counsel at the trial. The jury must be taken to have rejected those points.

5. [260]

   The first point is:

6. [261]

   The charge of common assault was based on the complainant's allegation that, after she went outside to have a cigarette in the middle of the night and had returned to the hotel room, the applicant sat next to her on the sofa bed, started saying offensive things and then started to slap her. She said the slaps weren't that hard but they were around her face and around her head. She said she was "completely stunned" and "shocked". The applicant then went back into the bedroom and slammed the door.

7. [262]

   The complainant said she did not go back to sleep but stayed in the sofa bed for about two hours. The applicant's point is that she could have made good her escape during that time. He notes that she had everything she needed in order to leave, including her clothes, her handbag and her car keys.

8. [263]

   The complainant was cross-examined about that proposition:

9. [264]

   There is nothing implausible about any of that evidence. It was well open to the jury to accept it.”

10. [265]

    The second point is:

11. [266]

    Again, this is an issue on which the complainant was cross-examined. It was put to her that she could have asked the night manager to ring the police. She said, “I thought of asking and yet I didn’t”. The failure to make immediate complaint to a complete stranger is not a matter that undermines the credibility of the complainant. Further, it may be noted that the conversation with the night manager occurred before the more serious assaults. That is not to derogate from the seriousness of the common assault but only to observe that a failure to seek the assistance of a stranger at that early stage of the ordeal is more readily understood.

12. [267]

    We have already addressed the applicant's submission that Detective Roberts behaved improperly in that, whereas the complainant's contemporaneous notes referred to her conversation with the hotel night manager (including her enquiry as to whether there was a railway station nearby), her formal statement did not include the content of that conversation. Inconsistently with that submission, the applicant submits under the present point that the complainant initially attempted to conceal her conversation with the night manager and that “this explains why it did not appear in her witness statement”. The applicant submits that the reason the complainant did not seek assistance or information about the nearest police station when speaking alone with the night manager is because she did not need to because she had not been assaulted. That proposition was squarely raised for the jury's consideration by counsel’s cross examination and must be taken to have been rejected by the jury. There is no basis for this court to reach any different conclusion.

13. [268]

    The third point is:

14. [269]

    The applicant relied upon photographs showing the physical features of the Sutton Road location. He submitted that the explanation for the complainant's failure to provide any evidence of those features of Sutton Road is that she was never at that location as she alleged. As noted by the Crown, there is no suggestion that the complainant gave any detail inconsistent with the appearance of the relevant area. The complaint is simply that she gave no details of “road furniture, signage or lighting”. The complainant's evidence was that she was directed to an unfamiliar location shortly after checking out of the hotel at 5:34 am. She was told to turn the vehicle lights off, which she did. She said it was dark at that time. Significantly, she did describe details of her observations at that time including the fact that, after the sexual assault, the inside of the car was fogged up and she had to turn on the de-mister and wind the window down as she drove away. There is nothing inherently implausible about her evidence concerning that incident.

15. [270]

    The fourth point is that the complainant's description of her alleged attempt to flee at Sutton Road is “incredible” (implausible). The applicant submits that her evidence cannot be believed and that it follows that she was never at that location. He submitted that her allegation must involve her proceeding up a strongly inclining road into extensive street lighting while carrying a large bag. He contended that any person at that site "would instinctually run down the hill and into the darkness taking advantage of all the places of concealment this direction offers and would do so without the unnecessary burden of a large bag to hinder her, especially when she already had within her jacket a telephone to call police". There is no merit in that submission. The proposition that a woman in fear of her boyfriend would run away from civilisation and into the darkness may readily be rejected. The fact that she ran up hill with a heavy bag does not undermine the plausibility of her account; it simply explains why the applicant was able to catch her so quickly.

16. [271]

    Separately, under this heading, the applicant repeats a submission concerning the evidence of Professor Dufluo and Professor Pandy. We have already addressed that issue in the discussion of ground 2 above.

17. [272]

    The fifth point is:

18. [273]

    This submission is based on the simple fact that, between the Sutton Road interchange and the Anderson VC rest area where the applicant accepts they stopped, there were numerous other places where a car could have stopped safely. The applicant submits:

19. [274]

    The applicant further submits:

20. [275]

    The submission completely misrepresents the complainant's evidence. She did not say she was looking for somewhere to pull over from the time when they left Sutton Road until they stopped at the Anderson VC rest area. Her evidence was that, after the sexual assault and as she pulled out, the applicant punched her twice, in the left eye and then the right eye. She said she continued to drive towards Sydney during which time he continually abused her. She then said she “ended up” pulling into the Anderson VC reserve because the applicant said he needed some more water to drink and there was no more water but she knew there was a bottle of Coke in the boot. In short, her evidence was that she pulled over at the earliest available stop after he said he was thirsty. It was never her evidence that she was looking for somewhere to stop the whole way from when they left Sutton Road until she pulled over at the Anderson VC rest area.

21. [276]

    The sixth point is

22. [277]

    It is difficult to understand the applicant's point under this heading. There is no dispute that the couple did in fact stop at the Anderson VC rest area and the applicant pleaded guilty to an offence of assault occasioning actual bodily harm committed at that location. The complainant's reason for stopping at that location would not seem to be particularly significant in that context. She did not say that she was forced to stop there. However, it may be noted that, by then, according to her account, she had been sexually and physically assaulted by the applicant. It is not implausible in those circumstances that she would try to placate him by doing whatever she thought he wanted her to. In any event, there is nothing implausible about the complainant's account of why she stopped at the rest area where the admitted assault occurred.

23. [278]

    The seventh point is:

24. [279]

    In short, the applicant's submission is that it is implausible that, if she had been sexually assaulted as she alleges, the complainant would not have used the opportunity of being alone in the toilet cubicle at the Anderson VC rest area to call police or text a friend for help.

25. [280]

    The complainant explained her decisions at the rest area in her evidence in chief in the trial. She said after they stopped there, she got the bottle of Coke out of the boot and gave it to the applicant. She got back into the car and he continued to verbally abuse her and call her names. He hit her, she said, about 20 to 30 times while they were seated there. Shortly after that, the other car came and parked there but it had tinted windows and no one got out. She was very thirsty and they had finished the bottle of Coke so she suggested she go and refill the water bottle. He allowed her to do that. When she went to the toilet block she went into one of the toilet cubicles, pulled her phone out of her pocket and unlocked the phone and put it on silent. Asked why she did that, she said:

26. [281]

    She said the toilet cubicle had quite a gap underneath the door and had open air above it so she thought if she made a call there the noise would carry. She returned to the car. There was nothing implausible about any of that evidence.

27. [282]

    The eighth point is:

28. [283]

    The complainant's evidence as to why she did not seek assistance from the people in the car that pulled up was:

29. [284]

    The applicant's submission, in short, is that the explanation is perverse and a better explanation for the complainant's failure to seek assistance from the people in the adjacent car is that nothing had occurred to justify seeking assistance. He said that when "the incident occurred" (referring to his assault) shortly prior to leaving Anderson VC rest area the complainant decided to report it to police instead. The submission requires acceptance of the applicant's timeline, according to which the assault happened immediately before they left the rest area rather than, as the complainant said in her evidence, before she went to the toilet cubicle.

30. [285]

    In any event, there is nothing implausible about the complainant's version. She said she was in fear and did not want to take the risk that the people in the car would not help her. Separately, even if they would, she was apprehensive as to the prospect of bringing them into a potentially dangerous situation. The complainant was cross-examined about her thinking at that stage by the applicant’s counsel. There is nothing implausible about her account

31. [286]

    The ninth point is:

32. [287]

    This point is based on the fact that the complainant, by her own admission, did not report the allegation of sexual assault by telephone or text message while she was in the toilets at Anderson VC rest area, to the occupants of the car at that area, to the woman she asked to call 000 when she arrived at McDonald's at Goulburn, in her own 000 emergency call or to police who attended at McDonald's until Constable Gray asked her a question directed to that issue. The applicant submitted:

33. [288]

    We have already considered the complainant's evidence concerning the decisions she made at the Anderson VC rest area. As to Mrs Shaw, it is wholly unsurprising that the complainant made no mention of sexual assault at that stage, as Mrs Shaw was accompanied by her young daughters. Further and in any event, it is quite plausible that the complainant's principal concern at that stage was to escape safely from the applicant. That is what she said in her evidence: "I just wanted to get help as soon as I could."

34. [289]

    The 10th and final point is:

35. [290]

    The complainant was cross-examined at length as to her response to learning from the applicant of his brief affair with another woman. The complainant accepted that she had been angry with the applicant at that time and had demonstrated her anger in a number of ways including cutting the genital area out of some of his underpants, defacing his law textbooks with insults about him written in red pen, damaging his barrister’s wig and dumping his belongings on his parents driveway.

36. [291]

    The jury had every opportunity to consider the significance of that evidence and whether it undermined the complainant's credibility. Indeed, she was cross-examined on that issue for almost as long as she was cross-examined about the offences. A reading of her evidence conveys the impression that she was a good witness. She did not prevaricate about her actions following the applicant's affair. The impression from her evidence is that she was a forthright, intelligent, careful witness.

37. [292]

    The applicant's submissions concerning the credibility of the complainant's evidence have not persuaded us that there is any reason to doubt her account of the offences. Leave to argue this ground should be refused.

38. [293]

    Under this heading the applicant’s raises four points some of which repeat points that have already been made.

39. [294]

    At trial it was accepted that there was a record indicating that the complainant checked out of the Hotel at 5.34am on 9 April 2007. A police officer gave evidence of attending at the McDonalds’ restaurant at Goulburn in response to a 000 call at 8.10am on 9 April 2007. By reference to a timeline of the CCTV footage it appears that the complainant entered the restaurant 16 minutes before they arrived, that is around 7.54am. The time between those end points is 140 minutes, although both the Crown and the applicant made submissions on the assumption that the complainant entered the restaurant at 7.57am and the time difference was 143 minutes. Nothing turns on the difference.

40. [295]

    In his written submissions the applicant’s principal contention is that the prosecution case “was missing 13 minutes”. He contends that the “prosecution case” comprised the following:

41. [296]

    In her evidence the complainant initially agreed that they stayed at the Anderson VC Rest Area for “about an hour” although she denied they spoke for an hour. Later, she said she they were in the rest area for less than an hour and from there to Goulburn she drove “well above the speed limit to try … hopefully to get booked by police,” something she was challenged on in cross‑examination. In cross‑examination, it was suggested to the applicant that this speed was 130km/hour which is presumably the basis of the calculations noted above.

42. [297]

    However, other than the start and end times, the above timeline was not the prosecution case. The prosecution case was not tied to identifying any specific time intervals for the stages between leaving the hotel and arriving at McDonalds at Goulburn. Critically, the complainant did not specify any time between leaving the hotel and arriving at Anderson VC Rest Area and she was not asked to. Rape victims are not generally expected to time the period in which they are attacked. As noted, the applicant was challenged in his evidence that it took 45 minutes to travel to the Anderson VC Rest Area but that was not adopted as the prosecution’s timeline. It was just attacked as an inconsistency in his timeline.

43. [298]

    In his closing address the Crown Prosecutor was critical of the applicant’s evidence of timing and noted the complainant’s evidence that she drove from Lake George to McDonald’s at 130km/hour. However, beyond that all that was said about the timeline of events as recounted by the complainant was that:

44. [299]

    We reject the contention that there was any “missing” period in the complainant’s account or that some aspect of the “prosecution timeline” suggests the verdict was “unreasonable, or cannot be supported, having regard to the evidence.”

45. [300]

    In addition, under this heading the applicant complains that the Crown Prosecutor misled the jury in two respects. The first concerns the cross‑examination noted above that suggested that the CCTV footage from the McDonalds at Goulburn meant there was too little time for him to change his trousers in the carpark of the restaurant. As noted, it was suggested that the 45 second gap between the complainant’s entrance to the restaurant and the applicant’s entrance was too short for him to change his trousers. The applicant claims the “missing 13 minutes” he has allegedly identified is referable to the period they were parked in the car park. Although we reject the contention that there is any “missing” time period, this criticism is beside the point. The applicant’s evidence in chief was that the complainant told him she was going into the restaurant to get some food, have a cigarette and that she wanted to go to the toilet. He said she asked him if he would like food and he agreed. He said he then changed his trousers and went into the restaurant. In cross‑examination he agreed that he waited a long time for her. His evidence suggests that he changed his trousers after the complainant left the vehicle. That aspect of his evidence is difficult to reconcile with the 45 second delay between the two of them entering the restaurant.

46. [301]

    The second complaint concerns the Crown’s contention that the complainant entered the restaurant “almost immediately on arrival” (followed by the applicant). To the extent that this complaint rests on an assertion that the alleged “missing 13 minutes” supports a contention that they both waited in the car park then it has already been addressed. Otherwise, it was the complainant’s evidence that when they arrived at McDonalds the applicant directed her to clean herself as she had blood under her nose, told her he wanted food and that she put a jacket and sunglasses on before entering the restaurant. The Crown Prosecutor adduced that evidence and relied on it. He did not mislead the jury in doing so.

47. [302]

    The DNA evidence has already been described. The applicant’s submission in relation to this topic and this ground involves two steps. First, he contends that Dr Bruce’s evidence at the trial included the following concession:

48. [303]

    We will address this contention on the assumption that this accurately describes concessions made by Dr Bruce, although we note he accepted some of these matters were reasonable possibilities that could not be excluded rather than accepting they were “perfectly explainable”. Point (ii) assumes that on the complainant’s version of events her bleeding nose must have dripped blood directly onto the applicant’s trousers. We have already rejected that contention.

49. [304]

    Based on these concessions by Dr Bruce about possibilities the applicant submitted:

50. [305]

    The first part of this submission assumes that somehow the DNA evidence of itself had to demonstrate the applicant’s guilt beyond reasonable doubt. The fallacy in this assumption has already been explained ([68]-[70]). The relevant question for the jury and, in a related way, for this Court is whether on the whole of the evidence before the jury the applicant’s guilt was proved beyond reasonable doubt. The most powerful evidence of that was the complainant’s evidence. The DNA evidence that was adduced provided some support for her version and certainly did not contradict it. The fact that the DNA evidence left open reasonable possibilities consistent with innocence on count 3 does not create reasonable doubt on count 3. The prosecution case was not dependent on the DNA evidence. It was dependent on the evidence of the complainant, which the jury accepted beyond reasonable doubt. The balance of the above submission concerns potential prejudice arising from the admission of the DNA evidence. That also has already been addressed.

51. [306]

    In his written submissions the applicant sought to rely on the evidence he has obtained concerning movie run times as also supporting his evidence that he was sleepy when he entered the car on the morning of 9 April 2007. He submitted this enhanced the likelihood he fell asleep as he claimed.

52. [307]

    During the trial the applicant was cross‑examined as follows:

53. [308]

    The reference to question 136 in this passage is to the following part of his ERISP:

54. [309]

    The evidence about the movie run times is outlined above. As we have said, it is not fresh evidence. Further it does not raise any possibility that the jury acting reasonably would have acquitted the appellant much less warrant a conclusion that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt. The timing of the length of the movies is only of significance if one starts by accepting his assertion that he watched three movies from beginning to end and that it was those particular three movies that he watched. In any event, what was destructive of the applicant’s credit was the above passage in his ERISP which is clearly inconsistent with any suggestion that he fell asleep in the car soon after he and the complainant left the Hotel.

55. [310]

    Under this heading the applicant repeats his contention about the (alleged) significance of the complainant’s conversation with the night manager at the Hotel on checking out. This has been addressed above and rejected.

56. [311]

    The applicant also complains about a suggestion put to him by the Crown Prosecutor in cross-examination at the trial that there was nothing confusing about the signage at the intersection where the complainant left the Hotel to join the Federal Highway. In his evidence in chief the applicant said that the complainant asked for directions saying it was a “complicated intersection”. The Crown contested that and suggested he made that up to account for the 45-minute delay between leaving the hotel and arriving at the Anderson VC Rest Area (on his version). In his written submissions he refers to Google maps and street view material said to support his point. It is far from obvious that they do but, in any event, they are not fresh evidence. The material sought to be relied on does not, considered by itself or with the other material, raise any possibility that the jury acting reasonably would have acquitted the appellant much less warrant a conclusion that, when taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt.

57. [312]

    None of the matters raised under this ground undermine the Crown case in any respect.

58. [313]

    In RD (a pseudonym) v R [2021] NSWCCA 94 at [7], Macfarlan JA referred to the different formulations of a contention that a version was unsafe as follows:

59. [314]

    In considering this ground, in a case where the principal evidence against an accused is a complainant, this Court’s determination of this ground of appeal “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable” and this court “examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1 at [38] to [39].

60. [315]

    We have reviewed the record of the trial. The Crown case was extremely strong. The complainant presented at the McDonald’s restaurant in distress and made a complaint of physical abuse to a passer-by. Shortly afterwards, she made a complaint of sexual abuse. Her narrative was consistent with and to a substantial extent supported by her physical injuries and the timing of her departure from the hotel and arrival at Goulburn, as well as the DNA evidence. The applicant’s version had a number of inconsistencies principally as to the timing of the journey. His concession that he punched the complainant was a weak starting point for his defence. It was well open to the jury to assess the complainant as highly credible. Nothing raised on this application warrants the conclusion that the jury acting rationally ought nonetheless to have entertained a reasonable doubt as to the proof of the applicant’s guilt. On our independent review of the evidence, we do not entertain any doubt as to the applicant’s guilt.

61. [316]

    Ground 3 of the application does not involve a question of law and thus leave to raise the ground is required (Criminal Appeal Act 1912, s 5(1)(a) and (b)). Given that the arguments in support of the ground include unwarranted complaints of police misconduct and further attempts to adduce fresh evidence we refuse leave to raise ground 3.

Orders

1. [317]

   Accordingly, we make the following orders:

   1. (1)

      Extend until 1 September 2020 the time within which the applicant may seek leave to appeal against his conviction.

   2. (2)

      Grant leave to raise ground 2(c) in the notice of appeal and otherwise refuse leave to raise grounds 2 and 3.

   3. (3)

      Reject the affidavit of Craig Franklin sworn 3 September 2020, including its annexures, other than the report of Professor Young dated 3 September 2020.

   4. (4)

      Apart from the first two lines on page 4, admit the report of Professor Young dated 3 September 2020 and her oral evidence given on 10 May 2021.

   5. (5)

      Dismiss the appeal.