Smith v R

BELL CJ: On 22 November 2022, after a trial of 18 days, Trent Steven Smith (the Applicant) and his co-accused, Malak Fahmy Bishay (Mr Bishay), were found guilty by a jury on the following two counts:

The Applicant was also found guilty of the following count:

Mr Bishay, who was the uncle of the Applicant, was found guilty of two further counts.

Both complainants, Ms Paull and Ms Finlay, gave evidence and were extensively cross examined at the trial. The jury deliberated on its verdicts for two days.

On 28 July 2023, in respect of counts 1 and 2, the Applicant was sentenced to an aggregate term of imprisonment of 8 years that commenced on 1 June 2021 and which will expire on 31 May 2029 with a non-parole period of 5 years. He is first eligible for parole on 31 May 2026. The judge gave indicative sentences of 6 years for Count 1, and 5 years for Count 2. It will be apparent that the Applicant has already served just over 4 years of his sentence.

A community corrections order for 12 months was imposed in respect of Count 3.

The Applicant now seeks leave to appeal out of time on a single ground, namely that the verdicts are unreasonable and cannot be supported having regard to the evidence.

Leave to appeal out of time should be granted but the appeal must be dismissed. The verdicts of the jury were not unreasonable and were supported by the evidence which I have reviewed closely for the purpose of these reasons.

The second complainant, Ms Finlay, was the tenant of a housing commission unit at 15/66 Wellington Street, Waterloo (the unit).

On 10 February 2021, the Applicant was released from custody following the conclusion of a sentence in respect of a shoplifting charge. He took up residence at the unit. Mr Bishay was also a regular presence at the unit. He and the Applicant came and went from it from time to time.

From some time in February 2021, the first complainant, Ms Paull, also resided at the unit other than for a small number of days when, in the company and, according to Ms Paull, under the control of the Applicant and Mr Bishay, she stayed at a hotel with them.

Ms Paull was at all material times on bail. She complied with her police reporting obligations on 14 February 2021 but did not comply with them between 15 February 2021 and 8 March 2021.

On 8 March 2021, at about 8.00 pm, an occupant of another unit, Ms Bourke, heard a woman crying out for help, saying “Help me, somebody help me”. These cries continued for about 10 minutes or so, with the neighbour describing them as “more insistent, more desperate”. The neighbour contacted Redfern Police. (When subsequently interviewed by police, the neighbour indicated that “probably for a couple of weeks beforehand”, she had “heard noises and other people. You know, bangs and thuds and things and arguing”).

Constables Hyde and Walker attended the unit at about 8.30pm on 8 March 2021. Body worn videos recorded the following events (what follows draws on the sentencing judge’s description in her remarks on sentence):

Constable Hyde described Ms Paull on her emergence from the unit as “shaking, scared, and not wearing any shoes”. That description accords with her presentation on the footage from the constables’ body worn video which also showed her struggling to walk even a few paces, and is consistent with her account of having been struck with a metal bar on her feet and hands.

The interaction between Constable Hyde and Ms Paull on the video was as follows:

Of principal significance, it may be observed from this extensive passage that Ms Paull reiterated her desire but inability to leave the unit: “I want to go”; I wanna leave”; “I wanted to leave”; “they’re not now” [preventing her from leaving]; “they let me go now”; “I would have still been in there”; and “I haven’t been able to get out the door”.

Constable Walker gave the following account of his interaction with Ms Paull shortly after this exchange:

Ms Paull was then taken to hospital. A metal bar with traces of the Applicant’s DNA was subsequently located in the unit.

A paramedic, Mr Nathan Beencke who attended Ms Paull and accompanied her to hospital, made the following contemporaneous note:

The so called “contract” was later located in the house. It was consistent with what Ms Paull had told Mr Beencke, and what she later told Detective Senior Constable Poole and Senior Constable Trask during an interview conducted at approximately 12.45 am the next morning at St Vincent’s Hospital.

Ms Paull’s lengthy hospital interview included her:

A crime scene was established at the unit after Ms Paull had been taken away by the ambulance, and the Applicant and Ms Finlay were arrested, although Ms Finlay was subsequently released and never relevantly charged. Ms Finlay presented with bruising to her face. A written statement of Dr David Murphy recorded that:

Dr Murphy identified Ms Finlay’s principal injury as follows:

Ms Finlay also participated in two interviews on the morning of 9 March 2021, one between 5:04 am and 5:26 am, and another from 5:40 am until 5:50 am. There was no scope for collusion between Ms Finlay and Ms Paull as the former was under arrest at all material times and the latter’s interview was conducted at St Vincent’s Hospital. The first interview included the following:

In her 5.40 am interview, Ms Finlay gave evidence about what became known in the trial as the “porridge incident” which she estimated to have occurred some 4 days earlier:

Later in the interview, the following exchange occurred:

Mr Bishay, who was not present at the unit at the time of the police visit on 8 March 2021 and the establishment of the crime scene, was arrested on 21 March 2021.

As noted above, both Ms Paull and Ms Finlay gave evidence at the trial and were cross examined at length. Aspects of that cross examination will be considered in the context of assessing the arguments advanced on appeal on behalf of the Applicant.

Neither the Applicant nor Mr Bishay gave evidence at the trial.

Before turning to consider the contentions advanced on behalf of the Applicant, the principles relevant to an appeal against a jury verdict on the grounds that it was unreasonable should be identified.

The applicable principles, derived from a number of decisions of the High Court (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell); Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; R v ZT [2025] HCA 9; (2025) 99 ALJR 676 (ZT)), were not in doubt.

In M, the High Court stated at 493 that:

The Court must have due regard to the advantage of the jury in hearing and seeing witnesses, as held in M at 494-5:

Generally speaking, the lengthier the cross examination, the greater the jury’s advantage. The jury’s advantage is, however, “not limited to its capacity to see and hear the witnesses give their evidence”: Kim v R [2020] NSWCCA 288 at [58]. The High Court held in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]:

The advantages of the jury, including (as in this case) where the evidence consists of recorded conversations or interviews, were recently summarised in ZT:

A court of criminal appeal, in a case where a jury verdict is challenged on the basis that it is unreasonable or cannot be supported having regard to the evidence, proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell at [38]. The Court is required to examine the record to see whether, notwithstanding the jury’s assumed assessment of the credibility and reliability of the complainant, it is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt, “either by reason of inconsistencies” discrepancies, or other inadequacy, or in light of other evidence”: Pell at [39].

Inconsistencies or discrepancies may exist at several levels. They may be internal inconsistencies or discrepancies within a complainant’s evidence, as between a complainant’s evidence and other testimonial or documentary evidence, or, where there are two (or more) complainants (such as in the present case), as between those complainants. Inconsistency may also arise in the case of a jury’s verdict on multiple charges: see MacKenzie v The Queen (1996) 190 CLR 348 at 366-7; [1996] HCA 35; Nguyen v R [2017] NSWCCA 145 at [34]-[48]; Holt v R [2021] NSWCCA 140 at [103]-[112].

The “mere existence of discrepancies or inconsistencies” in witnesses’ evidence is “scarcely surprising or unusual” and does not necessarily compel a conclusion that a jury’s verdict is unreasonable: Hanna v R [2023] NSWCCA 182 at [24], [85]. Far from it. As was held in RA v R [2020] NSWCCA 356 at [15]:

A court of criminal appeal, in affording a measure of deference to the jury, must also bear in mind that juries are “well able to evaluate conflicts and imperfections of evidence”: MFA at [96]; see also Gray v R [2020] NSWCCA 240 at [100]; AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [101]. By way of example, this Court in Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [69] concluded that:

Mr Carroll, who appeared for the Applicant in this Court, developed his written argument under three broad headings. First, he relied upon what he described as “the implausibility attached to Ms Paull’s version of events”; second, he referred to “the improbable, and the exculpatory, evidence of Ms Finlay”; and, thirdly, by reference to a heading “Circumvention of conflict in the prosecution case”, Mr Carroll criticised aspects of the prosecutor’s address to the jury.

As to this last point, it was common ground that no complaint was made in closing before the trial judge about the Crown’s address to the jury, including in relation to what the Crown had submitted about the need to establish all elements of the counts at the one point in time ie the complainants’ being assaulted while being detained against their will.

The overall thrust of Mr Carroll’s written submissions was reflected in the following three paragraphs:

In his oral argument, without abandoning his attack on the conviction on Count 1, Mr Carroll focussed on the Applicant’s conviction on Count 2. This was no doubt forensically motivated by the fact that the Applicant had already served 4 years of his aggregate sentence (with its non-parole period of 5 years), and that the indicative sentence for Count 1 was 6 years, and the indicative sentence for Count 2 was 5 years. Although one cannot disaggregate an aggregate sentence by reference to indicative sentences, Mr Carroll’s forensic aspiration was no doubt that, if successful in his attack on the conviction for Count 2, any resentence for Count 1 would be likely to be significantly less than the existing aggregate sentence and, taking into account time already served, would result in the Applicant’s release. His oral submission was as follows:

In his oral submissions, Mr Carroll acknowledged that there was “a qualitative difference between the evidence in relation to Ms Paull's allegation and Ms Finlay's allegation.” What I took him to mean by this was that Ms Finlay accepted that she was a party to the beating of Ms Paull, while at the same time claiming that she was herself a victim of detention and assault by the Applicant and Mr Bishay, and the tension in Ms Finlay’s position created a potential internal inconsistency in her evidence. This potential internal inconsistency is addressed later in these reasons.

Although not the focus of his oral submissions, it is convenient to commence with the appeal in relation to the Applicant’s conviction on Count 1, namely that the conviction in relation to the detention and assault of Ms Paull was unreasonable and cannot be supported having regard to the evidence.

As earlier noted, Ms Paull was at all material times on bail and failed to comply with her bail reporting obligations between 15 February and 8 March 2021. It was squarely put to her in cross examination (and rebuffed) that her claim to have been detained by the Applicant and Mr Bishay was a pretext invented to justify her non-compliance with these reporting obligations and that she was worried that she would be in trouble for non-compliance them. Her response was that:

She also gave the following evidence:

It was open to the jury to accept Ms Paull’s strong denial of this thesis as to the reasons for her claim to have been detained against her will. Not only had the jury observed her being cross examined over some 5 days but they also had the benefit of the body-worn camera footage following her exit from the unit. That footage shows an obviously severely injured woman, barely able to walk, whose first words to the police, moments after being released from the unit, were entirely consistent with being scared and having been detained against her will:

The lengthy exchange between Constable Hyde and Ms Paull immediately after her release was replete with such references: see [17] above. These, in turn, were reinforced in the recorded interview of Ms Paull from St Vincent’s Hospital in the early hours of 9 March 2021 (see [22] above).

In addition to these important records of evidence, the jury had the benefit of the note of the paramedic, Mr Beencke, who took Ms Paull to the hospital, and of his record of her account to him on that occasion: see [20] above.

Other evidence consistent with the jury’s verdict on Count 1 included the unchallenged evidence of Ms Bourke from a neighbouring unit of hearing a woman’s increasingly desperate calls for help from the unit: see [13] above. The tone of desperation in the cries for help as recalled by Ms Bourke were consistent with a woman wanting but unable to escape the unit. It was comfortably open to the jury to conclude that that woman was Ms Paull. Ms Bourke’s report to the police had led the police attending on the unit. Body worn footage of the police knocking on the unit door also recorded desperate cries for assistance and help from within the unit, immediately prior to the Applicant letting Ms Paull outside the unit. As put by Mr Brown for the Crown in the course of oral submissions on the appeal, the attempted escape on 8 March said a lot about what had been going on in the unit.

That Ms Paull was detained against her will and viciously assaulted by the Applicant and Mr Bishay was also strongly supported by the evidence of Ms Finlay, both in her two statements made in the early hours of 9 March 2021 (see [25]-[27] above) and in her evidence in the proceedings. In this context, it is necessary to deal with the Applicant’s written submission that:

Far from relevantly contradicting Ms Paull, Ms Finlay candidly accepted, indeed volunteered, that she had been party to detaining and assaulting Ms Paull (albeit giving evidence that she felt she had no option to do so because of Mr Bishay’s sway over her). Thus, as noted at [25] above, she volunteered that she had used the bar to strike Ms Paull’s hands:

It is relevant to note that Ms Finlay was under arrest at the time of this interview, and her volunteering that she had participated in the beating of Ms Paull was against her interest. The jury was entitled to pay particular regard to this fact, in addition to the fact that, as earlier observed, there was no scope for collusion between Ms Paull and Ms Finlay in terms of what each told the police.

Ms Finlay also gave evidence that she had been lectured by Mr Bishay not to permit Ms Paull to leave the unit when he was not there:

Ms Finlay also gave evidence that Ms Paull had been held in the unit against her free will. One example of such evidence was as follows:

To draw attention to these references is not to demonstrate that there were no points of inconsistency in the evidence of Ms Paull and Ms Finlay (there was at least one which I deal with under Count 2) but it is to demonstrate that on the central elements of Count 1, Ms Finlay’s evidence not only corroborated that of Ms Paull but also corroborated that aspect of Ms Paull’s evidence to the effect that Ms Finlay had herself been involved in the detention and assaults of her. The Applicant’s written submission extracted at [53] above was quite contrary to the evidence.

For the reasons given above, and having regard to the entirety of the evidence, it was well open to the jury to convict the Applicant in respect of Count 1. The verdict was not unreasonable.

As noted above, it was in respect of the Applicant’s conviction on Count 2 that Mr Carroll focussed his oral submissions.

The starting point, of course, is again to note the jury’s advantage in observing Ms Finlay give her evidence over the course of some five days with cross examination by two experienced counsel. The next point arises from the assumption that juries act on the evidence and the judge’s directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]. In this context, several important directions were given to the jury as to the reliability of Ms Finlay’s evidence and the need to analyse and assess it with particular care.

At one stage of the summing up, the trial judge gave the following Murray direction (R v Murray (1987) 11 NSWLR 12) (with my emphasis added):

Later in the summing up, the jury received a further warning pursuant to s 165 of the Evidence Act 1995 (NSW) in respect of the reliability of Ms Finlay’s evidence in these terms (with my emphasis added):

When summarising the Crown case, the trial judge returned to this theme, saying the following:

Ms Finlay’s claims to having herself been detained and assaulted were supported by her statements to the police in the early morning of 9 March 2021 (see [25]-[27] above) and to hospital staff, as recorded in Dr Murphy’s note: see at [23] above. It was not suggested that the evidence that she gave both in chief and under cross examination was inconsistent with her statements made immediately after her arrest and when in hospital. Her injuries, as described by Dr Murphy, were entirely consistent with her having been struck forcefully across the face. As to her detention, there was force in the submission made on appeal that the fact that Ms Finlay, with the obvious serious injuries to her face at the time police came to the unit on 8 March, had not sought treatment gave rise to two possibilities, that she did not want treatment or that she was not in a position to seek it because of her detention. The latter accorded with common sense.

Ms Finlay’s accounts of having been both bashed and detained by the Applicant and Mr Bishay were also supported by the evidence of Ms Paull.

There were two important aspects to Ms Paull’s support which were likely to have impressed the jury and rendered a conviction on Count 2 plainly open to it beyond the mere fact of consistency or corroboration.

The first was that, by reason of the circumstances of Ms Paull leaving the unit, the subsequent arrest of Ms Finlay (likely to have been unbeknown to Ms Paull because she had been taken to hospital), and the detailed recorded evidence of both Ms Paull and Ms Finlay taken in the early hours of 9 March 2021, there was no scope for collusion between the two of them in terms of those near contemporaneous interviews.

Second, Ms Paull had (uncontroversially) herself been attacked by Ms Finlay and, for this reason, Ms Paull might well have been thought less likely to give evidence that Ms Finlay, too, had been the victim of detention and assaults by the Applicant and Mr Bishay. But she gave such evidence, in unequivocal terms. That evidence included her statement made at St Vincent’s Hospital that “probably say last week, she [Ms Finlay] actually got slapped hard too” and that she [Ms Paull] had tried to escape once before but that Ms Finlay “got beaten for that”: see [22] above.

Under cross examination, Ms Paull said the following:

Ms Paull’s second answer in this passage was consistent with Ms Finlay’s evidence in chief:

Later in her cross examination, in the context of the so-called porridge incident, the following evidence was given by Ms Paull:

Assuming that the jury turned to consider Count 2 after it had reached its verdict in relation to Count 1 (an assumption that necessarily is incapable of verification given that the verdicts were delivered at the same time), the jury’s verdict in respect of Count 2 was also capable of being supported by cross admissible tendency evidence arising from its verdict on Count 1. The trial judge ruled that such tendency evidence was admissible and directed the jury in a manner that attracted no criticism from either defence counsel at the trial. In oral submissions, Mr Carroll contended that the tendency direction was used “in the extremely basic sense, he has got a tendency to assault and detain Ms Paull without any clarification of when or what you can use that to convict in relation to Ms Finlay”. He submitted that the tendency direction “is meaningless, unhelpful”. This was not advanced as a ground of appeal and, had it been, leave to raise any challenge would have been required under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): see, for example, Gould v R [2023] NSWCCA 103 at [62], [82]-[90].

To the extent that the tendency direction was relied upon by the Crown, the Court must proceed on the basis that it was part of the matrix of circumstances that the jury had to consider and, in the absence of challenge, the tendency evidence identified was entitled to be relied upon by the jury. A review in accordance with M and Pell should proceed on the same basis.

Mr Carroll’s two principal arguments in respect of Count 2 revolved around, first, the circumstance that Ms Finlay was both an assailant (on both Ms Paull’s evidence and indeed on her own admission) and a complainant, and secondly, that there was such a stark inconsistency between Ms Paull’s evidence and Ms Finlay’s evidence in respect of the porridge incident that, on the assumption that the jury must have accepted Ms Paull as a witness of truth and a reliable historian, the jury should have had a sufficiently serious doubt as to Ms Finlay’s reliability generally so as to render their verdict on Count 2 unreasonable.

Dealing with the first of these matters, it was open to the jury to accept Ms Finlay’s explanation that her participation in the assaults on Ms Paull were motivated by her fear of Mr Bishay. Her evidence in this regard included what she said in the early hours of 9 March in the immediate aftermath of being arrested and taken to hospital, namely that “I was told that if I didn't, I would be hit more”: see at [25] above.

Even if Ms Finlay participated freely in the assaults on Ms Paull, it would not inexorably follow that, in the period of time to which the charge related, she was not also herself detained and assaulted. The evidence set out at [68]-[72] above, coupled with her serious injuries as detailed in Dr Murphy’s notes, supported the jury’s conclusion. I accept the Crown’s submission (and it was open to the jury to accept) that:

In relation to the so-called “porridge” incident, this occurred a couple of days before the bashing of Ms Paull with the metal bar(s) on the 6th or 7th of March. It was put to Ms Finlay in cross examination, and she agreed, that she was assaulted probably on the night of the day she attended the methodone clinic on 3 March 2021. The cross examiner continued:

Ms Finlay’s recollection of the porridge incident has been reproduced at [26] above.

The point of inconsistency upon which Mr Carroll put a great deal of store was that, on the one hand, Ms Paull accepted that she had had an altercation with Ms Finlay on the night of the porridge incident and that she punched Ms Finlay but that Ms Finlay, on the other hand, denied that Ms Paull had hit her, and maintained only that she was hit by the Applicant and Mr Bishay in the course of the porridge incident. In fact, as shall be seen, Ms Finlay’s evidence was not as clear cut as Mr Carroll submitted.

After the cross examiner had asked some background questions about the porridge incident, the cross examination of Ms Paull continued:

Ms Finlay’s relevant evidence under cross examination by Ms Ellis initially was that Ms Paull had never punched her and that there was never any physical violence by Ms Paull towards her. A short time later in the cross examination, however, she qualified this evidence as follows:

On the following day of her cross examination, on this occasion by Mr Johnson, Ms Finlay’s evidence (again with emphasis added) was relevantly as follows:

A number of points should be made about the inconsistency between the evidence of Ms Paull and Ms Finlay relied upon by the Applicant in relation to the porridge incident. First, Ms Finlay’s denial of an altercation was equivocal. Thus, in the above passages, she said:

On the appeal, Mr Brown, appearing for the Crown, made two broad submissions. First, that Ms Finlay’s evidence, read as a whole, was not as flat or unqualified a denial as Mr Carroll contended. For the reasons given above, there was force to that submission. Second, Mr Brown submitted that it was not unusual for two witnesses to have different recollections of the same event with different emphases and different things assuming significance to different witnesses, and that any differences in accounts were:

Very similar observations were put to the jury in the Crown’s closing address:

Having reviewed the record, including watching and listening to the recorded police interviews of Ms Paull and Ms Finlay, I am unable to conclude that the jury’s verdict in respect of Count 2 was unreasonable and not open to it. In particular, any inconsistency in relation to the evidence concerning the porridge incident was overstated and well capable of being resolved by the jury. Ms Paull’s evidence corroborated Ms Finlay’s evidence to the effect that she was seriously assaulted and detained by the Applicant and Mr Bishay. It did not follow from the possibility that Ms Finlay herself detained and assaulted Ms Paull (either willingly or because she did not want to disobey or displease Mr Bishay) that it was not open to the jury to find that she herself had been the victim of detention and assault.

For the foregoing reasons, I would grant leave to appeal but dismiss the appeal.

HARRISON CJ at CL: I have had the considerable advantage of reading in draft the judgment of the Chief Justice. I agree with his Honour’s analysis and with the orders he proposes.

The record of the trial is extensive. As his Honour has observed, both Ms Paull and Ms Finlay gave evidence and were cross examined at some length.

The facts and circumstances that give rise to the charges are undoubtedly unusual, if not on one view quite bizarre. It was for this reason, among others, that counsel for the applicant understandably emphasized the details of what took place in the apartment in aid of his contention that the complainants’ evidence was not only contradictory but also implausible and inherently unlikely.

However, I am not satisfied that the evidence of either complainant lacks credibility for reasons associated with its arguably extravagant content or for reasons that are not explained by the manner in which it was given. I am also not satisfied that the complainants’ evidence contains discrepancies, or displays inadequacies, that ought to have led the jury to doubt it or that the evidence is somehow tainted or otherwise lacking in probative force: see, for example, RW v R [2023] NSWCCA 2 at [161] – [164].

In my opinion, upon an independent assessment of the whole of the evidence in the trial, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

HAMILL J: I have had the benefit of reading the judgment of Bell CJ circulated in draft. I agree with the Chief Justice that the appeal should be dismissed. I can add little to his Honour’s analysis of the principles and issues that arise in this appeal and agree essentially with his Honour’s reasons for concluding that the single ground of appeal cannot be upheld. It is unnecessary to repeat the analysis of the critical parts of the evidence which can be found in the leading judgment.

On an independent review of the whole of the record of the trial, including observing and listening to the electronic exhibits, I am satisfied that it was open to the jury to reach a verdict of guilty in relation to each of the offences of which the applicant was convicted. I use the phrase “open to the jury” in the sense explained by the High Court in cases such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and those referred to by Bell CJ at [32]-[37]. For example, in SKA v The Queen French CJ, Gummow and Kiefel JJ said at [20]:

In relation to the first count, the specially aggravated kidnapping of Vanessa Paull, the prosecution case was extremely strong. Rather than setting out the evidence, or repeating his Honour’s reasoning with which I agree, I refer to the reasons of Bell CJ at [13]-[27] and [47]-[57].

Ms Paull’s evidence at the trial received support in (i) the police officer’s body worn footage of her emerging from the flat in distress, (ii) the evidence of the neighbour, Sarah Bourke, who heard cries for help earlier in the evening, (iii) the contemporaneous (or near contemporaneous) accounts that Ms Paull provided to police, paramedics and hospital staff, (iv) Ms Paull’s injuries, (v) the “contract” which she described with accuracy and which was located by investigators and became an exhibit at the trial, (vi) the applicant’s conduct at the front door when first confronted by police, and (vii) the evidence of the second complainant, Annika Finlay.

While not all of this evidence implicated the applicant (as opposed to his uncle, Mr Bishay) directly, a substantial amount of it did so. In any event, the jury was entitled to accept Ms Paull’s evidence that the applicant assisted his uncle in her detention over several days and during that time assaulted her at various times and in various ways. It was also open to the jury to reject beyond reasonable doubt the suggestion that Ms Paull was motivated to lie, and to assert falsely that she was detained against her will, because she failed to report to police in accordance with her bail conditions for the period of the detention. While there was a strong attack on Ms Paull’s credibility, the issues raised in that regard were patently before the jury, which was in a far better position to assess her evidence than the judges of this Court.

The second count, alleging the specially aggravated kidnapping of Annika Finlay, is more problematic, largely because, as Mr Carroll submitted, parts of her evidence could not be reconciled with the evidence of Ms Paull and because she – that is, Ms Finlay – was almost certainly complicit in the detention of Ms Paull. However, being the victim of count two and, potentially, part of the criminal enterprise giving rise to count 1, were not mutually exclusive.

It must also be said, as Mr Carroll submitted, that there were some peculiarities in the way in which the prosecution case was presented at trial. As Bell CJ has emphasised, no complaint about the conduct of the Prosecutor was raised at the trial and there was no ground of appeal specifically directed to the issue of the Prosecutor’s conduct. However, as counsel submitted, some of these matters highlighted the issues in the prosecution case on count 2 upon which the applicant relies in submitting that the verdict on that count was unreasonable and unable to be supported having regard to the evidence. In particular, it is necessary to weigh the “competing evidence” relating to occasions during the period covered by the indictment which established that Ms Finlay seemed to be free to leave her flat and undertake other tasks: cf SKA v The Queen at [21], [23]-[24].

The applicant’s submissions in relation to count 2 focused on the inconsistencies between the evidence of the two complainants and on the Prosecutor’s “ecliptical address” by which the prosecution’s case on count 2 was narrowed in point of time to the day of the so called “porridge incident”, the evidence of which is dealt with in some detail by the Chief Justice (for example, at [26] and [77]-[84]).

Some of the inconsistencies in the versions given by the two complainants was stark. These were highlighted in the cross-examination undertaken at the trial, in counsels’ addresses and, in summary form, in the summing up. I agree with Bell CJ that these matters were able to be resolved, in a logical and rational way, by the jury which saw and heard the evidence and which received conventional directions about fact finding and instructions that it could accept some but not all of the evidence given by particular witnesses. The assessment of the evidence at the trial was to be made in the clear knowledge that the two complainants, at the time of the relevant events, were taking drugs or withdrawing from drugs, and that the four participants in the events giving rise to the charges were part of a section of the community whose lifestyle was likely to impact on the quality of their evidence.

I have considered the criticisms of Ms Finlay’s honesty and reliability made at the trial and on appeal. The detention took place at premises which were leased in her name and, like the applicant, she stood at the front door and told the police that there was nobody else inside. That this was blatant lie was established graphically when Ms Paull called for help from inside and then ran from the premises. Ms Finlay’s account of being the second victim of an unlawful detention only emerged later, albeit a relatively short time later, and after she had been arrested for the kidnapping of Ms Paull.

Based on the evidence adduced at the trial, I am satisfied that Ms Finlay was involved in the detention of Ms Paull. In particular, she was a party to forcing Ms Paull to sign the “contract” which is a distressing document to consider and betrayed a callousness and indifference to Ms Paull’s plight. Ms Finlay’s complicity was such that her evidence must be approached with caution and is of a kind that the law recognises may be unreliable: Evidence Act 1995 (NSW), s 165(1)(d). I have taken into account that she had a motive to lie, to minimise her own involvement in the events and to implicate others – in particular the applicant – in the detention of Ms Paull. She also had inside knowledge of the events that put her in a good position to tailor her account around what she knew to be the true facts. However, as the Chief Justice shows, there was no opportunity for the two complainants to collude before providing their first accounts to the investigating police. In any event, if there was any attempt at collusion, the inconsistencies in their accounts show they did not do a very good job of it.

The warning provided to the jury under s 165(1)(d) of the Evidence Act is set out by Bell CJ at [63]. It was a firm direction, and no complaint was made about it at trial. The issue of Ms Finlay’s criminal involvement in the events giving rise to the charges was clearly before the jury which observed Ms Finlay give evidence over 5 days. Even so, in undertaking an independent review of the evidence, this Court should also act on the basis of a putative warning that Ms Finlay’s testimony fell into a category of evidence which the law has long recognised may be unreliable. I have done this and am satisfied that she did, in fact, seek to minimise her own involvement and may have exaggerated the role of the applicant. However, like the jury, this Court undertaking its independent review of the evidence may reject parts of a witness’s evidence and accept other parts. I will return to evidence that had a capacity to support Ms Finlay’s version but her facial injuries alone provided powerful evidence that she was subject to a vicious assault at some time in the hours or days before she was arrested.

Another issue upon which reliance was placed on appeal related to the way in which the Prosecutor at trial appeared to shift his case as to the dates of Ms Finlay’s detention in order to suit evidence that suggested she was either out in the community, clearly free to go about her affairs, or involved in the assaults and detention of Ms Paull.

The indictment alleged Ms Finlay was detained between 26 February 2021 and 9 March 2021.

However, there was evidence in the form of hospital records which proved that Ms Finlay was at the methadone clinic at Royal Prince Alfred Hospital (RPA) at 2.13pm on 26 February 2021. There were also CCTV images of Ms Finlay at RPA on 3 March 2021 and the records showed she received a dose of methadone at 3.28pm on that date. Ms Finlay said she travelled to and from the methadone clinic by herself and agreed that she was not “detained” during those trips.

Ms Paull gave evidence that on one occasion before the porridge incident (estimated to be a few days before the applicant’s arrest on 8 March 2021) Ms Finlay went to the shops to buy a cream for Ms Paull to cover the marks on her face. There was body worn video footage (Ex W) in which a neighbour, Nicholas Logarzo, told police that he saw Ms Finlay going to the shops with either the applicant or Mr Bishay. He said that he asked if she was okay and she told him that everything was fine. Under cross-examination based on telephone messages, Ms Finlay conceded that on either 3 March 2021 or a Friday during the charged period she left the flat to purchase heroin from a person called Taylor.

That body of evidence established that Ms Finlay was not detained during the whole of the period covered by the indictment. The Prosecutor addressed the jury by narrowing the timeframe during which the offence was committed. He argued that there was a particular point in time at which all the elements of the offence could be proved beyond reasonable doubt. That period was identified as commencing when Ms Finlay returned from the methadone clinic on 3 March 2021. The Prosecutor suggested that Ms Finlay’s liberty may have been “interfered with before then”, but submitted that the moment in time at which the “eclipse” of all elements occurred – as it was put in the Prosecutor’s address – was during the porridge incident. Mr Carroll criticised the Prosecutor for this shift in the case but no complaint was made at trial and no ground asserted that it occasioned a miscarriage of justice.

There is force in the argument that these periods of liberty raised questions about whether Ms Finlay was detained or whether she was free to come and go as she pleased. Even so, it was open to the jury as a matter of law to find that during the charged period Ms Finlay was detained against her will and the aggravating circumstances alleged in the indictment – that is, that the offence was committed in company and that actual bodily harm was occasioned – coincided in point of time with that detention. It was not incumbent on the prosecution to establish that the offence was ongoing throughout the whole of the time period covered by the indictment.

However, I considered this evidence in considering whether the prosecution case as a whole established count 2 beyond reasonable doubt.

I have also considered the support that Ms Finlay’s testimony received in other evidence adduced at the trial. Her version of events received support in (i) the evidence of Ms Paull that Ms Finlay was at times physically assaulted and detained by the applicant and Mr Bishay, (ii) Ms Finlay’s relatively contemporaneous accounts to police and hospital staff, (iii) the evidence of Constable Hyde, who observed “significant bruising around her eyes” when she was first confronted at the front door, (iv) the photographs of Ms Finlay’s injuries (Ex K), (v) the statement of Dr Murphy documenting Ms Finlay’s injuries (Ex X), (vi) the evidence of Associate Professor Raftos who was of the opinion that the bruising was “consistent with her being struck in the face by a blunt object”, and (vii) the evidence of Ms Finlay’s parole officer, Siobhan McGrath, regarding Ms Finlay’s sudden and unexplained change in demeanour.

The photographs of Ms Finlay’s facial injuries were particularly graphic and provided strong support that she was assaulted with some force. While those injuries did not, directly or of themselves, establish a detention, they are consistent with that allegation and available as part of the circumstantial case supporting the direct evidence of Ms Finlay and, in parts, Ms Paull that Ms Finlay was detained against her will.

Considering the evidence as a whole, I am not left with a reasonable doubt as to the applicant’s guilt in relation to count 2 or with the feelings of “anxiety or discomfort” of which Sully J spoke in M v The Queen: see the judgment of Mason CJ, Deane, Dawson and Toohey JJ at 495. I do not find Ms Finlay’s account to be implausible or consider that the inconsistencies between her evidence and that of Ms Paull mean that the jury ought to have entertained a reasonable doubt.

Furthermore, as Bell CJ has demonstrated, this was a case where the jury had a very significant advantage over this Court in making evaluations of the credibility and reliability of the witnesses. Like Ms Paull, Ms Finlay was in the witness box for many days and subject to careful and thorough cross-examination. The jury had the benefit of collective and private discussions and were constrained by the requirement of unanimity.

For those additional reasons, I agree with the Chief Justice that neither verdict was unreasonable and unable to be supported having regard to the evidence.