Glenn (a pseudonym) v R

1. [1]

   HOEBEN CJ at CL: I agree with the judgment of N Adams J and the orders which her Honour proposes. In particular I note that in relation to Ground 3, I have listened to the audio of the cross-examination of the applicant and I agree completely with the conclusions of N Adams J in regard to the conduct of the Crown Prosecutor.

2. [2]

   BUTTON J: I agree with N Adams J, subject to the following. With regard to ground 2 the evidence adduced from the complainant in her "evidence- in -chief" about why she did not complain about the previous five incidents was not the subject of objection. I would apply rule 4 to that ground.

3. [3]

   As part of my agreement with her Honour, I simply wish to emphasise the following matters.

4. [4]

   The logistical burden of other listed matters placed upon the trial judge rendered a coherent trial by jury difficult, if not impossible.

5. [5]

   The 1998 offences and the five other incidents had been held to be admissible. They were relevant to the state of mind of the complainant and of the applicant on the date in the indictment, and it had been found that that s 137 of the Evidence Act 1995 (NSW) was not engaged. However, unless presented in a very circumscribed and controlled manner, they had an obvious potential to "swamp” the trial. In the event, they did so.

6. [6]

   Finally, I completely reject the proposition that a Minister of Justice (or indeed defence counsel) can use a term such as "not give a rat’s arse” in a criminal trial, unless quoting directly from evidence. Such language as part of an address to a jury or question of a witness has an obvious tendency to detract from the solemnity and gravity of the proceedings, and to lead the jury not to respect their own role within them. If used to describe the evidence of an opposing witness, it also has an obvious tendency to belittle. Its use in this trial is a very good example of all that has gone wrong here.

7. [7]

   N ADAMS J: On 21 August 2017, the applicant was found guilty by a jury of two offences arising out of the sexual assault of his former partner. The Crown case was that he unlawfully entered the complainant’s home at 5am on 2 April 2015 whereupon he attempted to sexually assault her and then ultimately did so. The two counts upon which he was convicted were:

   1. (1)

      Aggravated break and enter of a dwelling house and commit serious indictable offence (attempted sexual intercourse), contrary to s 112(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years and a standard non-parole period (“SNPP”) of 5 years.

   2. (2)

      Sexual intercourse without consent, contrary to s 61I of the Crimes Act. This offence carries a maximum penalty of 14 years and a SNPP of 7 years.

8. [8]

   The applicant was sentenced by Judge Culver to an aggregate sentence of 11 years imprisonment to date from 29 April 2015. A non-parole period of 7 years imprisonment was imposed and will expire on 28 April 2022. As at the hearing of this appeal he had served over five years of that seven-year non-parole period. There is no application for leave to appeal against the severity of the sentence imposed.

9. [9]

   The applicant appeals against his conviction on the following four grounds:

10. [10]

    The evidence was that the complainant and the applicant had been in a relationship that had ended in 2013, although the complainant’s initial evidence was that it had ended in 2008. In the weeks leading up to the offences, the complainant had posted photos of a new relationship on Facebook. The applicant had contacted her and told her to pull them down. At that stage, he lived in Wellington and she lived in Whalan, a four-hour drive away. After a series of texts, he arrived at her home at 5am intoxicated and attempted to sexually assault her and then later did so.

11. [11]

    It was common ground that the complainant did not offer physical resistance or protest to the sexual activity. On the contrary, with respect to the second count, her evidence was that she feigned enjoyment so that the act would end more quickly. After the assaults, she left to go shopping and called police on a recorded triple-0 call. The complainant’s position was that she did not consent to the sexual activity and only submitted to the applicant because she was in fear of serious violence. That fear was based on the fact that 17 years earlier the applicant had kidnapped her at gunpoint, involved her in a police chase, and crashed his car causing her injury. I propose to refer to this as “the 1998 incident”.

12. [12]

    The defence case at trial, was that the complainant had invited him over to collect some tools in her shed, that the sexual intercourse was consensual and that he had been “set up” by the complainant.

13. [13]

    The trial was first listed to commence before Judge Norton SC on 4 November 2018.

14. [14]

    Before the trial commenced, the Crown made application to adduce evidence of the 1998 incident at the trial to explain why the complainant did not resist the applicant on 2 April 2015. The 1998 incident had occurred after the applicant and the complainant had been in a relationship for about 9 months. He became jealous of her and believed that she was having affairs with other men. She became concerned after an argument and telephoned police. When the police arrived, the applicant left. Later that day, he followed the complainant and her friend to her house. After a confrontation he dragged the complainant into his car at gunpoint and drove away. His vehicle eventually collided with a police vehicle which resulted in a car chase which only ended when the applicant’s car crashed causing the complainant to receive fractured vertebrae.

15. [15]

    The applicant pleaded guilty to the offences and in 1999 was sentenced to a term of imprisonment of 5 years with a minimum term of 2 years and 6 months. The complainant visited the applicant in custody “numerous” times and the relationship resumed upon his release from custody on 11 January 2001. The complainant’s evidence was that the relationship lasted until 2008 and was "on and off again". From 2013, she had irregular contact with the applicant. There was a factual dispute at the trial about when the relationship ended.

16. [16]

    I pause here to note that what was known to counsel and the trial Judge, but was not in evidence, was that the applicant had spent a significant time in custody from his release in 2001 until his arrest for the present offences in April 2015. The Corrective Services print-out, which formed part of the Appeal Book, reveals that he was in custody from 5 December 2005 until 3 June 2007 and again from 7 February 2009 until 6 February 2013. Throughout the trial, the date “2008” was raised as a time the applicant was not living with the complainant. That is in fact a reference to early 2009.

17. [17]

    At the pre-trial application before Judge Norton the Crown tendered two statements from the complainant dated 4 April 2015 and 16 July 1998 as well as the transcript of the triple-0 call of 2 April 2015. The significance of the triple-0 phone call was that the complainant explained her conduct on 2 April 2015 by reference to the 1998 incident. A relevant extract of this is as follows:

18. [18]

    Police also obtained an additional statement from the complainant to clarify what she meant at [14] of her original statement when she said, “[o]ver the next couple of years [from 2001] [the applicant] would continue to be verbally and physically abusive towards me.” She provided details of this alleged violence in a statement dated 14 November 2016. I shall refer to this evidence as “the interim events".

19. [19]

    The Crown submitted to Judge Norton that the 1998 incident was relevant on two bases. Firstly, it was relevant to the element of consent: R v Fordham (1997) 98 A Crim R 359; that is, the complainant only submitted to the applicant because she was in fear for her life. It was submitted that the text of the triple-0 call in 2015 demonstrated that the 1998 incident “was very much at the forefront of her mind and very much informed her decision-making on the occasion.”

20. [20]

    The second basis upon which it was submitted that the 1998 incident was relevant was as to the applicant’s state of mind in 2015. It was submitted that it was necessary for the jury to place the alleged sexual assault in the context of the previous kidnapping and violence. The Crown submitted that any potential prejudice in the form of the jury engaging in tendency reasoning could be mitigated by directions.

21. [21]

    The application was opposed. On behalf of the applicant it was submitted that the evidence should be rejected under s 137 Evidence Act 1995 (NSW). This was because the probative value of the evidence had been lessened by the passage of time, especially as the relationship between the applicant and the complainant had resumed after the 1998 incident. It was also submitted that there was significant prejudice occasioned by the use of a firearm in the 1998 incident when there were no weapons used in 2015. As to the interim acts contained in the 14 November 2016 statement, the following submission was made by the defence counsel:

22. [22]

    When her Honour then enquired whether the Crown would seek to lead this additional material, the (then) Crown Prosecutor responded as follows:

23. [23]

    In a judgment dated 15 November 2016, Judge Norton ruled that the evidence of the 1998 incident was highly relevant as to the complainant’s state of mind and why she did not resist the applicant. As for the relevance of the same evidence to explain the applicant’s state of mind she observed:

24. [24]

    Her Honour addressed the question of admissibility in this way:

25. [25]

    Her Honour was satisfied that the evidence was “highly probative”, despite having occurred 17 years earlier and the fact that the applicant pleaded guilty to them, and, thus, the events are accepted. After noting that the relevant question is the danger that the jury may use the evidence to make the decision on an improper basis logically not connected with the issues in the case, her Honour went on to state the following:

26. [26]

    After this judgment, the applicant withdrew his instructions from his lawyers and the matter had to be adjourned.

27. [27]

    A new trial was listed to commence on 31 July 2017 before Judge Culver. It was not reached until Thursday 3 August 2017 due to a delay in her Honour’s then trial in which the same Crown Prosecutor was briefed. The applicant was still represented by Mr Williams, but different counsel had been briefed for the Crown.

28. [28]

    The trial before Judge Culver began late on Thursday 3 August. As is the usual practice, it commenced as soon as the jury in the previous trial conducted by her Honour had retired to deliver its verdict. After a brief discussion with counsel about timing and the pre-trial ruling concerning the 1998 incident, her Honour interposed another matter. When the trial resumed, the jury was empanelled and her Honour commenced her opening remarks to the jury before adjourning the trial for the day.

29. [29]

    Her Honour continued her opening remarks the following day, 4 August 2017, and then the Crown Prosecutor opened to the jury. In doing so, he averted to the 1998 incident and stated the following in relation to it:

30. [30]

    After the Crown opening address, the jury was sent out of court for morning tea. After morning tea, the trial stood in the list so that her Honour could deal with her previous trial. The complainant commenced her evidence just after midday.

31. [31]

    The complainant’s evidence was that she met the applicant in 1980 and they dated for around a year. The relationship ended when the complainant met another person, whom she eventually married in 1990. The complainant’s marriage ended in 1997 and the complainant became involved with the applicant later that same year. The complainant gave evidence of her relationship with the applicant up until the 1998 incident. She was then asked to describe the 1998 incident. When she got to the stage about him coming to her house and pulling out a pistol, she stated:

32. [32]

    Defence counsel then asked to raise a matter in the absence of the jury. Complaint was made about the complainant’s references to the applicant’s drug problem. There had been no reference to that in any of her police statements so a short voir dire was conducted with the complainant. The complainant gave evidence on the voir dire that the applicant did not have a problem with drugs after he was released from custody in 2001. It was impressed upon her the need to make no mention of the fact that the applicant had been in gaol or took drugs.

33. [33]

    Defence counsel pressed his application to discharge the jury which was refused.

34. [34]

    The jury were then returned to court and her Honour directed the jury that the trial was not about illegal drug use and it could not be used by them to inform whether the Crown had proved the elements on the indictment. The complainant’s evidence then continued. She was asked to describe the 1998 incident in some detail, which she did. The transcript records that she became tearful whilst recounting the details of the ordeal. The Crown Prosecutor adduced from her that the applicant had pleaded guilty to the offences and been imprisoned.

35. [35]

    The complainant gave evidence that she had visited the applicant in prison on “numerous times”. Her explanation for this was as follows:

36. [36]

    The Crown Prosecutor then returned to the 1998 incident and the following exchange took place:

37. [37]

    The Crown Prosecutor then asked the complainant whether she remembered any "unpleasant events" after the applicant's release from gaol in 2001. Mr Williams objected to the "generality of the question". The trial was then adjourned for the weekend to resume on Monday 7 August 2017. The Crown Prosecutor indicated that he would "talk to my friend, we can work this out”. Before the jury left court her Honour gave them a direction about the 1998 incident and the limited use it was admitted for.

38. [38]

    On Monday, 7 August 2017, the Crown made application to lead the evidence of the interim acts of violence said to have been committed between 2001 and 2008 when the applicant and the complainant were in a relationship as context evidence. Mr Williams objected to the evidence on the basis that the previous Crown Prosecutor had indicated that he would not lead the evidence. The jury were given an extended morning tea break whilst this argument took place. The matter was again interposed after the lunch adjournment. During the argument the following exchange took place:

39. [39]

    A voir dire was then conducted in relation to the proposed context evidence. After further argument her Honour ruled that the Crown was permitted to adduce five discrete incidents of violence that occurred in the relationship between 2002 and 2007 as context evidence. Her Honour was satisfied that the events had probative value because the defence had properly advised the court that it was intended to challenge her evidence as to why, after receiving a threatening phone call from the accused on the night of the offences, she nonetheless went to bed without calling the police. Her Honour was satisfied that the interim events had the capacity to put in context the complainant’s evidence in this regard and further they explained her state of mind. Her Honour went on to state the following:

40. [40]

    Her Honour later observed that:

41. [41]

    The complainant on resumption continued her evidence. She agreed that for the first 12 months after the applicant’s release from custody in 2001 “things” were “all right” but that things went downhill from 2002. She then gave the context evidence the subject of her Honour’s ruling.

42. [42]

    The first incident was when she was sitting on the lounge and the applicant walked past her, spat in her face and said something “in the line of” "[y]ou putrid dog”. She stated that when the applicant was in a cranky mood "everything was her fault" and he used to always take his temper out on her.

43. [43]

    The second incident was in 2003. The applicant had been drinking and became angry. It was late in the afternoon, early evening and the complainant took her seven year old son outside. The applicant locked them outside for an hour or two until he was ready to let them back in.

44. [44]

    The third incident occurred when the complainant was standing in the lounge room and the applicant turned around and "out of the blue" punched her in the thigh. She gave evidence that it was so hard, her legs nearly went from under her.

45. [45]

    The fourth incident occurred when the applicant became angry about something and threw a full can of Black Douglas scotch across the other side of the lounge room, where the complainant was standing. He threw it so hard that it went past her head and smashed the mirror behind her.

46. [46]

    The complainant agreed that those were the four incidents she had told police about in her statement but indicated that she had recalled a fifth incident that day. She gave evidence that once when she was having a shower, the applicant came into the shower, pulled the shower curtain across and punched her a couple of times. She recalled she slipped when he hit her. He also verbally abused her.

47. [47]

    After she gave evidence of these five instances, the Crown Prosecutor asked her the following questions:

48. [48]

    The complainant went on to agree that the relationship was on and off to about 2008 and there was no regular contact with the applicant from 2008 until 2012 although she saw him on two occasions during that time. She learned in 2012 that he intended to move to the same country town as his family and bought him a ticket to move there. She saw him once in 2013 when he stayed at her house for a couple of days. On occasions he would telephone her to say he wanted to pick up some of his tools from her house but she told him there were none to collect. She agreed that from questions he had asked her as to where she had been, that she believed that he had been tracing her on his phone.

49. [49]

    In 2014, the complainant formed a new relationship. She gave evidence that in March 2015 she placed a photo of herself and this new partner on Facebook. Shortly after this, she received a telephone call from the applicant “abusing” her and telling her to remove the photo from Facebook, which she did after a few days. She received a number of calls from him at this time. During these calls, he told her that she still loved him and that he wanted to attend her property to get his tools.

50. [50]

    The complainant was shown a document which became Exhibit A including calls and texts between her and the applicant from 1 April 2015 to 2 April 2015.

51. [51]

    The complainant gave evidence that on 1 April 2015 she received a call from the applicant relating to the Facebook picture, with the applicant threatening to put “a knife through her head”. On the same day, at 21:01:24, the applicant sent her a text message that said

52. [52]

    The applicant called the complainant at 23:49:44 and the call lasted for 2:44 minutes. Following his four attempts to call the complainant at 23:52:33, 23:55:32, 23:56:13 and 23:57:54, the applicant made a call at 23:58:28 that lasted 5:34 minutes. That call was followed by his message to the complainant at 23:59:55 that said, “[a]nswer me so we can fin here & now.” His call to the complainant at 00:04:09 went answered.

53. [53]

    At 00:10:04 on 2 April 2015, the complainant sent a message to the applicant that said, “[i]t’s fixed We are finished”. At 00:11:15, the applicant responded, “I’m sorry” and then sent another message at 00:12:01 that said, “I said I’m sorry” and another at 00:16:08 that said, “[o]k. I’m sorry.” At 00:36:11, the applicant sent a message that said, “[c]an i get rod or ray 2 pick some stuff from there on Thursday before they come up. Yes or no” and at 00:37:37 a message saying, “[s]ome tools I want. Can they?” The applicant sent another message at 00:41:37 that said, “[y]es” and followed it by another message sent at 00:46:45 that said, “[y]es or no there my tools.”

54. [54]

    After the luncheon adjournment some other matters were interposed and the trial then resumed. The complainant gave evidence that at around 5am the following morning, the complainant woke up to her bedroom light being turned on. The applicant would appear to have entered her house by using a spare key that she had placed in the back yard for her sons. She said that he was holding her keys in his hand. He said to her "[a]re you going to be fucking nice to me now, are you? I'm not a fucking dog no more."

55. [55]

    The complainant gave evidence that he asked her for the pin number for her phone and that she was afraid of him reading her messages because this would provoke violence. In the absence of the jury, Mr Williams complained about the complainant’s evidence that she thought, as her Honour put it, “if the accused saw the text messages from her new partner, she would kill her partner”. Whilst this discussion took place a jury note was received (MFI 4) in these terms:

56. [56]

    After discussion of these questions, her Honour directed the jury that there was no evidence as to the first question and as for the remaining three questions, there would be further evidence about those matters. The complainant then continued her evidence.

57. [57]

    The complainant stated that she told the applicant not to worry about the phone and either put it under a pillow or threw it down the side of a bed. According to her evidence, the applicant told her that he had been on Google and that he was entitled to “break up sex” and said that “he had been waiting two years for this”. He then got on the bed next to her and took her pants off.

58. [58]

    She said to him "[l]isten I haven't had a, I haven't had a shower since I got home from work last night, just let me get up and have a shower." The complainant said that the smell of his breath indicated to her that he had been drinking.

59. [59]

    She described how the applicant then lay on top of her but could not achieve an erection, rubbing his penis around her vagina. She gave evidence that she told him that she wanted a shower, “just anything to try and get out, out of there to stop this”. She then suggested that she and the applicant go and get cigarettes. She noticed on the way out that he had locked the back screen door.

60. [60]

    When the applicant and the complainant travelled to the petrol station, the applicant stated that he would buy the cigarettes and took the keys from the complainant’s car. The complainant acknowledged that she could have fled at this point but stated that the thought in her mind was “[h]e will catch me, he will catch me.”

61. [61]

    The complainant’s evidence was that they both then returned to the house and the applicant guided her to the bedroom, pulling her pants off. She said that he started to fondle her breasts and touch her vagina and he had an erection. He then had penile-vaginal intercourse with her and she submitted “because I know if I didn’t do it I didn’t want the whole situation to get abusive or out of control because I was scared of that’s when he’d get very violent.” She pretended to climax and then went to the toilet.

62. [62]

    She was asked by the Crown Prosecutor why she did not tell the applicant that she did not want to have sex with him and she replied:

63. [63]

    The complainant told the accused she needed to buy food and went to ALDI, which was not open, and then went to McDonalds. The manager was a girl she knew from school and the complainant asked her for her phone and called police. She then made the triple-0 call I have referred to above which was marked Exhibit B and played to the jury.

64. [64]

    Exhibit A shows that the applicant made five attempts to call the complainant after she left: at 08:16:01, 08:20:43, 08:25:24, 08:28:57 and 08:42:23, and then sent the following message to the complainant at 08:42:50, “[h]ow long u going 2 be” followed by another one at 08:46:37, “[h]ow long u gunna be.” At 08:48:41, the applicant sent a message saying, “[i] don’t sitting here someone mite come around. Gunna head back home.” Then at 08:51:11 he wrote, “[m]ate i know your scared i am gunna say something 2 the boyfriend but i swear i won’t.” Following two attempts to call the complainant, at 09:35:28 and 10:13:48, the applicant sent a message at 10:18:23, saying, “[r]ing u wen i get home.”

65. [65]

    When the complainant was examined at Westmead Hospital on 2 April 2015 a swab was taken from her vagina in which semen was detected with a DNA profile matching that of the applicant. On 4 April, she made a statement to police at Mt Druitt Police Station.

66. [66]

    After giving this evidence the jury retired for the day. Her Honour then called them back to give them a direction that although the complainant overheard a police officer upon approach say something to the effect of, "[h]e has had a gun", there was no gun used in the charged offence, only in the 1998 offence.

67. [67]

    On 8 August 2017, the complainant finished her evidence. In her cross-examination it was put to her that she had been in an on-off relationship with the applicant until around 2013. She agreed with this statement. It was also put to her that the applicant had not taken the key to get into her house. It was also put to her that the alleged conversation on 1 April 2015 and the threat by the applicant that he would “put a knife through [her] head” did not happen because at that time she was having a smoke with her neighbour, Sonya. She disagreed.

68. [68]

    It was further suggested to the complainant that the applicant had come down on the night of the offending because they were having a “blue” and she had threatened to throw out his tools. Furthermore, when he did so she invited him to “jump into bed and get a couple of hours sleep”. It was put to her that after going to the service station, she “jumped on top of him”. This was all denied.

69. [69]

    The jury was sent home early because of other matters that her Honour had to deal with in the afternoon. On that day, Mr Williams indicated that due to a family tragedy he would be unable to attend court for two days, on 10 and 11 August. The jury was informed that it would not be sitting for those two days.

70. [70]

    The following day, 9 August 2017, Mr Williams withdrew from the matter. New counsel had to be found to appear for the applicant. Her Honour directed the jury as to the use of the context evidence. The matter came before her Honour the following day for mention and the jury returned on the following Monday. The matter was again delayed because of other matters that her Honour was hearing earlier in the day. She later indicated to counsel that the matter might be further delayed due to a lengthy list she had the following day.

71. [71]

    On 14 August 2017, Mr Niven of counsel came into the matter to appear for the applicant for the remainder of the trial. Her Honour later stated the following to the jury:

72. [72]

    On 15 August 2017, a delay was caused by technical difficulties. Mr Niven then cross-examined the complainant. Once again, it was put to the complainant that the applicant had come to her property to collect her tools. It was also put to her that, even though the applicant had made serious threats to her in calls on 1 April 2015, she had not taken the opportunity to call police. It was put to her that she must not have taken the threats seriously if she did not respond in that way. She denied that the relationship had resumed in 2013. The cross-examination then finished in the following way:

73. [73]

    Detective Senior Constable Ari Barr then gave evidence. Through her the CCTV footage of the applicant at a service station was tendered (where it was asserted that the applicant could be seen holding the complainant’s car keys). So too was the CCTV footage of the complainant at Mt Druitt McDonald’s where she made the triple-0 call. Evidence was also adduced that a mixed DNA profile of the complainant and the applicant was extracted from a vaginal swab taken by Ms Ashton.

74. [74]

    There was material in the prosecution brief which showed that the applicant had telephoned police and given his account of what occurred on 2 April 2017. Counsel for the applicant indicated to the Crown Prosecutor that he wanted that evidence before the jury as it was conduct consistent with innocence. The evidence was that the applicant’s mobile phone called the Mount Druitt Police Station on four occasions, three in the morning and one in the early afternoon of 2 April 2015. He spoke to Detective Sergeant Kylie Evans.

75. [75]

    When the Officer in Charge (“OIC”) gave this evidence the Crown Prosecutor asked this:

76. [76]

    In cross-examination, Mr Niven asked the following:

77. [77]

    Following the next adjournment, the jury wrote a note that included the following two questions:

78. [78]

    In relation to (5) and other questions in the note, her Honour informed the jury that it was anticipated that the applicant would be giving evidence and that they would hear his account. In relation to (6), Detective Senior Constable Barr was recalled and informed the jury that phone calls to police stations are not recorded.

79. [79]

    Mary Ashton also gave evidence that day. She is a specialist forensic nurse who worked at Westmead Hospital and examined the complainant. She made detailed notes of what she was told by the complainant and this evidence was adduced as evidence of fresh complaint. That account was generally consistent with what she told police.

80. [80]

    On the following day, 16 August 2017, the matter began after noon because her Honour was required to deal with other matters in the same courtroom. That occurred again after the luncheon adjournment. The complainant was recalled on the application by the Crown and the Crown case then closed.

81. [81]

    The applicant’s evidence commenced on 16 August 2015. He gave evidence that in the weeks leading up to the incident he was in contact with the complainant. She rang him and "told me to come down and get my tools". When he told her he would come on a weekend she told him that he could not come then because she would not be there. His evidence was that she swore at him and told him that if he came to her house when she was not there she would call the police.

82. [82]

    His reason for attending her home was because she had told him to. She also told him that if the shed was locked, he was to get the key from the pot plant and get the keys to the shed from the hook in the kitchen.

83. [83]

    He explained that when he arrived at her home at 5am in the morning he parked around the corner because "she didn't want me to park at the front of the house" because "she didn't want the neighbours to see. She was a bit of a prude. She don't like people thinking she's having an affair."

84. [84]

    His evidence was that when she first saw him in the house she swore at him and then told him to make a coffee. After a brief discussion she suggested to him to "jump in" her bed and get a few hours’ sleep. The applicant gave evidence that:

85. [85]

    The applicant said that the complainant led him to the bedroom because it was dark and he did not have his glasses. He said that she got into bed and then he got into bed. He started fondling her and she started fondling him. He said he got between her legs, she put his penis in her and they had sexual intercourse but he lost his erection. He said that the complainant then swore at him and said, “[g]et the fuck off. You can’t even keep an erection or hard on.” He said that they then got dressed and went into the kitchen. It was then that they discussed about getting cigarettes and whether he knew her boyfriend and whether she had seen a picture on Facebook. He said that he told the complainant that he did not know the new boyfriend.

86. [86]

    The applicant suggested that they share a can of Jim Beam that was in the fridge. His evidence was that the complainant said, referring to the can, "[g]et the fucking thing out” and then told him they were going to the shops for cigarettes and that he had to come with her. They went to the service station (this corresponds with the CCTV footage where he can be seen entering with car keys in his hand).

87. [87]

    When they arrived back at the complainant’s home the applicant went back to bed and the complainant came in and told him to move over. His evidence was that she put her head on his chest, started talking about her bills, all the problems she had. She was "telling me what an arsehole I was again". The applicant then gave evidence that the complainant initiated sexual intercourse again. She got on top of him and they had penile-vaginal intercourse until he ejaculated. He described how after this she went to the bathroom and told him to get her a towel. He did so and she wiped herself. She told him to put the towel in the basket, which he did. He then went to sleep.

88. [88]

    The next thing the applicant recalled was being awoken by the complainant calling to him from the laundry. His evidence was that she was "telling me I'm a fucking idiot” because he put the towel in the wrong basket. She then told him to bring his car down and park it outside under the awning. He agreed. They walked to his car. He had a cigarette, moved his car and returned to the house. When he did he saw that the complainant was getting dressed. He described what happened next as follows:

89. [89]

    He said that he never got the tools from the shed. Earlier, at the house, the complainant had told him to wait until her son came home and she would cook them a meal. He said, "[i] knew she was being too nice to me, that something is wrong." At this point in his evidence, the applicant was developing the theme that he had been the victim of a "set up". Although he did not use that expression (but later adopted it when it was put to him in cross-examination), that was the effect of his evidence in chief.

90. [90]

    The applicant was shown the summary of calls (Exhibit A) from the evening to the morning. He said that in one of the calls the evening before they were arguing and he called her, “[a]n old drag queen”. That was why he later sent her a text saying he was “sorry”.

91. [91]

    He was also shown Exhibit D (stills from the service station) and stated that the keys shown in his hand were his. He explained that, as he was leaving the house, the complainant had asked him to move his car so he collected his keys. He stated that the complainant changed her mind and instead they went to the service station in her car.

92. [92]

    The applicant was asked whether at some time during the morning of 2 April he become aware that the police were interested in talking to him. The following exchange then took place:

The cross-examination of the applicant at trial

1. [93]

   The cross-examination of the applicant is the subject of ground 3. It is necessary to extract parts of it in order to understand the complaints made about it. I propose to summarise it under the same relevant headings as they were addressed in the applicant’s written submissions. Under ground 3 the applicant relied not only on the transcript of the cross-examination but also the “tone and manner'' of it and audible "laughter'' and "sighs" at various points in the cross-examination.

2. [94]

   It was the joint position of both the Crown and Mr Carroll that this was one of those appeals where it was appropriate for the court to listen to the audio recording of the Crown Prosecutor’s cross-examination. The Crown noted the following passage in Pell v The Queen [2020] HCA 12 at [36], (footnotes omitted):

3. [95]

   In accordance with the joint application to do so, I have listened to the full cross-examination of the applicant by the Crown Prosecutor. I propose to insert additional sounds on it that I could detect where relevant.

4. [96]

   I note at the outset that the cross-examination only went for one hour and 10 minutes, including two breaks, and no objection was made to any of it by the second counsel for the accused.

5. [97]

   It commenced with this exchange:

6. [98]

   The first topic of cross-examination was to challenge the applicant’s evidence that he had gone to the complainant’s home that morning to collect his tools. After the applicant described the tools he had stored there and described the size of the shed, the Crown Prosecutor asked him:

7. [99]

   The Crown Prosecutor then sought to cross-examine the applicant to suggest that he had had plenty of time to collect those tools since he had moved out. The following exchange then took place:

8. [100]

   I pause here to note that the Crown Prosecutor was aware that the applicant was in custody from early 2009 until 2013. It is clear that the applicant was trying to explain that he was not physically at the house from 2008 until 2013 because he was in prison but he considered it to still be his home and the relationship to be ongoing during that period. The complainant had conceded in cross-examination that they were still in an on and off relationship until 2013. The cross-examination about when the applicant resided with the complainant continued as follows:

9. [101]

   I pause here again to note that the Crown had repeatedly put to the applicant that he didn’t live at the house from 2008 until 2013 whereas the applicant considered that he did still live there but was in prison. As I will explain further below, the suggestion by the trial judge that the Crown’s question was “clear” does not mean that it was fair in the circumstances.

10. [102]

    The cross-examination then returned to the topic of tools and her Honour adjourned for lunch. During this time the audio reveals that there was some muttering by the Crown and the tone used was as if speaking to a child. When her Honour adjourned for lunch, she indicated that she would be hearing some unrelated matters from 1:45pm before they returned. After the jury left the court room, it would appear from the transcript that the applicant was distressed about being cross-examined about the time he was in gaol. The transcript reflected the following:

11. [103]

    With respect to her Honour, it was not to the point that the Crown was using the word “live” rather than the word ‘relationship” in circumstances where the applicant was trying to explain that he still lived there because he considered himself to still be in a relationship with the complainant; the only reason he was not physically there was because he was in custody. In these circumstances, I am unable to agree with her Honour’s classification of this questioning as being done to ensure “the fairest possible trial”.

12. [104]

    When court resumed after lunch, the applicant was cross-examined about arriving at the complainant’s home so early in the morning to collect his tools. He agreed he got off the telephone at about 1:00am and drove for four hours from Wellington to Whalan. The applicant repeated his evidence in chief that the complainant had asked him to park around the corner because she did not want the neighbours (the applicant’s nephew and his girlfriend) to know “she was having an affair”. During this questioning, there are a number of occasions where the Crown expresses surprise and makes some noises of either agreement or disagreement not apparent on the transcript.

13. [105]

    Her Honour asked the applicant to keep his voice up and the cross-examination continued:

14. [106]

    After suggesting to the witness that the reason he went to the house pre-dawn and parked his car around the corner was because he did not have permission to enter the house, the following exchange then took place:

15. [107]

    After some further cross-examination suggesting it would be difficult to pick up tools if he was parked around the corner, the applicant explained that that is what the complainant had asked him to do. The following exchange then took place:

16. [108]

    The applicant then repeated his evidence about losing his erection when he and the complainant first had unsuccessful sexual intercourse and the following exchange took place:

17. [109]

    The Crown Prosecutor then commenced lengthy cross-examination in relation to the 1998 incident. The applicant gave an overview of that incident as follows:

18. [110]

    The Crown Prosecutor then returned to the subject of the 1998 incident. When the applicant came to the topic of the gun the following exchange took place:

19. [111]

    There was no evidence the gun had been loaded in the 1998 incident. Nor had the complainant given any evidence of the applicant threatening to shoot her friend. The Crown Prosecutor continued to cross-examine the applicant about the 1998 incident in some detail. During this questioning the Crown suggested to the applicant that whilst the complainant was driving around with him she “acted as if she still loved you, didn't she?” to which the applicant replied, “[t]hat's right, yeah, yeah, wasn't an act”. When the Crown Prosecutor reached the point when police arrived, the following exchange took place:

20. [112]

    When the Crown Prosecutor got to the point where the car crashed the following exchange took place:

21. [113]

    The following exchange then took place:

22. [114]

    The Crown Prosecutor went on:

23. [115]

    The trial judge again asked the applicant to keep his voice up. The Crown Prosecutor then put the complainant’s evidence to him in some detail. When asking about how the complainant acted during the 1998 incident the following question was asked:

24. [116]

    The audio records that the Crown Prosecutor sounding incredulous at some of the answers given by the applicant during that time and on a few occasions he interrupted the answer. He also ended many questions by addressing the applicant as “Sir” or “Mr Glenn” in a faux polite manner. The following extracts give an idea of the nature of this aspect of the cross-examination:

25. [117]

    The Crown Prosecutor soon afterwards cross-examined on the question of knowledge of lack of consent: The following exchange took place:

26. [118]

    The applicant had in fact waited until the Crown had finished to answer the question. He is clearly trying to explain his answer but after this interruption the Crown moved on to another topic.

27. [119]

    After further cross-examination about the accused’s evidence that he thought that the complainant was ‘acting nice’ to him, the topic moved on to the triple-0 call and the following questions were asked:

28. [120]

    The Crown then indicated that he proposed to play the triple-0 call to the applicant. There was an objection by defence counsel and the jury were sent out of the courtroom. The objection had been on the basis that the new counsel Mr Niven had never heard it as he came into the matter after it was tendered. It was played on the voir dire and the jury returned to the courtroom. It was put to the applicant that the reason that the complainant referred to the 1998 incident in that call is that she had never got it out of her mind since that time. The following exchange then took place

29. [121]

    The Crown Prosecutor went on to ask the applicant whether he could hear the complainant’s fear in the triple-0 call and he agreed that he could. The following exchange then took place:

30. [122]

    The cross-examintion continued in relation to the triple-0 call and the Crown Prosecutor suggested to the applicant that the first thing the complainant mentions is the 1998 incident. The following exchange then took place:

31. [123]

    There was then cross-examination about the CCTV stills taken at the service station where the applicant can be seen with the keys in his hand. There are expression of “really” etc that are not recorded. When asked why he did not have them in his pockets, he explained that he had loose cargo pants and they would fall down if he put something heavy in them. The following exchange then took place:

32. [124]

    The applicant was then cross-examined about not having permission to go into the house and his reason for arriving so early. He was then shown Exhibit A and his attention was drawn to a text he sent after the sexual acts as follows:

33. [125]

    The cross-examination then concluded with the following exchange:

34. [126]

    On Thursday 17 August 2017, the trial commenced late because of other matters her Honour had to attend to. Her Honour apologised for the delay and the following exchange took place:

35. [127]

    The Crown commenced his closing address by outlining the burden and standard of proof, the role of the jurors and the elements of the offence. He then said this:

36. [128]

    As the elements of consent he said:

37. [129]

    The Crown Prosecutor then invited the jury to assess the applicant’s evidence and demeanour including the following statements:

38. [130]

    Later he returned to the 1998 incident and stated:

39. [131]

    The Crown then referred to the warning not to misuse the 1998 incident and then spent considerable time going through the details of it:

40. [132]

    When he referred to the applicant’s evidence about going there to collect his tools he said:

41. [133]

    Some other comments were:

42. [134]

    After referring to the text message from Exhibit A which read “[d]on’t dwell on the past. You fucked up, not me.” The Crown Prosecutor commented:

43. [135]

    When describing the complainant’s fear when he arrived at her home that morning (after a telephone call in which he threatened to put a knife through her head) the Crown Prosecutor went on as follows:

44. [136]

    The Crown Prosecutor relied upon the calls by the applicant to police that day as follows:

45. [137]

    When the Crown referred to the applicant’s evidence about thinking that the complainant was being nice to him at the time he stated:

46. [138]

    Finally, the closing address was finished off in this way.

47. [139]

    After the Crown closing and in the absence of the jury, her Honour explained the timetabling in the court as follows:

48. [140]

    When the jury returned the applicant’s counsel delivered his closing address

49. [141]

    Defence counsel dealt with the 1998 incident in this way:

50. [142]

    The defence counsel then put the defence case: that the complainant had a motive to lie and may have set him up. He also referred to the complainant’s evidence that the neighbour Sonya was said to be present for the threatening call by the applicant the night before the alleged offences but was not called as a witness. Finally, that:

51. [143]

    There are no grounds of appeal concerning the summing up but there are two aspects of it that are relevant to some of the complaints made.

52. [144]

    The summing up commenced at the conclusion of the addresses until 3:00pm at which time the trial was adjourned so her Honour could deal with other matters including a sentence matter.

53. [145]

    On 18 August 2018, before the trial continued her Honour indicated that the jury had requested a copy of the applicant’s evidence but no other evidence in the trial. She indicated she would give it to them after her summing up had finished. The matter stood in the list whilst counsel checked the errata. There was also discussion about the elements document to go to the jury.

54. [146]

    Her Honour then resumed her summing up. Midway through the summing up her Honour had to stop her summing up to sign a document on the bench for which she apologised. All of the standard directions were given and the jury was provided with a document setting out the elements of the offence. There is no complaint about any of these directions. In particular, the following direction was given about the context evidence:

55. [147]

    Her Honour went on to recount the evidence and, in particular, that whereas the 1998 incident was not disputed, the other six (sic five) incidents were. Otherwise, no distinction was drawn in the direction between the 1998 incident and the interim incidents. Having explained the limited purpose for which the context evidence was lead, her Honour went on to caution the jury not to misuse that evidence. She said (inter alia):

56. [148]

    Ground 4 is a complaint that her Honour should have given a “consciousness of guilt” direction in relation to the Crown closing where it was suggested that the applicant had telephoned police that morning because he had a guilty mind. Her Honour was not asked to nor did she give any direction about this. The only reference to this issue in the summing up was when her Honour in summarising the Crown closing address observed the following:

57. [149]

    Her Honour concluded her summing up at 1.22pm. The jury went home at 4:01pm that day and returned with verdicts of guilty at 11:39am the following day.

Ground 1: Her Honour erred in admitting additional context evidence of historical acts of maltreatment by the applicant which was contrary to a pre-trial ruling of her Honour Norton SC DCJ and without regard to s 130A of the Criminal Procedure Act 1986 (NSW)

1. [150]

   It was submitted that a significant factor in the reasons of Judge Norton allowing the admission of the 1998 evidence was that its potential prejudicial effect was to be tempered by the evidence of a continuation of the relationship. When Judge Culver asked the Crown whether there had been a ruling on the interim acts or “arrangements between the parties” about it, the Crown should have answered in the affirmative. It was submitted that the terms of the judgment of Judge Norton established that the parameters of the context/relationship evidence had been determined by her Honour.

2. [151]

   The Crown submitted that, having regard to the transcript and judgment of Judge Culver there was no "order made" or "ruling on the admissibility of evidence" in relation to interim acts of verbal or physical acts.

3. [152]

   It was submitted that the Crown Prosecutor in the 2016 trial had reserved his position in relation to acts of violence, depending on the cross-examination of the complainant. It was further submitted that the parameters of Judge Norton’s ruling might relevantly have come under consideration in the context of an application made in the 2017 trial to re-agitate the admissibility of the 1998 incident in any event. But this did not occur and there is no complaint made in the present appeal that the evidence of the 1998 incident should not have been admitted in the 2017 trial.

4. [153]

   The Crown relied upon the fact that, unlike the position before Judge Norton, Judge Culver invited discussion as to the scope of cross-examination and what impact that would have on the admissibility of such evidence.

5. [154]

   The Crown submitted that the applicant’s complaint in this Court that the timing of the second operated adversely on him could not be accepted because when defence counsel was given the opportunity by the trial judge to confirm whether there was forensic matters that had arisen, thus far, that would give rise to prejudice if the evidence of the interim acts were allowed, he later confirmed that there was not.

Consideration

1. [155]

   I have extracted the transcript and judgment to which this ground relates above at [9]-[24] and [35]-[37]. The determination of this ground is concerned with s 130A(1) of the Criminal Procedure Act 1986 (NSW) which provides that:

2. [156]

   Section 130A(5) provides that:

3. [157]

   The question is whether Judge Norton made an “order” as to the admissibility of the interim acts in her judgment in 2016.

4. [158]

   It was common ground that Judge Norton was not asked to specifically rule on the admissibility of the interim acts. That was because the then Crown Prosecutor indicated that he would not be relying upon that evidence in chief and would only lead it in reply if certain matters were raised in cross-examination. But it must have been obvious to all concerned that it would inevitably arise in cross-examination given the Crown case. Defence counsel appearing before Judge Norton was the same defence counsel who appeared on this argument before Judge Culver. In response to a question by her Honour, he indicated that he would be putting to the complainant “that the relationship was ongoing between 2001 and 2013 with gaps and that there were arguments but just normal, everyday argument, nothing specific". It must have been anticipated that the evidence of the interim acts was always relevant and admissible on this basis. It is somewhat surprising that Mr Williams and Judge Norton did not interrogate the Crown’s position in this regard at that time.

5. [159]

   When Judge Norton came to consider whether the 1998 incident should be excluded under s 137 of the Evidence Act, her Reasons disclose that she relied upon this continuation of the relationship as evidence minimising the prejudice of the admission of the 1998 incident.

6. [160]

   The applicant relied in this Court on the passage in the judgment of Judge Norton where her Honour accepts that references to the use of a gun in the 1998 incident "may invoke an emotional response in jurors", but that such evidence had to be considered in light of other evidence in the trial which included evidence of "the continuation of the relationship after the events of 1998''. The applicant submitted that the application by the Crown in the 2017 trial to lead evidence of interim threats and violence "sought to disturb an underlying basis of the decision of the previous trial judge to allow for the admission of the evidence of the 1998 kidnapping - namely, a lack of relevant violence or intimidation between that event and the allegation". Although, there is some force in this submission the fact remains that Judge Norton made no ruling on the admissibility of the interim acts.

7. [161]

   When the replacement Crown Prosecutor indicated that he proposed to lead the interim acts in chief, one of the first questions that Judge Culver asked defence counsel (who at that time was the same defence counsel who had appeared before Judge Norton) was whether it would be suggested to the complainant that she and the applicant were happily in a relationship for many years after that. When he conceded that he would, her Honour was satisfied that the evidence was relevant and admissible.

8. [162]

   I am satisfied that when Judge Norton referred to the “continuing relationship” in her judgment she was referring to the evidence of that relationship without the additional interim acts. But that does not mean that her Honour ruled on the interim acts.

9. [163]

   There was no application for Judge Culver to reconsider Judge Norton’s ruling. Subs 130A(2) of the Criminal Procedure Act provides the exception to s 130A(1) as follows:

10. [164]

    This provision was considered by Beech-Jones J in R v Obeid (No. 4) [2015] NSWSC 1442 at [11]-[12] where his Honour observed the following:

11. [165]

    There is no complaint made in the present appeal that the evidence of the 1998 incident should not have been admitted in the 2017 trial. Nor do I consider that Judge Culver ought to have considered herself bound by the pre-trial ruling of Judge Norton such that it was not permissible for her to consider the question of the interim acts.

12. [166]

    It is pertinent to note that the basis of the objection to the admission of the interim acts before Judge Culver was the fact that the Crown had indicated that he did not propose to rely upon in it chief. It was never suggested to her Honour that she was precluded from considering its admissibly by reason of s 130A(1) of the Criminal Procedure Act. Despite this, it was submitted that objection had in fact been taken to the point raised under this ground.

13. [167]

    This Court considered a similar argument in Vickers v R [2006] NSWCCA 60. Simpson J (with whom James and Hall JJ agreed) rejected an argument that rule 4 has no further application if an objection is taken on one basis at first instance and then an entirely different objection to the same piece of evidence is sought to be made on appeal: see at [73]-[78].

14. [168]

    I would refuse leave to appeal this ground.

Ground 2: Her Honour erred in admitting as context evidence the reasons why the complainant did not complain about the matters contained within the context evidence

1. [169]

   The applicant conceded that no "House v The King" ((1936) 55 CLR 499; [1936] HCA 40) error could be established with respect to the ruling that the context evidence was admissible. Rather, complaint was made about the admissibility of the complainant's reason for not complaining in relation to the context evidence.

2. [170]

   The applicant relied on the fact that at no stage had he foreshadowed that reliance would be placed on delay as a reason to reject the complainant’s evidence of the “interim events”.

3. [171]

   The Crown submitted that the impugned evidence was relevant and admissible to explain the complainant's failure to complain to police or her family of the interim acts of violence. The evidence was also relevant and admissible to elucidate the level of the complainant's fear of the applicant and her perception that he would do as he wanted without regard to her feelings or the consequences of his actions. In that sense, it was said to be relevant to the conduct and state of mind of both the complainant and the applicant during the incident on 2 April 2015. It was relevant to the issue of consent and whether the applicant knew that the complainant was not consenting (or was reckless in that regard). As no objection was taken by trial counsel for the applicant on the basis argued on appeal, the Crown relied upon rule 4 of the Criminal Appeal Rules in relation to this ground.

Consideration Ground 2

1. [172]

   Evidence of complaint of a sexual assault and the lack thereof has a particular significance in sexual assault trials: see ss 294 and 294AA of the Criminal Procedure Act. Her Honour was not required to give a warning under those sections in this trial because there was no delay in complaint. But in cases where there has been delay in relation to charged allegations of sexual assault, the Crown will usually adduce evidence from the complainant to explain the delay given the terms of s 294A and the need to identify what the “good reasons” for not complaining were.

2. [173]

   But the absence of complaint about the interim acts was in a different category. The evidence of the interim acts was admitted over an objection. Nowhere did defence counsel suggest during the legal argument that it was going to be put to the complainant that if those interim acts had actually occurred she would have reported them to police. On one view, it would have been a brave forensic decision for defence counsel to put this to a complainant without knowing what the answer would be. Despite the fact that defence did not foreshadow such cross-examination and the fact that the Crown had not suggested during the preceding voir dire that he proposed to lead the impugned evidence, the Crown adduced an explanation from the complainant as to her lack of complaint about the interim acts which was highly prejudicial and introduced even more evidence of the applicant’s bad character. That evidence was to the effect that the applicant had no respect for the law and had threatened to hurt her family and children should she report him to the police in relation to this behaviour.

3. [174]

   Despite the prejudicial nature of this evidence, no objection was made to it at trial after it was given. For reasons I will develop further under ground 3, if this was the only complaint made on this appeal, it may have been an appropriate case for the application of the proviso in s 6(3) Criminal Appeal Act, but this is not the only complaint that I would uphold on this appeal, as my consideration under ground 3 will disclose.

4. [175]

   Although the Crown relied upon rule 4, I am not satisfied that it is engaged because the evidence given by the complainant was not the subject of any ruling and as such could not be described as a “ direction, omission to direct, or decision as to the admission or rejection of evidence”. I will also discuss the application of rule 4 to this appeal further below at [222]-[223].

5. [176]

   I would uphold ground 2. The consequence of that will be considered further under ground 3.

Ground 3: There was a miscarriage of justice occasioned by the cross-examination of the applicant and the Crown Prosecutor's closing address

1. [177]

   In addition to relying upon the relevant authorities, which were not in dispute, the focus of the applicant’s submissions was to take the Court to the impugned passage of the transcript in some detail. The complaints fall into six categories:

   1. (1)

      The cross-examination about the 1998 kidnapping offence and interim events;

   2. (2)

      Questioning in a manner which exposed a period of time from 2008 until 2013 when he was imprisoned and this could not be revealed to the jury;

   3. (3)

      Cross-examining in a tone and manner which was offensive, humiliating and insulting;

   4. (4)

      Cross-examination that invited tendency reasoning;

   5. (5)

      Improperly raising recent invention in breach of the applicant’s right to silence; and

   6. (6)

      Inviting the applicant to comment on the complainant’s evidence.

2. [178]

   I propose to consider these complaints in detail in my consideration below.

3. [179]

   It was further submitted that, it was relevant that the person being cross-examined in this offensive sarcastic and demeaning manner was a 51 year old Indigenous Australian raised in circumstances of social deprivation and the subject of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 (“Bugmy”) findings on sentence. It was submitted that the applicant gave evidence consistent with a person who was socially disadvantaged and the cross-examination is even more problematic when considered in that light.

4. [180]

   The Crown accepted that some aspects of the cross-examination of the applicant and some comments made by the Crown Prosecutor in his closing address were not appropriate. However, it is submitted that they did not, either alone or combination, so affect or permeate the trial as to warrant the conclusion that the accused was denied a fair trial.

5. [181]

   I shall set out the concessions made by the Crown in my consideration below. The complaints made about the cross-examination, which were not conceded, can be summarised as follows:

6. [182]

   The specific complaints made on behalf of the applicant, which were not conceded by the Crown as being inappropriate, were as follows:

   1. (1)

      The Crown Prosecutor did not "put to" the applicant as a "positive proposition" that the gun was loaded. The effect of the question was to ask whether the gun was loaded.

   2. (2)

      It was submitted that there was nothing impermissible in the Crown Prosecutor adducing from the applicant that the complainant had, during the 1998 incident, acted nicely to him as being relevant to how she acted in the charged offences. It was submitted that this was not susceptible to tendency or coincidence reasoning and was instead relevant to shed light on her conduct and her state of mind on 2 April 2015.

   3. (3)

      It was not conceded that the applicant was "directed in a humiliating way to put his glasses on", although the manner of questioning was undoubtedly blunt.

   4. (4)

      It was not conceded that the cross-examination of the applicant where it was put to him that he did not live in the house (where the tools were) from 2008 until 2013 revealed that he was in custody during that time. It was submitted these questions could have been answered truthfully without causing embarrassment.

7. [183]

   As for the closing address, the following complaints were not conceded:

   1. (1)

      It was not conceded that the Crown Prosecutor should not have kept repeating the expression "my missus" in his closing address or suggested that the applicant treated the complainant as "his property".

   2. (2)

      It was not conceded that the applicant was "quite literally demonised in cross-examination".

   3. (3)

      It was not conceded that the questioning had the effect of reversing the onus of proof.

8. [184]

   Reliance was placed on the fact that the Crown Prosecutor did not raise his voice or question the applicant in an aggressive manner. It was conceded that sounds can be heard on the recording of laughter and sighing but they are of short duration and often merely part of the speaker's voice inflection when uttering a single word or a few words. It was noted that the applicant relies upon ten such instances in a cross-examination that lasted approximately one hour and ten minutes. It was also submitted that any assessment of the questions asked by the Crown Prosecutor must be made in the context of the questions and answers that preceded such questions and the whole of the applicant's evidence.

9. [185]

   It was submitted that the cross-examination of the applicant and the closing address of the Crown Prosecutor were generally conducted in accordance with the Crown Prosecutor's obligations and duties in the context of the adversarial process. The Crown Prosecutor's closing address contained a number of reminders as to the heavy burden placed upon the Crown in terms of proving its case.

10. [186]

    The Crown submitted that a number of parts of the now impugned cross-examination were legitimate, having regard to issues raised by the evidence in chief of the applicant. The Crown Prosecutor legitimately sought to undermine evidence that was highly damaging to the complainant’s credibility and character.

11. [187]

    In the context of the above, it was submitted that it was important for the Crown Prosecutor to strongly emphasise the complainant's fear of the applicant and her behaviour in the face of previous threats and violence (and the applicant's knowledge of such), given that the applicant's knowledge of lack of consent was an issue that loomed large in the trial. In these circumstances, it was submitted, a robust cross-examination of the applicant was both justified and necessary

12. [188]

    Reliance was placed on the fact that no issue was taken by experienced trial counsel for the applicant, thus, rule 4 of the Criminal Appeal Rules is engaged.

13. [189]

    Before I turn to consider the competing arguments under this ground, it is necessary to set out some of the established principles that govern the conduct of a prosecutor. These principles are well settled and there was no dispute in relation to them on this appeal; only as to the application of them to the facts in this case. As Deane J noted in Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 at 664:

14. [190]

    The High Court specifically considered whether improper cross-examination of an accused person caused a trial to miscarry in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 (“Libke”). In Libke, the applicant was found guilty of one count of indecent dealing with an intellectually impaired person, and one count of sodomy of an intellectually impaired person. He appealed on the basis of the prosecutor’s lengthy cross-examination which contained regular commentary on the applicant’s evidence. Some of the impugned questions included:

15. [191]

    Gleeson CJ, Hayne and Heydon JJ held that although the prosecutor’s comments in the course of cross-examining the accused had departed from the rules that ensured the orderly conduct of a trial, they had caused no miscarriage of justice. Callinan and Kirby JJ dissented.

16. [192]

    One of the issues upon which the judges were not in agreement was whether it is the role of defence or the judge to object to improper questioning. On that issue Hayne J said at [76]:

17. [193]

    Heydon J expressly agreed with Hayne J and added at [133]:]

18. [194]

    Kirby and Callinan JJ, on the contrary, considered it to be the role of the trial judge to address misconduct by the prosecutor at [35]:

19. [195]

    Heydon J set out some examples of types of impermissible questioning at [125]-[131]. These include: comments, compound questions; cutting off answers before they were completed; questions resting on controversial assumptions and argumentative questions.

20. [196]

    The question of what sort of improper prosecutorial conduct during cross-examination and closing addresses can lead to the trial miscarrying has been considered in a number of decisions of this Court. The principles governing the conduct of Crown Prosecutors in a criminal trial and examples of permissible and impermissible questioning were summarised by this Court in Hughes v R (2015) NSWLR 474; [2015] NSWCCA 330 (Beazley P, Schmidt and Button JJ), at [265]-[275]. In doing so the court observed at [275], that the determination of a ground such as this requires the Court to analyse exactly what was said or done, and consider it in the context of the entirety of the trial, including remedial steps (if any) taken by the presiding judge. The type of questioning the subject of some of the cases referred to in Hughes v R can be summarised as follows.

21. [197]

    In R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 this Court (Carruthers AJ, with whom Spigelman CJ and Sperling J agreed) upheld an appeal in which it was contended that the Crown closing cause the trial to miscarry. It was held, inter alia, that it was inappropriate for the Crown Prosecutor to categorise the defence raised by the accused as a “cynical defence” or make a comment about the defence case in this way such as this, for example:

22. [198]

    In R v Rugari the court relied upon the following passage from Roulston [1976] 2 NZLR 644 at 654 as cited in R v McCullough (1982) 6 A Crim R 274 at 285-286:

23. [199]

    Further, the Court confirmed the following (at [52]):

24. [200]

    In Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334, complaint was also made about comments made in the course of a Crown closing address. Those comments included:

25. [201]

    The Court of Criminal Appeal reviewed the relevant authorities and commented that a “formulaic approach” should not be taken in terms of determining whether or not a Crown address exceeds boundaries. Rather, it was a question of “tenor or impression” in determining whether the accused had received a fair trial in all the circumstances. The comments about the complainant requiring a shower were, in this case, improper because they were not founded on evidence arising from the trial. Furthermore, it was unfair for the Crown to refer to one of the key witnesses as an “idiot”. As the Court noted:

26. [202]

    The Court observed that ridiculing the defence case was likely to deflect the jury’s attention from considering the issues in the trial. Additionally, it was improper for the Crown to convey his own personal opinion to the jury (namely that he did not understand it).

27. [203]

    The Court considered that when all of these improprieties were considered together, it was “difficult, if not impossible” for the trial judge to formulate a direction which would cure the unfairness to the appellant. As such, the Court quashed the appellant’s conviction and ordered a new trial.

28. [204]

    R v Liristis [2004] NSWCCA 287 was another case concerning allegedly improper comments in a Crown closing address. In that case, the Crown had made comments such as:

29. [205]

    The Crown had also made several comments about an exhibit that had been withdrawn, calling it a “not fair dinkum letter” and a “forgery”. Kirby J held that the ground of appeal had been made out. In relation to the “really pathetic” statement, his Honour stated at [94]-[96] that

30. [206]

    In KNP v R [2006] NSWCCA 213, a ground of appeal concerned the Crown Prosecutor’s address regarding the credibility of a complainant. Specific complaint was made about the Crown Prosecutor inserting his own view into the closing address:

31. [207]

    Similar comments were made at a later point:

32. [208]

    Further comments were also made to the effect that the complainant was a “good kid” who did not complain because of his high regard for the appellant. He also made a reference to Santa Claus when indicating to the jury that a naïve and trusting child might not complain as readily as an adult would.

33. [209]

    In relation to the Prosecutor’s reference to his own personal opinion, McClellan CJ at CL (James and Hall JJ agreeing) held at [53] that:

34. [210]

    Overall, McClellan CJ at CL found that despite the “serious transgressions” by the Crown, the trial had not miscarried given the careful directions by the trial judge.

35. [211]

    In Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321, a ground of appeal centred on the Crown Prosecutor’s use of the word “pathetic” three times and “absolutely pathetic” on another occasion. This Court (Giles JA, with whom Howie and Fullerton JJ agreed) held that, after considering the principles arising in R v Roulston, R v McCullough, R v Rugari and Livermore v R, the remarks when considered in context, did not cause a miscarriage of justice. His Honour found that while use of “pathetic” was not ideal, it did not constitute a “gratuitous denigration of the appellant or the defence case”. His Honour also pointed out that the prosecutorial conduct complained of in Libke was “far beyond” what was complained of in the present case and, in Libke, the majority had not found that this conduct had caused unfairness.

36. [212]

    Similarly, in Causevic v R [2008] NSWCCA 238 there were three complaints about the conduct of the Crown Prosecutor during the trial. The first was that the Prosecutor used expressions such as “I suggest”, “I actually think”, “[t]hat suggested to me” and “[i]t occurred to me”. He also made a comment in their closing address inviting the jury to consider why the victim might have a motive to lie. Additionally, the Prosecutor used the word “nonsense” to describe the appellant’s version of events.

37. [213]

    McClellan CJ at CL (Barr and Price JJ agreeing), held that although the language was regrettable, the situation was dissimilar to Livermore v R, where the prosecutor invited the jury to conclude that they were “slow” if they did not hold his views. As for the use of the use of the word “nonsense”, his Honour held that the Crown Prosecutor was entitled to “firmly and vigorously agitate the Crown case”. He held at [46] that:

38. [214]

    More recently, in Curran v R [2020] NSWCCA 171 this Court considered a complaint about two remarks made by the prosecutor in his closing address. The first related to a several incidents which were alleged to have occurred on a boat and a beach at Pittwater. The prosecutor drew the jury’s attention to the applicant’s failure to contact the complainant’s parents on either of two nights where, on the applicant’s version, the victim and the complainant had visited an establishment with a phone. The prosecutor then made a comment to the following effect:

39. [215]

    The second remark that was the subject of complaint was made later in the closing address in the context of acknowledging that the applicant was a man of good character. The prosecutor said:

40. [216]

    It was accepted by both parties that this reference to “boys in general” should not have been made, as there was no tendency evidence led in the trial about a sexual interest in boys generally. In relation to both comments, the court held that there had been no miscarriage of justice. Basten JA noted that although “the remark should not have been made", any unfairness was reduced by the fact that it was made by the prosecutor rather than the judge.

41. [217]

    Furthermore, the trial judge had told the jury to “disregard those remarks” and directed them that they should not convict unless satisfied beyond reasonable doubt as to the truthfulness and essential accuracy of the complainant’s evidence about each count. Similarly, his Honour held that while the second remark should not have been made, it was also countered by a clear direction to the jury.

42. [218]

    In separate reasons, R A Hulme J agreed with Basten JA and commented at [130] that:

43. [219]

    Hamill J also noted that “it was quite wrong for the prosecutor to address the jury in the way they did” (at [145]).

44. [220]

    I am satisfied that the determination of this ground requires the Court to: analyse exactly what was said or done, consider the impugned conduct in the context of the entirety of the trial and also consider whether the prejudice was cured by steps taken by the presiding judge: Hughes v R at [62].

45. [221]

    Before turning to consider these issues, it is important to note at the outset that the Crown made a number of concessions in relation to the cross-examination of the applicant at his trial as follows:

    1. (1)

       It was conceded that the Crown Prosecutor erroneously put to the applicant that the complainant had visited the applicant in custody a couple" of times when her evidence was that it had been "numerous times";

    2. (2)

       It was conceded that the Crown Prosecutor framed questions suggesting that the applicant did not express remorse or concerns for the 1998 incident despite the complainant never giving evidence to that effect;

    3. (3)

       It was conceded that, contrary to what was put to the applicant in cross-examination, the complainant did not give evidence that the applicant had threatened to shoot the complainant's friend during the 1998 incident (despite this, in answer to the question, the applicant agreed that "I probably did, yes");

    4. (4)

       It was conceded that the Crown Prosecutor was wrong to suggest to the applicant that the complainant had given six examples of "bad treatment' (the interim events) when in fact she had given evidence of five;

    5. (5)

       It was conceded that the Crown Prosecutor should not have described the complainant’s injuries from the 1998 incident as that she "broke her back” when she had in fact suffered cracked vertebrae" (although the error was corrected in the next sentence);

    6. (6)

       It was conceded that it was not appropriate to use language such as “you didn't give a rat's ass about how the complainant felt” or “pack of lies,” “litany of lies” or “fairy tale”.

    7. (7)

       It was accepted that the exchange between the Crown Prosecutor and the applicant became “heated" but at no time did the Crown Prosecutor raise his voice or question the applicant in an aggressive manner.

46. [222]

    The Crown also made the following concessions about the Crown Prosecutor’s closing address:

    1. (1)

       It was conceded that the Crown Prosecutor should not have said "I suppose a very cruel person could say she fucked up because she actually met him." (Although the Crown noted that this comment made by the Crown Prosecutor to the jury was immediately preceded by the Crown Prosecutor reading out a text message from the applicant to the complainant in which he said, inter alia, "[y]ou fucked up, not me".

    2. (2)

       It was accepted that the reference by the Crown Prosecutor in his closing address that, "[a]nd even if he.. just for one millisecond he thought that he was God's gift or, you know women fell at his feet' was “unnecessarily flamboyant”.

    3. (3)

       It was conceded that it was not appropriate for the Crown Prosecutor to make the comment in his closing that the complainant would have "gone to the gates of hell' in preference to being with the applicant.

    4. (4)

       It was conceded that it was not appropriate for the Crown Prosecutor to refer to aspects of the applicant's evidence as "rubbish".

    5. (5)

       It was conceded that it was not appropriate for the Crown Prosecutor to suggest that the applicant’s evidence was "pre-rehearsed”.

    6. (6)

       It was conceded that the Crown Prosecutor used highly rhetorical language in his closing address.

47. [223]

    The Crown’s position was that even though it was accepted that some aspects of the cross-examination and some comments made by the Crown Prosecutor in his closing address were not appropriate, these factors, either alone or in combination, did not so affect or permeate the trial as to warrant a conclusion that the applicant did not receive a fair trial. Significant weight was placed on the fact that no complaint was made about any of these matters at trial and nor did the trial judge consider it necessary to intervene at any stage to censure the Crown.

48. [224]

    It was common ground that despite the fact that the jury left the courtroom twice during the cross-examination, defence counsel raised no issues about any aspect of it. In fact, it was embraced by defence counsel in his closing address, when it was noted that the applicant "gave extensive explanations under what I put to you was a rigorous and extensive cross-examination" and that "you had the benefit of seeing the directness of his answers to the Crown.”

49. [225]

    The Crown submitted that rule 4 of the Criminal Appeal Rules was engaged in relation to this ground and opposed leave being granted. Rule 4 of the Criminal Appeal Rules is in these terms:

50. [226]

    I am not satisfied that rule 4 is engaged under this ground. It could not be said that the cross-examination of the applicant or the Crown closing address was a “direction, omission to direct, or decision as to the admission or rejection of evidence”. Despite this, I am satisfied that many of the principles derived from the decisions concerning the engagement of rule 4 are applicable to the question of whether the trial miscarried as a result of the matters now complained of. As this Court (Giles JA, Hislop and Hulme JJ) observed in Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373; at [11]-[12]:

51. [227]

    In reliance upon these principles, the Crown submitted that the failure to object to the cross-examination established that in the atmosphere of the trial, defence counsel saw no injustice or error in it.

52. [228]

    In response to this, Mr Carroll submitted that this was no ordinary trial. He relied upon a number of features of the trial which he contended may have created an atmosphere unlike what one would expect in a NSW District Court trial on serious charges. Although it was not contended that any of these features on their own rendered this trial unusual, it was submitted that the cumulative effect of them was to do so.

53. [229]

    I am satisfied that this was a highly unusual trial due to the cumulative effect of the following otherwise uncontroversial features.

54. [230]

    First, the pre-trial ruling was made by a different judge to the trial judge.

55. [231]

    Secondly, the Crown Prosecutor who appeared on the pre-trial ruling was a different Crown Prosecutor to that who appeared at the trial.

56. [232]

    Thirdly, both the trial judge and the Crown Prosecutor went immediately from finishing the previous trial to commencing the applicant’s trial.

57. [233]

    Fourthly, the context evidence was ultimately ruled upon in two separate judgments by two separate judges even though it all formed part of the same subject matter.

58. [234]

    Fifthly, after the complainant had finished giving her evidence the applicant’s counsel withdrew for personal reasons and a new barrister had to be briefed at short notice to take over the representation of the applicant for the remainder of the trial.

59. [235]

    Sixthly, in addition to fact that trial judge started this trial with another jury deliberating (a common feature in the NSW District Court), she was also the Parramatta List judge for significant periods of the trial which caused the trial to start late and finish early every day so that she could attend to other matters including sentences. There was not a single day of this trial, which went from 4 until 19 August 2017, in which the trial sat from 10:00am until 4:00pm. The court transcript records that her Honour was interrupted 13 times to attend to other matters.

60. [236]

    Finally, the pre-trial ruling which permitted the Crown to rely upon the 1998 offences permitted prejudicial evidence of the applicant’s bad character to be before the jury. I have already observed that this evidence was relevant and admissible given the issues at trial but, in different circumstances, it would have been inadmissible as evidence of bad character.

61. [237]

    As Hayne J observed in Libke v The Queen at [77] failure to object to potentially unfair questions at trial does not bar an appellant from complaining, on appeal, that the trial was unfair. It is recognised that defence counsel may hesitate before doing so at trial in case it gives the impression to the jury that the witness needs protecting. In the present matter, it may also be the case, as was suggested by counsel for the applicant on appeal, that the acquiescing role played by the replacement defence counsel was a result of his late introduction into a trial that was already unusual for a number of reasons.

62. [238]

    I am not only satisfied that rule 4 does not apply to this ground, I am also satisfied that in the unusual atmosphere of this trial, the failure by defence counsel to object does not inevitably lead to the conclusion that the trial was not unfair.

63. [239]

    I turn then to consider whether the conduct of the Crown Prosecutor led the trial to miscarry under the third limb of s 6(3) of the Criminal Appeal Act.

64. [240]

    It is to be accepted that the Crown Prosecutor’s questioning and remarks fall to be assessed in the context of the issues raised in the trial. Given that the applicant’s account of what occurred painted the complainant in a very unfavourable light, it was clearly appropriate for the Crown Prosecutor to forcefully and firmly put the prosecution case to the jury. The applicant attributed words and behaviour to the complainant that were highly offensive and provocative. The Crown suggested on appeal that it could be inferred that the applicant sought to arouse hostility on the part of the jury towards her in this way. That may well be the case; he certainly sought to cast himself in a more sympathetic light.

65. [241]

    I am satisfied that the particular circumstances of this case were such that a robust approach to cross-examination was justified, noting that "the feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another' (see Rugari at [47]). The Crown Prosecutor was entitled to firmly call upon the jury to reject the defence case as inherently unbelievable. But the complaint made under this ground goes much further than a claim that the prosecution was merely “robust”: six separate heads of complaint are relied upon in support of this ground.

66. [242]

    In resolving the central question of whether the applicant’s interests were prejudiced to a significant extent by the Crown’s questioning of him, I have had regard to the six discrete complaints made about the cross-examination in turn.

67. [243]

    Given the admission into evidence of the 1998 incident, considerable care was required to ensure that the facts in relation to it did not “swamp” the allegations upon which the applicant was standing trial. That did not happen in this trial. Instead, significant time was spent during the opening address, evidence in chief of the complainant, cross-examination of the applicant and Crown closing address going over the facts of that earlier incident in detail.

68. [244]

    The applicant pleaded guilty to the 1998 incident. He did not try to deny it or minimise it at the trial. Despite this, the Crown Prosecutor pressed him on details of the 1998 incident at length in cross-examination. He repeatedly returned to the topic to undermine his credit. Furthermore, the facts of the earlier incident were at times put to the applicant inaccurately in a way that made the event more prejudicial. The Crown has conceded the factual inaccuracies. For example, it was put to the applicant that he had never apologised to the complainant for the 1998 incident. This was an irrelevant question and, as the Crown conceded on appeal, the complainant never suggested in her evidence that he had never apologised to her in the first place. Despite this, when the applicant gave evidence that he apologised the Crown Prosecutor replied by exclaiming “[r]eally?” in a surprised tone.

69. [245]

    As for the interim acts, the Crown Prosecutor repeatedly stated to the applicant and the jury that there were six interim acts when there were in fact five. Both defence counsel and the trial judge referred to there being six rather than five such acts as well. Although this is a relatively minor matter on its own, the problem is that none of the factual inaccuracies were corrected. The only transcript evidence requested by the jury for their deliberations was the applicant’s. The trial judge did not summarise the evidence in her summing up. This meant that the jury was left to deliberate with the incorrect recitation of the evidence contained within the Crown Prosecutor’s questions.

70. [246]

    I am satisfied that the cross-examination in relation to the 1998 incident went far beyond the limited purpose for which it was admitted. A more measured approach should have been taken to the 1998 incident in cross-examination.

71. [247]

    I am satisfied that the applicant was cross-examined about the complainant’s state of mind in a manner that invited tendency or coincidence reasoning. It was repeatedly put to the applicant that in the same way that the complainant was nice to him when he kidnapped her 17 years earlier, she was also nice to him at the time of the alleged offences. That is, it was put to the applicant that because he had scared her in the 1998 incident so too had he scared her at the time of the alleged offences.

72. [248]

    To rely upon the 1998 incident in this way (at the same time as disavowing any reliance upon the evidence for tendency or coincidence reasoning), would have made it difficult for a lay jury to understand how it was not tendency evidence. It was imperative that the cross-examination did not invoke the impermissible lines of reasoning which a jury would be susceptible to falling into when confronted with prior extremely serious offending.

73. [249]

    As for the interim acts, the cross-examination about the applicant having had a “bad day” on the day of the 1998 incident, the interim acts and the charged offences that I have extracted above at [106] also had the effect of using the context evidence as tendency evidence. Other questions inviting tendency reasoning included when the applicant was asked, “[y]ou knew that … when you are in a certain mood, she became very very scared of you. You knew that, didn’t you? …” and, “[y]ou cause her, every time you get in a bad mood, to fear for her life and you know it don’t you?”

74. [250]

    It is to be accepted that the trial judge gave detailed directions about the context evidence and the limited way that it could be used but the evidence of prior bad character played such a disproportionately significant part of the Crown case that I am not satisfied any directions could have cured the risk that the evidence would be used as tendency or coincidence evidence.

75. [251]

    I am satisfied that it was improper for the Crown to keep referring to the evidence of the complainant and her voice and demeanour and inviting the applicant to comment on it. This occurred on a number of occasions. The applicant was asked to comment on the tone of the complainant’s voice on the triple-0 call and agree that she sounded scared. He was also asked by the Crown to comment on how the complainant gave her evidence in court when she recounted the details of the 1998 incident. The effect of this questioning was to require the applicant to explain why the complainant’s claims should not be accepted. This had the effect of reversing the onus of proof on this issue.

76. [252]

    Unusually for a criminal trial, the jury was aware that the applicant was in custody from 1998 until 2001. The transcript records that the jury sent a jury note to her Honour inquiring as to whether he had been in custody from his arrest in 2015. They were informed that there was no evidence about that.

77. [253]

    It was known to the Crown Prosecutor, defence counsel and the trial judge that the applicant had spent long periods in custody since he commenced the relationship with the complaint in late 1997. It would also have been apparent from the complainant’s evidence that the relationship between the complainant and the applicant continued when he was in custody from 1998 until 2001, when he was in custody from 2005 and 2007 and when he was in custody from 2009 until 2013. It is clear from the applicant’s evidence that he considered the relationship to be ongoing for this period as well. I have already considered the cross-examination on this issue above at [114]. Although, the complainant’s evidence in chief was that the relationship finished in 2008, she conceded in cross-examination that it concluded in 2013.

78. [254]

    In the context of there already being evidence that the applicant had been to gaol, I am satisfied that the cross-examination of the applicant where it was repeatedly put to him that he didn’t “live” at the house from 2008 until 2013 was unfair. From the applicant’s perspective he did live there, he was just prevented from physically being there because he was in custody. The unfairness is not that the Crown was trying to elicit an answer that suggested that he was in custody. Rather, the unfairness is that the questioning led the applicant to answer that he wasn’t there during that time because he worked “on the railways”. The jury would have realised that was an improbable answer, it is difficult to think of a railway job which would have precluded him from coming home for one single night during that five year period if he did in fact still live there.

79. [255]

    The applicant was clearly agitated by this questioning but when he raised it in the absence of the jury he was told by the trial judge that the Crown Prosecutor was trying to be fair. But concealing from the jury that the applicant had been in custody did not mean that it was possible for the applicant to answer the questions in the form asked by the Crown Prosecutor.

80. [256]

    The answer that the applicant was cornered into giving had the potential to lead the jury to realise that the applicant must have been in custody during that time. Despite this, the only discussion of this aspect of the applicant’s evidence at trial was as follows:

81. [257]

    The answer was not “delightful”; it suggested that the applicant had been in custody for a significant time. Although it is to be accepted that the unfairness about this issue of where the accused was “living” was most likely the result of misunderstanding on the part of the Crown, as opposed to any intentionally unfair cross-examination, the end result was the same nonetheless.

82. [258]

    The failure of the trial judge to give a direction about this aspect of the cross-examination and closing is the subject of ground 4.

83. [259]

    I have extracted the cross-examination on this issue at [73] and the closing at [133] above.

84. [260]

    The jury were told that the applicant had maintained his right to silence when offered an interview following his arrest on 29 April 2015. Despite this, the Crown submitted to the jury that the applicant had invented the version he gave in court after being served with the prosecution brief. On this appeal the Crown conceded that it was not appropriate for the Crown Prosecutor to suggest that the applicant’s evidence was "pre-rehearsed”. I accept this concession.

85. [261]

    As stated above at [218], the Crown has conceded on this appeal that many of the words used by the Crown Prosecutor at trial were inappropriate.

86. [262]

    The concession was properly made. I am satisfied that the language at times was intemperate and inappropriate and went beyond what is appropriate language for a Crown Prosecutor to use. He injected his personal opinion into the questioning. The result was that the cross-examination and closing submissions amounted to a personal attack on the applicant and barracking for the complainant. The Crown Prosecutor engaged in questioning which was argumentative and then closed to the jury that the applicant was belligerent and arrogant.

87. [263]

    I have had regard to the Crown submission that the language used by the Crown Prosecutor was coarse because he had adopted the same style of language as the applicant did in his evidence in chief. I am not satisfied that this is a satisfactory explanation.

88. [264]

    As for the tone of the cross-examination, I have carefully listened to the audio of the cross-examination twice. The tone changes throughout the cross-examination. At times it is uncontroversial. At other times it is sarcastic and condescending. At other times the Prosecutor expresses mock surprise at some answers. He laughs at others.

89. [265]

    Although the Crown Prosecutor and the trial judge both reminded the jury of the burden and standard of proof on a number of occasions, this was a trial in which the jury was invited to consider two versions of events. As was submitted on behalf of the applicant on this appeal, this meant that there had to be consistency in the treatment of the complainant and the applicant as a witness. The complainant had been cross-examined with respect by defence counsel. But the applicant, regrettably, was not.

90. [266]

    Complaint was also made that some of the questions should have been excluded under s 41 of the Evidence Act which is in these terms:

91. [267]

    The applicant relied upon the fact that he is an Aboriginal man of limited education and a “Bugmy” upbringing who has spent a significant amount of time in custody. This was said to be relevant to s 41(2) of the Evidence Act. To the extent that it was relevant, Mr Carroll noted at the hearing of this appeal that the complainant is a blond Caucasian woman.

92. [268]

    There is no doubt that the approach a Crown Prosecutor might take to cross-examination of a highly educated accused will be different to that taken with an accused who has had limited education. I am satisfied that all persons of limited education should be treated with respect by a Crown Prosecutor, whether they are Aboriginal or not. The High Court took a similar approach in Bugmy.

93. [269]

    Some of the questions were asked by the Crown Prosecutor in a mock slow voice pausing between questions as if speaking to a child. I am not satisfied from the tone of this questioning that this approach was taken out of respect for the applicant’s limited education.

94. [270]

    It is the experience of those who have practiced in the criminal law for many years that Aboriginal witnesses and accused persons are generally reluctant to give evidence and can often feel excluded from the criminal justice process (Judicial Commission of NSW, Equality Before the Law at 2.2.4). Although I am not satisfied that the fact that the applicant is Aboriginal has any direct bearing on the resolution of this ground of appeal per se, I am satisfied that the submission made by Mr Carroll on this issue was one appropriately made in the circumstances.

95. [271]

    I have had regard to the Crown submission that, unlike in Libke, the applicant was able to directly and confidently answer questions put to him (as acknowledged by his counsel in the defence closing address). Although, on the whole, the applicant was able to answer the questions, I am not satisfied that that is an answer to this ground in the circumstances of this case.

96. [272]

    Complaint was made on behalf of the applicant under this ground that although her Honour controlled the nature and content of questioning of the complainant, she did not do so when the applicant gave evidence. Her Honour did remind the applicant to keep his voice up and at one stage pulled the applicant up for speaking over counsel (see above at [114]).

97. [273]

    Having listened to the audio of this exchange I am satisfied that the Crown had finished his question when he asked “[d]o you remember”. After the interjection by the trial judge, the Crown Prosecutor moved on to another topic. The applicant never completed his answer. The question of what he meant by “missus” was never finished and then became a focal point of the Crown closing address.

98. [274]

    It is always a difficult question for a trial judge to know when to intervene, as defence counsel may not be objecting for tactical reasons. I have also had regard to the fact that the trial judge was working under very onerous conditions given the significant workload she was required to meet at the same time as presiding over this trial. Despite this, I am satisfied that the failure by the judge to intervene to censure the Crown does not mean that the conduct of the Crown did not cause any unfairness.

99. [275]

    I have had regard to the following observations of Carruthers J (with whom Spigelman CJ and Sperling J agreed) in Rugari v R at [62]:

100. [276]

     I am not satisfied that the conduct of the Crown Prosecutor in this matter could be adequately explained by insufficient time to collect his thoughts.

101. [277]

     I am satisfied that there was a “miscarriage of justice” within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). As the High Court observed in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] “any departure from trial according to law, regardless of the nature or importance of that departure” is a “miscarriage of justice” for the purpose of provisions like s 6(1) of the Criminal Appeal Act.

102. [278]

     The Crown did not suggest that if error was found under this ground it would be applicable to apply the proviso in this matter and I do not find otherwise.

103. [279]

     The resolution of this ground means I would propose that a new trial be ordered. Despite this, I propose to go on to consider ground 4 for completeness.

Ground 4: Her Honour erred in dealing with the post-offence conduct of the applicant by failing to give a consciousness of guilt direction in relation to the applicant's "pre-emptory" telephoning the police after the incident

1. [280]

   The applicant submitted that the Crown in his closing address sought to use the fact that the applicant had telephoned Mount Druitt police on the morning of 2 April 2015 as post-offence conduct evidencing a consciousness of guilt. Although there was no evidence about what the applicant had said to police that day, the Crown addressed the jury by suggesting that the reason he had called police that day was to give a false exculpatory account of events earlier that day.

2. [281]

   It was submitted that the jury should have been directed that, before they could infer that the applicant acted because he was conscious of his guilt of the offence, they were required to exclude any alternate inference that was inconsistent with guilt.

3. [282]

   It was submitted that having adduced this evidence at the request of the applicant, the Crown Prosecutor was entitled to refer to it in his closing address. The effect of the Crown Prosecutor's submission in his closing address was that the version given by the applicant was untrue and should be rejected. Consistently, no such direction was sought by trial counsel for the applicant and rule 4 of the Criminal Appeal Rules is engaged in relation to this ground.

4. [283]

   Reliance was placed by the Crown on the decision in Patterson v R (Cth) [2001] NSWCCA 316.

Consideration ground 4

1. [284]

   I have extracted the evidence pertaining to this ground at [73] above and how the Crown used it above at [133]. In addition, Exhibit A showed that the applicant had been attempting to contact the complainant before he called the police that day.

2. [285]

   It is common ground that defence counsel wanted the Crown Prosecutor to lead evidence from the OIC that the applicant had telephoned police that morning. The applicant telephoning police to see what they wanted to speak with him about could be considered to be either neutral evidence or possibly evidence consistent with innocence, depending upon the facts of the case. In this trial the Crown relied upon it in his closing address as the conduct of a guilty man. The difficulty with this, as I have observed above under ground 3, is that there was no evidentiary basis to do so.

3. [286]

   The actual details of the call were never adduced from the OIC by either the Crown Prosecutor or defence counsel. The applicant gave some brief evidence about it, as extracted at [89] above, but the Crown Prosecutor did not ask any questions in cross-examination of the applicant in relation to his telephone calls to police. Thus, it was never suggested to the applicant in cross-examination that the reason he telephoned the police that day was because he knew he had sexually assaulted the complainant and wanted to get his story in first. Despite not ever suggesting this to the applicant, that is the case theory the Crown Prosecutor presented to the jury in his closing.

4. [287]

   Defence counsel made no mention of this evidence in his closing address. Nor did he make any complaint about it. Nor did he request an Edwards direction (Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63).

5. [288]

   I have already found under Ground 3 that the Crown should not have invited the jury to rely upon this evidence as a pre-emptive attempt to exculpate himself. Although rule 4 is not engaged in relation to the Crown closing, it is engaged in relation to the failure to request an Edwards direction in relation to it.

6. [289]

   As this Court (Gleeson JA with whom Harrison and Davies JJ agreed) observed in Roos v R [2019] NSWCCA 67 at [72]-[74]:

7. [290]

   I am not satisfied that the failure to give an Edwards direction in this matter on its own resulted in the applicant losing a real chance (or a chance fairly open) of being acquitted. Despite this, as Mason P observed in Picken v R at [22], I am satisfied that when taken in conjunction with the matters identified under ground 3 its impact contributed to the applicant’s trial miscarrying.

Conclusion

1. [291]

   The orders I would propose are as follows:

   1. (1)

      To the extent necessary, leave is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      A new trial is ordered.

   4. (4)

      The matter is listed for arraignment in the District Court in Parramatta on 4 December 2020 at 9:30am.