EE v R

1. [1]

   BEECH-JONES CJ at CL: The applicant, EE, [1] seeks leave to appeal against his conviction on one count of assault contrary to s 61 of the Crimes Act 1900 (NSW) (count 1) and one count of having sexual intercourse with a person without their consent contrary to s 61I of the Crimes Act (count 2). He also seeks leave to appeal against his sentence.

2. [2]

   On 15 November 2021, the applicant was arraigned in the District Court before her Honour Judge Robinson on an indictment that contained counts 1 and 2. Count 1 was averred as having been committed between 1 March 2017 and 31 March 2017. Count 2 was averred as having been committed on 22 May 2017. EE pleaded not guilty to both counts. His trial proceeded before her Honour sitting without a jury (Criminal Procedure Act 1986 (NSW), ss 132−133).

3. [3]

   On 30 November 2021, her Honour found EE guilty of both counts. Her Honour published reasons for the verdicts (Criminal Procedure Act, s 133). On 5 July 2022, the applicant was fined $750 for count 1. For count 2, he was sentenced to imprisonment for 3 years with a non-parole period of 2 years commencing on 4 July 2022. [2] Subject to any intervention by this Court, he will be first eligible for release to parole on 3 July 2024.

4. [4]

   In support of his conviction appeal, the applicant contends that her Honour erred in reconciling FF’s evidence with the evidence given by the applicant’s parents about the lack of complaint made by FF of the assault the subject of count 1. It was further contended that this error affected her Honour’s finding that the applicant was guilty on both counts. For the reasons that follow, I do not accept that her Honour so erred.

5. [5]

   In relation to his sentence appeal, the applicant contends that the sentencing judge failed to find that count 2 was “spontaneous and unplanned”. For the reasons that follow, I consider that it was well open to her Honour to fail to be satisfied of that matter. I propose that leave to appeal against conviction and sentence be granted but the appeal be dismissed.

The Crown and Defence Case

1. [6]

   The applicant and the complainant, FF, married in September 2013 and separated in February 2020. [3] With count 1, the Crown alleged, and her Honour found, that in March 2017 the pair started arguing in the car about who would retrieve the applicant’s orthotics from inside the home. After driving home, it was alleged that the applicant unbuckled the complainant’s seatbelt, opened the passenger door, and pushed her out of the car by applying force to her shoulder. [4]

2. [7]

   With count 2, the Crown alleged, and her Honour found, that in May 2017, the applicant and FF engaged in anal intercourse after FF reluctantly agreed to do so. After a few minutes, FF repeatedly told the applicant to stop but he did not. FF said that this culminated in her telling the applicant that he was hurting her and that she sobbed “rather hysterically”. [5] The respondent agreed they had anal sex but said it lasted for around 10 minutes and denied that FF ever said to stop or gave any indication that she was in pain. [6]

3. [8]

   Given the manner in which the conviction appeal was argued, it is only necessary to describe the evidence adduced in support of count 1.

4. [9]

   In March 2017, the applicant and FF arranged for their 11-month-old daughter, OB, to be looked after by the applicant’s parents (YY and ZZ) while they went shopping for shoes for the applicant. Whilst in the car travelling to the shopping centre, the applicant realised he had left his orthotics at home and turned back. [7]

5. [10]

   FF’s evidence was that while they were travelling home, the applicant told her that she should go inside the house to retrieve the orthotics. FF refused. An argument ensued. She stated that when the applicant pulled into the driveway, he said, “I’m going to count to three. If you don’t get out of the car and go and get them, I’m going to push you out of the car”. [8] FF said that his tone was “[t]hreatening” and “[a]ngry”. [9] FF gave the following evidence:

6. [11]

   FF said the applicant then drove away and she saw him approximately six hours later when he had calmed down. [10] The balance of FF’s evidence in chief concerned count 2.

7. [12]

   In cross-examination, it was put to FF that the applicant did not push her out of the car, which she denied. [11] FF said that after she was pushed out of the car, she “stood there for a minute trying to figure out what to do”. She said that “[a]fter a few minutes of processing”, she went to EE’s parents’ house [12] which was a short walk from FF’s home. [13] Both YY and ZZ were sitting on the front porch whilst OB played in the front garden. FF said that EE’s mother, ZZ, asked her, “What happened?”, to which she replied:

8. [13]

   FF did not think she was crying but said, “I think I told them I was upset about it”. [15] FF said she stayed at the EE’s parent’s home “for a little while” and “[OB] played with [FF] and her grandparents” before she took OB home. [16]

9. [14]

   The applicant gave evidence that, on the drive back to the house, he was arguing with FF. He said he was agitated and annoyed with her and wanted her to leave. [17] The applicant said that he “planned to ask her to get the orthotics, and once she was in the house, I was going to leave”. [18] When they arrived at the house, he asked FF to get his orthotics. FF said no and continued to sit in the car. The applicant said he unbuckled her seatbelt and told her, “[g]et out, I’m leaving”. [19] He did not count or open the car door. The applicant said that FF opened the car door and went inside the house “on her own”. The applicant drove off and went to the pub for two to three hours. When he returned, FF was at home with their daughter. Neither discussed the incident in the car. [20]

10. [15]

    The applicant called evidence from his parents. His father, YY, gave the following evidence in chief: [21]

11. [16]

    In cross‑examination by the Crown, YY was asked: [22]

12. [17]

    YY said he was not aware of any “challenges” to the applicant and FF’s marriage at this time other than “tiredness… from… being new parents and working.” [23]

13. [18]

    ZZ gave evidence that there were several occasions when she had looked after OB at her house while the applicant and FF went out. ZZ then gave the following evidence in chief: [24]

14. [19]

    In cross-examination, ZZ was asked: [25]

The Verdict Judgment

1. [20]

   In finding the applicant guilty on both counts, her Honour placed particular reliance on evidence given by a registered psychologist and marriage counsellor, Mr Bartram. Mr Bartram testified that he had conducted a counselling session with EE and FF in March 2020. Mr Bartram said that, during the session, FF complained that the applicant had anal sex with her and continued even though FF told the applicant to stop and complained she was being hurt. Mr Bartram recalled that the applicant said he was “sorry” in a remorseful tone. [26]

2. [21]

   Her Honour accepted Mr Bartram’s evidence. Her Honour considered that its significance was twofold. First, as Mr Bartram’s evidence was inconsistent with the applicant’s evidence, it led her Honour to find that the applicant was not a truthful witness so that “his version of events regarding the two counts [could be put] to one side”. [27] Second, her Honour found that Mr Bartram’s evidence was consistent with FF’s account such that it supported her “credibility generally and strengthen[ed] the Crown case”. [28] Thus, her Honour concluded, “[f]or the reasons earlier indicated, I accept [FF] to have been a witness of truth, and I… accept her version of events for both [counts]” (emphasis added). [29]

3. [22]

   The reference to the “reasons earlier indicated” is to her Honour’s analysis of various matters relied on by the applicant before her Honour concerning FF’s credit, including the evidence given by the applicant’s parents in relation to count 1. Her Honour noted that it was submitted on behalf of the applicant that FF’s evidence was undermined by the applicant’s parents’ evidence. In particular, it was submitted that, given ZZ’s background in social work, if a complaint of physical abuse had been made by FF against the applicant, she would have remembered it. [30]

4. [23]

   Her Honour summarised FF’s evidence about what she told the applicant’s parents as follows: [31]

5. [24]

   When making findings in relation to count 1, her Honour stated: [32]

6. [25]

   These passages are the focus of the grounds of the conviction appeal.

The Conviction Appeal

1. [26]

   There are two grounds of appeal against the applicant’s convictions, namely:

2. [27]

   The essence of the complaint made in relation to both grounds concerns that part of the trial judge’s reasons (set out above at [24]) that described FF’s evidence of complaint to the applicant’s parents as “limited, containing no real detail [and] simply a reference to her generally speaking about the incident”. This was submitted to have been erroneous and to have led her Honour to erroneously dismiss the evidence of the applicant’s parents as being of no weight on the basis that, in effect, the form of complaint made to them was not likely to be especially memorable. [33] It was further submitted that this “error” also affected her Honour’s reasoning in relation to count 2 because, if it had been concluded that “the evidence of the [applicant’s] parents that no complaint was made was reliable, this might have led to a different view of [FF’s] credibility” and subsequently yielded a reasonable doubt on both counts 1 and 2. [34]

3. [28]

   The applicant’s written submissions addressed grounds 1 and 2 together. The submissions treated ground 2 as a particular to ground 1 of the appeal. The applicant’s submissions referred to the following passage from the judgment of Basten JA in Taylor v R [2017] NSWCCA 2 (“Taylor”) at [68]:

4. [29]

   The reference to the “first limb of s 6(1)” is to that part of s 6(1) of the Criminal Appeal Act 1912 (NSW) which provides that this Court shall allow an appeal against conviction “if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”. While the above passage from Taylor derives support from Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (“Filippou”), in oral argument doubt was raised as to how this passage could be reconciled with the High Court’s later judgment in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 (“Dansie”).

5. [30]

   In Dansie, the High Court emphasised that the function being discharged by an intermediate Court of Criminal Appeal addressing the first limb of s 6(1) is “not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried” (at [7]). Instead, the Court “is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence” (Dansie at [7]; emphasis added). The High Court in Dansie described the Court’s function as (at [16]):

6. [31]

   How then, if at all, can a challenge to a finding of fact made by a trial judge in a judgment following a judge alone trial be deployed in support of an appeal against conviction? In Filippou, French CJ, Bell, Keane and Nettle JJ observed as follows in relation to the first limb of s 6(1) and its application to a conviction following a judge alone trial (at [12]):

7. [32]

   The first three of these possible means of engaging the first limb of s 6(1) findings do not appear to require any consideration being given to the trial judge’s reasons for the finding of guilt and, in that respect, are consistent with Dansie. It is unnecessary to consider the fourth means as it has no relevance to this case (and would otherwise fall within the second and third limbs of s 6(1)).

8. [33]

   However, later in the plurality’s judgment in Filippou, their Honours addressed the reasoning of this Court which had concluded that the trial judge’s factual findings in that case were affected by error. Their Honours observed (at [48]):

9. [34]

   To the extent that this passage suggests, or might be taken as suggesting, that “errors… in the reasoning process” of a trial judge could engage the first limb of s 6(1), then it appears to have been superseded by Dansie. Otherwise, this passage suggests that such errors could be “productive of a miscarriage of justice” and engage the third limb of s 6(1), that is, “on any other ground whatsoever there was a miscarriage of justice” (Filippou at [48] and [85]). This was the view of Gageler J in Filippou. In referring to the third limb of s 6(1), his Honour stated (at [85]):

10. [35]

    His Honour added that to establish this ground, it would be necessary to establish that “having regard to the gravity of the error of fact and the strength of the case against the appellant, it was reasonably possible that the trial judge might not have arrived at the ultimate finding of guilt if the trial judge had not made that error” (Filippou at [87]). However, his Honour doubted the utility of such a complaint bearing in mind the scope of the first limb of s 6(1) (Filippou at [88]):

11. [36]

    This statement differs from the approach of the plurality in Filippou as exemplified by the last sentence of the extract set out above at [30]. Gageler J applied this approach to conclude that this Court in Filippou did not err in addressing the alleged errors in the trial judge’s reasoning process by determining that the evidence demonstrated the appellant’s guilt beyond reasonable doubt (at [99]). In contrast, the plurality considered that the approach taken by this Court in Filippou “did not engage with the requirements of the statutory task” (Filippou at [48]). Their Honours otherwise dismissed the conviction appeal on the basis that the trial judge’s reasoning process was not relevantly erroneous (Filippou at [55]). However, it is unclear whether this aspect of the plurality’s approach in Filippou survives Dansie.

12. [37]

    Gageler J’s scepticism as to whether a complaint about a trial judge’s reasoning process in relation to a finding of fact adds anything to a conviction appeal was reiterated in this Court by Simpson AJA (with whom Davies and Wilson JJ agreed) in Mohana v R [2023] NSWCCA 61 (“Mohana”) at [14]:

13. [38]

    Three matters should be noted about this passage, the judgment of Gageler J in Filippou noted above (at [34]−[35]) as well as Dansie.

14. [39]

    First, Dansie leaves almost no room for challenging the trial judge’s reasoning resolving a dispute over a question of fact in determining so much of an appeal against conviction following a trial by judge alone that relies on the first limb of s 6(1). At most, the utility of such an attack would be to debunk one possible means of arriving at that finding. It would still be open to the intermediate Court of Criminal Appeal to make that finding for its own reasons assuming that was necessary to determine an applicant’s guilt.

15. [40]

    Second, in relation to the third limb of s 6(1), the passages from Filippou (above at [35]) and Mohana (above at [37]) appear to proceed on the basis that, on an appeal from a judge alone trial where a complaint is made about an erroneous finding of fact, one of the parties has invited the Court of Criminal Appeal to review all of the evidence to determine whether there is a reasonable doubt about the ultimate finding of guilt. Presumably, this is the result of either the appellant relying on the first limb of s 6(1) or the Crown relying on the “proviso” to s 6(1). However, if neither party invites the Court to do so and all the Court has before it is a complaint under the third limb of s 6(1) about the reasons of the trial judge in making a particular a finding of fact, then there would not appear to be any reason why the Court could not simply apply the approach stated by Gageler J in Filippou as noted above (at [34]). With respect to his Honour, there is difference between, on the one hand, a court concluding that error in the reasoning process “might reasonably have affected the [trial judge’s] ultimate finding of guilt” (Filippou at [85]) and, on the other hand, the more emphatic conclusion that the “error of fact gave rise to a reasonable doubt about the ultimate finding of guilt” (Filippou at [88]). If only the former conclusion was reached and the Court was not invited to reach a conclusion on the latter, then that would appear to warrant an order for a new trial.

16. [41]

    Third, all of these cases take as their starting point the authoritative approach enunciated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 to the first limb of s 6(1). Under that approach, even if the intermediate Court of Criminal Appeal has a doubt about the applicant’s guilt, it can conclude that no miscarriage of justice was occasioned because the “jury's advantage in seeing and hearing the evidence is capable of resolving [that] doubt” (M v The Queen at 494−495). It follows that, in circumstances where an appellant raises a complaint about the reasoning deployed by a trial judge to resolve some disputed question of fact which is within the scope of their advantage in “seeing and hearing” the evidence, then there would appear to be room for a separate complaint under the third limb of s 6(1).

17. [42]

    An example of this would be a case where, say, a fact necessary to prove an accused’s guilt was that they were driving a red car at a particular time in circumstances where the only evidence on the topic was one witness who said the car was red and another witness who said the car was blue. If the trial judge found the accused guilty after having accepted the evidence of the witness who said the car was blue, an intermediate Court of Criminal Appeal might reject a complaint under the first limb of s 6(1) on the basis that, notwithstanding any doubt it might have, the trial judge’s “advantage in seeing and hearing the evidence [of the two witnesses was] capable of resolving [that] doubt” (M v The Queen at 494−495). However, if the trial judge deployed illogical or clearly mistaken reasoning to decide which of the two witnesses’ evidence was to be preferred, then that would be an example of a miscarriage of justice within the third limb that is not “rectified” by the rejection of the appellant’s complaint under the first limb of s 6(1) (cf Mohana at [34]). On the applicant’s case, this very circumstance potentially arises here, at least in relation to the conviction on count 1, because if there truly was a conflict between FF’s evidence and the evidence of the applicant’s parents, it was one in which the trial judge enjoyed an advantage over this Court in resolving. The applicant’s complaint is that the trial judge’s reasons disclose an error in resolving that conflict.

18. [43]

    Consistent with the above, I will address the two grounds separately.

19. [44]

    In relation to ground 2, I do not accept that the trial judge was relevantly in error in describing FF’s evidence of complaint to the applicant’s parents as “limited, containing no real detail [and] simply a reference to her generally speaking about the incident”. In the passage set out above at [23], the trial judge accurately summarised FF’s evidence of what she told the applicant’s parents. The totality of the evidence FF gave about the conversation is set out above at [12]−[13]. This consisted of a reference to forgotten “orthotics”, a disagreement about getting out of the car, a reference to being “pushed out of the car” and that she was upset. FF was not asked to recount her best recollection of the exact words she said nor was she asked whether the applicant’s parents sought further details. FF said she did not cry or say she was injured. On her brief description of what she recalled telling the applicant’s parents, only the statement that she was “pushed” out of the car was potentially of significance. However, even that description of how someone is required to leave the car was, in context, ambiguous as to whether physical force was involved.

20. [45]

    The trial judge concluded that the evidence of the applicant’s parents did not undermine FF’s evidence, which her Honour regarded as otherwise honest and reliable. In assessing the applicant’s parents’ evidence, her Honour placed the greatest weight on their “initial evidence”, which was to the effect that they “did not recall” any conversation of FF complaining of the incident as opposed to their more emphatic denials later in their evidence (see above at [14] and [17]). That very much reflects the advantage enjoyed by her Honour in “seeing and hearing” them give evidence. It also reflected the fact that neither of them could recall an incident when the applicant and FF went out and left their daughter to be babysat but FF returned shortly afterwards, even though it must have occurred.

21. [46]

    Her Honour’s critical conclusion was that FF made “some general reference... to the incident… but [it was] taken no further” and was subsequently not recalled by either of the applicant’s parents. Again, this means of reconciling their evidence is very much affected by the trial judge’s advantage in “seeing and hearing” the witnesses. This advantage included an ability to assess the relative certainty of their recollection as well as the likelihood that FF might be reticent about describing an argument with the applicant to her parents-in-law, who might also be reticent to hear about it. The trial judge’s assessment is not undermined by a debate about whether a two-line description by FF about what she told them was erroneously characterised as a “complaint [that] was limited, [and] containing no real detail”. In any event, I am not satisfied it was erroneously characterised.

22. [47]

    I would reject ground 2.

23. [48]

    In relation to ground 1, no separate submissions were directed to this ground in the event that ground 2 failed. It suffices to state that, in a case such as this, an assessment of the contention that the jury’s verdict is unreasonable or cannot be supported having regard to the evidence proceeds upon the assumption that the evidence of FF was assessed to be credible and reliable. This Court then examines the record of the trial “to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the [judge], acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt” (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”) at [39], emphasis added).

24. [49]

    I have reviewed the record of the trial. Not only did I not discern any “inconsistences, discrepancies or any other inadequacies” with FF’s evidence, but Mr Bartram’s evidence concerning count 2 provided strong support for critical aspects of FF’s evidence on that count (and undermined the applicant’s evidence) (see above at [20]).

25. [50]

    In relation to count 1, any doubt that might have been raised by reason of the alleged contradiction between the applicant’s and FF’s evidence (which I do not share) is a doubt that the trial judge was capable of resolving by way of having an advantage in “seeing and hearing” the evidence. With both counts, I am satisfied there is not a significant possibility that an innocent person has been convicted (M v The Queen at 494).

26. [51]

    I would reject ground 2.

27. [52]

    I would grant the applicant leave to appeal the conviction but dismiss the appeal.

Appeal against Sentence

1. [53]

   The applicant sought leave to appeal against his sentence for count 2. The sole ground of appeal is that her Honour erred in failing to characterise that offence as “spontaneous and unplanned”.

2. [54]

   It was submitted on behalf of the applicant before the sentencing judge that it should be “accepted on the balance of probabilities that the offence was unplanned and unpremeditated… [and] spontaneous”, which reduced the objective seriousness of the offence. This submission appears to correspond with the mitigating factor identified in s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that the offence was “not part of a planned or organised criminal activity”, although no reference was made to that provision before her Honour.

3. [55]

   Her Honour rejected the applicant’s contention. Ultimately, her Honour concluded that the objective seriousness of count 2 fell “below the mid-range but not into the lower end”. [35] To explain these conclusions, it is necessary to refer to three other parts of her Honour’s (comprehensive) sentencing judgment.

4. [56]

   First, her Honour described the marital background to the events that lead to count 2 as well as the circumstances of the offence. Her Honour found that “[a] source of tension throughout [the] marriage [of the applicant and FF] related to their sexual relationship, including [engaging in] anal intercourse, with the offender showing considerable interest in such activity prior to their marriage and throughout it.” [36] His Honour noted that FF “did not share his interest in the activity and was subjected to much persuasion and pressure by the offender throughout their marriage to engage in it”. [37] Her Honour recounted three instances where they had anal sex, being their honeymoon in 2013, New Year's Eve in 2016 and the subject offence. [38] In relation to the second instance, her Honour noted that it “occurred without incident, although after it, [FF] told the [applicant] she never wanted to do it again”. The third instance was the culmination of “continued pressure by the [applicant] on [FF] to again engage in anal intercourse”. [39]

5. [57]

   In terms of the time frame over which count 2 was committed, her Honour found: [40]

6. [58]

   Second, the Crown submitted that the objective seriousness of the offence should be addressed in light of what was found to be the applicant’s ongoing interest, and FF’s communicated lack of interest, in anal sex. Her Honour addressed and rejected that submission as follows: [41]

7. [59]

   The finding that there is “insufficient evidence to accept [the] submission beyond reasonable doubt” that the applicant was aware there was a real possibility that FF might withdraw her consent accurately reflects the principle confirmed in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (“Olbrich”) at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ) that, to the extent findings of fact are made in sentence proceedings that are adverse to the offender, the sentencing judge must be satisfied of the relevant fact beyond reasonable doubt. Olbrich also confirmed that, to the extent findings of fact are made in sentence proceedings that are favourable to an offender, the sentencing judge must be satisfied of the relevant fact on the balance of probabilities (at [27]). Consistent with these principles, her Honour did not find on the balance of probabilities that the applicant was not aware there was a real possibility that FF might withdraw her consent.

8. [60]

   Third, her Honour rejected the submission made on behalf of the applicant noted above (at [54]) and stated: [42]

9. [61]

   However, shortly after this, her Honour stated: [43]

10. [62]

    On behalf of the applicant, it was contended that her Honour’s finding at [60] above was erroneous “since the [applicant] had not formed a prior intention to engage in non-consensual sexual intercourse and had not even turned his mind to the possibility that the consent might be withdrawn”. It was also submitted that the appellant made an attempt, albeit a failed one, to avoid FF feeling any pain by using lubricant. It was thus submitted that the offence should have been characterised as both spontaneous and unplanned.

11. [63]

    The applicant’s submission ignores the distinction between the sentencing judge not being satisfied beyond reasonable doubt that the applicant was aware prior to having anal sex with FF of the possibility she would withdraw her consent and the sentencing judge not being satisfied on the balance of the probabilities that he was not aware of that matter. Her Honour clearly did not accept the latter. The evidence concerning the prior occasions in which the applicant and FF had anal sex and how the sexual assault unfolded justified her Honour’s scepticism. It was well open to her Honour to be left in doubt on this topic.

12. [64]

    I would reject the ground of appeal. I would grant leave to appeal against sentence but dismiss the appeal.

Proposed Orders

1. [65]

   I propose the following orders:

2. [66]

   ADAMSON JA: I agree with Beech-Jones CJ at CL.

3. [67]

   IERACE J: I also agree with Beech-Jones CJ at CL.