Saunders v R

1. [1]

   SIMPSON AJA: On 26 November 2018 the applicant was arraigned in the District Court on an indictment that charged three counts of sexual intercourse without consent, committed in circumstances of aggravation, each alleged to have been committed on 7 August 2016 against the same complainant (TF). In each count the circumstance of aggravation alleged was that, at the time he committed the offence, the applicant occasioned actual bodily harm to the complainant.

2. [2]

   Each count was brought under s 61J(1) of the Crimes Act 1900 (NSW) (“Crimes Act”) which provided:

3. [3]

   By s 61HA(3) (applicable at the time the offences were alleged to have been committed, since repealed and replaced by s 61HK) a person who has nonconsensual sexual intercourse knows that the other person does not consent if he or she –

4. [4]

   By s 61Q(1) of the Crimes Act a jury that was not satisfied (to the criminal standard) of all elements of an offence against s 61J, could, if appropriately satisfied, return a verdict of guilty of an offence against s 61I, which provided (and still provides):

5. [5]

   On 3 December 2018 the jury returned unanimous verdicts of not guilty on all counts on the indictment. In relation to the first count, pursuant to s 61Q(1), it returned a verdict of guilty of an offence against s 61I – that is, of sexual intercourse without consent, but without the circumstance of aggravation (causing actual bodily harm) alleged in the indictment.

6. [6]

   On 21 February 2019 the applicant was sentenced to imprisonment for 5 years and 6 months, commencing on 6 August 2016, with a non-parole period of 3 years and 6 months, which expired on 5 February 2020. The total sentence expired on 5 February 2022 (before the present proceedings were heard).

7. [7]

   By notice filed on 20 August 2021 the applicant seeks leave to appeal against the verdict of guilty. Having regard to the lapse of time since conviction and sentence he needs, and seeks, an extension of time in which to do so. He does not seek to disturb the sentence imposed. If an extension of time is granted leave is required to appeal because the grounds on which the applicant seeks to rely involve questions of fact or questions of mixed fact and law: Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”), s 5(1)(b).

8. [8]

   The applicant has identified three proposed grounds of appeal, formulated as follows:

The Crown case – a synopsis

1. [9]

   The Crown case may be summarised as follows.

2. [10]

   In October 2015 the applicant (then not quite 33 years of age) and the complainant (then 30 years of age) met via Facebook, and commenced a relationship, although the applicant lived in a regional city on the north coast of NSW and the complainant lived in a Sydney suburb.

3. [11]

   Notwithstanding the geographical distance between their residences, a domestic relationship of sorts developed between the applicant and the complainant. That relationship was spasmodic because of violence directed by the applicant towards the complainant. By February 2016 the complainant was pregnant with the applicant’s child. The complainant terminated the relationship on a date not disclosed in the evidence.

4. [12]

   Sometime prior to 7 August 2016 the applicant travelled to Sydney. He stayed for one and a half to two and a half weeks at the complainant’s home, which she shared with her mother and her two children.

5. [13]

   All offences were committed over a short span of time in the early hours of 7 August 2016 after the applicant and the complainant had returned to her home after a party at a local hotel to celebrate the birthday of the complainant’s aunt. The applicant had become angered when the complainant spent some time talking to a male friend. He had consumed significant quantities of spirits during the day and evening.

6. [14]

   The first offence was constituted by the applicant forcing, by threats and the actual infliction of violence, the complainant to perform fellatio on him. The second offence was constituted by non-consensual penile/vaginal penetration, and the third by digital penetration of the complainant’s anus. In the case of each alleged offence, the Crown alleged that the act of sexual intercourse was accompanied by violence such as to cause to the complainant actual bodily harm. In one instance of violence, the applicant used a remote control device to strike the complainant. It will be necessary in due course to say more about the detail of the alleged offences.

Pre-trial and trial chronology

1. [15]

   During the morning of 7 August 2016 the complainant was taken by ambulance to the Nepean Hospital. A police officer took a statement from her, and attended her home, where the applicant was still present. The applicant agreed to take part in an electronically recorded interview and was taken to Mt Druitt Police Station for that purpose. His responses were largely, if not entirely, exculpatory. He was charged with the offences on the indictment. He acknowledged that the various forms of sexual intercourse alleged had taken place, but said that, in each case, it was consensual, and, indeed, was the complainant’s preference. He denied perpetrating any violent act on the complainant.

2. [16]

   A trial was fixed to commence on 9 April 2018. On 12 February 2018, pursuant to s 97 of the Evidence Act 1995 (NSW) (“Evidence Act”), the Crown served on the applicant’s solicitors a Notice of its intention to rely on tendency evidence. The Notice was relevantly as follows:

3. [17]

   Attached to the Notice was a table setting out details of the conduct on which the Crown proposed to rely. Put briefly, that was evidence that, in the course of two previous domestic relationships, the applicant had perpetrated physical (but not sexual) violence on his then partner. In each case, the applicant had been charged with, and pleaded guilty to, offences of violence. On behalf of the applicant objection was taken to the admission of the proposed tendency evidence.

4. [18]

   On 4 April 2018 a voir dire was conducted with respect to the admissibility of the proposed tendency evidence. The trial judge ruled on the objection, giving reasons. Despite efforts on the part of both parties, the reasons have not been able to be located. From other sources, it can be seen that the trial judge allowed some of the proposed evidence, and disallowed other parts of it.

5. [19]

   A trial commenced on 9 April 2018 as scheduled, but aborted the following day, 10 April, for reasons it is not necessary to explore. The complainant had given evidence and had been cross-examined, although it is not clear from the material before this Court whether cross-examination had concluded. It seems likely that it had not.

6. [20]

   A new trial was fixed to commence on 26 November 2018. On 16 November the Crown served an Amended Notice of its intention to adduce tendency evidence. On this occasion it identified the tendency on which it proposed to rely as:

7. [21]

   On 22 November 2018 the trial judge was asked, on behalf of the applicant, to reconsider his ruling on the admission of the tendency evidence. That was because, in the interim, the High Court had delivered judgment in McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 , which, it was contended, cast a different light on the principles applicable to the admission of tendency evidence.

8. [22]

   The trial judge declined to allow the tendency evidence identified in the amended version of the Tendency Evidence Notice to be put to the jury, but otherwise maintained his previous ruling, and allowed the tendency evidence in accordance with the original Tendency Evidence Notice. The parties then, pursuant to s 191 of the Evidence Act, prepared a statement of Agreed Facts which was put before the jury as Exhibit E.

9. [23]

   A jury was empanelled on 26 November 2018 and the second trial commenced. Pursuant to s 159 of the Criminal Procedure Act 1986 (NSW) (“Criminal Procedure Act”), counsel for the applicant opened to the jury. Inter alia, she said that it was not in dispute that, on their return from the birthday party, the applicant and the complainant had argued and the applicant had struck the complainant while he had in his hand a remote control device. A single question asked of the complainant in cross-examination was to the same effect.

10. [24]

    Pursuant to s 306I of the Criminal Procedure Act a video recording of the complainant’s evidence in the aborted trial was played to the jury. Counsel for the applicant was permitted further cross-examination. The trial then proceeded, with various witnesses giving evidence.

11. [25]

    The jury retired on 29 November 2018 (a Thursday) and continued to deliberate throughout Friday, 30 November. It returned on Monday, 3 December with the verdicts outlined above – not guilty of count 1 on the indictment but guilty of the statutory alternative of sexual intercourse without consent (s 61I), and not guilty of both counts 2 and 3.

The trial

1. [26]

   In order to explain the basis of grounds 1 and 2 of the proposed appeal, each of which concerns the tendency evidence, it is necessary to set out in some detail the account of the relevant events given by the complainant and the content of the evidence admitted as tendency evidence.

2. [27]

   The following account is drawn from the complainant’s evidence in chief.

3. [28]

   The complainant met the applicant through Facebook and met him “face to face” for the first time in October 2015. Their relationship became intimate. By February 2016 the complainant was pregnant (there was no issue that the applicant was the father of the child). The complainant said that the relationship was initially “okay” but then the applicant began being violent towards her. She gave an account of one occasion when the applicant dragged her out of bed by her hair into the kitchen and slammed her head into the floor. She said the relationship was very stressful and she could not deal with it and terminated it.

4. [29]

   In August 2016 the complainant was living in a house in western Sydney with her two children, then aged 4 and 2. Her mother was also living in the house to give assistance to the complainant. The complainant was then 7 months pregnant.

5. [30]

   In late July or early August the applicant came to Sydney and, because the relationship with the complainant had come to an end, stayed with his mother. However, contact with the complainant resumed and the applicant went to stay at the complainant’s house for what the complainant thought would be one night, but was extended to several nights. The relationship again became intimate.

6. [31]

   During the day of Saturday 6 August both the complainant and the applicant consumed alcohol. An argument developed after the applicant discovered, on the complainant’s phone, a Facebook dating site. The complainant asked the applicant to leave. He declined.

7. [32]

   At about 6 pm the complainant, the two children and the applicant travelled by taxi to a hotel where a party was to be held for her aunt’s birthday. Other members of the family travelled separately. During the course of the evening the complainant was talking to a family friend called Wayne Adams. The applicant told the complainant that, if Mr Adams did not leave the table, he (the applicant) would “glass” him (Mr Adams). Just before 10 pm the complainant told the applicant that they had to take the children home but, before they did so, he should purchase more liquor. He did so. The complainant’s uncle drove all four to the complainant’s home. The complainant’s mother had arranged to stay that night with one of the complainant’s sisters.

8. [33]

   The complainant put the children to bed, changed into pyjamas and joined the applicant in the lounge room. She told the applicant that she was exhausted and was going to bed. He insisted that she stay up and drink the alcohol he had purchased. He was in what the complainant described as a bad mood. The applicant raised the subject of Mr Adams, saying:

9. [34]

   The complainant said that the applicant was “very agitated, shaking his leg a lot”. She was attempting to keep him calm, playing soft, slow music and reassuring him that everything was “okay”. The applicant’s mood fluctuated. The complainant was frightened.

10. [35]

    Later in the evening the complainant was seated on the lounge and the applicant was standing in front of her, holding a remote control device. She said that the applicant grabbed her by the hair on the back of her head and forced her to fellate him; when she cried or begged him to stop, he hit her in the head with the device. He told her that if she begged him to stop, or cried, he would hit her harder. This went on for about 3 minutes. He hit her with the remote control device four or five times. The complainant’s account of this event gave rise to count 1 on the indictment.

11. [36]

    At about the same time the applicant told the complainant to take her pants off. She asked to go to the toilet, which he permitted. She went to the kitchen. The applicant told her not to get a knife in order to defend herself, because, if she did, he would stab her. He said:

12. [37]

    The applicant arranged cushions on the floor. He told the complainant to get on her knees and perform fellatio on him. She begged him not to do this, to which he replied:

13. [38]

    The complainant said that the applicant forced his penis into her mouth, while at the same time hitting her in the head and “pulling my head up and down”, using his fingers in her hair and holding it with a tight fist. Some of the time the applicant hit her with the remote control device, some of the time with his fist. He hit her on five or six occasions.

14. [39]

    The complainant said that the applicant then ordered her to get on the cushions on the floor in what he called a “doggy style” position. He was seated on the lounge. The complainant complied because she was afraid of him. The applicant grabbed her by the hips and thrust his penis into her vagina. He then pulled her hair and inserted his fingers into her anus. The complainant’s account of the act of penile-vaginal penetration gave rise to the second count on the indictment. Her account of the digital-anal penetration gave rise to the third count on the indictment.

15. [40]

    The complainant said that the applicant threatened to put out a cigarette butt on her “private parts”. The applicant then went to sleep and the complainant sent a text message to her mother to come and rescue her. Her sister arrived home and the complainant asked her to ring a taxi. She and the children went to her grandmother’s house, leaving the applicant asleep on the lounge.

16. [41]

    The complainant was taken to hospital by ambulance.

17. [42]

    A forensic nurse examiner at Nepean Hospital examined the complainant. She recorded an area of tenderness on the top of the head, an area of erosion on the inside of the complainant’s cheek, pain in the jaw, swelling and tenderness in the scalp and left upper forehead.

18. [43]

    The tendency evidence allowed by the trial judge concerned physical assaults perpetrated by the applicant on two previous domestic partners (JD and LS) with respect to which he had been charged and entered pleas of guilty, and an occasion on which he had threatened to assault JD. These were the subject of the Agreed Facts, Exhibit E. Three instances of domestic violence offences, two against JD, and one against LS, were recorded in the Agreed Facts.

19. [44]

    The first incident occurred on 25 September 2004. The applicant and JD had been in a domestic relationship for a number of years. They separated at a time not disclosed in the evidence. On 24 September 2004 the applicant, JD, and a friend with whom JD was living after the separation attended an RSL club. An argument developed between the applicant and JD and JD left the club alone at about 10.40 pm, went home and went to bed. At 3.50 am the applicant knocked on the rear door of the premises and demanded that JD come to the door, which she did. She and the applicant argued. JD attempted to close the door, the applicant grabbed her hair and dragged her outside to the rear yard, demanding that she come with him. He punched her in the face more than once, while dragging her to his vehicle which was parked at the rear of the premises, and which she then entered. The applicant drove a short distance before returning the premises. JD ran from the car, the applicant followed her, further assaulted her, and dragged her, again by the hair, to some vacant land where he again punched and kicked her in the face and body. JD escaped and returned to her home and hid in an upstairs room. The applicant attempted to follow her, but was prevented from doing so by members of her family.

20. [45]

    The second incident occurred on 21 March 2007. This involved the applicant calling JD on her mobile phone at about 11.40 pm on 20 March, telling her that he was on his way over. She made it clear that he was not welcome. At a little after 4.30 am the following morning the applicant came to JD’s premises and knocked on the door. JD ignored the knocking and called police. The applicant banged on the door and knocked on the window, threatening to break the door down and to beat JD. He banged on the rear door and said:

21. [46]

    The final incident relied on as tendency evidence involved LS, with whom the applicant was in a domestic relationship in 2014. On 10 August 2014 the applicant became suspicious that LS was engaged in an online dating site. LS denied knowledge of the dating site. The applicant became aggressive, LS attempted to leave, and the applicant pulled her by the hair and back inside with sufficient force to cause her to land on her back. The applicant punched her with a closed fist to the face, on 5 or 6 occasions, and to the ribs. LS asked him to stop. The applicant told her to get up and go to the kitchen “otherwise I’ll show you what I’m made of … what these fists can do”. He said:

22. [47]

    LS ran to the window, seeking help. The applicant grabbed her by the hair and punched her in the face and ribs. He took hold of a 15 centimetre aluminium pole and hit her repeatedly in the forehead, upper torso and ankle area. He said:

23. [48]

    The applicant did not give or call evidence in the trial. He relied on the content of the recorded interview of 7 August 2016. As noted above, notwithstanding the applicant’s denial in the interview with police of having struck the complainant with a remote control device, in opening at the commencement of the trial, defence counsel told the jury that it was not in dispute that on their return to the complainant’s home the applicant and the complainant argued, that the applicant struck the complainant, and that when he did so he had a remote control device in his hand.

24. [49]

    The answers given by the applicant in the recorded interview were exculpatory. He agreed that he and the complainant had argued, but said that all sexual activity was consensual. He denied striking the complainant.

25. [50]

    In short, the applicant said that, on their return to the complainant’s home, he put the children to bed, while the complainant put some music on. He said that an argument developed when he discovered, on her phone, evidence that she had engaged with an online dating site. He said that he made a sexual advance to her, but she wanted to keep drinking. He persisted, without success, until, eventually, he fell asleep. However, he said that:

26. [51]

    He said that the complainant was “fine” and they “had a bit of fun”. He gave a detailed description of the sexual activity. It is not necessary to go into the description except to observe that, on the applicant’s account, the sexual activity involved fellatio with the complainant kneeling on a cushion while the applicant sat on a sofa. (That had some consistency with the account given by the complainant).

27. [52]

    The applicant confirmed that he had been angered by the complainant’s interaction at the RSL club with Wayne Adams, and that he (the applicant) had threatened to assault Mr Adams with a glass.

28. [53]

    It was put to the applicant that the complainant alleged that he had struck her in the face with a remote control device. He denied the allegation. He volunteered that the complainant “likes her hair being grabbed … she likes being grabbed on the back of the hair” and said that the complainant began ”kissing me very passionately”. He said that the complainant at times asked him to penetrate her anus digitally.

The application for leave to appeal

1. [54]

   Section 97(1) of the Evidence Act provides as follows:

2. [55]

   At the time of trial, and until 1 July 2020, s 101 of the Evidence Act relevantly provided as follows:

3. [56]

   It will be observed that ground 1, by which complaint is made of the admission of the tendency evidence, is confined to the evidence concerning the applicant’s treatment of JD. No equivalent complaint is made of the admission of the evidence concerning the applicant’s treatment of LS which, it was accepted, met the relevant tests for admissibility.

4. [57]

   As can be seen from the terms of the legislation set out above, tendency evidence is not to be admitted in a criminal trial unless it satisfies three tests:

5. [58]

   “Probative value” is defined in the Dictionary to the Evidence Act to mean:

6. [59]

   The significance of the probative value of evidence is to be measured by reference to the nature of the facts in issue to which the evidence is said to be relevant, and the significance or importance of the evidence in establishing those facts. The evidence must (at least) be influential in the context of factfinding: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [46] per French CJ, Kiefel, Bell and Keane JJ.

7. [60]

   In this case, the facts in issue in relation to each count on the indictment were:

8. [61]

   For the tendency evidence to meet the s 97(1)(b) criterion, it is necessary that it be assessed as making “more likely, to a significant extent”, one or more of those facts; Hughes at [40], endorsing R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [125] per Campbell JA. It is now established that it is for this Court to make that assessment or determination; The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61].

9. [62]

   For the tendency evidence not to be excluded by the operation of s 101(2), it was necessary that its probative value substantially outweigh any prejudicial effect it may have had on the applicant. It may be taken that that determination is also to be made by this Court: Taylor at [113] per Bell P.

10. [63]

    In Taylor, Bell P undertook a searching examination and analysis of the decisions of the High Court and this Court with respect to the principles relating to the admission of tendency evidence. Ultimately, his Honour dissented in the result, but I understand the dissent to have been as to the application of principles as stated by him, as to which no issue was taken by the other members of the court. At [122] his Honour stated 28 propositions drawn from the authorities he examined. Relevantly for present purposes, those propositions include (I paraphrase):

11. [64]

    In Hughes, at [41] the majority in the High Court (Kiefel CJ, Bell, Keane and Edelman JJ) identified two interrelated matters to be considered in the determination of the admissibility of tendency evidence, those matters being:

12. [65]

    Their Honours went on to say:

13. [66]

    In this case the tendency identified by the Crown in the Tendency Evidence Notice was specified with considerable particularity. In general terms it was a tendency on the part of the applicant to use violence towards his female domestic partners; more particularly, it identified some of the means by which the applicant perpetrated the violence – including hair pulling, punching and hitting, accompanied by abusive and taunting language. There were in fact, a number of features of the applicant’s conduct towards domestic partners that were identified as part of the tendency which the Crown sought to establish:

14. [67]

    The facts in issue to which the evidence was directed were the complainant’s allegations that the applicant assaulted her by pulling her hair and hitting her with the remote control device. Those allegations were relevant to the elements of the absence of consent to the sexual intercourse, the applicant’s knowledge of the absence of consent, and the causing of actual bodily harm. The evidence of the applicant’s assaults on JD and LS were strongly probative of these allegations.

15. [68]

    The substance of the applicant’s contention under ground 1 was that the evidence concerning JD failed to meet the test of “probative value” for the purposes of s 97(1)(b). That was to be for, essentially, two reasons – first, that the assaults on JD were remote in time (2004 and 2007) from the allegations of the offences on the indictment, and second, that those assaults were of physical, but not sexual, violence.

16. [69]

    A specific argument on which considerable emphasis was placed was that, having regard to the applicant’s acknowledgement (through defence counsel at trial, but not directly by him) that he had struck the complainant while holding a remote control device, evidence of his violent disposition towards women with whom he was in a domestic relationship added little or nothing to proof of the Crown case. The submission was expressed orally, as recorded in the transcript, as:

17. [70]

    That submission, I am satisfied, should be rejected, at least in its application to the present case. The acknowledgement made on behalf of the applicant, both in the opening by his counsel and in the question put to the complainant in cross-examination was that:

18. [71]

    That is not an acknowledgement that, as the complainant alleged, the applicant struck her repeatedly and with considerable violence with the remote control device (Count 1) and with his fists (Count 3), pulled her by the hair, and made threats of further violence and taunted her with his indifference to her tears. Nor is it an acknowledgement of the level of violence attributed to the applicant by the complainant. It reads as though the applicant contended that his possession of the remote control device when striking the complainant was merely incidental. The evidence of the assaults on JD gave considerable support to the complainant’s allegations. It is of no small importance that the description of the assaults on JD emerged from an agreed statement of facts. This was not a case where the jury, before acting on the tendency evidence, was called upon to make an assessment of its veracity or reliability. (See now s 161A of the Criminal Procedure Act, not in force at the time of the applicant’s trial).

19. [72]

    Nor is it to the point that the jury acquitted the applicant of the offences charged in Counts 2 and 3. Assessment of probative value, for purposes of determining the admissibility of evidence, is not made by reference to the outcome of the jury’s deliberations.

20. [73]

    The complainant’s account of the violence perpetrated on her by the applicant went well beyond an allegation of striking her while holding a remote control device. She said that the applicant “grabbed the back of [her] head, my hair” and hit her in the head and, when she begged him to stop, hit her harder. There was also an extreme level of verbal violence. The admitted assault on JD bore significant similarity to the assault alleged by the complainant: the applicant “grabbed [JD’s] hair”, dragged her outside, and punched her in the face and body.

21. [74]

    In my assessment, the evidence of the admitted level and nature of the violence directed by the applicant towards JD was powerful evidence of a tendency on the part of the applicant to the use of violence against his female partners, and, specifically, a tendency to manifest that by pulling the hair of the victims, punching and hitting them. In turn, that tendency strongly supported proof of facts (the use of violence) making up the offences charged. The diluted acknowledgement on behalf of (but not by) the applicant of the perpetration of a moderate degree of force on the complainant in one instance did not render the evidence of his violent assaults on another female partner superfluous.

22. [75]

    Equally unpersuasive is the argument that the admitted assaults on JD were deprived of probative value by the time that had elapsed since they were committed. The evidence concerning LS provides one important answer to that contention; that evidence showed that the interval between the assaults on JD and the alleged assaults on the complainant was not a period free from manifestation of the violent tendency asserted by the Crown. To the contrary, it was evidence of continuity of the applicant’s violent tendency.

23. [76]

    I would reject ground 1 of the proposed appeal.

24. [77]

    Ground two is a complaint about the manner in which the trial judge directed the jury with respect to the tendency evidence. The direction was in the following terms:

25. [78]

    The short point made on behalf of the applicant in support of this ground is that the direction was factually wrong in that it went beyond what was contained in Exhibit E. Specifically, there was, in Exhibit E, no mention of the applicant having been intoxicated during the past episodes of violence on either JD or LS.

26. [79]

    It is correct that Exhibit E did not contain any assertion that, in all or any of the three incidents the subject of the Tendency Evidence Notice, the applicant had been intoxicated. An assertion that, following the first assault on JD, the applicant had been placed in a cell for “time out to get over his intoxication” had appeared in the first version of the Agreed Facts (as proposed by the Crown) but did not find its way into the document that went before the jury as Exhibit E.

27. [80]

    The absence of any objection to the direction is a persuasive indication that the error lacked materiality.

28. [81]

    By Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW):

29. [82]

    This is not a case in which leave under Rule 4.15 ought to be given. That is sufficient to warrant rejection of round two. There is a further reason for doing so, even if leave were to be given.

30. [83]

    Section 6(1) of the Criminal Appeal Act provides:

31. [84]

    There are thus three bases on which an appeal against conviction may be allowed:

32. [85]

    Hovering over s 6(1), including the proviso, are a number of constructional complexities, spelled out with clarity by a unanimous High Court in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (“Weiss”) at [10] (with reference to the relevantly identical provision in the Crimes Act 1958 (Vic)). One of those complexities is:

33. [86]

    As I read the reasons in Weiss, a “miscarriage of justice” for the purposes of the third limb of s 6(1) is:

34. [87]

    That proposition was derived from Crease v Barrett (1935) 1 Cr M & R 919; 149 ER 1353 at 1359 and came to be known as “the Exchequer Rule”. On that basis, any error of law, evidence or procedure, no matter how inconsequential, would entitle a convicted appellant to a new trial. The proviso was introduced in order to ameliorate the effect of that rule, so that a new trial would not be ordered unless the departure was such as to give rise to an actual “substantial miscarriage of justice”. All of this is explained in Weiss at [13]-[30].

35. [88]

    That approach to the construction of the third limb of s 6(1) has, however, been modified in a later decision of the High Court. In Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 (“Hofer”). Kiefel CJ, Keane and Gleeson JJ said (at [41], citing [18] of Weiss):

36. [89]

    Gageler J said (at [118]):

37. [90]

    It must be acknowledged that, in going so far, Gageler J’s was a lone voice. Paragraph [123] did not command the assent of other members of the Court. But nor was there any express dissent. And [41] in the judgment of the plurality went further than had the High Court in Weiss.

38. [91]

    In this Court, in AK v R [2022] NSWCCA 175 Beech-Jones CJ at CL discussed (as had N Adams J in Tomlinson v R [2022] NSWCCA 16 at [122]-[140]), the modification made to what had been said in Weiss. Inter alia, his Honour said (at [2]):

39. [92]

    Both Beech-Jones CJ at CL and N Adams J have thus accepted, on the basis of the reasoning in Hofer, (including the reasoning of Gageler J) that the blanket rule that any departure, no matter how inconsequential, from rules of law, evidence or procedure, will constitute a miscarriage of justice for the purposes of the third limb of s 6(1) (and before resort to the proviso) is no longer applicable. To establish a miscarriage of justice for the purposes of the third limb of s 6(1), it is necessary that an appellant establish, not only error, but also that the error was prejudicial in the sense that it “had the meaningful potential or tendency to have affected the result of the trial”. Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) had taken a similar approach in Zhou v R [2021] NSWCCA 278 at [22].

40. [93]

    I am content, like Beech-Jones CJ at CL and N Adams J, to proceed on the basis that, for a miscarriage of justice as contemplated by the third limb of s 6(1) of the Criminal Appeal Act, it is not sufficient to identify some inconsequential error of law, fact, evidence or procedure. It is necessary, also to establish that the error did, or might have had, a prejudicial effect on the accused’s prospects of acquittal. That, I appreciate, is a departure from [18] of Weiss, but is the result of a faithful application of the reasons in Hofer.

41. [94]

    In this case it is not necessary to go to [123] of Hofer. It is sufficient to say that, on no basis could it reasonably be held that the trial judge’s introduction into the tendency evidence direction the notion that the applicant’s tendency to assault his domestic partners included or involved doing so while intoxicated could have affected the outcome of the trial.

42. [95]

    Applying the principles stated above, I am satisfied that the mistaken reference by the trial judge to intoxication of the applicant in the context of the tendency evidence could not have had any material effect on the outcome. Other considerations aside, it was a reasonable inference that the applicant was indeed intoxicated at the time of the events giving rise to the charges on the indictment, and at the time of the previous incidents. It is difficult, indeed impossible, to see how the tendency evidence could have been made less prejudicial to the applicant by the excision of the reference to intoxication.

43. [96]

    I would therefore reject proposed ground 2.

44. [97]

    By ground 3 a two pronged attack was made on the conviction. First, it was said that the verdict of guilty on Count 1 is inconsistent with the verdicts of not guilty on Counts 2 and 3. Second, it was said that, in any event, the verdict is unreasonable within the first limb of s 6(1) of the Criminal Appeal Act. Dealing with the second prong first, the principles on which a verdict of guilty may be set aside as unreasonable are thoroughly entrenched: M v The Queen (1994) 181 CLR 487; [1994] HCA 63. They are (at [7] per Mason CJ, Deane, Dawson and Toohey JJ):

45. [98]

    In Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 the task of the court determining an appeal on the unreasonable verdict ground was encapsulated (at [7]) as:

46. [99]

    It is sufficient to dispose of that aspect of ground 3 to say that, after making my own independent assessment of the evidence, I am satisfied, on the whole of that evidence, that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of an offence against s 61I of the Crimes Act, the offence of which he was convicted. The nature and quality of the evidence was such as to eliminate, to my mind, any reasonable doubt that the applicant was guilty of the offence of which he was convicted.

47. [100]

    Moreover, examination of the applicant’s submissions demonstrates with clarity that the contention that the verdict was unreasonable was no more than an alternative way of putting the first prong of ground 3 – that the verdict of guilty on Count 1 was inconsistent with the verdicts of not guilty on Counts 2 and 3.

48. [101]

    Asserted inconsistency of verdicts is to be measured against a test of logic and reasonableness: McKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ; [1996] HCA 35. The mere fact that a trial results in a mixture of guilty and not guilty verdicts is not sufficient, of itself, to demonstrate inconsistency.

49. [102]

    In Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 the High Court set aside two convictions on a three count indictment on the basis that the acquittal on a third count must have meant that the jury doubted the credibility of the complainant. The reasoning in that case was put in perspective by Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, as to which the High Court subsequently declined an express invitation to declare was wrongly decided: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [32] per Gleeson CJ, Hayne and Callinan JJ.

50. [103]

    It must now be accepted that different verdicts in trials of multiple count indictments do not necessarily signify disbelief of the complainant. The principles may be stated as:

51. [104]

    The High Court has also, more recently, emphasised the importance of the constitutional role of the jury in the determination of guilt of criminal offences: Baden-Clay v The Queen (2016) 258 CLR 308; [2016] HCA 35 at [65]. The power conferred by s 6(1) of the Criminal Appeal Act to set aside a jury verdict of guilty:

52. [105]

    While I accept that the acquittals on Counts 2 and 3, in the light of the conviction of the statutory alternative to Count 1 are puzzling, the conviction establishes that the jury accepted the complainant’s evidence in that respect as honest and reliable. It is not for this Court to second guess the jury’s assessment.

53. [106]

    I would therefore reject ground 3 of the proposed appeal. All grounds having failed, although I would grant leave, I would dismiss the appeal.

54. [107]

    Since preparing these reasons, I have read the concurring reasons of Hamill J. I agree with his Honour’s additional reasons.

Extension of time

1. [108]

   Pursuant to s 10(1)(b) of the Criminal Appeal Act this Court is conferred with a wide discretion to extend the time prescribed for filing a notice of appeal, or notice of intention to appeal or notice of intention to apply for leave to appeal. A wide variety of factors, some of them pulling in different directions, are to be considered: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The Crown opposed the grant of an extension of time, on the stated basis of “the interests of justice with respect to the finality of proceedings”, noting, in particular, that the grounds of appeal were not filed until almost 3 years after the conclusion of the trial, that the entirety of the sentence had expired, and that the reasons of the trial judge for admitting the evidence are not available.

2. [109]

   The evidence established that the applicant had very promptly filed a notice of intention to appeal but that a good deal of the delay that ensued was attributable to the (ultimately unsuccessful) attempts to locate the trial judge’s reasons for admitting the tendency evidence. Thereafter, counsel’s commitments impeded the progress of the preparation of written submissions.

3. [110]

   Having regard to the gravity of a conviction for sexual assault, I do not give any weight to the circumstance that the applicant has served his sentence. The long delay would, ordinarily, tell strongly against the grant of an extension of time, although that circumstance is somewhat – but only somewhat – ameliorated by the need to spend time in the effort to locate the tendency evidence reasons.

4. [111]

   In the end, with some reservations, I would grant the extension of time sought.

5. [112]

   The orders I propose are:

   1. (1)

      Time in which to seek leave to appeal extended to 20 August 2021;

   2. (2)

      Leave granted to appeal against conviction;

   3. (3)

      Appeal dismissed.

6. [113]

   HAMILL J: I have had the considerable benefit of reading the draft judgment of Simpson AJA. I agree with the orders proposed by her Honour and, generally, with her Honour’s reasons. I would add the following additional reasons for my agreement that each of the grounds of appeal must be dismissed, despite counsel’s well-reasoned and persuasive submissions. I rely on the summary of the evidence provided by the presiding Judge but will emphasise a few pieces of evidence that are important to my concurrence.

The tendency evidence

1. [114]

   In addition to the reasons provided by Simpson AJA, there was a feature of the case that gave the tendency evidence a particular capacity to affect the assessment of the facts in issue.

2. [115]

   As Simpson AJA has explained, one of the acts of violence asserted by the complainant was that the applicant pulled her hair during the incident. She said, “he grabbed the back of my head, my hair and was forcing me to give him oral” and “he had his fingers in my hair and holding it with a tight fist.” [1]

3. [116]

   In his recorded interview with the police, the applicant acknowledged that he pulled the complainant’s hair but claimed that “she likes being grabbed on the back of the hair” (Q 308). The applicant was asked (Q 328) “did you grab her hair like that?” and he replied:

4. [117]

   Both tendency witnesses (whose allegations formed part of the agreed facts in Exhibit E) gave evidence of the applicant pulling their hair. In each case, the police were involved.

5. [118]

   In the circumstances, and where the applicant asserted that the complainant “liked” having her hair pulled, the earlier incidents and the intervention of the police on behalf of his two previous romantic partners, had a particular probative force to the issue of consent and to the applicant’s state of knowledge.

Ground 3 and inconsistent verdicts

1. [119]

   I agree with Simpson AJA’s description of the mixed verdicts in this case as “puzzling”. On my review of the whole of the evidence, the prosecution case on each count was very strong. Yet the jury, after a lengthy deliberation, rejected the prosecution’s case (or, more correctly, had a reasonable doubt about it) in relation to counts 2 and 3. As to count 1, the verdict reflected a reasonable doubt about the circumstance of aggravation (the intentional or reckless infliction of actual bodily harm).

2. [120]

   I have had difficulty resolving this ground. If the jury’s verdicts of not guilty on counts 2 and 3 reflected a finding that it doubted the complainant’s credibility as to her allegations in those counts, it is not immediately apparent why that doubt ought not to have also applied to the first count: cf Jones v The Queen (1997) 191 CLR 439 at 453, 455; [1997] HCA 56 as explained in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [25], [35] and R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [125]-[137], and applied, for example, in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [319]-[324], (Simpson J, as her Honour then was, dissenting on this issue), Norris v The Queen [2007] NSWCCA 235; 176 A Crim R 42, Collins v R [2020] NSWCCA 198 and Dadley v R [2021] NSWCCA 267.

3. [121]

   A review of these, and similar, cases demonstrates that while general principles may readily be distilled, the application of those principles can be difficult. The outcome is driven by the particular facts and circumstances of the case under consideration.

4. [122]

   In approaching the task, three matters must be borne steadily in mind. First, “the test established by s 6(1) of the Criminal Appeal Act 1912 is unreasonableness, not inconsistency”: MFA v The Queen at [36]. Secondly, the task must be undertaken “in the context of the system within which juries function, and of their role in that system”: MFA v The Queen at [34]; see also, more generally, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38][39]. Thirdly, it should not readily be concluded that “mixed” verdicts are “inconsistent in the relevant sense” or that a jury has compromised its function: Mackenzie v The Queen (1996) 190 CLR 348 at 367; [1996] HCA 35; R v TK at [136].

5. [123]

   None of this is to underestimate the responsibility of this Court to review closely the record of the trial, to ensure that the verdict on count 1 is reasonable and able to be supported, taking into account the acquittals on counts 2 and 3.

6. [124]

   In Jones v The Queen at 453, the majority of the High Court took the view that the doubts experienced by the jury in relation to one count “damaged the credibility of the complainant with respect to all counts”. In R v TK, Simpson J emphasised at [128] and [130] that before the approach adopted in Jones v The Queen has application, there must be an examination of the record to determine whether there be “any explanation, not for the convictions, but for the acquittals”. I accept, as subsequent decisions confirm, that this generally is the correct approach. However, it is not an absolute rule. Nor is it the end of the inquiry. As her Honour also made clear (at [128]) the inquiry may “include matters outside the evidence” and “permit examination of circumstances that give ‘insight’ (Mackenzie) … into the jury’s thinking”. In R v TK, the applicant relied on communications from the jury indicating there was some discord and rancour within the jury room. While that reliance was not accepted, it was considered. There are no similar considerations in the present case. For completeness, I refer to the observations of Basten JA in Ganiji v R [2019] NSWCCA 208 at [14]-[17] relating to the possible limitations on an approach that focusses solely on “a search for an ‘explanation’ of the acquittal, rather than the whole of the circumstances.”

7. [125]

   The applicant’s recorded interview with police was a significant piece of evidence. The jury was entitled to place significant weight on the applicant’s unguarded approach to the interview. He made admissions to the alleged acts of intercourse, told police of the disharmony in the relationship and, significantly in the present context, acknowledged that the complainant’s enthusiasm and consent was inconsistent. At one stage, on his account and in response to his sexual advances, the complainant said, “wait until later” (Q 134). [3] At another stage he said (Q 124 to Q 127): [4]

8. [126]

   These answers and others scattered throughout the interview gave rise to a real issue as to the applicant’s state of knowledge of (and perhaps indifference to) whether the complainant was consenting.

9. [127]

   As the primary Judge noted in sentencing the applicant, there was also evidence of the applicant laying down cushions for the complainant’s comfort and massaging her feet. The lack of consent apparently obvious to somebody reading the complainant’s account may not have been so obvious to the applicant who seemed determined to persist and persuade the complainant to have sex.

10. [128]

    The issues before the jury included the state of mind of both the complainant and the applicant. The prosecution was required to prove beyond reasonable doubt that the complainant did not consent. It also had to prove, to the same high standard, that the applicant knew that the complainant did not consent. In view of the applicant’s recorded interview, the issue of his knowledge was a live one in the trial. In Fallah v The Queen [2010] NSWCCA 212, Basten JA observed at [12] that “where there is a real issue as to the state of mind of the applicant, it does not follow necessarily that an acquittal casts doubt on the jury’s view of the credibility of the complainant.”

11. [129]

    The jury was given written and oral directions that the third element of each offence was that the prosecution had to prove the applicant knew the complainant did not consent. It was directed that the prosecution might do that by establishing (1) actual knowledge, (2) the absence of an honest and reasonable belief in consent, or (3) recklessness as to the complainant’s consent. The primary Judge directed the jury as to the legal meaning of recklessness in a non-controversial manner.

12. [130]

    Considering the applicant’s recorded interview and having reviewed the whole of the evidence and record of the trial very closely, I am satisfied that the most likely explanation for the acquittals was that the jury entertained a reasonable doubt on count 2 and 3 as to proof of the third element. The evidence that the complainant was not, in fact, consenting was extremely strong.

13. [131]

    It is worth observing that this was the explanation for the differential verdicts that the primary Judge considered to be the most likely one (remarks on sentence at p 4).

14. [132]

    It is for those reasons, in addition to those given by Simpson AJA, that I agree that the appeal against conviction must be dismissed.

15. [133]

    IERACE J: I agree with Simpson AJA and with the additional reasons of Hamill J.