Saleh v R

1. [1]

   THE COURT: Ahmed Mahdi Saleh seeks leave to appeal against conviction and sentence in respect of 15 offences for which he was found guilty by a jury in the District Court at Parramatta on 5 July 2023. The presiding judge was his Honour Judge Everson SC.

2. [2]

   On 22 September 2023 the applicant was found guilty by his Honour of five related offences that were before the District Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The applicant seeks to appeal against those convictions and sentences as well.

3. [3]

   On 20 October 2023 the applicant was sentenced for the 20 offences to an aggregate term of imprisonment for 26 years with a non-parole period of 18 years.

4. [4]

   Details of the offences are provided in the review of the evidence below. In summary, however, on the indictment the applicant was convicted of the following offences which were contrary to provisions of the Crimes Act 1900 (NSW):

5. [5]

   On the s 166 certificate there were the following offences, four of which were contrary to provisions of the Crimes Act while the last was contrary to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

6. [6]

   There was a further offence of sexual intercourse without consent (s 61I) in Count 1 of the indictment for which the jury returned a majority verdict of not guilty.

7. [7]

   The offences were committed against a woman who cannot be identified because of the prohibition on publishing any matter which identifies, or which is likely to lead to the identification of, the complainant in prescribed sexual offence proceedings (which these proceedings are): s 578A(1) of the Crimes Act. She is referred to hereafter as “the complainant”.

8. [8]

   The applicant raised three grounds of appeal against conviction:

   1. (1)

      The verdicts of guilty were unreasonable.

   2. (2)

      That the trial judge erred in excluding MB33.

   3. (3)

      That in light of the fresh or new evidence that was not available to the applicant’s lawyers at the time of the trial there was a miscarriage of justice that necessitates a re-trial.

The appeal against related offences

1. [9]

   The applicant’s Notice of Appeal includes the five offences on the s 166 Certificate, suggesting an intention to appeal against conviction and sentence in respect of them as well.

2. [10]

   As the Crown helpfully pointed out in its written submissions, such an appeal lies as of right and does not require leave: s 5AD(1) of the Criminal Appeal Act 1912 (NSW). Section 5AA “applies to and in respect of” a person convicted of a related offence. However, an appeal under s 5AA (and therefore s 5AD) is “an appeal in the strict sense” and “can only succeed by establishing that the trial judge committed an error of law or applied the wrong principle in [their] fact-finding exercise”: Kelly v R [2024] NSWCCA 101 at [8] (Bell CJ). The Chief Justice cited Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 as the principal authority for that proposition which was subsequently challenged but affirmed in JBS Australia Pty Ltd v SafeWork NSW [2024] NSWCCA 209.

3. [11]

   The applicant made no submissions as to any error of law or application of wrong principle in arriving at findings of guilt in respect of the s 166 certificate charges. In those circumstances the conviction appeal can be regarded as confined to the verdicts of the jury.

The Crown case

1. [12]

   The offences were alleged to have been committed at various times from 1 August 2016 to 15 December 2020.

2. [13]

   In June 2016, the complainant (aged 27) lived with her then husband and their four-year-old son in an apartment in Liverpool. The couple were partially separated. He was usually absent but when present he slept in a separate bedroom. They divorced in 2018.

3. [14]

   The complainant often took her son to have his hair cut at the applicant’s barber shop called “Scissor Hands” in the Westfield shopping centre at Liverpool. One day the applicant took a photograph of the complainant’s son, saying he wanted to post it on the shop’s Instagram feed. Thereafter, there were interactions towards the complainant that she perceived to be friendly. The applicant kept asking her to come over to his home and she made excuses saying “No, I’ve got plans” but agreed one day as she did not have any other plans.

4. [15]

   The applicant lived in a townhouse in Merrylands. When the complainant arrived, he gave her something to drink and they sat on a couch. She said he started touching her and she asked him to stop. She told him (falsely) that she had her period but he “just put all his weight on top of me, and he did what he did”; he pulled her pants down and “he raped me”. She clarified that she meant his penis went into her vagina. She told him to stop throughout the whole process and was trying to push him off, but he was too heavy. He ejaculated inside of her and was not wearing a condom. She put her clothes on and left the house immediately.

5. [16]

   The complainant did not tell anyone what had happened. She gave the following explanation:

6. [17]

   As to why she went back to see someone who she said had sexually assaulted her without her consent she explained, “He told me if I didn’t go, he will tell everyone everything and I was scared of that, and I still am scared of that”. She agreed that this was in circumstances where it was, “your word against his” and, “you didn’t go to the police, you didn’t go to the hospital to get a swab, there’s no video evidence, there’s no photographs, there’s nothing”. She said this was because, “I was scared”. She went back to see him after what happened in August 2016 because, “He told me I had to … because my life was in his hands”.

7. [18]

   The complainant said she and the applicant communicated by Instagram, Snapchat, WhatsApp, normal text messages and phone calls. He told her to download Snapchat and controlled her use of the application in terms of what could or could not be saved. He knew the messages would only last 24 hours in the chat history.

8. [19]

   After the event with which Count 1 was concerned, the complainant visited the applicant at his home multiple times, “because I had no option”. The same assaults occurred, sometimes downstairs and sometimes up in his bedroom. She could not say no, “because he’d just turn around and show me that he’s got my ex-husband’s details and he threatened that he’d call him and tell him everything straightaway”.

9. [20]

   The complainant and a female friend planned a three-night cruise in late 2016. Because the applicant had a practice of going through her phone, he became aware of their plans and “insisted that he had to go as well”. The applicant was accompanied by a male friend, Mahir. The complainant shared a cabin with her son. On the first day she refused the applicant’s demand that he stay in her cabin. He was verbally abusive and threatened to throw her off the ship. The second day he forced his way into her room, accusing her of having another man in there. She said, “he stank of alcohol”.

10. [21]

    Her son was asleep on the sofa bed. The applicant fell asleep on the bed for a few minutes. He then woke up and insisted that she put on lingerie he had bought for her. He made her have sex with him while her son was in the room.

11. [22]

    According to the records of the Carnival Cruise Line, this three-night voyage, called a “Cruise to Nowhere” departed on 27 October 2016. Three cabins were booked in the names of the complainant and her son, the complainant’s friend and another, and the applicant and Mahir.

12. [23]

    In cross-examination, the complaint denied a proposition that she had an enjoyable time on the cruise with the applicant. She agreed that at times she smiled and was happy. She was shown a video [1] depicting her emerging from the cabin bathroom in lingerie the applicant had provided and required her to put on, and her spraying perfume on her upper chest. The applicant was on the bed recording the video.

13. [24]

    In re-examination she said the applicant made her walk out into the cabin several times. He told her that if she did not walk out and smile and spray the perfume, he would throw her off the cruise ship. She said, “It was staged like most of the other photos and videos that he has and every single time I tried to cover my face, or I tried to do something that he wasn’t happy with, he’d tell me, ‘Why are you covering your face for? I’ve already got so many photos and videos of you.’”

14. [25]

    The complainant said the applicant took photographs and recorded videos of her doing sexual acts. He constantly threatened to send these to her family and ex-husband if she did not do as she was told. He also took “normal photos”, whereby he would make it look like they were a couple. These were taken when they were out in public such as in restaurants, cafes and at a concert.

15. [26]

    Most of the time when she went out with the applicant she would be in her headscarf, but there were times when he would force her to take it off. Going out in public without it was not something her family or ex-husband would approve. She perceived this, and taking photographs of her in public without a headscarf, as something done by the applicant to show that she was not the right person to be looking after her son.

16. [27]

    There was a place called Odyssey (a restaurant) to which the applicant took her a few times, and he would force her to wear short dresses and revealing clothing without a headscarf.

17. [28]

    The complainant visited the applicant’s barber shop at Westfield, Liverpool on occasions when he had told her to give him money, or when her son needed a haircut. She met his friend Mahir there. She also met another of his friends, Saif, who was a worker at a new store the applicant opened in Wetherill Park.

18. [29]

    The applicant had her Apple ID and used it to track the location of her and her husband. Their phones were linked to the same account and so they had the same Apple ID which enabled the applicant to do this. One use he made of it was to ensure her husband was not home when he sought to visit. She could not change the password because her husband would ask her why she had done so. Moreover, the applicant had told her that she was not allowed to change her password. Later, when she acquired an Android phone, all her passwords had to be in the applicant’s name.

19. [30]

    Count 2 concerned an occasion which the complainant associated with her returning from a trip to Melbourne. The applicant came to her apartment, but she told him (presumably by a voice call or text message) that her ex-husband was home so he would not be able to come over. However, the applicant went to her garage, told her that her ex-husband’s car was not there, and accused her of having another man in the house. The applicant came to her apartment and, “he again raped me”. He grabbed her by the head; “he always used to pull me, pull me really aggressively by my hair”.

20. [31]

    He made her perform oral sex on him and penetrated her vagina with his penis. This was in the living room, on the leather couch. She said, “I had no choice, he’d force me. He said that if I didn’t he was going to send everything to my family and my ex-husband.” At this point he was videotaping her and she tried to cover herself. This was an occasion when he asked her, “Why are you covering yourself, I’ve already got so many photos and videos of you?”.

21. [32]

    When later describing this incident, the complainant only mentioned the oral sex. She said, “he did come up and he went straight to the couch and he pulled his pants down and pulled my head onto his penis and forced me to perform oral sex on him”. Count 2 was put to the jury by the Crown as being based upon an act of fellatio.

22. [33]

    From 4 October 2017 the applicant moved to live one street away from the complainant in Liverpool. [2] She said he told her this was, “To keep a closer eye on me”.

23. [34]

    Part of the conduct which was relied upon by the Crown for the offence identified as “Sequence 26” on the s 166 certificate of demanding money with menaces was described by the complainant as her being forced to give the applicant $60,000 to help him provide a bank guarantee related to the opening of a Scissor Hands shop at Wetherill Park. She protested that she did not have that money, however:

24. [35]

    The Crown tendered a receipt dated 19 June 2018 for the deposit of $60,000 into the applicant’s bank account. [3]

25. [36]

    Another part of the conduct relied upon for Sequence 26 was the applicant’s demand that the complainant provide him with $15,000 to pay the arrears of rent on his shop:

26. [37]

    There was a receipt dated 1 August 2018 for the deposit of $15,000 into the applicant’s account. [4]

27. [38]

    There was a further deposit receipt for $25,000 dated 4 June 2019. [5] The complainant explained that the applicant had required her to give him this amount to pay arrears of rent: “That was when Ahmed’s shop was closing because he hadn’t paid the rent, and he forced me again to give him that money”. She raised the money from her mother, saying that she would invest it for her. She was still paying her mother back at the time of giving evidence. The threats made to her were of the same tenor as previously described: her life was in his hands; it would be the last day for her to live; he would distribute the photos and videos; he would tell her that her son would be taken away from her.

28. [39]

    The offence identified as “Sequence 10” on the s 166 certificate of assault occasioning actual bodily harm was based upon a burn to the complainant’s right abdomen, depicted in photos that were before the jury. [6] It was caused in the following circumstances:

29. [40]

    The complainant gave evidence that it was not something that happened accidentally. She was trying to get away from the applicant by running around the ironing table, but he said he would put the iron on her face and burn it so that no other man would look at her again. She had to treat the burn herself because she could not go to a doctor or anywhere to get treatment. (She was not asked to explain that.)

30. [41]

    This event occurred when the applicant entered her apartment using a swipe card previously used by her ex-husband, who by this stage had moved out. He had also made copies of her key. (Presumably the swipe card was for the building, and the key was to the apartment itself). She explained how that occurred:

31. [42]

    The complainant’s ex-husband moved out of the apartment in September 2017. For a time thereafter, her mother or father came from Melbourne to stay with her. On one occasion when her mother was staying with her the applicant approached them in the shopping centre:

32. [43]

    Subsequently, the applicant would call the complainant and tell her to come to his home (which now was only a block away in Liverpool). If she said, “no”, he would then call her mother. He would then contact her again and say, “but that’s just a small phone call. If you don’t come within the next five minutes, I’m going to send everything to your mum.”

33. [44]

    Visits by the complainant’s parents continued until COVID-19 arrived, from which point she was alone with her son.

34. [45]

    The complainant said when she was off work in respect of her regular employment, the applicant made her work at his shop at Wetherill Park every Thursday, Friday, Saturday, and some Sundays as well. She was not paid to work for him and in addition, she was required to pay for all the products that were used in the store. She said, “I had to do that because if I didn’t, he’d constantly blackmail me with whatever he had”.

35. [46]

    There were photographs before the jury which showed the complainant with extensive bruising to her face. [7] She said she had tried to cover her face with her headscarf but an employee at the store, Ellen, noticed them and asked what had happened. The complainant told her and Ellen took photographs. The bruising had been caused by the applicant punching her several times.

36. [47]

    The photographs were subsequently provided to police by Ellen who told them they were taken on 9 December 2018.

37. [48]

    The complainant said that on 16 May 2019 the applicant had accused her of having an affair with his friend, Saif. She said she’d never met with Saif outside the store where she used to see him. The applicant “made” her go to his house, which she did. When she arrived, he immediately started hitting her and ripped her clothes off. He “hit my head a few times to the ground. He punched me multiple times.”

38. [49]

    She said the applicant grabbed her hair and smashed her forehead into the tiled floor multiple times as well as punching her. He also hit her with an extension cord more than ten times. She said, “It got to a point where I thought that’s it, like I’m definitely going to die this time”. When she refused to take her clothes off, he ripped them off. She said:

39. [50]

    He ejaculated inside her then told her to leave the house without her clothes on. As she tried to pick up her clothes, he changed his mind and allowed her to put them on. He then took her home to change her clothes and then took her to Liverpool police station to make a complaint that Saif was sexually harassing and assaulting her. The applicant remained by her side as she spoke to an officer. The officer did not see her injuries because “Ahmed made me bring my scarf up until my eyebrows”. The officer took down some information and Saif’s details. Knowing that “English wasn’t his [the applicant’s] strongest point” she used the words “sexually harassed” but did not make a formal complaint. The officer said he would speak to Saif. When they left, the applicant told her that he knew she did not say the words he wanted her to say. He then let her go home.

40. [51]

    Constable Mark Follington recorded in his notebook that at about 3:45 pm on 16 May 2019 the complainant attended Liverpool police station. [8] He recorded the names of the complainant and Saif, their dates of birth and phone numbers. He also recorded: “Meet July 2018. Feb 2019 breakup”. Also recorded was, “Spoke to Saif. Nil issues. 4:45pm.”

41. [52]

    The notebook also included that Saif attended Liverpool police station on 20 May 2019 and made a complaint that since 2 February 2019, he had received numerous phone calls from the applicant telling him to stop calling the complainant as the applicant was now in a “relationship” with her. Saif told police that, while he knew her, he did not speak to her, and he was married to someone else. [9]

42. [53]

    At 12:17 am on 17 May 2019 the complainant made a call to triple zero in which she said, “I’ve fallen down the stairs in the building earlier today”. She said she had been vomiting since, felt light-headed, had blurry vision and could not drive herself to hospital. [10] The complainant thought she had suffered a concussion. She did not tell the operator the true cause of her injuries because:

43. [54]

    An ambulance took the complainant to Liverpool hospital. She thought she was in a safe spot where he was not going to be able to find her. But then, “he came to my hospital bed and he said to me, ‘I just came to see you, to watch you die’”. The prosecutor asked whether she had told the applicant that she was calling an ambulance or was at the hospital and she said, “No. He can track my location.”

44. [55]

    The applicant recorded a short video of the complainant lying in a hospital bed covered by a blanket and with her hand concealing her face. The video was subsequently found on his phone together with a photo of the complainant’s face with substantial bruising. [11] The complainant said there was also swelling to her forehead. She sustained a deviated septum; “the right side of my nose was kind of broken” which continued to cause her difficulty in breathing.

45. [56]

    According to medical records, ambulance officers noted a large hematoma (bruising and swelling) on the complainant’s forehead and bruising on her right upper arm. A computerised tomography scan was carried out on her brain, and she was diagnosed with a likely concussion. She was discharged later that day. [12]

46. [57]

    On or around 4 December 2019 the applicant pushed the complainant while she was holding a jug of boiling milk, forcing it to pour onto and burn her other hand. This required treatment at the Emergency Department on Tuesday 10 December 2019 because she was unable to put gloves on which was a necessity in her work. Hospital records included that the complainant attended with a partial thickness burn on her left thumb. She told staff she received the burn the previous Thursday (5 December) when she was “accidentally” splashed with hot milk. [13]

47. [58]

    On or about the same occasion she was punched multiple times to the face and body causing bruising and swelling. A photograph taken on 4 December 2019 depicts her holding an ice pack wrapped in a towel against her face and bruising around her right eye. [14]

48. [59]

    Photographs taken on 12 January 2020 depict the complainant with injuries to her face. [15] She took these herself and stored them in an archive folder on her phone in the hope the applicant would not find and delete them. She said the first thing he would do when seeing her was to take her phone and go through it. Any threats that he had sent her and any evidence, such as photos, would be deleted.

49. [60]

    The complainant was diverted from the topic and gave evidence that when she had an iPhone the applicant could access everything remotely because he had her Apple ID. When she acquired an Android phone he made her download an app called Life 360 so that he could continue to track her movements. She gave an example, that when she moved from one building to another at her work location, he would accuse her of going to meet someone. If she was at her workplace, he would call the landline to make sure she was where she usually carried out her work and would be the one who answered the phone. However:

50. [61]

    Upon returning to the topic of Counts 4 and 5, the complainant said the applicant came to her home in the middle of the night, woke her up, threatened her, and punched her multiple times (describing “very hard punches”), mainly to the face. He then pulled her pyjamas down and inserted his penis, first into her vagina and then her anus where he ejaculated. The complainant cried and told him to stop multiple times, but he continued.

51. [62]

    On 13 February 2020, the complainant received a series of abusive and threatening Snapchat messages from the applicant. She said the applicant usually deleted them from her phone, but she managed to keep these. [16] They included, for example messages stating: “I hope you drop dead … So I don’t have to deal with your shit … And cheating any more … You low life”.

52. [63]

    The complainant said the applicant forced her to go to his house one day when she did not have her son with her. He beat her, raped her and then forced her to get into the bath. He had an extension cord which he plugged in and said that if she did not tell him who she was having an affair with, he was going to throw the cord into the bath, and she would be killed by electrocution.

53. [64]

    The applicant then took her from the bath to his room where he made baseless accusations that she was sleeping with Saif and another man, Damien, and then raped her, penetrating her vaginally and anally, ejaculating inside her anus. She was crying before and during this, telling him to stop and that she wanted to go home. He responded by asking why she wanted to go home and whether she had someone waiting there for her.

54. [65]

    The Crown relied upon the anal penetration as constituting Count 8.

55. [66]

    Videos recovered by police from the applicant’s phone were played to her (and still images were tendered as well). [17] In one video she was in the bath surrounded by candles with soft music and a heart emoji superimposed. In a second recording made on this occasion she was in the bath with the applicant standing adjacent but behind her, fondling her hair and then holding his hand up to the camera with his middle finger extended. She described the first video as part of his practice of recording happy moments to send off to other girls he was in a relationship with (as he claimed). The first video was after she had been beaten up and the second was when he threatened to put the cord into the bath. She said, “I was so scared”.

56. [67]

    The applicant sent a series of Snapchat messages to the complainant on 11 and 12 May 2020 when she was in Melbourne with her family. One of them was in these terms: [18]

57. [68]

    The applicant threw a paper shredder at the complainant on an occasion when he came to her home. She later took a photograph of the mess this created in the third bedroom of the apartment. [19] He also assaulted her on this occasion by hitting her multiple times with the extension cord he usually brought with him, along with a black serrated knife that he used to slash her shoulder.

58. [69]

    The complainant said that she tried to shield her face during the assault because she had run out of excuses to give people at work for having black eyes. She said, “If I told anyone at work and if they told the police, then Ahmed would have come after me”.

59. [70]

    On this occasion, while she was on the floor she was struck on the head with the paper shredder which caused a cut that was quite deep and bleeding. He then hit her on the shoulder with the knife, also causing bleeding. He dropped the knife and she tried to push it away from him and under a bed. He then started jumping on her back. He was accusing her of being with one or the other of Saif and Damien.

60. [71]

    In December 2020, a police officer took a photo of the scar. [20]

61. [72]

    The complainant said she had a particular memory of this night. She picked her son up after the applicant had left. They both slept in the bathroom that night because she was scared the applicant would come in again and it was the only room that had a lock on the door.

62. [73]

    Janice, who was a friend of the complainant and also her work supervisor, was going away with her family on a camping trip to the South Coast. The complainant accompanied her so as to get away from the applicant. However, because they were in an area with poor network coverage, the applicant was unable to see her exact location. He started accusing her of going away with a man. He would constantly video call her and send her messages. There was no power to charge her phone, but he said that if her phone died, then:

63. [74]

    On 10 July 2020 the applicant sent the following text message to Damien: [21]

64. [75]

    The applicant then sent to Damien screenshots of messages sent between the phones of the complainant and Damien. Those messages, purportedly from the complainant, comprised persistent requests for Damien to come to her home. [22]

65. [76]

    A further assault by the applicant was carried out with multiple punches and whipping with the extension cord. The complainant sustained considerable injuries to various parts of her body which she photographed on 6 August 2020. [23] This was another occasion when the applicant accused her of having an affair with Damien. She sustained swelling and broken blood vessels in her eyes as well as widespread bruising and marks from the cord. A photo of the extension cord that police recovered from the applicant’s phone was tendered. [24]

66. [77]

    The complainant sent some of the photos of her injuries to the applicant’s brother, Salah Saleh. This prompted a series of WhatsApp messages between the applicant and his brother on 6 August 2020. [25] The messages included the following:

67. [78]

    The complainant was shown a video recording recovered from the applicant’s phone. [26] It depicts her sitting cross-legged on the floor in her apartment with her hand over her face, whimpering as the applicant spoke to her in Arabic. It ended with her reaching out towards the camera as if to push it away. She explained that this involved the applicant wanting her to make a confession (falsely) to sleeping with Damien. She said Damien had never touched her, but the applicant wanted her to confess to bringing him over to her house and sleeping with him in the presence of her child. A translation of the audio confirmed that the applicant was questioning, and she was responding, in the way she described. [27] It commenced, “What’s the name of the guy who’s fucking you?” The still image from the video and the translation have captions, “No later than 23 August 2020 (10:10pm)”.

68. [79]

    After the video, and while she was still crying, the applicant raped her by inserting his penis in her vagina and then her anus, ending with ejaculation. She said, “No” throughout, as she always did. He would respond by accusing her of sleeping with someone else, asking, “Why, did someone else sleep with you and you don’t want me to find out?” and, “Are you keeping yourself for someone else?”.

69. [80]

    Before the video was recorded, the applicant hit her, which, she said, was how “it always started with him”. She recalled that on this night, “He actually ripped out pieces of my hair”. The hitting was by way of punching and “the usual extension cord and the knife that he always come with”. This time it was not the black serrated knife but a larger straight knife. He did not use the knife, only the extension cord, multiple times. There was further punching after the video and before the rapes. In addition to hair being ripped out, she had a cut on her head which she could not take a photo of. She could not remember if this was the time she lost a tooth.

70. [81]

    The applicant had CCTV cameras installed in the complainant’s apartment soon after this. They were installed while she was at work, but he made her pay for them ($2000 in cash she thought). He also put a mirror in the hallway to capture that area. The applicant was able to remotely access the CCTV with his phone. He warned her that if she ever disconnected it, or the power or internet went off at any time, he would come and kill her, and no-one would find out.

71. [82]

    At a later time the police obtained access to the hard drive for the CCTV. The officer-in-charge, Detective Senior Constable Micallef-Scheffer, gave evidence that the CCTV was installed on 26 August 2020. The first video file recovered by police commenced at about 4.40 pm on that date showing the applicant and a man (who was likely the installer).

72. [83]

    After his arrest on 15 December 2020, it was found that the applicant had many thousands of screenshots and videos on his two mobile phones which came from the CCTV cameras in the complainant’s home.

73. [84]

    Vision from the CCTV on 31 August 2020 from 23:24:34 was shown. [28] The short clip depicted the complainant and applicant in the living area. The complainant sat on the floor taking small pieces of food from a pan and forming them into shapes which she placed on a board. The applicant got up from the lounge and knelt beside her, putting his head near hers. She did not reciprocate his attention until 1 minute and 47 seconds into the clip. When she turned her head to look down at what she was doing, he grabbed the hair on the back of her head and abruptly pulled so that she was forced to look up towards him. Soon after, he grabbed at the clothing covering her shoulder and her bra strap. After some gesticulation by each towards the other he returned to the lounge.

74. [85]

    Three clips recorded on 13 September 2020 were before the jury. [29] In the first, (from 21:55:28) the applicant twice walked through the living area and out onto the balcony. The complainant said that he thought she had people there with whom she was having group sex, even though she was clearly on the couch watching TV with her son. In between the trips to the balcony the applicant went to the bedroom area. Only the entrance to that area is visible to the CCTV cameras but there was clearly an assault involving striking to the complainant’s head. There was further struggling which was only partially within view of the camera.

75. [86]

    In the third clip, (from 23:41:34) the complainant was holding something to her face as she looked in a mirror. She explained that it was a bag of frozen vegetables; the applicant had punched her multiple times to the face, and her eyes and forehead were starting to swell up. He had accused her of having had Damien in the apartment and having disconnected the CCTV cameras as he left. She said she had no access to the camera. He gave her one choice which was to:

76. [87]

    Three video clips recorded on 14 September 2020 were in evidence. [30] The third, from 23:27:39, showed the complainant with two black eyes (sustained in the assault the previous night) obtaining a packet of frozen yoghurt which she wrapped in cloth and put up to her eyes. While she did that, the applicant was standing at the kitchen bench with two phones, one of which was hers. She said he was sending messages to Damien, trying to get him to come over. She said he constantly accessed her phone and sent messages from it, including to himself. The latter purported to be messages from her professing her love for him.

77. [88]

    Photographs taken by the complainant on 14 September 2020 showed where hair had been torn from her scalp in the assault the previous night. A further photo taken the next day showed the bruising to her eyes and the bridge of her nose. [31]

78. [89]

    On 15 September 2020 at 10:45 pm, the complainant’s son called triple zero because his mother had fainted. Ambulance officers attended and found her lying on the kitchen floor. She was taken to Fairfield Hospital. [32] The complainant remembered that was the night the applicant gave her an ultimatum: she had to bring Damien over or her life would be over. She said she was “very anxious, very scared”; she felt very lightheaded and her heart was racing extremely fast. She felt like she was going to collapse so she lowered herself to the ground. She could not remember anything after that until the paramedics arrived.

79. [90]

    The next CCTV clip shown to the jury was from 18 September 2020 at 00:59:21. [33] It commenced with the applicant forcing his way into the apartment despite the complainant having placed two large cardboard boxes against the entry door. He grabbed the complainant by the face, pulled her by the shirt, pushed her against the hallway wall and held her by her clothing, preventing her from leaving. After talking to her whilst holding her against the wall he pushed her in the chest, pulled her close, grabbed her face and forcibly kissed her. The complainant could not recall what the applicant had been saying during this interaction.

80. [91]

    The complainant’s brother came to stay with her from about the middle of September 2020 for reasons associated with the COVID-19 pandemic. The first thing he noticed was the CCTV cameras, but when he asked why they were there she told him not to worry, they were faulty and not working. She said she could not tell him the truth about them because:

81. [92]

    The applicant stopped coming to the house while the brother was staying, but he would still come when both the complainant and her brother were not there. She knew this because she arranged things, like having the curtains open or closed in a certain way, so she could tell if someone had been there.

82. [93]

    Photographs showing multiple bruises or abrasions to the complainant’s upper left arm were taken by her on 31 October 2020. [34] She had been to the applicant’s home while her brother was staying with her, and he had struck her multiple times with the extension cord. She said he struck her all over her arms, back and legs and punched her back as well. She assumed he did not hit her in the face because her brother would see she had been hurt. The incident came to an end when she lied to the applicant, telling him that her brother was waiting outside.

83. [94]

    There was a short video found on the applicant’s phone of a cleaver-style knife being held in someone’s hand with an unmade double bed in the background. [35] The complainant said that the applicant sent the video to her around the time her brother was staying with her. While she had not seen the knife in real life, he had constantly told her that he had bought a butcher’s knife and would cut her skull in half, that he can chop her into pieces, and no-one would be able to find the remains of her body.

84. [95]

    The complainant was shown another short video recovered from the applicant’s phone. A still image taken from it and a transcript of a translation were captioned “no later than 30 November 2020 (5:21pm).” [36] The setting was the hallway area of the applicant’s home. The complainant was dressed in her work attire. She said that he had made her leave work to go to his house. The transcript was as follows:

85. [96]

    It would have been well open to the jury to infer that the complainant’s facial expression, tone of voice and demeanour indicated significant fear and distress.

86. [97]

    The name “Dex” was one she recalled from a dating website the applicant had been using. He was impersonating her and using photos of her. He would send her screenshots of people he had been chatting to, to try and make her sleep with them in front of him, or for her to sleep with them and him. She gave evidence that Dex had not been to her house yesterday; no-one came to her house.

87. [98]

    When asked if she had ever even met Dex, she gave the following lengthy response:

88. [99]

    Photographs taken by the complainant on 30 November 2020 showed injuries to her face and neck. [37] She remembered that he had threatened to come to her workplace and assault her in front of all her work colleagues if she did not come to his house. She agreed to come after work. Her brother drove her there and waited outside. She told him that she had to drop something off. The applicant assaulted her by punching her and hitting her with a tower fan he had taken from her apartment and with the extension cord. He had punched her so hard that he said his hand started hurting him. He then choked her. She tried to cover her face as much as she could so her brother would not see the injuries. When they arrived home, she had a shower to put cold water over her body because she was in so much pain. She became lightheaded and fell. Her brother found her, and when he saw the marks on her face she assumed he thought they were from the fall. (In fact, her brother did think that; see below at [133].)

89. [100]

    Snapchat messages sent by the applicant to the complainant on this day included: [38]

90. [101]

    The complainant said she was aware the applicant went to hospital to get checked out in relation to his hands hurting from having punched her. She knew this because he had a cast put on and took photos of himself waiting in the waiting room and sent them to her.

91. [102]

    The applicant’s Medicare records included that on 10 December 2020 there was imaging on his “hand, wrist, forearm, elbow or humerus” by a radiologist. [39]

92. [103]

    A photo of a boxing glove was sent by the applicant on 7 December 2020. She recognised in the background that the photo had been taken on the fire stairs on her level of her apartment building. The applicant had told her that after he had broken his hand, he was going to punch her with a boxing glove. There were a series of messages which included: [40]

93. [104]

    The messages culminated with a photograph of the extension cord with a message: [41]

94. [105]

    During the night preceding 8 December 2020, the applicant had been sending her messages threatening to kill her, even saying that he was going to get a gun and kill her. She was so scared of the applicant by this time that she was being accompanied by her brother when she went to and from work. On this morning, she saw the applicant’s car (adding that it was a Mercedes she had been forced to purchase for him). The applicant made direct eye contact with her and was messaging continuously. She perceived he was going to do something to her. The messaging continued while she was at work and he was threatening to kill her. She switched off her location. She became lightheaded, was having really bad chest pain and collapsed. She was assessed as having an extremely high heart rate and was taken to the Emergency Department at Liverpool Hospital.

95. [106]

    The applicant found where she was and attended. A short video recovered from his phone showed her in a hospital bed with the covers pulled up concealing her face, and the applicant trying to pull them down. [42]

96. [107]

    The complainant said she took screenshots of messages she had received from the applicant in which he had said he was coming to kill her and sent them to his brother, Salah Saleh. She had messaged Salah, “All the time. All the time I’d contact him to tell him to get his brother to leave me alone.” He replied saying that he would tell the applicant to stop, but she did not think he ever did. The applicant told her that she was not allowed to contact his brother.

97. [108]

    On 11 December 2020, there was a further series of Snapchat messages exchanged between the complainant and the applicant. [43] The applicant sent a still image taken from the CCTV camera footage in the complainant’s living area. She said when she received these messages she was mentally, physically and psychologically exhausted and scared. She had to go outside on the balcony to have conversations on the phone or with her brother because she did not want the applicant to hear, via the CCTV recordings.

98. [109]

    On the night of 11 or 12 December 2020, there were many messages from the applicant, but the complainant had turned her phone to silent and fell asleep on the lounge. Her brother put a blanket over her. The messages culminated in the applicant saying he was going to come to her house. There was the sound from the front door of the applicant trying to break in. The complainant had changed one of the locks and the applicant did not have a key.

99. [110]

    The complainant’s brother walked towards the front door, but she called out to him not to open it. He did not understand what was going on. He took up the handle of the vacuum in case something happened and asked, “Who the hell are you?” The applicant replied, “I’m [the complainant’s] boyfriend”. Her brother responded, “[She] doesn’t have a boyfriend”. The CCTV time, adjusted for daylight saving, indicated these events occurred at 5:22 am.

100. [111]

     The noise prompted a male and a female neighbour (Tooey and Jasmine) to come out. The applicant left. The complainant subsequently told her brother that the applicant had been blackmailing her, harassing her and doing things against her will. She did not tell him every detail. He called triple zero and police attended. She could not allow police inside the apartment as the applicant would see on the CCTV. She feared “he would have sent the stuff to my ex-husband … he sent me a screenshot saying … he’s got the email saved in his drafts ready to send with all the attachments”. The complainant spoke with police in the hallway outside her apartment. She told them she was too scared to report the applicant. She told them about the images and was informed that it would be illegal for him to “leak” any of that. She also told them about the cameras in the house. She was scared to tell the officer any more as the applicant had threatened her: “The day that you report me to police, I will get arrested for it, but I will come out of gaol, and I’ll find you and I’ll kill you …”.

101. [112]

     Her brother disconnected the CCTV cameras and gave the receiver (the storage medium presumably) to the police officers.

102. [113]

     From 12 to 15 December 2020 the applicant constantly sent messages to the complainant telling her that he had contacted her ex-husband. He had mentioned things to the ex-husband but not a lot; he was going to meet up with him to tell him everything and to give him everything in order for him to take her son away from her. Translated Snapchat messages sent by the applicant on 13 December 2020 corroborated her evidence in this respect. [44]

103. [114]

     On 15 December 2020, he told her that if she did not come to his house in the next few minutes, he had her ex-husband’s number on speed dial and was going to call him. She told her brother, “It’s my only chance to make sure he stops, I’m going to go see what he wants and hopefully put a stop to all of this”. She had donated all of her and her son’s clothing to charity and “gotten rid of everything at home”. She was going to tell the applicant that she was leaving Sydney, and he was not going to see her again. She went to his place. Her brother and the neighbours, Tooey and Jasmine, followed.

104. [115]

     Text messages recovered by police and translated confirmed the general tenor of the complainant’s account of the communications from and to the applicant on 15 December 2020. [45] They included:

105. [116]

     Immediately preceding the first 6:40 pm message the applicant sent a screenshot from his phone showing the complainant that at 6:39 pm he had made a 00:48 call to her ex-husband. [46]

106. [117]

     A CCTV camera captured the applicant coming out of a lift and motioning towards the complainant to come into the building at 6:50 pm. [47] He then walked around a corner towards his apartment and out of sight. She entered, called her brother and then put her phone in her pocket, leaving the line to her brother open, and then walked around the corner towards the applicant’s apartment. She said in her evidence that he had said to her “that today’s my last day to live”. She returned momentarily to the foyer, waved towards the CCTV camera in the hope that someone was monitoring it, put her hands together in front of her in a praying motion, and then turned back around the corner towards his apartment.

107. [118]

     When she entered the apartment, the applicant was holding a boxing glove from which he withdrew a large, black-handled knife. He saw the heart monitor she had been wearing for the past week and tried to take it from her, alleging that she was recording him. He then tried to hit her with the knife but at that point her brother came in. (The Crown Prosecutor informed the trial judge that the applicant’s words and conduct in this and the preceding paragraph were relied upon for Count 16.)

108. [119]

     Her brother tried to get the knife out of the applicant’s hand. The applicant was throwing glass things. Tooey entered, and he and her brother tried to restrain the applicant on the ground. However, the applicant was hitting his head purposely on the floor and screaming, “[they’re] beating me”.

109. [120]

     The applicant’s neighbour (MD Karim) also came in. He called triple zero and passed the phone to the complainant. [48] She told the operator about the applicant having a boxing glove and a knife and “he wanted to hit me with it, but then my brother came in time”. Police arrived at the location at that time and the call was terminated. The complainant was asked about what she had said to the operator and she said, “He was holding it and he wanted to stab me with it”. She gave a demonstration as she gave that answer, which the prosecutor described as, “her right hand up in a fist moving position, front and back”.

110. [121]

     This offence encompassed the various threats made by the applicant to distribute intimate images of the complainant without her consent, intending to cause her to fear that the threat would be carried out.

111. [122]

     The applicant had taken photographs and recorded videos of the complainant. Mention has already been made of a video recorded during the cruise (above at [23]) [49] and below (at [174]) there is mention of a video which was recorded on an occasion when the applicant produced an engagement ring. [50] Another short video (10 seconds) depicted the complainant and the applicant kissing while she was laying topless on his naked chest. The applicant was holding the phone which was recording the event in a position facing himself and only showing the back and side of the complainant. Her face cannot be seen.

112. [123]

     The recording was ruled to be admissible in a pre-trial hearing 12 months before the trial where it was referred to as item MB25 (see below at [261]-[263]). At the trial it became Exhibit 3 and was played to the jury in the absence of the complainant. That procedure was adopted at the suggestion of the trial judge in order to minimise the distress it would otherwise cause the complainant. It was acknowledged that she had previously seen the recording in a conference with prosecutors and so she could be asked questions about it without having to see it again.

113. [124]

     Counsel for the applicant did not avail himself of the opportunity to ask her anything about it but she gave evidence in re-examination as follows:

114. [125]

     Other videos produced during the cross-examination included one depicting the complainant at the Odyssey restaurant in Five Dock in 2017 or 2018. [51] She agreed she was dancing, laughing and smiling and not wearing a hijab. Another, recorded at a restaurant in Chester Hill in 2017, showed her dancing on a drum and she agreed (by saying, “I guess so”) that she was smiling and having fun.

115. [126]

     It was put to her that the videos of her in the restaurants she had just seen contradicted her evidence that in the four years and four months of involvement with the applicant her life was a misery. She responded:

116. [127]

     There were 26 photographs shown to the complainant, most of which were of her with the applicant and sometimes with their respective children or with the applicant’s brother, friends or co-workers. [52] In some of them the complainant was smiling and she agreed that in respect of one photo, she was poking out her tongue in a playful gesture.

117. [128]

     Later in her cross-examination it was suggested that the photos and videos “indicate a happy person, smiling regularly and content with being in a relationship”. The trial judge intervened to reject the multi-faceted question, but the complainant nonetheless provided an answer: “Those photos depict a smiley person but not necessarily someone that’s happy”.

118. [129]

     The complainant’s brother gave evidence which supported that of the complainant in various respects. He returned to Australia in September 2020 after living overseas for many years and soon after commenced living with his sister.

119. [130]

     He immediately noticed the two CCTV cameras installed in her apartment and when he asked her about them, she told him they were faulty. Her evidence to the same effect is summarised above (at [91]).

120. [131]

     He said that conversations in the apartment were always on the balcony. The complainant did not feel safe within the apartment for a reason he did not understand. (See above at [108].)

121. [132]

     He made the general observation that “her behaviour was not the same. It wasn’t the sister that I knew”.

122. [133]

     He recalled the time when the complainant fell in the shower. He saw she had a black eye which he thought could have been an injury sustained in the fall. (See above at [99].)

123. [134]

     He confirmed evidence that she had given (see above at [105]) of him accompanying her when she travelled to and from work. This was for the purpose of her safety, but he thought it was because of the presence of homeless people in the Liverpool area and the complainant being “a single mother, a little girl on her own”.

124. [135]

     He also confirmed her evidence of sleeping on the couch without a blanket (see above at [98]). He found this strange and he had a practice of putting a blanket over her.

125. [136]

     When the applicant came to the complainant’s apartment in the early hours of 12 December 2020 but could not gain entry because she had changed one of the locks, her brother was on the floor beside the couch where she was sleeping. The applicant was calling out her name, so he went to the door after arming himself with a vacuum cleaner stick. The applicant told him that he was the complainant’s boyfriend, but he replied that she “does not have a boyfriend”. He opened the door and told the applicant to leave and not return. A male neighbour (Tooey) had also appeared and told the applicant the same thing. Police were called and the complainant spoke to them in the corridor outside her apartment. This was consistent with the complainant’s account of the incident (above at [109]-[111]).

126. [137]

     The CCTV cameras were disconnected. The complainant told her brother that it was the applicant who had them installed. After this incident she told her brother that the applicant had been threatening her. He said she told him the following:

127. [138]

     It was at this time that the complainant told her brother that the person she visited after work on 30 November 2020, supposedly to drop something off (above at [99]), was in fact, the applicant. She did not give him any further details of the occasion. He recalled that when she had returned to the car, “it was very quiet”.

128. [139]

     On the afternoon of 15 December 2020, her brother was aware of her being in communication with the applicant. He said she, “received a couple of phone calls from Ahmed, and he was threatening her, if she doesn’t show up to his place then, basically you know, he’s going to send everything to [name] the ex-husband and to the extended family”.

129. [140]

     He gave an account of the events at the applicant’s apartment that afternoon that coincided with the complainant’s account (above at [117]-[119]). It was to the effect that he and Tooey decided to go to the applicant’s apartment to see if they could speak with him about deleting the images he had and leaving the complainant alone. Jasmine was asked to go there as well to keep an eye on the complainant.

130. [141]

     As they approached, he heard in a call from his sister, her saying, “Leave me alone”, “Help” and the like. He said that “luckily” the door was slightly open when they arrived. He and Tooey entered and saw the applicant holding a kitchen knife. It was being held at waist level and aimed at the complainant who was about 30cm away from him. The applicant turned his attention to the two men and threw an object, a vase or something, which missed them and broke. The men then took the applicant to the ground and restrained him. The applicant proceeded to smash his head into the floor “to make it look like we’re causing damage to him”. The police arrived shortly after.

131. [142]

     The brother denied propositions put to him in cross-examination that he and Tooey caused the applicant to sustain injuries.

132. [143]

     Damien was a police officer who was acquainted with the complainant socially. He was referred to the communications from the applicant on 10 July 2020 (see above at [74]-[75]). He said the complainant had told him, “It wasn’t her husband, it was an obsessed ex-boyfriend, or similar words”. At some point she told him that he had been sending text messages to Damien from her phone. He said some of the messages obviously were not from her. He said their relationship involved “flirty banter” but “the messages that were blatantly overly sexual and basically it was kind of like she was trying to get me to come over to the house, and that wasn’t the kind of relationship that we had”. The poor grammar was also inconsistent and did not sound like her.

133. [144]

     On 14 December 2020, the complainant’s brother spoke to Damien. He wanted to confront the applicant about pictures he was supposed to have of her. Damien advised him to not do anything that would “leave himself open or anything silly”. He suggested he take an independent witness with him and perhaps video record the interaction.

134. [145]

     Tooey agreed there were only two apartments on his floor of the apartment building. He lived in one with his girlfriend, Jasmine, and the complainant lived in the other. It was a secure building in that only people who lived on a particular level could access that level by way of a swipe card.

135. [146]

     He gave evidence consistent with that given by the complainant and her brother about the presence of the applicant on their level, in the early hours of 12 December 2020. He said the following day he went to the applicant’s barber shop in the Westfield shopping centre at Liverpool, for the purpose of retrieving the swipe card used to access his level of the apartment building. The applicant was not present, but staff provided him with the applicant’s phone number. He rang the applicant who said he would return the key, which he never did. Tooey threatened the applicant that he would keep coming to his shop until he returned the key.

136. [147]

     Tooey also gave evidence which was broadly consistent with that of others as to the visit to the applicant’s home on 15 December 2020. Although he was certain about the applicant having a “sharp object”, he was unclear about whether the complainant had been threatened with a knife or a skewer.

137. [148]

     Evidence was given about other matters which are of no present significance aside from him saying that every time he saw the complainant, she had bruises “on her arms and stuff”. He had moved into the building sometime in 2020.

138. [149]

     Jasmine moved into the apartment building where the complainant lived in 2017. She knew the applicant through her work in a shop in Westfield Liverpool. Prior to 12 December 2020 she had never seen the complainant and the applicant together.

139. [150]

     She saw bruises and marks on the complainant during her time living on the same floor. In relation to one such incident, the complainant claimed to have sustained a bruised eye and a lump on her head from having fallen down some stairs. (In cross-examination she agreed she said in her statement that this was the excuse given in mid-2019 when the complainant had a fractured nose and a black eye.) For another, she claimed to have accidentally scraped her face while doing a facial. She had bruises on her arm in around November 2020 which she attributed to a fall in the shower.

140. [151]

     Jasmine recalled an occasion when they went out for dinner at a Korean barbecue place. The complainant was not her usual self and was on her phone a lot. The complainant finally told her that a man was bothering her, asking where she was. He was waiting for her at the front of their building. Jasmine asked who it was, but the complainant would not tell her.

141. [152]

     Jasmine gave evidence about the applicant being on her floor of the apartment building in the early hours of 12 December 2020 and the actions of her boyfriend and the complainant’s brother in telling him to leave. Later that day she spoke to the complainant:

142. [153]

     The word “rape” was used by the complainant. She also told Jasmine that the applicant had used an extension cord to beat her.

143. [154]

     On 15 December 2020, the complainant told Jasmine the applicant was threatening to contact her ex-husband and release explicit photos. Jasmine’s boyfriend was still trying to retrieve the key from the applicant. These matters led to the attendance of herself, Tooey, the complainant and the complainant’s brother, at the applicant’s apartment later that day. Jasmine’s description of what occurred was consistent with the other witnesses, although rather than referring to a knife, she referred to one or more skewers she saw in the apartment in the aftermath as depicted in police photographs. [53]

144. [155]

     Jasmine never saw the complainant in public without wearing her hijab.

145. [156]

     MD Karim was the neighbour living next door to the applicant. He gave evidence of entering the applicant’s apartment after the intervention of the complainant’s brother and Tooey. He saw a knife on an island bench in the kitchen area and for safety reasons he put it away. Subsequent events about which Mr Karim gave evidence have no material bearing upon the issues raised in this Court.

146. [157]

     Photos later taken by police of the scene show some skewers (one on the island bench and one on the floor – see Exhibit B, page 74), but no other sharp objects are visible.

147. [158]

     A woman who was a work colleague and friend of the complainant gave evidence that on a number of occasions from around the end of 2018 or early 2019, she observed bruising to the complainant’s face which the complainant attributed to the applicant hitting her. She told the friend a number of times that “he’s killing me”. There is no doubt the complainant was speaking about the applicant as, “She always talking about Ahmed, no one else”.

148. [159]

     One of the occasions was when the complainant called the friend to come to the Emergency Department at Liverpool Hospital. She had black eyes and a broken nose. She started crying and said, “he gonna come here and kill me again”.

149. [160]

     On another occasion, the complainant sent her a Snapchat message asking her to come to the complainant’s location at work. When she arrived, the complainant hugged her and started crying. She saw bruising and swelling and asked the complainant, “What’s happened?”. The complainant replied, “He hits me again”. On this and other occasions, the friend implored the complainant to do something, but to no avail. The friend once tried to call the police, but the complainant grabbed the phone and pleaded with her not to. She warned the complainant, “He going to kill you”. She said that because the complainant had told her that, “Ahmed he said he going [to] kill her” and “I think he going to kill me one day”.

150. [161]

     She was asked if the complainant said anything about sex and replied:

151. [162]

     In cross-examination, she was reminded that she had included in her statement that, “She had told me he thought she was cheating on him”. She also said the complainant was afraid to call the police, “Because she was afraid from Ahmed”.

152. [163]

     Ellen was a hairdresser who worked at the applicant’s Scissor Hands salon at Wetherill Park from about mid-2018 to the end of 2019. She gave evidence that corroborated the complainant’s account in many respects.

153. [164]

     At some time in 2018, at Wetherill Park, the applicant introduced the complainant as “his partner”. The complainant was at the Wetherill Park store four or five times a week. Ellen assumed that the complainant had the status of also being her “boss”. Using her own money, the complainant purchased and supplied the products for the salon and sometimes paid Ellen’s wage. If Ellen approached the applicant about ordering stock, he would tell her to see the complainant about it and if she asked him about paying the staff, he would tell her to get if off the complainant or from the till.

154. [165]

     Ellen saw the applicant take the complainant’s phone and look through it. He would also ask the complainant who she had called that day, who she had messaged and whether she had been deleting messages. She was also aware of the applicant tracking the complainant’s movements using Find My iPhone. Ellen saw him doing this. When the complainant’s phone was damaged, she acquired a Samsung phone. Because it did not have the iPhone tracker, she heard the applicant telling the complainant, “You need to go get a new phone”.

155. [166]

     Ellen gave evidence that Saif was a friend of the applicant who would often come into the salon but not do very much. He was not a hairdresser or barber. The applicant told Ellen that the complainant was a slut because she slept with Saif in the staffroom, which Ellen described as “impossible”. She described it as a small room in an open area and said the salon had about nine staff members.

156. [167]

     The applicant used to threaten the complainant and would also say to Ellen that he would get the complainant’s son taken away from her if she ever contacted the police about what he was doing to her. He also threatened to contact the complainant’s ex-husband and her family and tell them that he had slept with her and she was a slut. She said he had obtained their phone numbers out of the complainant’s phone. The complainant told her he also threatened her by saying:

157. [168]

     Ellen saw bruising, swelling and burn injuries on the complainant on many occasions. She said, “Pretty much one bruise would heal from a place and another bruise will appear”. The complainant showed her the burn mark on her stomach (see above at [39]-[40]) to which the complainant applied burn cream. She told her that Ahmed had caused it.

158. [169]

     Ellen said she knew who was causing the injuries. The complainant often rang her late at night after the applicant had left:

159. [170]

     The calls would be from the complainant’s landline because of the applicant’s habit of looking through her mobile phone.

160. [171]

     She described the complainant as always being scared late at night because of the prospect of the applicant coming to her apartment. He had the key which he had copied without her knowledge.

161. [172]

     Ellen confirmed she took the photographs of bruising to the complainant’s face on 9 December 2018 (see above at [46]-[47]). [54] She confronted the applicant who denied being responsible. He told her, “Don’t believe her, it’s all makeup”. She told him, “Makeup doesn’t do that”. He told her, “She hit herself”.

162. [173]

     Ellen also confirmed the complainant’s evidence that she contributed $60,000 towards the setting up of the salon (see above at [34]).

163. [174]

     After referring to Ellen’s evidence, it is convenient to refer to another video that was shown to the complainant during her cross-examination. [55] It was a video Ellen had recorded, although strangely, she was not asked about it or about the occasion when it was recorded, by either party.

164. [175]

     The video is of the applicant and complainant sitting with others (who were not visible) at a table having a meal. The applicant was smiling and held up a box containing two rings. After holding it in front of the complainant and getting no reaction from her, he placed it on the table. Throughout the entire video the complainant was holding her hands up, shielding her face from the camera.

165. [176]

     When the video was shown to her in cross-examination, she recognised the location and said that Ellen had recorded it. She was asked by counsel for the applicant whether it was a “joyous occasion” for her and she said it was not. She agreed the video showed the applicant giving her an engagement ring which he placed on the table. Counsel asked, “You appear to be happy and laughing, were you not?” and she replied, “That wasn’t me laughing”. (It is clear from the video that the person laughing was a female who was not visible but who referred to the complainant by her name.)

166. [177]

     Counsel returned to this incident later in the cross-examination. The complainant was asked again whether she was happy and she replied, “Of course not”. It was suggested to her that the video indicated otherwise, and she replied, “The video was me covering my face”.

167. [178]

     The complainant as given an opportunity to explain the incident in re-examination:

168. [179]

     Saif was a friend of the applicant from the time they met in about 2014. He met the complainant through the applicant who referred to her as his “girlfriend”. He also said he intended to marry her.

169. [180]

     The complainant told Saif that she had no intention of marrying the applicant. She spoke of wanting to get her money back from him. Saif suggested she complain to police, but she told him that the applicant had some videos and photos of her naked. In cross-examination he said she mentioned being afraid or scared because the applicant had photos and videos of her that he might publish or post or even send copies to her family.

170. [181]

     Saif confirmed that he used to attend the salon at Wetherill Park. He had communications with the complainant by phone which would concern either the work of the salon, or her seeking his help in getting her money back from the applicant. The applicant had not told him anything about the latter, so he decided to “get myself out of that situation”.

171. [182]

     The applicant thought Saif’s communications with the complainant by phone indicated there was a relationship between them. He said things like, “Why are you doing this? You know very well that I’m in love with her and I have intention to marry her.” At one point the applicant, using the complainant’s phone, left a voice message for Saif in an angry tone.

172. [183]

     Saif recalled an occasion in 2019 when the police asked him to attend a police station. He said, “it looks like the police was responding to [the complainant’s] complaint or report she had with the police that I’m harassing her, annoying her, contacting her”. This aligns with the complainant’s evidence of the applicant requiring her to make a false complaint about Saif (see above at [50]-[52]).

173. [184]

     In cross-examination, Saif said that he understood the complainant and the applicant had a “girlfriend-boyfriend relationship” but whether they were in a business partnership regarding the Wetherill Park salon, was something he was not sure about.

174. [185]

     It was put to Saif that he had a relationship with the complainant, but he disagreed.

175. [186]

     Mahir was a friend of the applicant from about 2013 until sometime prior to February 2018. He described the relationship between the complainant and the applicant as “a love relationship”; that is what the applicant had told him. He went on the three-night cruise with them and others in October 2016 (see above at [20]-[22]).

176. [187]

     In cross-examination he said that the applicant only slept one night of the cruise in the cabin he and the applicant shared.

177. [188]

     During the cruise he saw the applicant and complainant together. He saw her smiling. But he said, “regardless what are the feelings inside, whether they are sad or upset, regardless, you have to reflect happiness in your face”.

178. [189]

     Senior Constable Marc Brown attended the complainant’s home at about 8:30 am on 12 December 2020 in relation to a complaint about the applicant’s attendance there at about 5:30 am. He described the complainant as “very distraught”. First, she told him that she did not know the man who had attended but when he took her out of the unit to the hallway, she was more forthcoming. This is at odds with the complainant’s brother having said in his triple zero call at 5:32 am, that while he did not know the man, his sister knew him from the shopping centre.

179. [190]

     The complainant told Brown that she had met the applicant about a year prior and that while seeing him they had made recordings of an intimate nature. In about November 2020 she had decided to stop seeing the applicant and he did not take this lightly. She was concerned that he still had the recordings and might distribute them which would adversely impact custody proceedings with her ex-husband in respect of her child in the Islamic Court. She said the applicant had installed cameras in her apartment.

180. [191]

     Brown made attempts to speak with the applicant who ultimately attended the police station late that afternoon. He said that he had been seeing the complainant but had decided to break off the relationship and, although he had no intention of seeing her again, she kept contacting him.

181. [192]

     The applicant told Brown the reason he ceased the relationship was she had been seeing other people, and he felt obligated to inform her mother about this. He also said she had been seeing her brother and six police officers in an intimate nature at the same time.

182. [193]

     The applicant was wearing some form of brace or splint on his hand which he told Brown was because of an injury acquired from sweeping hair. (On the Crown case it was from punching the complainant (see above at [101]-[102])).

183. [194]

     Brown said from his experience of attending “a number of domestics” that “something just didn’t sit right with me with the story that I was given initially”. He made a second visit to the complainant at her home on 13 December 2020 and collected the cameras. He thought he might be delivering her good news, namely that the applicant had told him that he would be moving to Cairns and she was likely never to hear from him again. However, her Snapchat account was “going off constantly” as “messages kept popping up”. They were in Arabic so he could not understand what they were, but he described her as “heavily distraught”. (In cross-examination he agreed he understood the person messaging the complainant was the applicant.) He told her he could take action by way of obtaining an AVO on her behalf, but she told him that things were much worse than harassment, although she would not elaborate.

184. [195]

     Later in the afternoon on 13 December 2020, Brown received a call from the applicant who complained of receiving a threatening call (from Tooey) demanding money and the keys to the complainant’s apartment. He recorded the conversation. [56]

185. [196]

     Brown attended the applicant’s apartment at 1am on 15 December 2020. This was a low-priority response to three triple zero calls made by the applicant the previous evening at 6:06 pm, 7:50 pm and 9:31 pm. The concern he expressed in the calls was for his safety in that Tooey and “junkie people, all tattoos and ex-prisoners” had come to his apartment building. [57] Brown described him as “fidgety and rambling”. He claimed that the complainant had been threatening him over the phone and he had a recording which he played. It was in fact the call from Tooey [58] the previous day. Brown offered to investigate but when the applicant realised it would not involve action being taken against the complainant he was not interested.

186. [197]

     In relation to Tooey’s threatening call to the applicant, which was at 4:13 pm on 14 December 2020, it is notable that at 4:49pm he sent a text to the applicant which said, “Hey brother, I’m sorry that I upset you but all I wanted was to make sure my girlfriend is safe”. Further, the complainant’s brother said in messages to the applicant that evening, “She [the complainant] didn’t send anyone to be clear. You got an apology from the other guy. Leave [complainant’s name] alone she never did anything to you”. [59]

187. [198]

     In cross-examination, Brown agreed that he had included in a statement dated 6 April 2021 that the complainant had told him she had allowed the applicant to install security cameras inside her apartment and, “She did not explain the reasoning behind this”.

188. [199]

     In re-examination, Brown agreed that he had told the complainant that if she had been a victim of crime, he did not believe her situation would improve if she took no further action, but she had replied that “Saleh was dangerous and that she was extremely fearful of him”.

189. [200]

     Janice was the complainant’s supervisor at work, and a friend. She described a significant change in the complainant’s appearance and demeanour. When they became acquainted in 2015 she was “very lovely, very joyful … always coming in smiling” and “she was always one to take care of her appearance”. That changed, however, to the point where she did not seem to care and looked “a bit sad”. She was in the process of splitting from her husband. Janice knew they were having problems. However, she said that after the husband left, “that’s when I started seeing the bruises”. She thought that was around May 2019.

190. [201]

     She gave a detailed account of seeing bruising to the arms and legs and on one occasion a bump on the head. The complainant always had an explanation involving an accidental mishap such as falling downstairs or bumping her arm on a wall. After the divorce from her husband, these events continued.

191. [202]

     Around May 2019 the complainant was “quite stressed about money” and was asking her work colleagues for money because she owed her mother a lot of money. This coincides with the complainant’s account of having borrowed from her mother and work colleagues to provide the money demanded of her by the applicant (see above at [34]-[38]).

192. [203]

     Janice gave evidence of a “heavily accented Arabic man” calling a landline number at the complainant’s workplace and either getting through directly to the complainant or asking to be transferred to her. Janice sometimes answered such calls and recognised it was the same person each time. She said the complainant “just tenses up and becomes all stressed” when this occurred. This aligns with the complainant’s evidence of the applicant calling the work landline number to check on her (see above at [60]; [98]).

193. [204]

     The complainant’s frequent phone activity became a talking point at her work. Janice pulled her aside and told her she should take some time off to deal with her family issues because she was making a lot of mistakes. She told her, “These phone calls have got to stop”. The complainant had become known at work as “the person who’s always on the phone”.

194. [205]

     Just before the Christmas party in 2019 there was a day when the complainant came to work with a black eye and a swollen nose. Janice said, “It looked like she had just been punched”. She asked what happened and the complainant gave an implausible explanation: “I was so clumsy again. I was trying to reach for the tray up on the top shelf and it dropped on me.”

195. [206]

     Janice pleaded with her, “You’ve got to tell me what’s going on. Is this your husband?” but she replied, “No, no, I’m all right”.

196. [207]

     One day when Janice was going out to the shops, the complainant asked, “can you buy me some bruising cream?”

197. [208]

     The complainant would go missing of an afternoon between about 2 and 3 o’clock, saying that she was picking up her son. However, Janice knew that her son was in after-school care all the time. When the complainant returned, she would be “quite flustered”, “sort of sad”, whereas before she went out, she was “quite happy, quite normal”. She would always return with a red mark on the side of her face that was not there before.

198. [209]

     The complainant went camping on the South Coast with Janice and her family in July 2020, or perhaps 2019. It was a source of frustration for her fellow campers that she was constantly distracted by her phone. When asked about the distraction “she would always say it’s her mum”. At one point when everyone was sitting around a fire, after having been speaking on the phone in Arabic to someone, she put her phone on speaker and held it up, asking the group, “Can you just tell my mum who’s here?” Janice said she replied on behalf of the entire group but considered it “quite weird” because she had previously spoken on the phone to the complainant’s mother so the phone could simply have been handed to her. Further, whoever was on the other end of the call did not respond. (For the complainant’s evidence of the camping trip, see above at [73].)

199. [210]

     Janice agreed in cross-examination that it was correct that, “Even though [the complainant] was your friend, she didn’t tell you about any new relationship after the divorce with [name of ex-husband]”.

200. [211]

     The applicant did not give evidence or call any witnesses, thereby relying entirely upon his right to silence.

201. [212]

     The defence case theory was put to the complainant in cross-examination and was completely rejected. It was to the following effect: The complainant and the applicant were in a boyfriend/girlfriend relationship from 2016 to 2020. Prior to 15 December 2020 he became aware that she had been unfaithful to him with Damien and Saif and as a result, he wanted to end the relationship.

202. [213]

     The applicant planned to open a Scissor Hands store in Cairns in early 2021. To fund it he had saved $100,000 in cash which he kept at home. The complainant arranged with her brother, Tooey and Jasmine, to go to the applicant’s home on 15 December 2020 for the specific purpose of trying to find the cash. They had planned to assault and rob the applicant. When the police arrived at his home they found him to be tied up. The complainant was concerned about being in some sort of legal trouble. When she was taken to the police station to make a statement, she looked for photos stored on her phone so that she could use them to “reconstruct” a story.

203. [214]

     In relation to the specific offences, it was put that the complainant contributed money to the applicant’s business and she became part-owner and manager of the Wetherill Park salon. It was further put that any act of sexual intercourse was consensual and the allegations of assault were not true.

204. [215]

     Counsel for the applicant submitted to the jury early in his closing address that there was no objective evidence in relation to Counts 1 to 12 on the indictment. It was accepted that there was objective evidence in respect of the assaults in Counts 13 to 16. He submitted that the jury would find the applicant not guilty “at the very least of Counts 1 to 12”.

Ground 1: The verdicts of guilty were unreasonable

1. [216]

   The principles applying to the Court’s consideration of a ground of appeal asserting that verdicts of guilty are unreasonable or cannot be supported having regard to the evidence (the first limb of s 6(1) of the Criminal Appeal Act) are often restated in judgments of this Court and the High Court of Australia: for example, The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [7]-[11] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ); Smith v R [2025] NSWCCA 104 at [32]-[40] (Bell CJ).

2. [217]

   The core principles invariably referred to are those set out in M v The Queen (1994) 181 CLR 487 at 493-495 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63:

3. [218]

   In BW v R [2023] NSWCCA 146, Simpson AJA said the following as to the principles relevant to a claim of unreasonableness of verdict(s) of guilty because of inconsistency with verdict(s) of not guilty returned in the same trial:

4. [219]

   Her Honour then referred to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, including at [34] (Gleeson CJ, Hayne and Callinan JJ):

5. [220]

   Her Honour’s reference to M v The Queen in [84] was a reference to her earlier (at [55]) quotation of the same two passages we have extracted above.

6. [221]

   Principles applying to the determination of a claim of unreasonableness of a verdict of guilty based on inconsistency with acquittal(s), were recently surveyed in detail by this Court in DB v R [2026] NSWCCA 29 at [17]-[21] (Free JA, Fagan and Huggett JJ) which we acknowledge and apply but do not need to repeat.

(a) The guilty verdicts were inconsistent with the not guilty verdict for Count 1

1. [222]

   The applicant submitted that the acquittal for Count 1 must have been based upon doubts about the complainant’s credibility. Three reasons were advanced for this contention:

2. [223]

   It was submitted that the acquittal was consistent with the jury being persuaded that after August 2016, the complainant and the applicant formed some type of romantic relationship.

3. [224]

   Reason (b) provides little to no assistance to the applicant’s case for two reasons. First, each case must be judged by reference to its own facts and circumstances, eschewing unhelpful theories derived from a less trauma-informed era. The criminal law has moved on from placing reliance upon preconceived notions as to what a victim of sexual assault is expected to say and do during an assault and in the aftermath.

4. [225]

   It is noted that the trial judge gave the jury a direction pursuant to s 292B of the Criminal Procedure Act 1986 (NSW) that “there is no ‘typical’ or ‘normal’ response to non-consensual sexual activity, and people may respond to non-consensual sexual activity in different ways”. He also gave a direction that “[t]here may be good reasons why a victim of sexual assault may hesitate in making or refrain from making a complaint about it”.

5. [226]

   Second, and despite the foregoing, the complainant gave plausible explanations for not doing what it was suggested she might have done in the aftermath of being sexually assaulted at the applicant’s home.

6. [227]

   Reason (c) and the contention that the jury were persuaded of there being a romantic relationship formed after the Count 1 event are of only marginal relevance to the present issue of alleged inconsistency. They are issues more fully considered under Particular (b) where the contention is ultimately rejected.

7. [228]

   The Crown identified a substantial distinction between Count 1 and the other sexual assault counts on the indictment. Count 1 was the only count in which the occurrence of sexual intercourse was squarely in issue and depended wholly upon the complainant’s evidence. There was no supporting forensic or medical evidence, no eyewitness evidence and no contemporaneous complaint. There was also no evidence corroborating the complainant’s account of the intercourse having been non-consensual.

8. [229]

   The occurrence of sexual intercourse was not in issue in respect of the other sexual assault counts. The complainant’s evidence of intercourse being non-consensual was supported in many respects.

9. [230]

   More significantly, however, was that in respect of all the subsequent counts on the indictment, there was a context in which the alleged offences were committed from January 2017 to December 2020, namely that the applicant and complainant were in a relationship marred to an extraordinary extent (on the Crown case) by abuse, threats, control and coercion. The offence alleged in Count 1 preceded the commencement of the subsequent offending by four to five months and the only context for it was that the applicant was the barber who cut the complainant’s son’s hair.

10. [231]

    The various ways in which the complainant’s evidence relevant to Counts 2 to 16 was supported is set out in a table annexed to this judgment. None of such evidence had any bearing upon Count 1.

11. [232]

    The trial judge gave the jury a standard direction as to the need for separate consideration of each of the 16 counts which included a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290:

12. [233]

    A logical distinction between Count 1 and Counts 2 to 16 was that for the latter, there was a substantial body of evidence which supported the complainant’s credibility whereas for Count 1 there was her word alone. For that reason, the inconsistency of verdicts is reconcilable. It can be inferred that the jury complied with the requirement to give separate consideration to each count and in doing so, discerned a basis to allow the applicant the benefit of finding a reasonable doubt in respect of Count 1.

13. [234]

    It cannot be said that there has been an outcome that “no reasonable jury who had applied their mind properly to the facts in the case could have arrived at”: Kumar v R [2025] NSWCCA 119 at [125]. It is not an outcome that involves an “affront to logic and commonsense”: Mackenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35; MFA v The Queen at [86].

14. [235]

    Particular (a) of Ground 1 is not made out.

(b) The guilty verdicts were otherwise unreasonable taking into account the whole of the material available

1. [236]

   The applicant’s assertion of unreasonableness of the verdicts of guilty was squarely based upon the evidence as to the “relationship” between the complainant and applicant. The following passage from the written submissions summarises the applicant’s case in that respect:

2. [237]

   The applicant referred to the complainant’s evidence towards the end of her cross-examination:

3. [238]

   Counsel for the applicant took the Court to the videos (Exhibits 1.1 and 3) which, he contended, were completely inconsistent with them being “staged” as the complainant had claimed. Exhibit 1.1 was the video recorded on the cruise (see above at [24]). Exhibit 3 was the video of the complainant and the applicant kissing while she was laying topless on his naked chest (see above [122]). Neither of these videos relate to any of the charges on the indictment.

4. [239]

   It was submitted that Exhibit 3 was said to have been recorded after the complainant had been raped and hit on the head but there was nothing in the video consistent with her experiencing distress, pain or fear. That laughing and giggling by both her and the applicant could be heard in that video was also submitted to be inconsistent with the complainant’s account. In our assessment, the applicant can clearly be heard to do so but if any sound emanated from the complainant, it is indistinct.

5. [240]

   Counsel described what, on the complainant’s account, had preceded the recording of the video as “a violent affair”. However, the complainant’s description of the circumstances was limited to that which she gave in re-examination quoted earlier (at [124]) and so the extent to which she might have been expected to exhibit signs of distress, pain or fear, if at all, is unable to be determined.

6. [241]

   In relation to Exhibit 1.1, counsel referred to the complainant’s evidence-in-chief about what occurred in the cabin (the video was not shown to her until the cross-examination). She said:

7. [242]

   It was submitted the complainant’s actions of walking into the cabin and spraying perfume on herself “appear too natural and free flowing and there is no hint that anything that she is doing is staged”. However, on our viewing of the video, partly because the lighting is dim, it is not possible to discern whether the complainant is doing something she wanted to do or something she was told to do. Her facial expression is not possible to discern, and her physical movements provide no assistance. Her lips can be seen moving so presumably there was speech, but it seems to have been in Arabic and there is no translation.

8. [243]

   Counsel for the applicant submitted the complainant did not display any of the signs of the fear which she spoke of in her evidence-in-chief. He also referred to evidence given by the complainant in re-examination when she said that this video was “staged” (see above at [24]). It was submitted that the explanation of the videos being staged did not accord with what can be seen in either of the two videos.

9. [244]

   Another video relied upon by the applicant in support of his submissions about the relationship between himself and the complainant was Exhibit 1.7, which depicted the applicant proffering an engagement ring (see above at [174]-[178]). It was submitted that, “it appears to be, on its face clearly a joyous occasion. She’s expressing joy and happiness objectively when we watch the video.” It was submitted that the complainant in her evidence was “severely downplaying, if not lying, about the nature of her relationship with the applicant”.

10. [245]

    Counsel for the applicant accepted in response to a question from the bench that it was open to a jury (as usual) to accept some parts of what a witness said while not accepting other parts. He maintained, however, that Exhibit 1.7 provided another example of disingenuousness on the part of the complainant in explaining away the videos and photographs that were presented to her during her evidence.

11. [246]

    The applicant’s characterisation of what is depicted in this video cannot be accepted. Throughout the entire recording the complainant was covering her face with her hands and did not say anything. The criticism of the complainant’s evidence in relation to this video is unjustified.

12. [247]

    When asked about the complainant’s evidence in re-examination that the applicant subsequently abused her for not accepting the ring (above at [178]), counsel pointed out the obvious fact that she was not cross-examined on that evidence, and submitted that it entailed her taking “every chance that she could to downplay or paint in a dim light any of the photographs or the videos that the applicant was seeking to rely upon”.

13. [248]

    We are not satisfied that these videos support the applicant’s contention of there having been consensual sexual activity with the complainant. They are equivocal at best.

14. [249]

    Looking at the reasonableness of the verdicts more generally, whatever may have prompted a majority of the jury to have a reasonable doubt about the applicant’s guilt in respect of Count 1, it cannot have been because of a general concern about the complainant’s evidence in respect of the critical aspects of the events forming the basis of Counts 2 to 16. That is because her evidence in respect of them was plausible and it was compellingly supported in so many ways.

15. [250]

    The complainant’s evidence was that there was an initial sexual assault which was unanticipated. Thereafter, being mindful of her cultural background and out of fear engendered by the applicant that he had the power to orchestrate events which could lead to her losing custody of her son, or that he might kill her, she was compelled to do as he commanded. This was operative immediately after her first visit to the applicant’s home in August 2016 and continued to late 2020 and beyond. Even at the time of her giving evidence her parents remained unaware of what she had experienced (see above at [16]-[19]).

16. [251]

    Annexure A to this judgment comprises a table setting out evidence of the complainant that was supported by evidence independent of her. It indicates there was strong support for her credibility and reliability on a wide range of topics.

17. [252]

    The applicant’s contention was that he and the complainant were in a romantic relationship in which there was consensual sexual activity, but no-one appears to have known about it. Mahir was told by the applicant there was a “love relationship” but he did not give evidence of anything to verify it. Ellen was told the complainant was the applicant’s partner, but she saw and heard many things suggesting it was an abusive relationship as the complainant described. Janice, the complainant’s friend, gave evidence that the complainant said nothing about any new relationship following the divorce from her ex-husband. There was no suggestion of anyone else, witness or otherwise, being aware of the existence of a relationship that was anything similar to that being suggested by the applicant through his counsel.

18. [253]

    The Crown presented an overwhelming case depicting a relationship between the applicant and the complainant which involved stalking, intimidation, control and coercion together with physical and sexual violence as its core elements. The complainant’s private life in her apartment was lived for almost four months in full view of the applicant through CCTV cameras. He had almost complete control over her life by taking advantage of her cultural ideology and fear of losing custody of her only child, and her life.

19. [254]

    The fact the complainant appeared in some short video clips or photos to smile, or even dance on occasion, devoid of context does not diminish the validity of that assessment. Transient relief, if that is what it was, does not negate the overall character of that period in the complainant’s life as being one of sustained misery. We are not persuaded that her credibility was tarnished to any significant degree by the evidence relied upon by the applicant. It does not engender a reasonable doubt in our minds, and nor ought it to have done so in the minds of the jury.

20. [255]

    Having made an independent assessment of the evidence in the trial, the Court is not persuaded that the verdicts of guilty returned for Counts 2 to 16 inclusive are unreasonable or unsupported by the evidence.

21. [256]

    Particular (b), and Ground 1 entirely, are rejected.

Ground 2: The trial judge erred in excluding MB33

1. [257]

   Prior to the trial, the defence gave notice of an intention to cross-examine the complainant regarding various propositions including the following:

2. [258]

   It was necessary for the applicant to obtain a ruling pursuant to s 294CB of the Criminal Procedure Act that he be permitted to ask questions and introduce evidence concerning or implying the complainant had certain sexual experience or had engaged in certain sexual activity that was not the subject of the charges on the indictment. The cross-examination was proposed to be based upon photographs and videos listed in an affidavit in support of the notice of motion. (The deponent had the initials “MB”, which explains the prefix to the item numbers.)

3. [259]

   Section 294CB, relevantly, provides:

4. [260]

   The application was considered in a pre-trial hearing before Buscombe SC DCJ on 6 June 2022 with judgment given on 7 June 2022.

5. [261]

   The Crown conceded that the subject matter of the evidence came within the exception in s 293CB(4)(b) and that the photos and videos listed in the affidavit could be deployed except for the following:

6. [262]

   In respect of those four items, the Crown contended that their probative value was outweighed by the distress, humiliation or embarrassment the complainant might suffer as a result of their admission into evidence.

7. [263]

   Buscombe SC DCJ concluded that all the material sought to be relied upon was relevant and fell within the exception in s 294CB(4)(b). He also concluded that, apart from one video and one image, the probative value of the evidence outweighed any distress, humiliation or embarrassment the complainant might suffer.

8. [264]

   The excluded image was item MB22, a close-up photograph of the complainant’s naked breasts. His Honour held it had “almost no probative value” in “relation to the nature of the relationship … or to the issue of consent” and “would cause the complainant considerable distress, humiliation or embarrassment”.

9. [265]

   The excluded video was item MB33, a video depicting the complainant performing fellatio upon the applicant. His Honour reasoned:

10. [266]

    Towards the end of the complainant’s cross-examination at the trial, Everson SC DCJ was called upon to further determine the admissibility of the evidence of and relating to MB33. His Honour had the written submissions that were before Buscombe SC DCJ as well as his Honour’s judgment. He viewed the video on a laptop in court and the following exchange ensued:

11. [267]

    After delivering that judgment there was an exchange concerning the video clip that had been ruled admissible by Buscombe SC DCJ (the video depicting the complainant and the applicant kissing while she was laying topless on his naked chest) and whether it should be shown to the complainant in the presence of the jury. In that context, the trial judge made the following observation:

12. [268]

    By the time of the ruling, which was shortly before the luncheon adjournment on Tuesday 20 June 2023, the complainant had been giving evidence since late in the day of Wednesday 14 June 2023.

13. [269]

    The applicant submitted the trial judge erred in two respects. First, his Honour erred in finding the video depicted the applicant forcing the complainant to perform fellatio. It was submitted the Court would find the complainant at one point is seen smiling and would thereby accept Buscombe SC DCJ’s characterisation of the video and his finding that the video had some probative value (see the emphasised portion of the quotation above at [265]). It was submitted that it would have been for the jury to determine whether the complainant smiling on the video was more consistent with a consensual or non-consensual sexual encounter.

14. [270]

    Second, the trial judge erred in finding any probative value was outweighed by the distress, humiliation and embarrassment. It was submitted that the probative value of MB33 needed to be considered in light of the denial by the complainant which she stated subsequent to the ruling, of any consensual sexual activity throughout the relationship. Counsel submitted that MB33 “would have been a powerful example of consensual sexual intercourse” It was, thereby, relevant to the credibility of the complainant.

15. [271]

    The complainant’s blanket denial of any consensual activity only coming after the trial judge’s ruling was described at the hearing as being “one of the difficulties for the applicant” in that “the true probative value could only have been completely apparent” at that point. [60]

16. [272]

    There is no issue that the evidence of and concerning the video identified as item MB33 qualified as an exception under s 294CB(4)(b). The only question is whether its probative value outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. That is a matter that admits of only one correct answer and does not involve the exercise of discretion. Accordingly, the submission of the Crown, with which the applicant agreed, that the correctness standard of appellate review applied is accepted: see Cook (a pseudonym) v R [2022] NSWCCA 282 at [96], [102] (per Adamson J, Bellew J agreeing, Beech-Jones CJ at CL dissenting as to the ground in question). [61]

17. [273]

    Each member of this Court viewed the video in chambers and came to the same conclusion contended for by the Crown. [62] The complainant’s facial expression during an extremely brief disengagement from the applicant’s penis is equivocal at best. The vision of what occurred immediately before and after, indicates it is unlikely she was smiling. The preceding vision is of an act of fellatio with the applicant’s hand on the back of the complainant’s head. The subsequent vision is of the complainant turning her face away from the camera, followed by the applicant pushing her head back towards his penis and then directing his penis towards her mouth. The video is equally, if not more, consistent with the complainant not being a free and voluntary participant.

18. [274]

    The Crown made a very apt submission about the context in which the probative value of the evidence needs to be assessed. [63] The complainant’s evidence was that she never freely and voluntarily participated in sexual activity with the applicant but complied with his demands because of threats and intimidation. She said, “I wasn’t with him because I wanted to be with him”.

19. [275]

    The probative value of the evidence was also diminished by the fact that the act which was the subject of the recording did not relate to any of the offences charged on the indictment. Consequently, it had limited value as to whether the complainant was consenting on any relevant occasion.

20. [276]

    The applicant submitted that the probative value of the evidence only became apparent later in the cross-examination when the complainant agreed her evidence was, “There was no act between yourself and Mr Saleh that was consensual”. The answer was entirely unsurprising as it was the tenor from the very beginning of her evidence that she was not willingly in a relationship with the applicant at any stage. She said she only saw the applicant again, and multiple times, after the first act of non-consensual intercourse, “Because I had no option”. The clear and consistent theme throughout her evidence was that she acquiesced to sexual intercourse because of coercion, intimidation and physical violence. There was never free and voluntary consent.

21. [277]

    In his written submissions before Buscombe SC DCJ, the applicant conceded that “evidence of this kind would cause distress, embarrassment and humiliation to the complainant”. When the Crown submitted before the trial judge that the “distress to the complainant will be huge”, the applicant’s counsel declined an invitation to say anything in response.

22. [278]

    The three forms of psychological response a complainant “might suffer”, against which the probative value of the evidence is to be weighed pursuant to s 294CB(4) is not expressed in terms of any particular likelihood or degree. In our assessment, the evidence had low probative value and there was a substantial risk of significant distress, humiliation and embarrassment.

23. [279]

    The trial judge was correct to rule the evidence was inadmissible. Ground 2 is rejected.

Ground 3 – Miscarriage of justice arising from fresh or new evidence that was not used by the applicant’s lawyers at trial

1. [280]

   Ground 3 concerns evidence of Snapchat messages that, according to the applicant, passed between the complainant and him. Each of the messages was originally in Arabic, but translated into English by a NAATI certified translator on 30 May 2022. One of the messages is undated. It was ostensibly sent by the complainant to the applicant and reads:

2. [281]

   The second message is dated 27 October 2020 and was ostensibly sent by the complainant to the applicant. It reads:

3. [282]

   The third item of evidence shows a purported exchange between the applicant and the complainant on 4 December 2020. On the face of the document as translated, it records the applicant sending the following message to the complainant:

4. [283]

   It then records the following purported response from the complainant to the applicant:

5. [284]

   The evidence was not adduced or referred to at trial. The applicant contends that it would have been highly significant to his defence because it was consistent with the complainant having had sincere feelings of love and affection for the applicant, which was inconsistent with her account and thus reflected adversely on her credibility. The applicant says that it would have provided a basis to challenge the complainant under cross-examination about her characterisation of the relationship, and her credibility more generally.

6. [285]

   This Court received, on a provisional basis, affidavit evidence about the circumstances surrounding the Snapchat messages in question being downloaded from the applicant’s phone, translated into English, made available and provided (or not provided, as the case may be) to the applicant’s legal representatives. The applicant affirmed one affidavit, as did his trial counsel (Michael Coroneos) and instructing solicitor at trial (Adam Houda). The applicant’s brother, Salah Saleh, provided two affidavits. The Crown relied on an affidavit of Ms Aisling Cunnigham-Burke, the instructing solicitor with carriage of the appeal within the Office of the Director of Public Prosecutions (NSW) (ODPP).

7. [286]

   We draw the following conclusions from that evidence:

   1. (1)

      the applicant owned an iPhone 11 Pro X which was seized by police on 15 December 2020. He also owned an iPhone 12 Pro which was seized by police on 14 December 2021. The Snapchat messages in question (in their original Arabic form) were able to be obtained from one or other of the applicant’s phones. This was the case when the phones were in the applicant’s possession and when they were later seized by police. This was still the position at the time of trial in 2023;

   2. (2)

      after the applicant was released on bail on 7 July 2021, he collated a large number of messages between himself and the complainant. This included Snapchat messages on his phone. He printed those messages and provided them to a NAATI certified translator, Mr Omar Moussa, in order for those messages to be translated into English. We infer that the applicant undertook this exercise because he appreciated the potential importance to his defence of the communications that passed, or ostensibly passed, between him and the complainant, including the three Snapchat records in question;

   3. (3)

      while he was on bail the applicant had provided his brother, Salah, with a USB containing documents that he had identified as relevant to his defence. The applicant was returned to custody on 15 December 2021 and he has remained in custody ever since. After 15 December 2021 the applicant asked his brother to be responsible for all of his evidence;

   4. (4)

      as Mr Moussa completed the translation of the messages he provided them to Salah Saleh by email. Salah Saleh downloaded the material sent to him and added the translated documents to a USB which contained the evidence relevant to the applicant’s defence;

   5. (5)

      in early September 2022, at the request of the applicant, Salah Saleh provided a USB to Mr Mohammad Bazzi, who was at that time the solicitor acting for the applicant. Salah Saleh copied to the USB all of the documents he thought were relevant. Salah Saleh believes that the USB he provided to Mr Bazzi contained the Snapchat messages that are now in issue. The appropriate inference to be drawn from Mr Saleh’s evidence is that those messages were provided to Mr Bazzi;

   6. (6)

      the applicant became unhappy with his representation by Mr Bazzi. He terminated the services of Mr Bazzi. Around 23 September 2022 Salah Saleh attended the office of Mr Bazzi to collect the applicant’s file. He was told that Mr Bazzi was on holiday and Salah Saleh did not retrieve the file or the USB;

   7. (7)

      in February 2023, Salah Saleh engaged Mr Houda of Lawyers Corp Pty Ltd (Lawyers Corp) to act for the applicant. Lawyers Corp acted for the applicant at trial and have continued to act for him on appeal;

   8. (8)

      following the engagement of Lawyers Corp, Salah Saleh provided to Lawyers Corp two USBs, together with a link to a Google Drive containing evidence. Mr Saleh was under the impression that all of the USBs that he had in his possession contained the same material, which was also contained on the Google Drive;

   9. (9)

      long after the trial, in around May 2025, it became apparent to Salah Saleh that this was not the case. The material he had provided to Lawyers Corp did not in fact contain the Snapchat messages that are now in issue. Nor had Lawyers Corp identified those three messages from any of the other material that was provided or made available to them;

   10. (10)

       the contents of the applicant’s phones were downloaded by investigators. The material downloaded in this way was captured in what is known as Cellebrite data. Two of the Snapchat messages in question were contained in the data extracted from the applicant’s iPhone 12 Pro. The other message was obtained from the applicant’s iPhone 11 Pro. “Cellebrite Extraction Reports” were prepared from that data. The Cellebrite Extraction Reports include screenshots of each of the relevant Snapchat messages (in their original Arabic form), together with information explaining that the screenshots were sourced from the applicant’s phones;

   11. (11)

       in July 2022 the ODPP served a Notice of Prosecution Case (NOPC) on the applicant’s then solicitor. A copy of the NOPC was served on Mr Houda by email on 20 March 2023. Statements from police investigators, attached to the NOPC, described how Cellebrite data had been extracted from the applicant’s phones. The NOPC notified that the physical exhibits in the possession of NSW Police were available to be viewed by arrangement by contacting the Officer in Charge;

   12. (12)

       the trial of the applicant took place in June and July 2023. At the trial neither Mr Houda nor Mr Coroneos was aware of the existence of the Snapchat messages that are now in issue;

   13. (13)

       the applicant says that during his trial there were moments when he thought that his lawyers “did not have certain documents which I had translated by Mr Moussa”. The applicant says that he wanted to speak to his brother Salah about it but he “didn’t get the chance because [Salah] was not allowed in the courtroom since he was going to be a potential witness for me”. No explanation is given by the applicant as to why he did not speak to his brother about this by telephone, when that would have been an obvious solution to the perceived obstacle;

   14. (14)

       nor is any explanation proffered by the applicant as to why, in these circumstances, he did not ask his lawyers about the documents which had been translated by Mr Moussa but which he apprehended may not have reached his lawyers. This was the obvious step to take during the trial if the applicant thought there was significant material which may not have reached the lawyers. It is unclear from the applicant’s affidavit whether or not he had in mind the three Snapchat messages in particular as being documents that may not have been provided to his lawyers. But in any event the applicant had downloaded those messages himself from his phone. If they were, as the applicant now contends, significant documents that could be used to discredit the complainant the applicant could and should have raised this with his lawyers if he had formed the view that they might not have received the documents that had been translated from Mr Moussa;

   15. (15)

       Mr Houda and Mr Coroneos first became aware of those messages in May 2025 when they were provided by Salah Saleh. Mr Coroneos has provided affidavit evidence for the appeal in which he says that if those messages had been available to him at trial he undoubtedly would have relied on them during his cross-examination of the complainant, given that she consistently maintained in her evidence that she had never willingly been in any type of consensual relationship. That is, Mr Coroneos perceives the Snapchat messages as evidence contradicting that version of events; and

   16. (16)

       regardless of the contents of the evidence that had been collated and provided by Salah Saleh, first to Mr Bezzi and then to Mr Houda, the Snapchat messages were able to be obtained at any relevant time by accessing the applicant’s phones and/or by reviewing the Cellebrite data and the Cellebrite extraction reports. The point is illustrated by the fact that during the trial the solicitor and counsel for the applicant did obtain access to the applicant’s phone in order to check when certain photographs were taken. The significance of any communications passing, or apparently passing, between the complainant and the applicant must always have been obvious to the legal representatives involved at trial. No evidence has been given by the legal representatives, or any of the other deponents, about the steps that the legal representatives took to investigate such communications. No explanation is proffered as to why the lawyers did not ask the applicant about this (assuming they neglected to) or interrogate the potential sources of evidence in this regard, including the Cellebrite extraction reports which contained screenshots of the relevant messages (albeit in Arabic). While it may be accepted, as counsel for the applicant submitted at the appeal, that Cellebrite data and extraction reports are somewhat cumbersome to interrogate, that is not a sufficient answer to an apparent failure to investigate a source of evidence of such obvious potential importance.

8. [287]

   The applicant submits that a miscarriage of justice occurred because the Snapchat messages were not used or adduced into evidence at trial. He seeks orders quashing his conviction and for a re-trial.

9. [288]

   The applicant’s primary argument is that the evidence in question is “fresh evidence”, in the sense that it was not available to the applicant at the time of the trial, actually or constructively. Evidence is “constructively available” to a party if it could have been discovered or available at the time of trial by the exercise of due diligence: R v Abou-Chabake [2004] NSWCCA 356; (2014) 149 A Crim R 417 at [63]. In assessing what evidence, by reasonable diligence, could have been discovered or available at trial, great latitude must be extended to an accused: Ratten v The Queen (1974) 131 CLR 510 at 517; [1974] HCA 35 (see further below).

10. [289]

    The applicant’s attempt to characterise the Snapchat messages as evidence that was not available to him at the time of trial, either actually or constructively, involves, in the first instance, an artificial distinction between the applicant and his legal representatives. As far as the applicant personally is concerned, there can be no doubt that the evidence was actually available to him at trial, even if it was not in his immediate possession. The messages had in fact been in his possession prior to trial. The Snapchat messages were contained on the applicant’s phones. He had downloaded and printed the messages and facilitated their translation by Mr Moussa.

11. [290]

    By the time of trial, while the applicant was no longer in possession of his phones or, it seems, the various electronic or paper copies of the messages that had been brought into existence, the applicant was in a position readily to obtain evidence of the messages from a number of sources. He could have sought access to his phones and repeated the downloading exercise that he had already performed. He could have asked his brother for copies of the messages that he had previously downloaded and printed, and the translations of those messages that Mr Moussa had provided. The applicant’s own evidence indicates that during the trial the applicant was conscious of the translations that had been obtained from Mr Moussa. He could have sought access to the Cellebrite data and/or the Cellebrite Extraction Reports which contained the messages. It is therefore not necessary to resort to any notion of constructive availability, based on the notion that with reasonable diligence the applicant could have uncovered it. While not in the applicant’s current possession, it was actually available to the applicant from a number of convenient sources.

12. [291]

    The applicant seeks to avoid the consequences of that state of affairs by focusing on the position of his lawyers. In doing so, the applicant could not point to any authority to the effect that evidence may be regarded as “fresh”, in the relevant sense, if it was not available to an applicant’s lawyers at the time of trial, either actually or constructively, even though it was available to the applicant personally. The point may be purely academic, given that material available to a client will ordinarily also be available, even if only constructively, to the legal representatives of that client. Putting that to one side, a distinction of the kind sought by the applicant could have significant implications for the law in this area. We do not consider it necessary to express any view about whether there is a principled basis for drawing such a distinction. That is because, on any view, the Snapchat messages were constructively available to the applicant’s lawyers at the time of trial. With reasonable diligence the applicant’s lawyers could have discovered and located the Snapchat messages.

13. [292]

    As we have already observed, given the nature of the allegations against the applicant and the complainant’s evidence about the nature of their relationship, it would always have been obvious to any legal representative for the applicant that past communications passing between the applicant and the complainant were potentially relevant. It would have been equally obvious that text messages, including as exchanged on Snapchat, are an important repository of evidence in this regard. An obvious and readily available step to take would have been to speak to the applicant about his methods of communication with the complainant. That in turn would have identified that the applicant and the complainant communicated using Snapchat, which would have led to any one of the various repositories of the Snapchat communications on or extracted from the applicant’s phones. Even assuming favourably to the applicant that it is relevant to ask what his lawyers (rather than the applicant) could have obtained with reasonable diligence, no amount of latitude to the applicant can avoid the conclusion that with reasonable diligence the Snapchat messages could have been discovered and obtained.

14. [293]

    For these reasons, the Snapchat messages now sought to be relied upon by the applicant do not constitute fresh evidence. The evidence is instead to be treated as new evidence.

15. [294]

    The authorities establish that where evidence is merely new, and not fresh, a miscarriage of justice in a conviction appeal will only be demonstrated where the evidence is of such cogency that innocence is shown to the Court’s satisfaction, or the Court concludes that the guilt of the applicant was not established beyond reasonable doubt. In such circumstances the appropriate outcome is for the conviction to be quashed and a verdict of acquittal entered instead. This is the principle articulated by Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) in Ratten at 518, 520. Barwick CJ, at 517, linked the rationale for the principle to the adversarial nature of a criminal trial:

16. [295]

    The applicant seeks to rely on statements in subsequent judgments expressing doubt about whether the formulation of the test in Ratten strays too far from the decisive concept of a miscarriage of justice. The applicant drew attention in particular to the discussion of the issue by Giles JA in R v Bikic [2002] NSWCCA 227 at [241]-[281]. However, in Bikic Giles JA (with whom Sully and Levine JJ agreed) concluded at [283] that the Court was bound to apply Ratten as a binding statement of the governing principles. Moreover, the statement of principle in Ratten has been adopted by this Court as a correct statement of the law on a number of occasions: see R v Abou-Chabake [2014] NSWCCA 356; (2014) 149 A Crim R 417 at [63]; Xie v R [2021] NSWCCA 1 at [434]; SC v R [2023] NSWCCA 60 at [199]. As to the different considerations that apply to fresh and new evidence in the context of an appeal against sentence, see Lawavou v R [2025] NSWCCA 35 at [92]-[135]; Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [104]-[108].

17. [296]

    The Snapchat messages fall well short of establishing that the applicant was innocent of any of the counts for which he was convicted, or that the Crown failed to establish his guilt beyond reasonable doubt. Indeed, the applicant effectively conceded as much in his submissions. The applicant did not seek to argue that the evidence was of such cogency as to give rise, without more, to a reasonable doubt. Instead the applicant sought a re-trial on the basis that there is a “significant possibility that this evidence would have added a further layer of doubt to the complainant’s evidence and therefore led to a different outcome”. The applicant submits that the Snapchat messages put an “entirely different complexion” on the nature of the relationship between the complainant and the applicant from that which was presented by the complainant in her evidence at trial. Given the test to be applied to new evidence of this kind, the applicant’s concession that the evidence does not suffice to demonstrate a reasonable doubt is sufficient to dispose of ground 3. For completeness, however, we will explain why we consider that the applicant’s argument greatly overstates the forensic significance of the new evidence.

18. [297]

    First, there is good reason to doubt that the evidence even records messages sent by the complainant. There was evidence at trial from a number of sources, seemingly unchallenged, that the applicant was in the habit of taking the complainant’s phone and using it. The complainant gave evidence that he obtained access to the passwords from her accounts in 2016, after which time he was able to access the complainant’s online accounts from wherever he was. The complainant also gave evidence about the applicant using the complainant’s phone and accounts to send messages that appeared to be from her, but were in fact written by the applicant. The complainant said that the applicant “always had access” to her phone and would “constantly send messages”. She said that the applicant sent messages to himself from the complainant’s phone to “make it look like I was saying nice things to him … So he’d constantly send messages from my phone to his phone, saying I love you and you’re my life and … to that extent, to make it look like I was the one in love with him”. CCTV footage taken inside the complainant’s apartment on 14 September 2020 shows the applicant apparently using the complainant’s phone for a sustained period, while holding another phone in his other hand. Damien, a friend of the complainant, gave evidence that he received messages purportedly from the complainant that could not have been authored by her. It follows that there is a threshold question as to whether any reliance can be placed on the Snapchat messages as indicating anything about the complainant, because of the doubt that she even wrote them.

19. [298]

    The applicant submits that this explanation would not apply to the exchange apparently recorded on 4 December 2020, because the evidence appears to show a message from the applicant to the complainant, as well as a response from the complainant to the applicant. However, if the applicant had a practice of accessing the complainant’s phone and using it to generate fake messages with a view to creating a false record of the complainant’s apparent love for him, it is equally plausible that the applicant would create false two-way exchanges using a combination of his phone and the complainant’s phone.

20. [299]

    Second, even if the messages attributed to the complainant were written by her, it by no means follows that they reveal in an objectively reliable way sincere feelings of love for the applicant, or any attitude which would cast doubt on the credibility of the complainant’s account of their relationship. The content of the messages is confusing and not easy to follow. It may be accepted that there are apparent signs of positive feeling towards the applicant, such as affection and loyalty, in the messages that are said to have been sent by the complainant. However, given the balance of the evidence heard by the jury, nothing can be taken at face value or out of context in this matter. We do not accept that the messages have an inherently exculpatory character.

21. [300]

    The complainant in her evidence painted a vivid picture of a coercive relationship in which for a number of years she had to endure severe threats and physical and sexual violence and intimidation at the hands of the applicant. The complainant was vigorously challenged on that evidence, including by being taken to photographs and videos that were said to show the complainant in a state of apparent happiness and comfort with the applicant. The complainant’s evidence in response included that while she did smile and laugh with the applicant she “had to”. Her evidence was to the effect that even though she was not happy she felt obliged to smile and forced herself to do so. Such evidence about the measures that the complainant had to take to endure and manage a volatile threat in the context of a coercive relationship is logical and plausible. Appeasement in the face of such hostility is readily understandable. It provides important context when assessing the supposed significance of the Snapchat messages.

22. [301]

    If the evidence of the Snapchat communications had been before the jury, even if the jury accepted that the complainant did write the messages attributed to her, it would have been well open to the jury to conclude that the messages do not reflect adversely on the complainant’s credibility. That is because they can be interpreted as being consistent with the complainant acting in a forced way to appease the applicant and manage him, in the context of a dangerous and volatile relationship. While it is impossible to say precisely how the complainant would have responded to the evidence if put to her in cross-examination, including whether she would have accepted authorship of the messages, the more likely inference is that even if the complainant accepted that she wrote the messages she would have dealt with them in the same manner as she had dealt with the evidence of a similar kind, in the form of photographs and videos, that was put to her and said to show that she was actually a willing and enthusiastic partner.

23. [302]

    The point is reinforced by the temporal context. The two dated messages are from October and December 2020. There is CCTV footage of the applicant punching the complainant in the face on 13 September 2020. The complainant is shown holding a packet of peas to her face after that assault. Her evidence was that she had been punched multiple times and the applicant had also ripped out large amounts of her hair (as shown in photographs taken the next day). On 15 September 2020 the complainant collapsed in a state of acute distress, anxiety and light-headedness. She was found on the kitchen floor when paramedics arrived, after her young son called triple zero. Further violence is shown on CCTV footage taken on 18 September 2020, with the applicant restraining the complainant for a prolonged period and striking her. On 30 October 2020 the applicant, on the complainant’s account, hit the complainant with an extension cord up to ten times. The complainant took photographs of her bruised arms the next day. On 4 November 2020 the applicant sent the complainant a video of him holding a meat cleaver. The applicant told the complainant that day that he would cut her skull in half and chop her up into pieces so that no one would find her remains. A further assault on 30 November 2020 involved punching, further striking with an extension cord, the throwing of a fan and choking pressure to the complainant’s neck. The applicant struck the complainant’s head with sufficient force to injure his own hand. The next day the complainant’s injuries were observed by her brother, who also took photographs. That day the applicant sent the complainant threatening messages. He told the complainant “I will break your two arms just like what happened to me”. There is thus powerful evidence, from multiple sources, to support a conclusion that by October 2020 the complainant was living in a state of extreme threat and ongoing fear for her life. By December 2020 the situation had only become worse.

24. [303]

    All of this might tend to support a conclusion that it is improbable that the complainant was the author of any of the messages, in particular the messages dated October and December 2020. But even on the assumption that the complainant wrote those messages, it is not a matter that would necessarily reflect adversely on the credit of the complainant, either generally or in the context of the various incidents that occurred from September to December 2020.

25. [304]

    For these reasons, even if the relevant test to be applied to new evidence of this kind is, as the applicant asserted, whether there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charges if the evidence had been before it, we do not consider that such a significant possibility has been demonstrated. No miscarriage of justice has been established.

26. [305]

    Consistently with the approach adopted in the authorities, given these conclusions about the limited significance of the evidence the appropriate course is to formally reject the evidence that was admitted on a provisional basis: see Franklin v R [2021] NSWCCA 260 at [127]-[128]; Mehajer v R [2026] NSWCCA 14 at [88].

Conclusion as to appeal against conviction

1. [306]

   None of the grounds of appeal against conviction are upheld. Leave to appeal will be granted but the appeal against conviction will be dismissed.

The sentence appeal

1. [307]

   The applicant seeks leave to appeal against the sentence imposed on him by Everson SC DCJ in the District Court of New South Wales in Parramatta on 20 October 2023, pursuant to s 5(1)(c) of the Criminal Appeal Act.

2. [308]

   As indicated above, on 5 July 2023, the applicant was found guilty of Counts 2 to 16. On 6 July 2023, he was found not guilty of Count 1 by majority verdict. On 22 September 2023, the applicant was also found guilty by the sentencing judge of five related offences on a s 166 certificate (sequences 10, 13, 26, 27 and 28).

3. [309]

   The principal offences were three counts of common assault, contrary to s 61 of the Crimes Act (Counts 6, 7 and 16); five counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (Counts 9, 10, 13, 14 and 15); two counts of sexual assault, contrary to s 61I of the Crimes Act (Counts 2 and 8); and five counts of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act (Counts 3, 4, 5, 11 and 12).

4. [310]

   The related offences were two offences of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (sequences 10 and 13); an offence of demanding money with menaces, contrary to s 249K(1)(a) of the Crimes Act (sequence 26); an offence of threatening to distribute intimate images, contrary to s 91R(2) of the Crimes Act (sequence 27); and an offence of intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act (sequence 28).

5. [311]

   On 20 October 2023, in respect of the 15 counts on the indictment and the five related offences, the applicant was sentenced to an aggregate term of imprisonment of 26 years, to commence on 24 May 2021 and expiring on 23 May 2047, with a non-parole period of 18 years. The applicant is first eligible for parole on 23 May 2039.

6. [312]

   The following table sets out the principal and related offences, the maximum penalties, and the indicative sentences pronounced by the sentencing judge.

7. [313]

   In respect of each of the related offences, there applied a summary jurisdictional limit of 2 years’ imprisonment.

Grounds of appeal

1. [314]

   In respect of the sentence appeal, the applicant relied on the following grounds of appeal:

Circumstances of offending

1. [315]

   The following summary of the nature of the relationship between the applicant and the complainant, and the factual circumstances relating to each offence, is derived from the sentencing judge’s Remarks on Sentence (“ROS”).

2. [316]

   The complainant was born in Australia. Her parents were from a Middle Eastern country. In 2008, at the age of 19 years, she registered her marriage to a man born in Saudi Arabia. The complainant said this was an arranged marriage by her family, in the form of a contract facilitated by a Muslim clerk, and that she had no say in the marriage.

3. [317]

   In 2009, the complainant and her now ex-husband had a “marriage ceremony” in Australia. Their son was born a few years later. By May 2016, the marriage was effectively over. The complainant and her husband were sleeping in separate bedrooms, and he spent considerable time away from the home with work and/or study commitments.

4. [318]

   The complainant met the applicant when she was taking her son to get his hair cut at the applicant’s barbershop. Her evidence was that they started exchanging messages on the social media platform “Instagram” after he had put a photo of her son on his barbershop’s Instagram page. By the spring of 2016, the applicant and the complainant had interacted socially on a number of occasions, during which the applicant insisted that the complainant should dress in a certain way at certain times, including not wearing a head scarf (hijab) as she typically did outside her home. By about then, the applicant had prevailed upon the complainant to give him the necessary passwords and/or other details to enable him to track her physical location by monitoring the location of her mobile phone. As the complainant and her ex-husband shared mobile phone details, the applicant was also able to track the physical location of the complainant’s ex-husband.

5. [319]

   In early 2017, the complainant and her ex-husband were still living together. In 2018, the two were divorced under Australian law.

6. [320]

   For more than four years, between 1 August 2016 and 15 December 2020, the applicant regularly threatened to distribute intimate photos and videos of the complainant to her family and ex-husband as a means of controlling her. This continued right up until the date of the applicant’s arrest.

7. [321]

   The applicant constantly sent the complainant messages saying that he had contacted her ex-husband, including screenshots of the applicant making phone calls to her ex-husband. The applicant told her that he had mentioned things to her ex-husband, and that he was going to meet her ex-husband to tell him everything and to give him everything for her ex-husband to remove her son.

8. [322]

   The threats to expose the relationship was correctly assessed by the sentencing judge in the context of the particular religious and cultural background of the complainant. She told the jury, “[e]ven though my ex-husband and I were separated, …we were still married, so that’s something that I would get punished for”. When asked, “[w]hen you say that’s something you would get punished for, what do you mean by that?”, the complainant responded that, in accordance with her religion, it is still an act of adultery for one to engage in sexual intercourse outside of marriage, even if that sexual intercourse was non-consensual.

9. [323]

   The complainant gave evidence, which the sentencing judge accepted, that she felt she had no option but to continue to see the applicant, her will being overborne by the threats that her son would grow up without a mother, threats that she took to mean either she would be killed or that her son would be taken away from her.

10. [324]

    In early 2017, the applicant was tracking the complainant’s physical location by monitoring the location of her mobile phone. On one occasion, the applicant drove into her garage. He filmed a video of the garage and sent it to the complainant, asserting that her husband’s car was not there and accusing her of having another man in the house.

11. [325]

    On one occasion in early 2017, the complainant permitted the applicant’s entry into her home. Once inside, the applicant sexually assaulted her. He pulled his pants down, pulled her head onto his penis and forced her to perform oral sex on him. The applicant used his mobile phone to photograph at least part of that sexual assault. Realising that, the complainant tried to cover her face and the applicant said, “why are you covering your face for? I’ve already got so many photos and videos of you”.

12. [326]

    On or about 11 September 2018, the applicant entered the complainant’s home and accused her of having been with another man. At the time, the complainant was ironing. She told the applicant to step away as she tried to get away from him. She moved around the ironing board as the applicant threatened to put the hot iron on her face, so that no other man would look at her again. The applicant then pushed the ironing board and the iron fell and burnt the complainant on the front of her abdomen.

13. [327]

    Between June 2018 and July 2019, the applicant obtained a total of $100,000 from the complainant, primarily by threatening to kill her and telling her that her life was in his hands. The transactions included:

    1. (1)

       $60,000 on 19 June 2018 (Exhibit B3).

    2. (2)

       $15,000 on 1 August 2018 (Exhibit B4).

    3. (3)

       $25,000 on 4 June 2019 (Exhibit B16).

14. [328]

    There was no dispute at trial that the complainant paid this money to the applicant.

15. [329]

    On or about 16 May 2019, whilst at the applicant’s home, the applicant grabbed the complainant by her hair. He smashed her head multiple times into the tiles that were either on a wall or the floor. He also punched her. He armed himself with an electrical extension cord, and hit the complainant with the cord, to her body, over ten times. The complainant tried to shield herself from the applicant’s assault.

16. [330]

    The applicant demanded that the complainant remove her clothes. She refused, so he forcibly removed her now blood-stained clothes. The applicant extracted another false confession from the complainant to the effect that she had been in an intimate affair with another man, a friend of his, named ‘Saif’. Then the applicant anally raped the complainant. He videoed himself inserting his penis into her anus. He was not wearing a condom. The complainant was in great pain. The applicant ignored her plea for him to stop, and he continued anally raping the complainant until he ejaculated inside her.

17. [331]

    The applicant initially told the complainant to leave his home naked. As she was trying to pick up her clothes, the applicant told her to get dressed. She did so and then the applicant took her to her home where she changed out of her bloodied clothes. He then took her to a police station to lodge a false complaint about his friend Saif. She then went home.

18. [332]

    Just after midnight, the complainant called triple-zero. As a result of that call, she was taken to hospital by ambulance where she was treated for a concussion. By once again tracking the location of her mobile phone, the applicant was able to locate the complainant at the hospital. He went there and filmed her in a hospital bed at 4am. He also told the complainant that he would kill her if she told anyone that he had assaulted her.

19. [333]

    On or about 4 December 2019, the applicant punched the complainant in the face and burnt her thumb with hot milk whilst in the complainant’s home.

20. [334]

    The complainant said that the applicant entered her home and started accusing her of having someone at home. At the time, the complainant was at the kitchen stove, cooking for her work Christmas party. The applicant pushed the complainant, and she dropped something on her hand and burnt her hand. The complainant told the applicant to step back but he kept pushing her. He pushed her hand holding the jug, causing the hot milk to pour onto her other hand.

21. [335]

    A friend and work colleague of the complainant gave evidence that the complainant had two black eyes at the work Christmas party in 2019.

22. [336]

    On 10 December 2019, the complainant attended the hospital to obtain treatment for her burnt thumb.

23. [337]

    On or about 12 January 2020, the complainant woke up in the middle of the night to find the applicant in her bedroom. He took her into another room where he punched her hard and multiple times to her face. He then pulled down her pyjama pants and raped her, vaginally then anally. The complainant said she was crying and told the applicant to stop multiple times, but the applicant continued to rape her and threaten her.

24. [338]

    On or about 10 April 2020, the applicant prepared a bath at his home. When the complainant declined the applicant’s demand that she get into the bath, he hit her and she started crying (Count 6).

25. [339]

    The complainant then entered the bath, and the applicant again assaulted her by dangling an extension lead connected to a source of electricity over the bathtub containing water, in which she was now sitting (Count 7).

26. [340]

    The applicant pulled the complainant out of the bathtub and took her to his bedroom where he anally raped her. He pulled her by her hair as she was crying. The complainant said that she told him to stop multiple times and told him to let her go home, but he continued: the applicant inserted his penis into her anus and ejaculated. He was not wearing a condom (Count 8).

27. [341]

    On or about 9 July 2020, the applicant attended the complainant’s home in possession of an extension lead and a knife in a plastic bag. Once inside her home, he took the complainant to a room and hit her multiple times with the extension cord and cut her shoulder with the knife. When the complainant was on the floor trying to put the knife under the bed, the applicant jumped on her back. He also threw a paper shredder at her. The complainant said that she couldn’t even scream from the pain she was in because she was too scared that her son would wake and see what was happening.

28. [342]

    After the applicant left her home, the complainant and her son slept the night in the bathroom. Her stated reason for doing so was that the bathroom was the only room in the house that had a lock on it, and she was scared that the applicant was going to return and harm her and her infant son.

29. [343]

    On or about 5 August 2020, the applicant punched the complainant multiple times in the face and hit her with an electrical extension cord. The punches caused black eyes and a bruised face. The extension cord caused whip-like marks on her body. The sentencing judge was not satisfied beyond a reasonable doubt that the assault occurred in the complainant’s home.

30. [344]

    On the morning of 6 August 2020, the complainant photographed her injuries (Exhibit B, pages 26-34) and sent the photographs to the applicant’s brother, who then forwarded them to the applicant (Exhibit G). The applicant responded to the messages saying, “[d]on’t worry about her, I’ve been for years like that with her”, “[s]he’s used to it” and “[l]et her fuck and get killed”. The sentencing judge found the applicant’s response to be a “damning admission”.

31. [345]

    On an evening between 8 and 30 August 2020, the applicant went to the complainant’s home, again equipped with an electrical extension cord and a knife in a plastic bag. The complainant said that, on this occasion, it was not “the serrated knife”, but a “black handled straight knife” that was larger than the serrated one. She estimated that the knife was approximately 3 to 4 centimetres in width and 15 to 20 centimetres in length.

32. [346]

    After entering her home, the applicant took the complainant into a bedroom. The applicant punched the complainant with his fists and hit her with the extension cord. At one point he also ripped out pieces of the complainant’s hair. The complainant said that he hit her multiple times, to the point where she could no longer properly. The applicant interrogated the complainant, who was in a state of distress, and extracted a false confession from her to the effect that she had sexual intercourse with another man.

33. [347]

    The applicant then sexually assaulted the complainant by pulling down her pants and forcing his penis into her vagina (Count 11) and then into her anus until he ejaculated (Count 12). The applicant was not wearing a condom.

34. [348]

    Referring to counts 11 and 12, the complainant gave the following evidence at trial:

35. [349]

    The sentencing judge was satisfied beyond reasonable doubt that the applicant knew the complainant was not consenting to Counts 2, 3, 4, 5, 8, 11 and 12.

36. [350]

    By early September 2020, the applicant had installed CCTV cameras inside the complainant’s apartment while she was at work. The sentencing judge found that the applicant did so to “further monitor her movements and generally intimidate her”.

37. [351]

    On or about 13 September 2020, whilst at the complainant’s home, the applicant punched the complainant’s face causing the bruising and swelling depicted in the photograph on page 43 of Exhibit B.

38. [352]

    The moments before the assault were partially captured by CCTV. The complainant and her young son were laying on the lounge. The complainant quickly stood up and closely embraced her son. The sentencing judge inferred that the complainant’s son was present not far from where the applicant punched the complainant’s face.

39. [353]

    The complainant’s brother began living at the complainant’s home from mid-September 2020. Thereafter, the applicant ceased entering the complainant’s home when her brother was there.

40. [354]

    On or about 30 October 2020, the complainant attended the applicant’s house. She gave evidence at trial that, whilst at the house, the applicant hit her with an extension cord about ten times, to her arms, back and legs. The assault came to an end when the complainant convinced the applicant that her brother was waiting outside for her.

41. [355]

    As a result of this assault, the complainant sustained two or three welts to her outer upper left arm, depicted in the photographs on pages 45 and 46 of Exhibit B.

42. [356]

    A few days after Count 14, the applicant sent the complainant a video of a hand holding a meat cleaver in front of a bed, a still photo from which is depicted on page 47 of Exhibit B.

43. [357]

    The video, later located by police on the applicant’s phone, was recorded on 4 November 2020.

44. [358]

    The complainant gave evidence that she had not seen the meat cleaver in real life, but said:

45. [359]

    On or about 30 November 2020, the applicant told the complainant that, if she did not go to his house, he would come to her work and “beat” her in front of her colleagues. The complainant negotiated with the applicant, such that she attended his home after work, with her son and brother waiting in her car.

46. [360]

    When the complainant entered the applicant’s apartment, the applicant recorded himself interrogating her about who had been in her house the previous day. Although no one had actually been in her house, the complainant gave the applicant the name “Dex”, in an attempt to placate him.

47. [361]

    The complainant gave evidence at trial explaining the context in which the interrogation occurred: namely, that the applicant had been impersonating the complainant on dating apps or websites, and would send her screenshots of people he had been messaging, in attempts to try and make her sleep with them either alone or in front of him. She chose the name “Dex”, having seen the name in that context.

48. [362]

    The applicant then threw a tower fan at the complainant, punched her, and hit her with an extension cord, causing bruising to her left rear shoulder. He also applied pressure to her neck in a choking-type action whilst pressing her against a wardrobe. The complainant banged on the wardrobe’s sliding door, hoping that she would be seen or heard. She escaped by telling the applicant that her brother was waiting outside.

49. [363]

    The complainant suffered bruising to her face, neck and shoulder, depicted in the photographs at pages 53-58 of Exhibit B.

50. [364]

    The complainant said that when she got home, she had a cold shower to try and ease her pain. She became lightheaded and fell in the bathroom on the floor. Her brother found her on the bathroom floor and saw the marks on her face but assumed they had been caused by her fall.

51. [365]

    Later that same night, the applicant sent the complainant a message on Snapchat. When translated from Arabic to English, the message read (page 52 of Exhibit B):

52. [366]

    The applicant was referring in this message to an injury that he had caused to his own hand during an earlier assault of the complainant.

53. [367]

    On or about 7 December 2020, the applicant sent the complainant threats via Snapchat, including the following (pages 59-61 of Exhibit B):

54. [368]

    That night, the applicant continued to threaten to kill the complainant and told her that he was going to get a gun and kill her.

55. [369]

    The complainant said that the next day (8 December 2020), the applicant was messaging her “non-stop” whilst she was at work, threatening to kill her. She switched off her location. The complainant was so stressed by the applicant’s threats that she collapsed at work and was admitted to the emergency department.

56. [370]

    While in the emergency department, the applicant attended her bed, filmed her (page 62 of Exhibit B) and threatened her again before deleting the messages he had sent to her.

57. [371]

    Between 12 and 15 December 2020, the applicant was constantly sending the complainant messages saying that he had contacted her ex-husband.

58. [372]

    The applicant sent the complainant’s brother text messages on 14 to 15 December 2020 (Exhibit K). They referred to a “[b]lood test for your sister to find out how many guys she slept with” and suggested that “DNA has to be from behind from her mouth because your sister loves sucking and she loves oral”. Interspersed were references to the complainant’s ex-husband and the applicant’s intention to call him.

59. [373]

    On 15 December 2020, the applicant told the complainant that if she did not go to him within the next few minutes, that he had her ex-husband’s number on speed dial and that he was going to call him. The complainant thereafter told her brother the following:

60. [374]

    The complainant said that she had packed all of her clothes and her son’s belongings in rubbish bags and donated them to charity, and that she was going to meet the applicant to tell him that she was leaving Sydney, and that he would not see her again.

61. [375]

    The complainant went to the applicant’s home. Once inside, the applicant threatened to kill her. He grabbed at her and threatened her with a knife. Soon thereafter, her brother intervened, and the applicant was arrested.

62. [376]

    The sentencing judge’s findings about the nature of the relationship are not challenged on this appeal. They can be summarised as follows:

Findings of the sentencing judge

1. [377]

   The sentencing judge had regard to several aggravating factors (insofar as they existed and were relevant to particular offences) pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”). By way of example, in respect of Counts 3, 9, 10, 11, 12, 14, 15 and 16, the sentencing judge found that the applicant’s threatened or actual use of a weapon was an aggravating factor.

2. [378]

   In respect of Count 13, the sentencing judge found that the offence was aggravated because it was committed in the presence of a child under the age of 18 (s 21A(2)(ea) of the Sentencing Act).

3. [379]

   In respect of Counts 9, 11 and 12, the sentencing judge found that the acts were part of a planned criminal activity by the applicant in the sense that they were each premeditated.

4. [380]

   In respect of Counts 3, 5, 8 and 12, which involved non-consensual penile/anal intercourse, the sentencing judge found that the “degrading nature of the anal intercourse” was an aggravating feature of those offences.

5. [381]

   Counts 11 and 12 were offences of aggravated sexual assault where the applicant went to the home of the complainant equipped with an extension cord and a knife in a plastic bag. The objective seriousness of Count 11 was found to be of a “very high order”, being premeditated, committed in the home of the complainant during ongoing domestic violence perpetrated against her by the applicant, with the use of a weapon, non-use of a condom and in actual knowledge of a lack of consent.

6. [382]

   Similarly, the objective seriousness of Count 12 was “of a very high order”, featuring the same aggravating factors as Count 11 but being more objectively serious because this was a count of penile/anal penetration followed by the applicant ejaculating inside the complainant.

7. [383]

   Furthermore, the sentencing judge found that the moral culpability of the applicant at the time he committed Counts 11 and 12 was of the “highest order”, in circumstances where the applicant had been physically and sexually assaulting the complainant for some three years and six months, during which time he “inflicted long lasting and substantial injuries and instilled in her a fear for her life”.

8. [384]

   In light of the grounds advanced on behalf of the applicant, it is necessary to set out in full the sentencing judge’s findings in respect of Count 12:

9. [385]

   The applicant was aged 41 at the time of sentencing. Prior to August 2016, he had led a crime-free life. The applicant was born in southern Iraq, the third of four children in the family. He described a happy and harmonious family atmosphere. He was an above average student at school. He denied any academic, social or behavioural problems.

10. [386]

    The applicant’s father and brother each fled Iraq, leaving him with a large measure of responsibility for looking after the family. During the Iraq war in 2003, when the applicant was aged 21, he witnessed death and devastation in the streets of southern Iraq.

11. [387]

    Following the war, the applicant attended university in Basra where he obtained a degree in accounting. Acting on advice from his father, and fearing for his safety, the applicant fled Iraq in 2008 and joined his brother in Germany. He stayed in Germany for two years, working for his brother who had a hairdressing business.

12. [388]

    The applicant returned to Iraq for the purpose of an arranged marriage and then immigrated to Australia on a spouse visa in 2012. The applicant and his wife settled in Western Sydney. After a period of separation, they reunited and now have two children together.

13. [389]

    The sentencing judge observed that the applicant’s upbringing does not disclose a history of profound deprivation, a finding that is not challenged.

14. [390]

    The report of John Machlin, clinical psychologist, disclosed a marked decline in the applicant’s circumstances in the period leading up to and surrounding his arrest. The applicant reported that he commenced using Tramadol in 2018 for back pain. His father died in 2019 following heart surgery. His mother subsequently died of pancreatic cancer. In response to his grief, the applicant reported turning to substance use by way of unprescribed Tramadol, alcohol, cocaine and methamphetamine. His attendance at work reduced and the applicant reported that he “avoided sunlight”.

15. [391]

    Although not specifically referred to in the ROS, the applicant told the psychologist he experienced a series of sexual assaults in childhood which he had not disclosed to anyone. Mr Machlin declined to canvass this aspect of the history in detail, regarding it as best explored in a therapeutic forum.

16. [392]

    The sentencing judge referred to the testimonials relied upon by the applicant, which painted a picture of him “as a person of good character who continues to have the support of family and friends”. In respect of the letter prepared by the applicant’s brother, the sentencing judge was unable to accept the statement that the applicant is a “kind-hearted person who has always went out of his way to help others”.

17. [393]

    The sentencing judge was also unable to accept the statement that the applicant’s brother was “shocked when [he] first heard about the allegations”, in light of the fact that the complainant had photographed her injuries on the morning of 6 August 2020 and sent those photographs to the applicant’s brother who then forwarded them to the applicant (Exhibit G). As previously noted, the applicant’s brother thereafter received a text message from the applicant that stated: “Don’t worry about her, I’ve been for years like that with her”, “[s]he’s used to it”, and “[l]et her fuck and get killed”.

18. [394]

    The sentencing judge accepted on the balance of probabilities that the applicant was the victim of an assault whilst in custody, during which he sustained significant injuries including fractured facial bones. It was also accepted that the applicant was admitted to the Prince of Wales Hospital on 22 September 2023, after suffering a suspected heart attack whilst in custody. The discharge summary from the hospital stated that the applicant had experienced an episode of “atrial fibrillation with rapid ventricular rate on the background of T2DM and hypercholesterolaemia”.

19. [395]

    In respect of the applicant’s physical health, the sentencing judge observed that it is the responsibility of the executive government to ensure the safety of prisoners in custody. On the other hand, it was accepted that the physical health and safety of a prisoner is a relevant consideration in determining an appropriate sentence.

20. [396]

    The sentencing judge found there was insufficient evidence to establish, on the balance of probabilities, that the conditions in custody would be made more onerous for the applicant in the event he is placed in protective custody. Similarly, the sentencing judge did not find that the hardship to the applicant’s family and dependents was a mitigating factor.

21. [397]

    The applicant had no relevant prior criminal history. The sentencing judge noted that this is ordinarily a matter which would entitle an offender to leniency. However, in the present case the applicant’s crimes against the complainant spanned some four years, and in those circumstances the absence of a criminal history prior to August 2016 was not regarded as a mitigating factor.

22. [398]

    The sentencing judge found that the applicant had a “complete lack of remorse” and that there was an absence of evidence as to his objective progress in respect of his substance misuse. Notwithstanding these findings, the sentencing judge was not of the view that the applicant has no prospects of rehabilitation, concluding that those prospects “cannot be described as better than not so good”.

23. [399]

    The sentencing judge found that there is a risk of the applicant reoffending, especially against women with whom he develops an intimate relationship.

24. [400]

    The sentencing judge had regard to the relevant maximum penalties and applicable standard non-parole periods as relevant legislative guideposts. His Honour also had regard to the purposes of sentencing as set out in s 3A of the Sentencing Act, and in particular, the need to impose adequate punishment; general and specific deterrence; protection of the community; denouncing the applicant’s conduct; recognising the harm done to the complainant and the community; and the rehabilitation of the applicant.

25. [401]

    In imposing the aggregate sentence, the sentencing judge applied the principle of totality, including considerations of notional accumulation and concurrency. In doing so, the sentencing judge balanced the need to avoid imposing a “crushing” sentence upon the applicant, with the need to avoid any suggestion of a discount for multiple offending which may give rise to a diminution of public confidence in the administration of justice:

26. [402]

    The sentencing judge made a finding of special circumstances based on the applicant’s need for rehabilitation and the need for an extended period of supervision upon his ultimate release to parole. This had the result that the statutory non-parole period was reduced by 18 months.

Consideration of the sentence appeal

1. [403]

   In dealing with the grounds of appeal, it is necessary to make some preliminary observations. Firstly, although there are three discrete grounds relied upon by the applicant in support of the sentence appeal, the submissions focused on the manifest excess ground (ground 4), with considerable reliance on “comparative cases”.

2. [404]

   Secondly, during the hearing, there was some uncertainty as to whether the applicant relied upon grounds 5 and 6 as standalone grounds or as particulars of ground 4. The following exchanges took place with counsel for the applicant:

3. [405]

   In light of the uncertainty about the applicant’s position, it is necessary to address each ground in turn, although in reverse order, observing that there is some overlap between the grounds of appeal.

4. [406]

   Ground 6 is made up of two parts, a complaint that the sentencing judge erred in not having regard to the applicant’s personal circumstances in mitigation of the aggregate sentence. Alternatively, that the sentencing judge erred in not having regard to the applicant’s personal circumstances to mitigate the sentence that would have been imposed in respect of Count 12. This ground can be dealt with succinctly.

5. [407]

   The applicant’s ground of appeal refers specifically to paragraph [164] of the ROS as demonstrating error in the approach taken by the sentencing judge to the applicant’s subjective case. It is therefore necessary to set out again what his Honour said in that regard:

6. [408]

   The applicant’s contention that the sentencing judge made the above finding in respect of the aggregate sentence, must be rejected. The finding was made during the sentencing judge’s consideration of Count 12. The preceding paragraph contains specific findings in relation to the objective seriousness of the act and circumstances constituting Count 12. Paragraph [165] contains the sentencing judge’s conclusion that Count 12 warrants the “imposition of the maximum penalty”. The sentencing judge was not “imposing” a sentence in respect of Count 12 but rather indicating “the sentence that would have been imposed” (pursuant to s 53A(2)(b) of the Sentencing Act). Be that as it may, the point is that in making the finding, his Honour was addressing the reasons underpinning his conclusion that the offending and the circumstances of the applicant warranted the maximum penalty for Count 12 because that offence fell within the “worst category”.

7. [409]

   The sentencing judge did have regard to the applicant’s subjective case (limited as it was) in determining the appropriate aggregate sentence, finding that the applicant’s physical health and safety was a relevant consideration.

8. [410]

   Furthermore, the sentencing judge did not find (having regard to aspects of the applicant’s subjective case) that there were no prospects of rehabilitation. Instead, the sentencing judge concluded that the applicant’s prospects “cannot be described as better than not so good”.

9. [411]

   We are not persuaded that the sentencing judge failed to have regard to the applicant’s personal circumstances in determining the aggregate sentence. We turn then to consider whether error has been demonstrated in the sentencing judge’s finding that none of the personal circumstances of the applicant operated to mitigate the sentence that would have been imposed for Count 12.

10. [412]

    In setting out an indicative sentence of 20 years’ imprisonment with a non-parole period of 15 years, it can be taken that the sentencing judge found that this offence fell into the “worst category” and that the applicant’s personal circumstances did not operate to mitigate the sentence that would have been imposed in respect of that count.

11. [413]

    Essentially, this part of ground 6 is related to ground 5 insofar as the complaint is that it was not open to the sentencing judge to characterise Count 12 as a “worst category” offence. The standard of appellate review in relation to claimed errors of fact made by a sentencing judge was recently considered by a five-judge bench of this Court in Hancock v R [2025] NSWCCA 213 at [72]-[74], where the Court concluded that the appropriate standard is the “reasonably open” test: see also Edwards v R [2026] NSWCCA 15 at [72]-[73]. A finding of “worst category” is not a finding of fact. It is a legal characterisation based upon findings of fact, analogous to an assessment of objective seriousness: Fisher v R [2026] NSWCCA 27 at [69]-[81].

12. [414]

    The assessment of whether an offence is a “worst category” offence requires an evaluative assessment. It is not for this Court to simply substitute its own opinion for that of the court below.

13. [415]

    The applicant’s conduct in respect of Count 12 has already been summarised in detail above at [78]-[80]. In essence, the applicant engaged in a premeditated act of penile/anal sexual intercourse without the consent of the complainant, knowing she was not consenting. He was not wearing a condom when he ejaculated following the sexual intercourse. This act was committed in the context of the applicant’s physical and sexual abuse of the complainant over a period of some three years and six months, during which time his actions caused the complainant to fear for her life and/or the removal of her child from her care.

14. [416]

    By this time, the applicant was obtaining psychological satisfaction from his dominance of the complainant and inflicting gratuitous pain upon her. He took advantage of the fact that her cultural and religious beliefs meant that she was especially vulnerable. The findings that this offence was as one of “very great heinousness” and involved moral culpability “of the highest order”, were reasonably open to the sentencing judge.

15. [417]

    The applicant’s subjective case was limited. He did not have a background of deprivation and disadvantage warranting a reduction of his moral culpability. Indeed, the evidence was that he had a harmonious and happy family background. Whilst the applicant reported a history of trauma associated with childhood sexual abuse and exposure to atrocities during the Iraq war, Mr Machlin found there is “an insufficient basis to conclude he is a long-term sufferer of PTSD from those early experiences”. Based on the applicant’s self-report of the period surrounding the offending, Mr Machlin stated that the applicant appeared to have “sustained a Substance Use Disorder and a reactive depressive condition, namely Adjustment Disorder with Depressed Mood”. Mr Machlin concluded that, whilst “bereavement, substance use and depression” appeared to have adversely affected the applicant in advance of the offences, he could not make firm conclusions about whether a diagnosable condition applied at specific stages of the applicant’s progressive decline. Accordingly, even taking the evidence at its highest, there was no evidence that at the time of the commission of the offences, the applicant was suffering from a mental health condition which materially contributed to his conduct.

16. [418]

    The applicant demonstrated no remorse or acknowledgement of the harm occasioned to the complainant. In circumstances where the offending continued over years and where the actions of the applicant demonstrated a manipulative, coercive and violent course of conduct, it was correct to find that he poses a risk of reoffending, particularly against women with whom he developed an intimate relationship.

17. [419]

    In summary, we are not persuaded that the sentencing judge failed to take into account the personal circumstances of the applicant in determining the aggregate sentence ultimately imposed. His Honour’s findings at paragraph [164] of the ROS related to his consideration of Count 12.

18. [420]

    In respect of the complaint that the sentencing judge failed to have regard to the applicant’s personal circumstances in mitigation of the sentence for Count 12, his Honour was fully apprised of the applicant’s limited subjective case and referred to it throughout the ROS. Notwithstanding that subjective case, it was reasonably open to the sentencing judge to find that Count 12 is a “worst category” offence.

19. [421]

    Accordingly, ground 6 is not made out.

20. [422]

    Ground 5 is framed as a standalone ground of appeal asserting error on the part of the sentencing judge in finding that Count 12 warranted the imposition of the maximum sentence. There is some overlap between ground 5 and ground 6. However, the applicant’s complaint (in respect of ground 5) appears to be one of latent error, contending that the outcome (an indication of the maximum penalty) is such that it can be inferred that some error must have occurred.

21. [423]

    This Court has repeatedly stated that indicative sentences are not themselves amenable to appeal. The relevant principles were distilled by R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 (“JM v R”) as follows:

22. [424]

    Where there is clear error in an indicative term, it may signal error in the aggregate term: AA v R [2024] NSWCCA 132 at [4] (Ward P and Wilson J agreeing). However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive: JM v R at [40]; Lee v R [2020] NSWCCA 244 (“Lee v R [2020]”) at [32]; PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537 at [252]-[254]; Kirby v R [2021] NSWCCA 162 at [45]; Astill v R [2024] NSWCCA 118 (“Astill”) at [78]; Wright v R [2025] NSWCCA 108 (“Wright”) at [86].

23. [425]

    As was explained by N Adams J (Harrison CJ at CL agreeing) in Dorsett v R [2024] NSWCCA 192 (“Dorsett”) at [159], prior to the decision in AJ v R [2023] NSWCCA 158 (“AJ v R”), it was well-established that there are two ways in which complaints that the indicative sentences informed error in the aggregate sentence could be established.

24. [426]

    The first way in which error in an indicative sentence may be relevant in an appeal against an aggregate sentence is if it is a guide to whether error is established in relation to the aggregate sentence: JM v R at [40] cited in Dorsett at [160].

25. [427]

    The second way in which error in one or more of the indicative sentences could establish error in the aggregate sentence is where patent error in an indicative sentence is established “and it has the capacity to influence the sentence”: Dorsett at [163] (emphasis in original) citing Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Basten JA); Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145] (N Adams J, Leeming JA agreeing); Benn v R [2023] NSWCCA 24 (Gleeson JA, N Adams and Ierace JJ agreeing).

26. [428]

    In AJ v R, a third way was contended for on behalf of the applicant, namely that a manifestly excessive indicative sentence (latent error) requires this Court to intervene and resentence an offender without the need for any corresponding ground alleging manifest excess in the aggregate sentence. That approach was rejected in PN v R [2024] NSWCCA 86 at [49] and KS v R [2024] NSWCCA 147 at [74].

27. [429]

    It should be acknowledged, however, that a different view was expressed by Dhanji J in Lee v R [2023] NSWCCA 70; RA v R [2024] NSWCCA 149 (“RA v R”); and Dorsett at [202]. In RA v R, Dhanji J addressed the issue by reference to the High Court’s decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. His Honour then observed the following:

28. [430]

    The divergence of views was referred to in Dorsett where N Adams J carefully reviewed the various decisions of this Court dealing with the issue of whether an indicative sentence affected by latent rather than patent error can sustain an appeal against an aggregate sentence where the aggregate sentence itself is not manifestly unreasonable or unjust: at [164]-[176]. Her Honour concluded that the consistent position of this Court is that, while an argument that there has been latent error in an indicative sentence may support a ground of appeal contending that the aggregate sentence is manifestly excessive (or inadequate), it is not in and of itself error of the type which would require the Court to resentence an offender: at [177].

29. [431]

    Although Dhanji J in Dorsett maintained his position that there is no principled reason to distinguish between cases involving patent or latent error in the determination of an indicative sentence, his Honour acknowledged that his view is not the prevailing view of the Court: at [202].

30. [432]

    It may be that the divergence of views requires future consideration of the issue by this Court comprised of an expanded bench. However, the point was not the subject of submissions in this appeal, and the prevailing view remains that set out in JM v R, namely, that even in a case where an indicative sentence is determined to be excessive, it does not follow that the Court would proceed to resentence: at [40]. We proceed on the basis of that orthodox approach.

31. [433]

    Even where an indicative sentence is determined to be “very high” or “excessive”, much will depend on the degree of notional concurrence between the indicative sentences that comprise the aggregate. In the present case, even if it had been established that Count 12 did not warrant the maximum penalty, the fundamental question remains whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality evident in the offences: JM v R at [40]; Delleci v R [2020] NSWCCA 4 at [61]; McTague v R [2020] NSWCCA 83 at [47]; Lee v R [2020] at [32]; Jackson v R [2021] NSWCCA 15 at [116]; Stevenson v R [2022] NSWCCA 133 at [110]-[111]; Kelly v R [2023] NSWCCA 104 at [44]; Astill at [78]; Wright at [86].

32. [434]

    Here, it was reasonably open to find that Count 12 fell into the worst category case having regard to the matters set out at [415]-[416]. Even if that finding was not reasonably open, for the reasons set out in considering ground 4, the aggregate sentence is not manifestly excessive having regard to the degree of notional concurrence.

33. [435]

    Accordingly, ground 5 is not made out.

34. [436]

    We turn to consider the applicant’s complaint that the aggregate sentence is unreasonable or “plainly unjust”. The principles relevant to the consideration of a manifest excess ground (and reliance on comparative cases) were recently summarised in Nair v R [2025] NSWCCA 136 (Yehia J, Stern JA and Cavanagh J agreeing) as follows:

35. [437]

    In support of the contention that the aggregate sentence is manifestly excessive, the applicant pointed to “very high indicative sentences” in respect of Counts 11 and 12, and argued that the indicative sentences in respect of those counts signal an error in the aggregate term.

36. [438]

    The applicant also called in aid comparative cases to submit that the aggregate sentence ultimately imposed was manifestly excessive. The applicant relied upon the Public Defender’s table of sentences imposed for offences contrary to s 61J since 2003. The applicant submitted that the Public Defenders’ table demonstrates that the aggregate sentence is manifestly excessive as no aggregate sentence exceeding that imposed upon him appears in the table.

37. [439]

    The range of sentences demonstrated by the 56 cases contained in the Public Defender’s table for offences contrary to s 61J includes head sentences from 2 years to 24 years’ imprisonment, with non-parole periods ranging from 6 months to 18 years.

38. [440]

    The applicant also relied upon the Public Defender’s table of sentences imposed for offences of aggravated sexual intercourse in company, contrary to s 61JA, which carries a maximum penalty of a life sentence and a standard non-parole period of 15 years. The applicant noted that there was only one matter (Aslett v R [2006] NSWCCA 49) in which the offender received a sentence that exceeded that imposed on the applicant, and in which an indicative sentence imposed was of 20 years or more.

39. [441]

    The applicant focused on four comparative cases in support of the manifest excess ground, which can be summarised as follows.

40. [442]

    In Thorne v R [2007] NSWCCA 10 (“Thorne”), the appellant was re-sentenced by this Court to an aggregate term of 11 years’ imprisonment with a non-parole period of 7 years and 6 months, for three counts of sexual assault committed against his former wife, including: one offence contrary to s 61J, the circumstances of aggravation being the malicious infliction of actual bodily harm immediately before the intercourse; and two offences contrary to s 61I. The indicative on re-sentence for the s 61J offence was 9 years and 6 months, with a non-parole period of 6 years. The same indicative of 7 years, with a non-parole period of 3 years and 6 months, was identified for both of the s 61I offences.

41. [443]

    Unlike the present case, the offending arose from a single incident that occurred on the morning of 20 November 2004. The victim awoke to find the appellant naked in her bedroom. The appellant said he was going to have sexual intercourse with the victim “one last time” and threatened suicide. The appellant then pinned the victim down on the bed and hit her in the head a number of times. When she attempted to escape, the appellant grabbed her by her hair and repeated his earlier threats. The appellant proceeded to sexually assault the victim, including two instances of penile-vaginal intercourse (Counts 1 and 2) and one instance of penile-anal intercourse (Count 3), over the course of the next hour or so. During this time, the appellant responded to the victim’s repeated attempts to escape with physical violence, chasing the victim around the house and punching her, and continued to threaten to kill himself and kill the victim if she did not comply. After a neighbour intervened, the appellant fled and attempted to commit suicide.

42. [444]

    Thorne can also be distinguished on the basis that the Court, on resentence, held that, in light of the appellant’s “disordered mental state” at the time of the offending, the offences were not within the mid-range of seriousness, but rather, fell below the mid-range of seriousness. With respect to the s 61J offence, the Court found that the aggravating feature was not of a particularly serious kind, and that there were no acts of degradation other than the assaults themselves. These findings are very different from the unchallenged findings of the applicant’s conduct in the present case.

43. [445]

    In Simon v R [2013] NSWCCA 328, the appellant was sentenced following trial to an aggregate term of 22 years’ imprisonment, with a non-parole period of 17 years, for a total of 19 offences, including 12 offences contrary to s 61J, and two counts of attempted offences contrary to s 61J. The appellant followed a 22-year-old female stranger home, broke into her unit and threatened her with a knife which he found in the unit. The applicant proceeded to sexually assault the victim over the next three hours, including penile-vaginal intercourse, penile-oral intercourse and attempted anal intercourse. Whilst the assaults were accompanied by threats of violence, the victim did not sustain any physical injuries. The appellant was aged 37 years old and had a lengthy criminal record, which included sexual offences. The appeal was upheld in part, with the head sentence remaining unchanged and the non-parole period reduced to 16 years.

44. [446]

    In R v Attwater; R v Maris [2017] NSWSC 1710, the offender (Mr Attwater) was sentenced following trial to an aggregate term of 19 years’ imprisonment, with a non-parole period of 14 years and 3 months, for one count of manslaughter by unlawful and dangerous act and one count of aggravated sexual assault (in company) contrary to s 61J. The indicative term specified for the s 61J offence was 12 years, with a non-parole period of 9 years. The offending arose from a single episode, during which Mr Attwater and the co-offender sexually assaulted the victim whilst she was unconscious. Mr Attwater was in a “casual, non-exclusive sexual relationship” with the victim at the time. Mr Attwater used his fist to repeatedly and forcibly penetrate the victim’s vagina. The victim died the following morning from blood loss caused by two major tears to the vaginal area. Mr Attwater was aged 43 at the time of sentence and 36 at the time of the offending and had a criminal history consisting of relatively minor offences. The sentencing judge found that none of Mr Attwater’s personal circumstances operated in mitigation of the sentence imposed.

45. [447]

    The sentencing judge emphasised the need to avoid double punishment, as non-consensual intercourse was an aspect of both offences (at [28]–[29]), and held that it would offend the principle from R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 to find that the s 61J offence involved the intentional or reckless infliction of actual bodily harm (at [105]). The delay in prosecution was also taken into account in the sentence imposed, albeit to a moderate degree.

46. [448]

    In R v Barrett [2021] NSWSC 126, the offender was sentenced, taking into account a 10% discount for his guilty plea, to an aggregate term of 20 years’ imprisonment, with a non-parole period of 14 years, for a total of nine offences, including six offences contrary to s 61J(1), one attempted offence contrary to s 61J(1), and two offences of indecent assault contrary to s 61L. A number of related sexual assault charges were also taken into account on a Form 1. The offender had previously been sentenced to 46 years’ imprisonment for the detention and murder of the victim, before these further sexual offences (committed by the offender during the victim’s detention) were discovered. Fresh evidence of the further sexual offences was found on a USB, in which the offender had recorded himself repeatedly sexually assaulting the victim, before stabbing the victim. The total duration of the recordings was approximately 60 minutes. Each sexual and indecent assault was committed whilst the victim was bound and gagged and involved the use of a hunting knife to threaten the victim.

47. [449]

    The sentencing judge found the offending to be cruel and inhumane, “sexually sadistic”, and the most serious example of an offence of this nature. The offending was found to involve planning. However, the sentencing judge found that the further sexual offences formed part of a “continuing course of criminality”, which started with the victim’s detention and ended with her murder, and that the sentencing exercise was complicated by the need to avoid double punishment whilst complying with the principle of totality.

48. [450]

    Although comparisons with specific past sentencing cases may be of considerable assistance, such comparisons must be exercised with caution: Hili v R; Jones (2010) 242 CLR 520; [2010] HCA 45 at [54]; Barbaro v R (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[304]; Shalida v R [2024] NSWCCA 55 at [91]-[92]; Nataucu v R [2025] NSWCCA 94 at [35]-[37].

49. [451]

    Each of the comparative cases reveals serious sexual and violent offending. However, the points of distinction between those cases and the present case are readily discernible. In the present case the number of offences and the gravity and duration of the offending conduct is more serious, requiring the imposition of an aggregate term of imprisonment that appropriately reflected the entirety of the criminality involved.

50. [452]

    While the aggregate sentence is a stern sentence, it is not manifestly excessive having regard to the objective seriousness of the offending, the applicant’s high moral culpability, the weight to be afforded to the various purposes of sentencing and the applicant’s limited subjective case.

51. [453]

    Ground 4 is not made out.

Conclusion

1. [454]

   None of the grounds of appeal against conviction or sentence having been made out. The following orders are made:

   1. (1)

      Leave to appeal against conviction and sentence granted.

   2. (2)

      Appeal dismissed.