Thafer v R

1. [1]

   HOEBEN CJ at CL: I agree with Wilson J and the orders which she proposes. I particularly agree with her Honour’s assessment of the reliability of the applicant, ES, and Ms Soulayman as witnesses. They performed poorly under cross-examination and their evidence was implausible.

2. [2]

   WALTON J: I agree with the orders proposed by Wilson J for the reasons given by her Honour.

3. [3]

   I further agree with Wilson J that the Court had an opportunity to observe the witnesses and was not thereby greatly at a disadvantage to the position of the jury. My independent assessment of the witnesses conforms with that of her Honour and, in particular, the adverse views formed as to the evidence of the applicant, ES and Ms Soulayman. I also agree that Mr Rahme was a truthful and reliable witness.

4. [4]

   WILSON J: On 9 January 2014 the applicant, Ahmed Thafer, was arrested and charged by police with a number of sexual assault offences involving two complainants, ES and PS. ES was 13 years of age; PS was 17 years of age. Further charges were laid against him soon afterwards, following allegations made by a third complainant, 18 year old HB.

5. [5]

   The applicant entered pleas of guilty to two of the charges, relevant to HB and PS respectively, on 11 December 2014, at arraignment in the District Court.

6. [6]

   On 3 September 2015, shortly before his trial for the balance of the charges was due to commence, the applicant entered a plea of guilty to a charge of aggravated indecent assault relating to conduct against ES, accepted in full discharge of what remained of the indictment.

7. [7]

   He was sentenced on 19 November 2015 pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for all offences to an aggregate term of 9 years and 9 months imprisonment, to date from 9 January 2014 and expiring on 8 October 2023. A non-parole period (“NPP”) of 6 years was fixed, which expires on 8 January 2020. The indicative sentence for each offence is set out below.

8. [8]

   The applicant now seeks leave, substantially out of time, to appeal against both the convictions recorded against him for those offences to which he pleaded guilty, and the sentence imposed upon him.

9. [9]

   The applicant entered pleas of not guilty to all offences in the Local Court and was committed for trial to the District Court on 17 September 2014.

10. [10]

    He appeared before the District Court at Parramatta on 11 December 2014 for arraignment (two previous listings for that purpose having been adjourned), represented on that occasion by a solicitor, Ms Popovic. Co-accused (for some counts) Abu Ahmed Zafor Murad was also before the court that day for arraignment.

11. [11]

    Prior to the presentation of the indictment Ms Popovic told the court that,

12. [12]

    A joint indictment encompassing the charges relating to each of the three complainants, and jointly indicting Murad with respect to the Macarthur Square charges (concerning ES and PS), was then presented by the Crown against the applicant. Counts 1 to 3 charged the applicant alone with offences against HB. He entered a plea of guilty to count 1, an indecent assault upon HB.

13. [13]

    The presiding judge queried the plea, with Ms Popovic commenting that the applicant was “a little bit confused with the plea offer that was given”. Her Honour asked whether the plea was intended to be one of guilty or not guilty, and gave the applicant’s solicitor an opportunity to speak with him and ascertain which plea he wished to enter. Having spoken to the applicant Ms Popovic confirmed that the applicant intended to plead guilty to count 1.

14. [14]

    The arraignment continued. Pleas of not guilty were entered to count 2, an allegation of attempted sexual assault, and the alternative to count 2, count 3, a count of indecent assault. Of the eleven charges relating to PS and ES the applicant entered a plea of guilty to count 12, aggravated sexual assault, and not guilty to the balance, including all charges relating to ES.

15. [15]

    The matter was listed for trial on 14 September 2015 with a two week estimate.

16. [16]

    Nine months later, on 3 September 2015, the matter was re-listed before the District Court at the request of the parties. On this occasion the applicant was represented by Ms Luong, who told the court,

17. [17]

    The Crown asked for the applicant to be arraigned upon count 8 only, a charge of aggravated indecent assault upon ES. When arraigned the applicant entered a plea of guilty. He also signed two Form 1 documents prepared in accordance with s 32 of the Crimes (Sentencing Procedure) Act, in which he admitted the offence that had been count 3, and asked that it be taken into account on sentence against count 1; and admitted the offence that had been count 13 on the indictment, and asked that it be taken into account against count 12, pursuant to s 33 of the same Act.

18. [18]

    The applicant was asked by the presiding judge if he acknowledged his guilt of the offence that had been count 3, and of that which had been count 13, responding “yes your Honour” with respect to both questions.

19. [19]

    The Crown accepted the pleas of guilty to counts 1, 8, and 12, and the acknowledgement of guilt with respect to the former counts 3 and 13, in full discharge of the 14 count indictment. Two statements of agreed facts, one setting out the facts of the offences against HB, and one the Macarthur Square offences relating to ES and PS, were tendered. Both documents had been signed by the applicant to indicate his concurrence with the contents. The sentence proceedings were adjourned to 18 November 2015.

The Proceedings on Sentence

1. [20]

   On 18 November 2015 the applicant was represented by Mr Ainsworth of Counsel and a solicitor. The Crown tendered a volume of documentary material, including the two separate documents signed by the applicant on each page of the documents as “Agreed Statement[s] of Facts”.

2. [21]

   The first of the Agreed Statements of Fact related to counts 1 and 3, the two offences committed against HB. HB was an 18 year old woman the applicant had met some months previously through a TAFE course both had attended.

3. [22]

   On the final day of the course, 29 November 2014, HB agreed to drive the applicant and another friend from the course to their respective homes. HB dropped a female classmate to her car where the classmate had left it parked at Glenfield Railway Station. She and the applicant then continued on, in the direction of Campbelltown, where the applicant told HB he lived. The applicant directed the complainant to take “a back way” through Kentlyn, and she drove as directed. The route took them into dense bushland, and HB became alarmed. When she questioned the applicant about the directions he was giving her, he laughed at her, but gave no answer. Increasingly frightened, HB asked the applicant whether he intended to rape her or kill her. He only laughed again.

4. [23]

   At a point when the road came to an end the complainant turned her car around and began to drive back the way she had come. The applicant then put his arm around her neck and pulled her head towards him, kissing her to the neck and lips. With the car still in motion, HB told the applicant to stop and tried to push him away. He began to rub her breasts and genital area, before trying to undo her pants. The complainant continued to try to push the applicant away from her.

5. [24]

   The applicant unfastened the button and zip of his jeans and pushed the car’s gear stick into “Park”, as he pulled on the hand brake. This caused the car to lurch and stop abruptly. With the car at a standstill the applicant continued to hold the complainant by her neck, as he kissed her and felt her breasts and body. He again tried to undo her pants. Throughout, HB was telling the applicant “no”, “stop”, and “fuck off”. The applicant said only “please come on”.

6. [25]

   This conduct is reflected by count 1, which proceeded to sentence.

7. [26]

   After it, the applicant pulled on the complainant’s neck, lowering her face towards his unzipped jeans. HB struggled against the applicant, who told her to “do it”. Panicking that she would be forced to fellate him, the complainant pushed hard against him, and managed to push him back into his seat. She then set the car in motion and drove. The applicant thereafter directed her to St Johns Road at Campbelltown, where he got out of the car.

8. [27]

   Within half an hour or so the complainant received a message from the applicant on Facebook saying,

9. [28]

   The complainant did not respond. She told her friend and mother what had happened that same day, but decided not to go to the police. She made a formal complaint after seeing in a news report that the applicant had been charged with sexually assaulting two other girls.

10. [29]

    The second statement of agreed facts, also signed by the applicant on each page, set out the circumstances of the Macarthur Square offences, being counts 8 and 12 of the indictment, and count 13, to be taken into account when sentence was imposed for count 12.

11. [30]

    On 5 January 2014 the applicant was working at the Macarthur Square Shopping Complex as a security guard, on duty with a second guard, Abu Murad. The complainants, 13 year old ES and 17 year old PS were near the food hall section, when Murad gestured to the girls, indicating that he wanted to speak to them. The girls were told by Murad, “You’re going to have to follow us”. They followed Murad and the applicant to the security office, before being directed to go to one of the shops within the complex. They did as they were directed.

12. [31]

    Soon after, as the complainants stood in the shop to which they had been directed, the applicant approached them and showed them his security identification. He told the complainants that they were being “banned” from the shopping centre, and would be escorted from it. The complainants followed the applicant and Murad away from the public section of the complex, through some heavy swinging plastic doors, and into the rear of the complex. They went through a loading dock into a car park, and were then directed to an old disused cinema complex.

13. [32]

    At the door of the old cinemas the applicant asked the complainants if they wanted to “check out the old cinemas”. PS responded no, and expressed her fear that the guards intended to lock them in the cinema. The applicant promised he would not. As soon as the complainants went through the doors, Murad locked them.

14. [33]

    Once inside Murad grabbed PS by the wrist and pulled her towards cinema 6, telling ES to go with the applicant. The applicant took ES into cinema 5, whereupon he took off his jacket. Telling her “Let’s have some fun”, he tried to pull her jacket off. She said, “No, what the fuck”, as the applicant undid one of the buttons of her jacket (this conduct being count 8 of the indictment). ES punched the applicant in the face to stop him.

15. [34]

    Inside cinema 6 Murad began to assault PS, but she pulled away from him, saying she was worried about ES. She went to look for her. When she approached ES and the applicant in cinema 5, the applicant asked her if she wanted “a gang-bang”. He then grabbed her breast in one hand, pushing his other hand underneath her skirt. PS walked away, followed by ES.

16. [35]

    The applicant and Murad followed the girls closely. When they stopped, the applicant pushed his body against PS from behind, before lifting her skirt and slapping her bottom. PS hit his hand away but the applicant grabbed it, and put it onto his groin. He then pulled her to the entrance of cinema 2, saying they needed “privacy”.

17. [36]

    Inside the cinema the applicant grabbed PS by the hair on the back of her head, opening his trousers and removing his penis. Although PS protested “Dude, no”, the applicant told her to get on her knees, When she refused he forced her head down and thrust his penis into her mouth. (This conduct is count 12 of the indictment.) Very frightened, PS pushed against the applicant and got him away from her. Dragging her up by her hair, the applicant tried to kiss PS, but she bit him on the lip.

18. [37]

    PS was caught between the applicant and a closed door. The applicant put his hand under her skirt and pushed his fingers into her vagina, causing her pain. (This is count 13, taken into account on sentence against count 12.) She pushed at his body until she managed to get away from him. The applicant then directed PS to look at his penis, shining the torch of his mobile telephone onto it to show PS what she described as “gooey stuff”. He asked her to lick it off his penis. She said no.

19. [38]

    At that moment ES walked into the cinema. The applicant said, referring to PS, “she doesn’t like it”.

20. [39]

    The complainants tried to leave the cinema, but the applicant and Murad would not allow them to leave before they exchanged telephone numbers.

21. [40]

    Once away from the guards the complainants went into a toilet block where PS began to cry, and spit into a toilet. They then took a bus to PS’s nearby home, where they disclosed to PS’s mother and sister what had happened. The police and an ambulance were called.

22. [41]

    During the course of the police investigation a substance was located on the wall of the disused cinema, at a location pointed out by PS. The substance was determined to be semen, with a DNA profile matched to the applicant.

23. [42]

    On 9 January 2014 both Murad and the applicant were arrested. In an electronically recorded interview, the applicant told police officers that he and Murad had asked the complainants to leave the shopping complex, and attempted to escort them to the exit. He denied entering the disused cinema complex with them, and denied that any sexual activity occurred. His explanation for the presence of his semen on the wall in the cinema was to say he had previously been in the cinema and, disgusted by the smell, had “spat everywhere”. He could not offer any explanation for PS having his phone number.

24. [43]

    Also before the sentencing court was the applicant’s criminal history, which recorded no convictions against him; a custodial history, which recorded an institutional offence of fighting; a victim impact statement from PS, and a pre-sentence report (“PSR”).

25. [44]

    In her victim impact statement PS represented by two illustrations the feelings of pain, confusion, and emptiness she felt as a consequence of what had happened to her at Macarthur Square.

26. [45]

    The pre-sentence report (which referred to charges that did not proceed, as well as those which did) gave an account of the applicant’s family and social circumstances, matters connected with the offending conduct and, together with an attached note of a consultation with a Department of Corrective Services psychologist, a recidivism risk assessment.

27. [46]

    The applicant gave the author of the pre-sentence report a history of having been born in Iraq, one of seven children to Iraqi/Kuwaiti parents. His father left Iraq for Australia ahead of the rest of the family, and his mother struggled to maintain the family alone. The children grew up in an atmosphere blighted by war and poverty. Access to education was limited. A tutor employed to educate the applicant sexually abused him.

28. [47]

    In 2008 the applicant immigrated to Australia with his family to join his father. He asserted that he was given Australian citizenship in 2012.

29. [48]

    The applicant said that he completed years 11 and 12 of high school in Australia, before commencing, but not continuing, university studies. He claimed to have qualified as an Assistant Nurse in 2013, taking up security work prior to the commission of the last set of offences.

30. [49]

    Of the offences, the applicant told the author of the report that he had been very selfish, and failed to consider the impact that his actions may have had on his victims. He said that entering custody had “woke[n] him up to his behaviour”. He said that he had not intended to hurt anyone.

31. [50]

    The applicant’s family was supportive of him.

32. [51]

    An actuarial risk assessment was conducted with the applicant, to assess the likelihood of sexual reoffending. He was found to be at moderate – high risk of sexual recidivism, when compared to other male sex offenders.

33. [52]

    On sentence, the applicant tendered a psychological report from Caroline Hare, prepared for use during the proceedings.

34. [53]

    In a two hour interview the applicant presented to Ms Hare as a reliable historian who was cognitively intact with no apparent thought disorder, psychosis, or psychopathology.

35. [54]

    He gave a history of being born in Iraq to Iraqi parents, one of a family of seven children. He described the departure of his father for Australia when he was aged 6 years, followed by 11 years spent in Iraq and then Syria, before it was possible to travel to Australia, in 2009 when the applicant was aged 17. He claimed to have been granted Australian citizenship.

36. [55]

    The applicant described his childhood as difficult, being affected by poverty, war, and limited educational opportunities. He also complained of having been sexually assaulted at age 10 to 11 by a male tutor.

37. [56]

    In Australia, the applicant said he reunited with his father, and the family lived together. He spent a year learning the English language, after which the applicant completed Years 11 and 12 at high school. The applicant thereafter commenced a sport teaching degree, but completed only a year as he did not enjoy it. Participation in a TAFE course to become a personal trainer ended after a short time following a knee injury. The applicant next undertook a TAFE course in Assistant Nursing, completing all but one module. He was employed as a security guard at the time of the January 2014 offences.

38. [57]

    The applicant gave Ms Hare a history of involvement in two serious relationships. The first, at age 19, ended when his partner was required by her parents to enter an arranged marriage. The second ended because the applicant’s partner enjoyed “drinking and clubbing”, which he did not. Casual sexual encounters followed, motivated by the applicant’s desire to “have fun”, with Ms Hare noting that the applicant’s respect for women deteriorated in this period, as he came to regard them as willing to engage in casual sex.

39. [58]

    As to the offences to which he pleaded guilty, Ms Hare observed that the applicant gave her an account of them which was consistent with the agreed facts. He said that the offences against HB had occurred on the last day of a TAFE course they had both undertaken, when he decided to act on his sexual attraction to her. Ms Hare said that the applicant

40. [59]

    As to the offences of January 2014 involving PS and ES the applicant said that his co-offender had told him the other security guards used the old cinema to have sex with women, and he followed Murad’s lead. He said he recognised that neither girl consented,

41. [60]

    Ms Hare thought that the applicant had some basic insight into how he came to offend, but also noted that he had engaged in “cognitive distortions” in asserting that he believed both girls were 17 years old.

42. [61]

    Overall, Ms Hare’s assessment of the applicant was that, whilst he had some of the issues commonly felt by most adults, such as fluctuating self-esteem, and feelings of being stressed, there was nothing to indicate any psychopathology. In terms of risk of further sexual offending, Ms Hare placed the applicant in the moderate to high range, with Ms Hare observing that the applicant had an “attitude of sexual entitlement and / or male prerogative”. [AB 76]. She thought he would benefit from offence-specific intervention.

43. [62]

    Although the applicant did not give evidence on sentence before the District Court, a letter written by him to the court was tendered on his behalf. In it the applicant said that he had spent the time he had been on remand “coming to grips with what led [him] to offend”. [AB 103]. He said,

44. [63]

    The applicant tendered a statement from his father, Ajeel Aubaid Thafer. Mr Thafer gave an account of his and his family’s circumstances, and noted his strong disapproval of the offences committed by his son. He said that the applicant had told him that,

45. [64]

    The applicant’s elder brother and a number of community members who knew him through his participation in soccer wrote character testimonials on his behalf. Also tendered were a number of certificates relating to sporting and vocational achievements.

46. [65]

    Counsel for the applicant relied upon the applicant’s deprived upbringing in Iraq to ask for a measure of leniency, and pointed to the attempts he had made since arriving in Australia to educate and better himself, including through his involvement in soccer. Acknowledging the seriousness of count 12 in particular, the relatively early pleas to counts 1 and 12 were relied upon to seek a significant reduction in the penalty that would otherwise be imposed. Counsel pointed to the applicant’s contrition and remorse, and to the strong family support that would assist the applicant to successful rehabilitation. It was submitted that the applicant had some insight into his offending behaviour, and a strong wish to lead a law abiding life in the future, pursuing an apprenticeship in the building industry. It was submitted that a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act should be made.

47. [66]

    The Crown highlighted the gravity of the assaults upon HB which occurred in isolated bushland in circumstances where the complainant feared she would be raped or killed, over many minutes, despite the complainant’s protests. It was submitted that the Macarthur Square offences were predatory in nature, and involved a degree of premeditation in getting the complainants to the disused cinema complex, for sexual purposes. In the absence of sworn evidence the Crown submitted that there was no persuasive evidence of remorse. A measure of accumulation was called for, given that the sentence had to comprehend offences against three complainants.

48. [67]

    With other matters in the court’s list to attend to, the presiding judge, his Honour Judge Sides QC, stood the sentence judgment to the following day, 19 November 2015.

The Remarks on Sentence

1. [68]

   Having set out the offences for sentence, the applicable penalties provided by the Crimes Act, and the history of the entry of the pleas, the sentencing judge noted that a discount on the sentences that would otherwise have been imposed of twenty per cent with respect to counts 1 and 12, and 10 per cent with respect to count 8, would be allowed to reflect the utilitarian value of the pleas. His Honour then recounted the facts as agreed between the Crown and the applicant.

2. [69]

   He observed that the applicant had been 21 years old at the time of the offences against HB, 22 years at the time of the Macarthur Square offences, and that he would shortly turn 23. His Honour set out the difficult life that the applicant had experienced in Iraq, where he was exposed to “the horrors of war and discrimination”. He had and continued to have, the benefit of a close and supportive family. Since arriving in Australia the applicant had, his Honour observed, studied and worked, and had both played, and voluntarily coached, soccer within a refugee soccer development programme.

3. [70]

   The sentencing judge gave the applicant the benefit of his prior good character when assessing the sentence to be imposed with respect to count 1.

4. [71]

   As to the gravity of that count, his Honour concluded to the criminal standard that the applicant had intended to engage in sexual activity with HB at about the time of arranging for a lift home with her, regardless of her consent to it. In directing her to an isolated area of bushland, and not to his home, the applicant caused the complainant to fear that she would be raped or killed. He responded to her fears by laughing. By commencing the assault upon HB when she was driving a car, the applicant had distracted her, giving rise to the potential for an accident to occur. The conduct complained of was persistent, and involved the touching of a number of areas of the body over a period of many minutes, despite the complainant’s verbal and physical resistance. His Honour concluded that it was likely that HB would suffer lifelong emotional or psychological problems as a consequence of the assault. Bearing in mind the count on a Form 1 document, he rejected the applicant’s submission that a bond would have been an adequate punishment in the absence of the Macarthur Square offences, concluding that count 1 “was a very serious example of an offence under this provision”. [AB 28]

5. [72]

   As for the Macarthur Square offences, the sentencing judge concluded that both were premeditated, with the two victims “lured to a dark and deserted building by the exploitation” of the applicant’s role as a security officer. The ruse used to get the two girls into the cinema complex was inconsistent with a belief that either would consent to sexual activity, with the young age of ES another basis upon which to conclude that the applicant did not anticipate her consent. In the context in which it occurred his Honour concluded that count 8 fell well below the mid-range of objective gravity for such an offence.

6. [73]

   The offence committed upon PS was, in the assessment of the sentencing judge, a little below the mid-range of objective gravity for such an offence. It was committed in total disregard of PS’s protests, and disrespect for her integrity. The effect on her had been profound.

7. [74]

   His Honour accepted that there was some evidence of remorse, expressed by the applicant in his letter to the court, and to the authors of the PSR and psychological report. However, the court noted that the applicant had sought to minimise his criminality in some regards, and he clearly lacked insight into his criminality. That was particularly so given that, within five weeks of offending against HB, the applicant involved himself in offences of a “really serious and predatory nature” against ES and PS. These were features of concern in terms of the applicant’s prospects of rehabilitation, which were ultimately assessed as reasonable.

8. [75]

   It was noted that greater weight had been given to rehabilitation in fixing the sentence, and less to deterrence, because of the applicant’s relatively young age. A finding of special circumstances was made because of a perceived need for the applicant to have an extended period of parole.

9. [76]

   His Honour concluded that some accumulation of sentence was required to reflect the separate criminal acts against three victims. An aggregate sentence was determined to be appropriate, backdated to commence on the date upon which the applicant was remanded in custody.

10. [77]

    The sentence set out at [7] above was imposed.

11. [78]

    By Notice of Application for Leave to Appeal filed on 20 September 2018, with an accompanying Notice of Application for Extension of Time filed on the same date, the applicant seeks leave to appeal against both conviction and sentence.

12. [79]

    Leave is required for the application to proceed, both because of the nature of the proposed grounds of appeal against conviction, which raise grounds of mixed fact and law; and because, having been filed almost three years after sentence was imposed, it is well out of time.

13. [80]

    Leave is a significant feature, to which I will return.

The Proposed Grounds of Appeal

1. [81]

   The “Grounds of Appeal” as filed with the Court on 20 September 2018 are as follows:

2. [82]

   In an unusual approach, the applicant did not file or seek to advance any specific grounds against the sentence imposed on 19 November 2015. Rather, his Notice of Application for Extension of Time said,

3. [83]

   In his written submissions the applicant further noted,

The Evidence Adduced on the Application

1. [84]

   In support of the proposed grounds of appeal the applicant gave evidence himself and adduced evidence from a number of witnesses. The Crown called evidence to deal with the applicant’s assertions.

2. [85]

   The applicant read his affidavits of 14 September 2018 and 18 May 2019; together with three affidavits from his solicitor Wajiha Ahmed, sworn respectively on 19 September 2018 (“affidavit 1”), 1 November 2018 (“affidavit 2”), and 17 May 2019 (“affidavit 3”), and gave and called oral evidence.

3. [86]

   Ms Ahmed was not required for cross-examination. In her affidavit of 19 September 2018 she affirmed that she was approached by the applicant’s family in about February 2018 to represent the applicant in relation to his immigration status and that was the focus of all early consultations. Having received a copy of the papers held by the applicant’s previous solicitors, Fortis Law, relevant to a lapsed Notice of Intention to Seek Leave to Appeal, Ms Ahmed thought that the criminal matter required investigation. Counsel was engaged for advice. Having received instructions from the applicant to do so, Ms Ahmed attempted to file a Notice of Intention to Appeal and associated documentation on 28 June 2018, (the Notices ultimately being filed in September 2018).

4. [87]

   In July 2018 Ms Ahmed engaged the services of a private investigator, Jonathon Creighton, to obtain a statement from ES, and subsequently from Oulah Soulayman. Statements were obtained from each on 3 August 2018 and 18 August 2018 respectively. A further statement was obtained from ES on 23 August 2018.

5. [88]

   On 14 September 2018 the applicant received a notice revoking his permanent residency status. Travel identity papers issued by the Department of Immigration to the applicant in November 2013 record his nationality as “Stateless”.

6. [89]

   Ms Ahmed produced a considerable volume of documentary material including the whole of the police brief of evidence against the applicant and the statements obtained by Mr Creighton from ES and Ms Soulayman. It is not intended here to refer to all of it, but rather to focus on those matters of most significance.

7. [90]

   Part of the material relates to the conversations between ES and Oulah Soulayman which the applicant relies upon as “fresh evidence”. The first conversation was recorded by Ms Soulayman on 27 February 2014. It commences without any sort of introduction, with Ms Soulayman recorded saying “fuck it”. The conversation continues thereafter.

8. [91]

   In it ES told Ms Soulayman that the security guards had taken them to near the security office and told them they were “banned” from Macarthur Square. She said “that’s probably how they wanted to get us out”. She said they were then taken to the old cinema where the guards locked them in, after which “the younger one” took her upstairs. She said,

9. [92]

   ES went on to say that the applicant took PS into a different room and “he was making her give him a “gobby” [fellatio]. She described walking into the room to see the applicant “making her, like, just pushing her head down”. When ES interrupted she said the applicant, referring to PS, said “she doesn’t like it”.

10. [93]

    Ms Soulayman told ES “that doesn’t sound right”, and challenged her account of events. She demanded that ES tell her “the truth”, to which ES responded “I am telling the truth though [..] I swear”.

11. [94]

    Ms Soulayman continued to challenge ES’s account of events, and asked her if “they” [the security guards] should be locked up when “he didn’t touch you in any way, he didn’t do nothing” […], and he hadn’t “fingered” ES or forced her to give him “a blow job”. ES responded that he had tried to touch her, and tried to get her jacket off. She said PS had “pissed herself crying” when they “got out”.

12. [95]

    Ms Soulayman said that she had heard that “this boy’s a good looking boy” and “a hottie” and told ES that ES “kind of fancied him”. ES denied that, and continued to insist that what she had said was the truth. Ms Soulayman continued to question ES, telling her the “story is not right”, and “there’s something wrong about this whole fuckin’ story”. With ES still maintaining her account of events, Ms Soulayman said,

13. [96]

    ES then responded, “True. Sorry”.

14. [97]

    Ms Soulayman went on to tell ES that “this poor old man is in gaol” and pressed her as to whether she believed the men should be in gaol. When ES said she did, Ms Soulayman chided ES that it was “a set up story” and suggested that she could not honestly believe in her heart that the men should be locked up.

15. [98]

    Ms Soulayman told ES that she wanted to go into the room, was not touched by anyone, and her friend had given “him a blow job”. Ms Soulayman ended the conversation by saying,

16. [99]

    There is nothing in the contents of the recording to suggest that ES was aware that Ms Soulayman was recording the conversation on her mobile telephone.

17. [100]

    The second recording made by Ms Soulayman was made the following day, 28 February 2014. It features an introduction of a sort, with Ms Soulayman announcing,

18. [101]

    ES went on to say,

19. [102]

    Of the incident with the applicant she said that the applicant locked the door, took her upstairs and “he tried to touch me but he didn’t really”.

20. [103]

    She said she didn’t know whether PS was forced to go with the applicant or not, after which Ms Soulayman asked:

21. [104]

    When Ms Soulayman asked ES to tell her about what PS did with the applicant, ES responded “I can’t say it”, before being told by Ms Soulayman,

22. [105]

    ES thereafter referred to PS giving the applicant “a head job”.

23. [106]

    Towards the end of the recording Ms Soulayman told ES,

24. [107]

    On the same day, 28 February 2014, ES was interviewed by police officers who had been provided with the recordings made by Ms Soulayman. Having acknowledged to the officers that she understood she must say only truthful things and that there were consequences for lying, ES said that she had known Ms Soulayman, who was like a mother to her, for about six years. She said that Ms Soulayman sent her a message through Facebook telling her that she had some work for her and asking her to come to see her at work. ES went to the salon where Ms Soulayman worked on 27 February 2014, and they discussed an apprenticeship with Ms Soulayman for ES to become a hairdresser. Ms Soulayman raised the subject of the Macarthur Square incident, saying she wanted to have a talk to ES about it.

25. [108]

    ES said that she told Ms Soulayman what had happened but Ms Soulayman did not believe her. ES said that she had not known the conversation was recorded until 28 February 2014.

26. [109]

    Of her conversation with Ms Soulayman on 28 February 2014 ES said

27. [110]

    She referred to herself in the recording as “Me saying that they shouldn’t be locked up, but they actually should”. ES confirmed to the police officers that she had given them a truthful account of the events when she spoke to them previously (being a discussion at Campbelltown Hospital on 5 January 2014 and a formal recorded statement on 9 January 2014).

28. [111]

    A Fact Sheet setting out the facts of the two charges later brought by police against Ms Soulayman for doing an act with intent to influence a witness and using a listening device, record her as acknowledging that ES did not know that a recording was being made by her of their conversation on 27 February 2014. She is said to have confirmed that in an electronically recorded interview with police on 4 March 2014.

29. [112]

    It is suggested in the Fact Sheet that Ms Soulayman was advised by police on 27 February 2014 that it was an offence to record a conversation with someone without that person’s knowledge and consent, and she thereafter made the second recording of 28 February 2014.

30. [113]

    After these events, investigating police conducted a further interview with ES, in the form of a “video walk-through” conducted at Macarthur Square on 10 March 2014. In that interview ES gave an account consistent with her complaint of 5 January 2014 and statement from 9 January 2014.

31. [114]

    Mr Creighton obtained two statements from ES, both when she was 18 years of age. In the first statement of 3 August 2018 ES gave an account of the events at Macarthur Square on 5 January 2014 (although she gave the date as 4 January).

32. [115]

    She said that she and PS went to the shopping centre at about 4pm. At one point PS saw two security guards and said, “I want that one”, indicating the younger of the two, Ahmed. They approached the guards, whereupon PS began to flirt with Ahmed. After a few minutes the guards said that they had to “go lockup” and invited ES and PS to accompany them. They went together through a department store in the complex, across a car park, and into the old cinema.

33. [116]

    ES went upstairs to see what was there, followed by Ahmed. They began kissing, but ES pushed him away after a time, telling him “we shouldn’t be doing this”. She said Ahmed “respected that”. They went back downstairs to see PS kissing the older guard.

34. [117]

    The older guard went out of the room and ES went to explore. When she returned to where she had left PS and Ahmed she saw PS giving Ahmed a “gobby”, which she defined as “sucking his dick”. PS gave her a look which she understood to mean she should leave, and she left the room.

35. [118]

    A few minutes later she saw PS and Ahmed, and the older guard, again. They all left the cinema.

36. [119]

    When she was alone PS said “I think I’ve just been raped”, and “I was raped”.

37. [120]

    They went to a bathroom in the complex where PS was crying and spitting into a toilet. The two girls went to PS’s home where PS spoke to her mother, saying she had been raped. She was crying. ES went home.

38. [121]

    Some hours later she received a telephone call from PS who asked her to come to Campbelltown Hospital. When she got there, PS told ES, “You better stick with what I say happened”. When ES queried how PS could say she had been raped when she had “wanted it”, PS said “stop lying, it was rape”. As she said this in a “forceful” manner, ES went along with what she said.

39. [122]

    ES was interviewed by police.

40. [123]

    A few days later ES spoke with PS, who said she had better stick with her story or “she would come after me”. ES referred to threats to snap her neck or break her legs being made by PS. Later that same week PS and ES again spoke about what happened, with PS saying that they would each get “a million” in victims compensation.

41. [124]

    ES thereafter gave an account of speaking with Ms Soulayman on 27 February 2014, which she understood was being recorded. She made another recording the following day with Ms Soulayman. When the police asked her about what she had said to Ms Soulayman, in an interview on 28 February 2014, she stuck to the original story she had given police, as she was scared of PS.

42. [125]

    ES said that, after Ms Soulayman was charged, she went to one of the detectives involved in the case and told him she wanted to change her statement. He said she couldn’t. A few weeks later ES went to see the prosecutor of Ahmed’s case, and told her that she wanted to change her story, but the prosecutor said she would be charged for giving false information if she did.

43. [126]

    ES made her second statement, given substantially in question and answer format, on 23 August 2018.

44. [127]

    In it she said that, although the applicant did try to unbutton her jacket at Macarthur Square, she brushed him off; she did not punch him. She did not see PS giving the applicant “a gobby” but rather assumed that was what she was doing from the positions of the two. It was possible that PS’s head was simply near the applicant’s groin. Answering a series of leading questions ES agreed that PS was smiling and seemed happy.

45. [128]

    She agreed that she was aware PS intended to claim compensation by falsely claiming that the applicant sexually assaulted her. She said that she lied to police because she had been threatened by PS and PS’s friend. She was asked if she understood “PS’s claim for compensation was completely fraudulent and false”, and agreed.

46. [129]

    She also said she was aware that the conversation with Ms Soulayman on 27 February 2014 was being recorded, but was forced to say that she had not known by detectives.

47. [130]

    In her statement of 18 August 2018, taken by Mr Creighton, Ms Soulayman said that, sometime in February 2014 she had heard through her sister that ES wished to talk to her. Having sent ES an on-line message to call and see her, ES attended Ms Soulayman’s hairdressing salon on 27 February 2014, and gave her an account of the events at Macarthur Square in which she said there had been no sexual assault. Ms Soulayman urged ES to go to the police but she refused. Thereafter, Ms Soulayman set her mobile telephone to record the conversation and spoke with ES. She said that she “started telling me the same untrue story she had told the police”, so she “coaxed the right story out of her”.

48. [131]

    Ms Soulayman said that she took the recording to Campbelltown Police Station but was queried about the legitimacy of the recording by a detective. She gave a verbatim conversation of over four years previously with the officer in the statement.

49. [132]

    The following day she had another conversation with ES, recording it with her permission. She then delivered the mobile telephone on which she had made it to police, who took the device.

50. [133]

    On 4 March 2014 when Ms Soulayman went to the police station to collect her telephone, she was arrested and charged in connection with the recordings. She later pleaded guilty to the two charges in the District Court, and was given a suspended sentence of 18 months. She asserted that she only entered the pleas of guilty because her lawyers told her that if she didn’t she risked going to gaol for 14 years.

51. [134]

    What follows thereafter in the statement is an account of Ms Soulayman’s opinions about what really happened at Macarthur Square, together with details of the damage done to her as a consequence of the criminal charges brought against her.

52. [135]

    A number of copies of file notes and other documents establish that the legal firm of Elie Rahme & Associates were instructed to act for the applicant on 11 March 2014. Mr Rahme took steps to secure all relevant documents and review all CCTV footage, and prepared a summary of the brief of evidence. He retained counsel (Mr Peter Lange) to appear at a bail hearing and thereafter took steps to prepare for those proceedings.

53. [136]

    On 31 March 2014 the applicant’s father took “Facebook and transcripts of victim’s friend’s conversations”, together with videos, presumably of ES speaking to Ms Soulayman on 28 February 2014, to Mr Rahme.

54. [137]

    A file note of 19 June 2014 records that Mr Rahme “went carefully through the brief of evidence” concerning HB with the applicant during a visit to him, with the applicant telling Mr Rahme that he wanted to consider his response and instructions. Mr Rahme also went through material relevant to PS that had been recently served by police with the applicant, and discussed the options of a contested committal at which it would be sought to cross-examine the DNA expert and ES.

55. [138]

    There are notes relating to the decision of the Crown to join the HB proceedings with the PS and ES proceedings, and proceed on all charges on indictment. There are notes of a conference between Mr Rahme on 22 September 2014 concerning the forthcoming arraignment in the District Court, and preparations necessary for the trial. A note in which the date has been cut off in the reproduction of it, lists the charges against the applicant, and notes “Try to plead only to three counts”.

56. [139]

    Subsequently, Mr Rahme received instructions to waive committal, and the matter proceeded in that way. In the District Court the notes record discussions with the applicant about the way in which the matters would proceed, and his instructions to oppose the Crown’s stated intention of running all three sets of allegations together, and instead seek a separate trial of the HB allegations.

57. [140]

    An application to the Local Court prior to committal for bail having been unsuccessful, Mr Rahme took steps to list and prepare for an application to the Supreme Court, which was heard on 6 November 2014 before Button J. Mr Rahme’s file notes record matters referred to in his Honour’s judgment that day refusing bail, including that the Facebook message from the applicant to HB was strong support for the complaint, as the presence of the applicant’s semen on the cinema wall was strong support for PS’s allegations.

58. [141]

    On 24 November 2014 Mr Rahme had a conference with the applicant, with his notes recording the applicant’s instructions to offer pleas of guilty to the Crown to counts 1 and 12 (although in a less serious form, not alleging a circumstance of aggravation), with count 8 on a Form 1 document. Correspondence with the Office of the Director of Public Prosecutions (“ODPP”) followed.

59. [142]

    On 11 December 2014 the applicant was arraigned before the District Court, entering pleas to counts 1 and 12. A file note from the solicitor appearing for the applicant at arraignment noted the pleas, and recorded that the solicitor had interrupted the arraignment to query the plea of guilty entered to count 1. In a discussion after the arraignment the applicant had said he was confused as to how to “approach answering the indictments”.

60. [143]

    Further correspondence between Mr Rahme’s office and the ODPP followed on the subject of resolving the matter by way of plea of guilty to some counts, with agreement reached in the terms that ultimately proceeded to sentence. After agreement had been reached further correspondence was exchanged between Mr Rahme and the ODPP in which Mr Rahme sought to have the facts presented on sentence by the Crown varied to reflect the applicant’s instructions. For example, on the applicant’s instructions Mr Rahme sought to have the phrase “a fist full of hair” (when referring to PS’s head being moved to the applicant’s penis) to read “pushed her head towards his groin”. That change was evidently made.

61. [144]

    Other correspondence establishes that Mr Rahme sent a copy of the proposed facts to the applicant in custody, asking him to advise “if you are able to agree with the document or indicate what you cannot agree with”.

62. [145]

    On 3 September 2015 the applicant was re-arraigned before the District Court on count 8 only and entered a plea of guilty. Mr Rahme’s file notes that the applicant signed two Form One documents and two Statements of Agreed Facts that day. The firm thereafter began to prepare the matter for sentence, engaging a psychologist to assess the applicant and briefing counsel (Mr Ainsworth). Sentence proceedings followed on 18 November 2015, with judgment the following day.

63. [146]

    The Department’s records show that the applicant’s application for Australian citizenship was approved on 18 December 2013. He was advised that he was required to make a “Pledge of Commitment” before citizenship would be conferred.

64. [147]

    On 18 December 2014 the Department wrote to the applicant at the address in Condamine Street Campbelltown to give him formal Notice of Intention to cancel his citizenship approval because of his failure to attend a citizenship ceremony within twelve months of the approval of his application. He was invited to provide a response explaining why he had not attended a citizenship ceremony.

65. [148]

    On 4 June 2015 the Department wrote to the applicant at an address in Condamine Street Campbelltown to advise him that the approval of his application for citizenship had been cancelled. The correspondence referred to an attached “Decision Record”, which gave as the basis of the decision the applicant’s failure to make a Pledge of Commitment within 12 months of his application for citizenship being approved, despite being invited to do so on 19 May 2014, 11 August 2014, and 3 November 2014. The record also noted that the applicant had not responded to correspondence asking him to provide a reason for failing to make the pledge.

66. [149]

    It is apparent that the letter of 4 June 2015, sent by registered mail, was not received by the applicant. It was returned from the Condamine Street address undelivered.

67. [150]

    In November 2015 the Department sought and obtained the Remarks on Sentence of 19 November from the Registry of the District Court and, the following month, requested a copy of the applicant’s criminal history from the Australian Federal Police. It was noted that an inquiry was to be carried out relevant to s 501 of the Migration Act 1958 (Cth), a provision which deals with the refusal or cancellation of a visa on character grounds.

68. [151]

    On 10 May 2018 the Department again wrote to the applicant at the Condamine Street Campbelltown address to give him another formal Notice of Intention to cancel his citizenship approval because of his failure to attend a citizenship ceremony in the permissible timeframe. He was again invited to provide a response explaining why he had not attended a citizenship ceremony. The approval of the applicant’s citizenship application was cancelled by separate correspondence of 10 May 2018, on the basis that the applicant had not made a pledge of commitment, or provided any reason for the failure to do so.

69. [152]

    Ms Ahmed’s second affidavit served only to produce three sets of CCTV footage from Macarthur Square, deposed as being from 4 January 2014, although clearly 5 January 2014, recorded during various periods between 4:58pm and 6:57pm that day. None of the footage is from the disused cinema complex.

70. [153]

    In the first recording the applicant and Murad can be seen at the information desk in the shopping complex. ES and PS approach the information desk and there follows what appears to be a conversation between them and the security guards. All four walk away from the area, with the complainants following the two men. With a shift in camera the four can be seen soon after, apparently on an upper level. One of the guards is walking ahead of the other three, with a female staff member, while the second walks with the complainants. The guards go off screen whilst the complainants appear to wait, before moving away. Footage from a separate camera makes it clear that the applicant and Murad went into an office, before emerging, and walking to a department store. The complainants are recorded waiting at that location. They then follow the guards out of the department store and into the general area of the complex.

71. [154]

    From another camera the complainants are recorded following the two guards through heavy plastic swing doors into what is clearly a staff only area. They are next recorded in a car park.

72. [155]

    After a lapse of time, the complainants and guards are recorded returning to the shopping complex, after which the complainants and the guards are separately recorded, with the guards going into one area and the complainants to another. Footage of the complainants at a bus stop follows, before they board a bus. The complainants’ faces are indistinct and I could not discern any particular emotion displayed there.

73. [156]

    The other two files contain different selections of the same footage.

74. [157]

    In her most recent affidavit Ms Ahmed set out her experience as a Migration Agent. She produced a copy of a letter from the Department of Immigration and Border Protection directed to the applicant in custody advising him of the cancellation of his visa pursuant to s 501 of the Migration Act, due to his substantial criminal record. He was advised of the opportunities to seek a review of the decision.

75. [158]

    Ms Ahmed affirmed that submissions were made in which a review of the decision was sought. No response had been made by the Department as at May 2019. Ms Ahmed said that, having regard to her experience, if no response is received prior to the applicant being admitted to parole, he will be removed into immigration detention.

76. [159]

    Ms Ahmed produced the recordings made by Ms Soulayman of her conversations with ES.

77. [160]

    In his affidavit of 14 September 2018 the applicant gave an account of his family’s circumstances prior to arriving in Australia, and of his education after arrival.

78. [161]

    Of the Macarthur Square allegations the applicant did not refer in his affidavit to seeing the complainants at the shopping centre. Instead, he deposed that on the afternoon of 5 January 2014 he received a telephone call from someone who said she was PS’s mother. She was angry and asked for “Murad”. The applicant said that he contacted Murad and “now recall[ed]” having a conversation with him, in which he said to Murad (in part),

79. [162]

    The applicant deposed that Murad told him to say that they had seen the girls, and escorted them from the shopping centre as they had been barred. They had stayed with them as they were drunk. Murad told the applicant not to mention going into the old cinema and not to “say we had any sexual encounters”.

80. [163]

    Still without revealing what had taken place prior to receiving the telephone call, the applicant claimed that he agreed to maintain Murad’s version, even though it was a lie about what happened, as Murad was scared that they would lose their jobs, and Murad was older and the applicant trusted his judgment.

81. [164]

    The applicant said that when he was asked the following day by his boss about what had happened, he stuck to the story given him by Murad, as Murad was more experienced than he was in security work, and he was concerned he would get into trouble for taking young women into the cinema, and lose his job.

82. [165]

    When he was arrested by police on 9 January 2014 the applicant deposed that he gave the police “the story Abu told me to give”, even though it was false. He said that when he was charged and remanded in custody he cried. He did not understand the legal process.

83. [166]

    The applicant said that he retained a firm of solicitors to represent him but, in about March 2014, he retained Elie Rahme of Elie Rahme and Associates. Between March 2014 and November 2015 the applicant had five or six conferences with Mr Rahme, instructing him at all times that he was not guilty, and “any physical and / sexual contact that I did have was completely consensual”. The applicant said that he “held unconditional trust in him for the duration of the retainer”.

84. [167]

    The applicant deposed that, after the brief of evidence was served upon his lawyers, Mr Rahme told him that he would not be believed. He claimed that Mr Rahme told him that the “evidence is too strong” and that he had “no chance of winning”, warning him that if he fought the charges he would “end up in jail doing twenty years”. Mr Rahme assured him that if he “took a plea” he would “do another three to six months maximum”, in addition to the “twenty-two months” he had already spent on remand.

85. [168]

    Negotiations were conducted by Mr Rahme with the prosecution, which the applicant understood to mean that he would plead guilty to counts 1, 8, and 12, with other charges “on a ‘form’”. He claimed to have no understanding of what it meant to have charges on a form, other than that “the Judge would not give [him] any further time”. Although the applicant deposed that he had no recollection of signing any Form One documents, he said that the signature on each of the documents was his.

86. [169]

    The applicant said that he had never seen the brief of evidence relating to the Macarthur Square allegations, was never provided with any summary of the evidence, and nor did his lawyer give him any advice as to the strength or weakness of the Crown brief against him. He said that he was aware that there was closed circuit security footage (“CCTV”) in the brief, but was never shown it, and knew nothing of it other than that his solicitor told him it made him look “sly”. He deposed that he “was completely unaware” that his solicitors had been given copies of recordings of ES made by Oulah Soulayman on 27 and 28 February 2014. He claimed that, had he known of the recordings,

87. [170]

    The applicant then said that his brother had made him aware of the existence of the recordings, in which ES expressed doubts about PS’s complaint, in early 2014. Rather contradicting his claim to have been “completely unaware” that his solicitor had the recordings, the applicant said that Mr Rahme advised him that the recordings would not be admissible and would not assist him at his trial, and that ES appeared to have been pressured.

88. [171]

    The applicant asserted that, had he been shown the recordings or accurately advised of their contents, he would not have contemplated entering pleas of guilty. He did so because,

89. [172]

    He claimed to have agreed to entering “a plea of convenience” because he was desperate to be released from custody, and he had been assured by Mr Rahme that “we can get what we want” because of Mr Rahme’s friendship with “the prosecutor”.

90. [173]

    The applicant asserted that, when he entered a plea of guilty to count 1 on the indictment when he was arraigned on 11 December 2014 a solicitor from Mr Rahme’s firm told him “just say what you were told to say”. He entered that plea and the plea of guilty to count 12 in some confusion as to whether all other charges were to be “dropped”, and what the difference was between “the plea deal” and arraignment. He said that the solicitor appearing for him “did not correct what [he] had said to the Court”. Later, Mr Rahme told him he would “have to plead guilty to [count 8] as well”.

91. [174]

    As to the statements of facts, the applicant deposed that Mr Rahme told him that the Crown would not amend the facts. He continued,

92. [175]

    The applicant said that he was never advised that he would be registered as a sex offender, or told of the impact a term of imprisonment would have on his ability to work as a nurse, but was assured that he would be released a short time after the sentence hearing.

93. [176]

    Of his immigration status, the applicant said that he thought he had been granted Australian citizenship, and this was his understanding at all times during the proceedings in the District Court, only discovering in 2018 that he was not a citizen. He said that he received no advice from Mr Rahme on the affect his pleas of guilty would have on his immigration status.

94. [177]

    The applicant said that he agreed to “the plea deal” on the advice of Mr Rahme because he wanted to get out of gaol. He said,

95. [178]

    He claimed that he would not have done so if he was aware that he was not an Australian citizen, and could be deported or detained in immigration detention as a consequence. The applicant deposed,

96. [179]

    On being sentenced by his Honour Judge Sides QC the applicant said he was completely taken aback, as he had expected to receive the two or two and a half year sentence Mr Rahme had spoken of. He claimed that, after sentence was imposed, Mr Rahme had said to him, “You should have had sex with her”, and assured him an appeal would be lodged.

97. [180]

    The applicant’s second affidavit, of 18 May 2019, was principally directed to denying the contents of the affidavit obtained from Mr Rahme by the Crown (which is discussed below). The applicant referred to the report of Ms Hare, not mentioned by him in his first affidavit, and said that Mr Rahme had told him,

98. [181]

    The applicant was cross-examined before this Court on 20 May 2019.

99. [182]

    He was taken to the Agreed Statements of Facts that were before the sentencing court in November 2015 and acknowledged that he had signed each page of the documents. He was also taken to the pre-sentence report and acknowledged having told the author those matters reported there, including that entering custody had woken him up to his behaviour, and that he had failed to consider the impact of his conduct on his victims. The applicant said that he had lied to the probation officer. Similarly, when taken to the report of Ms Hare, the applicant conceded that he had spoken with her for two hours and at some depth concerning the two sets of allegations, but had lied to her during the interview.

100. [183]

     The applicant was next taken to the statement made by his father and tendered on his behalf during the sentence proceedings. The following evidence was given:

101. [184]

     When asked to consider his statements of remorse and regret made to the sentencing court in a letter written by him, the applicant claimed,

102. [185]

     The applicant conceded having lied to the police in his interview with them, and lying to the District Court during the sentence proceedings, with the stated intention of showing remorse to get a lesser sentence. He conceded that he was not “forced” to enter pleas of guilty:

103. [186]

     In re-examination the applicant was asked about his interview with the author of the pre-sentence report and with Ms Hare. He said that he had made a note of what Mr Rahme had told him to say:

104. [187]

     The applicant then produced a diary opened to entries for 17, 18, 19, and 20 September of an unidentified year, presumably 2015. The diary itself was not tendered, or even marked for identification; rather, counsel for the applicant tendered a photocopy of the entries on a single page with those dates. Under 19 September an entry in the Arabic language was recorded. Across the space for all four days the following note, in English, was recorded:

105. [188]

     As this document was produced in re-examination, the applicant’s evidence as to its provenance was not subjected to cross-examination.

106. [189]

     The next witness for the applicant was ES, who is now 18 years old.

107. [190]

     ES was asked in chief about the interview she gave to police officers immediately after the complaints she and PS respectively made in January 2014. She said that, although she had understood at the time that the interview was [electronically] recorded by the officers, and knew she was obliged to tell the truth, she did not do so.

108. [191]

     She said that she subsequently spoke to Ms Soulayman, and told her the truth about these events. She knew the conversation was recorded by Ms Soulayman, and was aware that a second conversation with her on the following day was also recorded. In that conversation she deposed that she also told the truth. ES acknowledged speaking with a private investigator later, in August 2018, and speaking to him about the events of January 2014. She signed a statement that he gave her.

109. [192]

     With the protection of a certificate pursuant to s 128(5) of the Evidence Act 1995 (NSW) ES said that she understood that, in the statement she signed for the investigator, she was admitting to giving “false stories to police”, and understood that she could be criminally charged as a consequence.

110. [193]

     In cross-examination ES said that she had known Ms Soulayman since she was as young as 7 years of age, and she was “like a mum” to her. ES sometimes did work for Ms Soulayman at the latter’s hairdressing salon, and Ms Soulayman always gave her money on those occasions, to ensure that she did not “go off on the wrong track”. ES regarded Ms Soulayman as someone who had taken her in like a daughter, and who would always protect and look after her. She both looked up to and trusted her.

111. [194]

     ES was asked by the Crown Prosecutor about her interview with police in January 2014, in which she had said she did not lie. When asked about having given the police a lot of detail about what had happened at Macarthur Square, ES said, unresponsively,

112. [195]

     She denied having spoken with police for a long time, or telling them that she and PS had been taken into the security office, or having hugged PS after reuniting with her in the cinema out of concern for her. She claimed that, instead of PS being upset, as she had told police, she was “pretty cheery”. ES claimed that the detail of events that she was able to give to police officers had all come from PS rather than from her own observation and experience, and PS had told her to say those things:

113. [196]

     She denied having punched the applicant when he attempted to remove her jacket. She acknowledged that PS had not been present when she was with the applicant, but claimed that PS had nevertheless told her what to say about it:

114. [197]

     PS’s motivation was, according to ES in her oral evidence, to have the applicant “put away for longer”. She conceded that she had never made that claim before, having told the private investigator that PS had lied and induced her to lie so that PS could get compensation.

115. [198]

     She denied that PS had ever looked panicked, or upset, or that she had been crying and spitting when in a toilet after the incident, as she told police and the private investigator. She denied feeling any concern for her friend.

116. [199]

     ES was asked about her account to Ms Soulayman of her encounter with the applicant:

117. [200]

     She was also asked about her account to Ms Soulayman of PS being made to give the applicant “a gobby”:

118. [201]

     ES said that she was aware that Ms Soulayman had been prosecuted for recording the conversations with ES without her consent, and she conceded telling the police that she had not been aware that Ms Soulayman was recording the conversations, claiming that the police officers were “manipulative”. She accepted that she had initially told Ms Soulayman the same things she told police, and had insisted to her that she was telling the truth.

119. [202]

     ES claimed that she had been pressured by “the lesbians” to lie to police and had wanted to “change her statement” to police ever since making it. She said that she did not do so because the detectives threatened her when she went [to Campbelltown Police Station], and she could not go to any other police station as she could not use public transport to get to Liverpool, and her nan (with whom she lived) was old and did not know Liverpool. Even though ES had been aware that two men had gone to gaol over these events, she did not try to do anything about changing her statement in the intervening years, other than trying once when she was about 15 years old.

120. [203]

     She denied making up her evidence, or having said what she was pressured to say by Ms Soulayman.

121. [204]

     Oulah Soulayman was the final witness in the applicant’s case. Ms Soulayman is a hairdresser by occupation, with her own salon in the Campbelltown area. In August 2018 she made a statement which she identified in evidence in chief, and which forms part of the material produced by Ms Ahmed.

122. [205]

     In cross-examination Ms Soulayman said that she had known ES since she was aged about 7 years old, and had taken her in as a daughter. She said that ES’s own mother was never around, and she had filled the parental role.

123. [206]

     She was asked about the conversation with ES that she recorded on 27 February 2014 in which ES had told her that the applicant had made PS “give him a gobby”, and agreed that ES had said that “he was like making her, like, just pushing her head down”. She agreed that, when she had told ES repeatedly to tell the truth, ES had said “I am telling the truth”.

124. [207]

     She agreed that she had formed strong a view that ES must have gone willingly with the men as “Nobody can force her into anything”. She agreed that she told ES,

125. [208]

     She said she thought ES was lying as “I’ll know from her face as a mum”, and agreed that she prefaced her insistence to ES that ES tell her the truth by reminding her that she gave ES work, money, and opportunities.

126. [209]

     The following evidence was given:

127. [210]

     Ms Soulayman agreed that she told ES, “karma is [ wrongly transcribed as calm as] a fuckin’ bitch” and she would never succeed in life if she put people away in gaol.

128. [211]

     She agreed that she thought PS “must have wanted it” because she did not scream and yell, but walked with the applicant.

129. [212]

     Ms Soulayman agreed that, before she made the first of the two recordings of her conversations with ES, she had received a text message from “Halla” who had stressed in the message the need for Ms Soulayman to get both video and audio recording of the conversation with ES. Having got the recording, Ms Soulayman said that she sent a text message to Halla saying “I’ve got it. I’m going to the police station. Woo hoo”.

130. [213]

     When it was suggested to her that ES had been unaware that a recording was being made of her, she responded “She saw the phone but I didn’t ask permission”.

131. [214]

     She conceded that she had been charged with and pleaded guilty to two offences arising from the recordings she made of the conversations with ES, one of which was an offence of doing an act with intent to influence a witness. She later offered, in an unresponsive answer to a question on a different topic.

132. [215]

     In re-examination Ms Soulayman said Halla was a friend of hers and she was unaware of any connection between Halla and the applicant.

133. [216]

     A statement of Detective Sergeant Robert Brisby dated 19 May 2019 was tendered. D/S Brisby stated that of the two detectives most involved with investigating the allegations of ES and PS, one is unavailable due to illness and the other, D/S Nicholson, has retired. The officer spoke with D/S Nicholson and asked whether ES had ever spoken to him about “recanting” her statement. D/S Nicholson said that ES had never approached him, and he was not aware of any approach by her to the other officer involved in the matter.

134. [217]

     (Given the circumstances of the two officers, plainly it was not open to the applicant to cross-examine them on this point.)

135. [218]

     Ms Popovic is a solicitor who was formerly employed by Rahme & Associates. She appeared for the applicant on 11 December 2014 when he was arraigned, and entered pleas of guilty to counts 1 and 12 of the indictment. She confirmed that the file notes of the appearance and conference with the applicant had been made by her, but had no independent recollection of the matter.

136. [219]

     Ms Hanssen was a solicitor employed by Rahme & Associates. She had a conference with the applicant on 4 July 2014 and made file notes of it. The notes, in evidence as Exhibit 2, record a discussion with the applicant about the possibility of a contested committal with respect to the Macarthur Square allegations. With respect to the HB allegations the notes refer to the applicant as having read the brief of evidence. His account of events is recorded. Ms Hanssen noted,

137. [220]

     The Crown read Mr Rahme’s affidavit of 18 April 2019. Mr Rahme deposed that he was instructed by the applicant from 11 March 2014 until about 20 November 2015. He obtained documents that formed part of the brief of evidence as they were available, and discussed them with the applicant from time to time. He also obtained the CCTV from Macarthur Square and watched and summarised the footage.

138. [221]

     Mr Rahme said that at a conference with the applicant on 4 April 2014 he had gone through the [ES and PS] brief of evidence with him, and his notes of the contents of the CCTV footage. They had discussed the potential difficulties the applicant’s interview with police could pose, as he had lied to police, something that could be used against him if he chose to give evidence at his trial.

139. [222]

     On 15 April 2014 Mr Rahme became aware of the HB charges, and received an electronic copy of the brief. He subsequently saw the applicant in conference and went through both briefs of evidence with him. The applicant wanted time to think about what to do concerning the HB charges. Mr Rahme discussed the recordings made by Ms Soulayman of ES, advising the applicant that it would be possible to use the evidence to attack ES’s credit. He told the applicant that PS’s evidence remained, and noted his concern about the forceful way in which Ms Soulayman had suggested answers to ES in her conversation with her. Mr Rahme told the applicant that, because of the way Ms Soulayman questioned ES, the evidence may not be “the blow to the Crown case that he hoped for”. He denied telling the applicant he had to plead guilty.

140. [223]

     At another conference on 27 July 2014, after the ODPP had advised him it would seek to join the HB charges to the Macarthur Square charges and prosecute all matters together on indictment, he explained the concept of a joint trial to the applicant, and the possible operation of tendency evidence and how it might be used by the Crown.

141. [224]

     Consideration was given to seeking to cross-examine witnesses, including ES, at committal but that course was not taken after receiving advice from Mr Lange of counsel.

142. [225]

     Mr Rahme deposed that he had a number of conferences with the applicant up to 22 September 2014, on each occasion taking the briefs of evidence with him to the prison where the applicant was held. Although he had offered to give the applicant a copy, he did not do so as the applicant was concerned that other inmates might discover the nature of the charges and that could cause problems for him. For the same reason, the applicant did not want any written advice or other document sent to or left with him. Mr Rahme said,

143. [226]

     On 6 November 2014 Mr Rahme instructed counsel, Peter Lange, at a bail application in the Supreme Court before Button J. Mr Lange decided not to use the Soulayman recordings or the Macarthur Square CCTV footage during the application. Mr Rahme recalled that his Honour concluded that the Crown case was a strong one, and that tendency evidence was likely to be admissible. Bail was refused. Mr Rahme thought that the applicant became concerned that he would be convicted of all charges, having heard the judgment on bail.

144. [227]

     At his next conference with the applicant, the applicant said that he wanted to “do a plea deal” with the Crown. They discussed each of the charges and settled on counts 1, 12, and 8, the latter perhaps on a Form One document.

145. [228]

     Since there had been no response from the Crown by the arraignment date, Mr Rahme expected the applicant to enter a plea of not guilty to all charges. He was surprised that the applicant entered pleas of guilty to counts 1 and 12. He was not unduly concerned however, since the pleas were broadly as he had discussed with the applicant and, favourably to the applicant, pleas at arraignment would attract a greater discount on sentence than pleas entered after a trial date was fixed.

146. [229]

     Mr Rahme specifically denied those matters asserted by the applicant in his affidavit, such as telling the applicant he could get whatever he wanted from the ODPP, that the applicant would get twenty years gaol if he went to trial, that the Crown case was “too strong”, or that the applicant “had no chance of winning”. Mr Rahme noted that, as at the time the applicant decided to enter his pleas, he had not spent the 22 months on remand that the applicant referred to in his affidavit, and could not have referred to such a period of custody.

147. [230]

     Mr Rahme described his advice to the applicant in conventional terms as to the admissibility of tendency evidence, a joint trial, likely penalty on a plea, and so on. He also said that he told the applicant of the operation of the sex offenders register, and of the impact that a criminal conviction would have in terms of future work opportunities.

148. [231]

     He said he did not discuss the impact of a conviction on the applicant’s residency status in Australia, as his concern was in achieving the best result for his client once he had decided not to take the risk of going to trial, and pleaded guilty.

149. [232]

     Corrective Services records obtained by Mr Rahme show that he personally visited the applicant nine times before the applicant was arraigned, and a further four times between arraignment and sentence. He also spoke to him on the telephone from time to time.

150. [233]

     Very soon after the applicant was sentenced his family collected much of the brief from Mr Rahme; they had collected all relevant material by 8 July 2016.

151. [234]

     Mr Rahme was required for cross-examination.

152. [235]

     He agreed in cross-examination that the applicant had never said he agreed with the facts alleged against him, and he denied his guilt.

153. [236]

     Of the recordings between Ms Soulayman and ES, Mr Rahme was pressed as to why he did not seek to approach ES or Ms Soulayman, or get further information from ES about her version of the alleged assaults. Mr Rahme deposed that he was doubtful about the probative worth of the Soulayman recordings:

154. [237]

     That view was shared by counsel who was concerned as to their appropriateness and declined to tender them in support of the application for bail in the Supreme Court. Mr Rahme said that it was after the Supreme Court hearing that the applicant raised the question of pleading guilty:

155. [238]

     Mr Rahme said that he stopped investigating possible evidentiary or tactical matters, such as pursuing the records of the applicant’s mobile telephone, or putting on an application for separate trials, after the applicant asked him to negotiate a plea with the Crown. He said, “The instructions I received was, ‘I don't want to go to trial and negotiate a plea’".

156. [239]

     Mr Rahme confirmed that he advised the applicant about the consequence of convictions for the offences, including a likely adverse impact on employment prospects, and entry of his name, by operation of statue, on the sex offenders register. He agreed that he gave no advice about s 501 of the Migration Act; he believed that it was his understanding at the time that the applicant and his family were Australian citizens.

157. [240]

     On the subject of the psychological report obtained from Ms Hare, Mr Rahme was asked about the advice he gave the applicant. The following evidence was given:

158. [241]

     He denied having told the applicant what to say to Ms Hare.

The Application: Leave to Appeal Against Conviction

1. [242]

   The applicant contends that his convictions represent a miscarriage of justice, in that his pleas of guilty were entered in circumstances where he was improperly, incompletely, or wrongly advised by his legal representatives; and where there is available “fresh evidence” that “now establishes that the Applicant did not commit some of the alleged offences; namely, Counts 8, 12 and 13”.

2. [243]

   Although the HB offences are not associated with the “fresh evidence”, which consists of the Soulayman recordings and associated material, it is contended that the pleas to those charges were entered as part of “a flawed plea deal” and should not be permitted to stand.

3. [244]

   The applicant submits that, not only should his pleas and the convictions be set aside, but verdicts of acquittal should be entered to all counts.

4. [245]

   The Crown points out that the evidence of the Soulayman recordings was evidence of which the applicant was aware well prior to the entry of his pleas of guilty, and it is neither fresh nor new. Even if admissible the probative value of that evidence and the later accounts given by ES is very limited, having regard to the circumstances in which it was secured, its content and tenor, and its limited relevance to the counts relating to PS. The credible evidence is that which ES gave in her interviews with police, evidence that is well supported, including by that of PS. The HB offences are unaffected by the “fresh” evidence.

5. [246]

   As to the applicant’s assertions that his solicitor “forced” him to enter pleas of guilty, and “overbore” his free will, the Crown submits that the applicant by his own admission has lied to police, a probation officer, a psychologist, and the District Court, and has no credibility as a witness. Mr Rahme’s evidence is to be preferred and should be accepted. There is no basis to conclude other than that the applicant voluntarily entered pleas of guilty acting in his own best interests, and well understanding what he was doing.

6. [247]

   The application with respect to conviction rests upon the admissibility of the evidence of, and relating to, the Soulayman recordings and whether, in light of that evidence, taken with the applicant’s assertions that he was forced by his solicitor to enter pleas of guilty, there has been a miscarriage of justice.

7. [248]

   It is convenient to commence by considering the question of the “fresh evidence”. This evidence was provisionally admitted, since the Court was not in a position to determine the admissibility of the evidence without hearing from the parties.

8. [249]

   The principles that relate to the reception of fresh or new evidence in an appeal against conviction or an appeal against sentence are well settled. Ordinarily, appeals are determined on the basis of the material that was before the lower court. An appeal is not regarded as an opportunity to improve upon the case there presented or to seek to better the tactical decisions then taken.

9. [250]

   In R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 Kirby J, with whom Mason P and Levine J agreed, said at [63[,

10. [251]

    Other observations on the subject have more recently been made in Wright v R [2016] NSWCCA 118 at [71] – [72]; and Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [104]-[121].

11. [252]

    The evidence upon which the applicant seeks to rely is that of the recordings of ES speaking to Ms Soulayman on 27 and 28 February 2014, and the later statements made by each in August 2018 to the private investigator engaged by the applicant.

12. [253]

    The recordings of February 2014 cannot be regarded as fresh evidence in my view. The applicant himself said in his affidavit to this Court that his brother had made him aware of the existence of the recordings involving ES in early 2014, and that Mr Rahme had also discussed them with him, although telling him that ES appeared to have been pressured and the recordings would not be admissible. Mr Rahme, in his evidence to the Court, said that he had discussed the recordings with the applicant, and noted his reservations about them. Although the applicant could have had access to them, he never indicated any interest in listening to them.

13. [254]

    There can be no doubt that the applicant was aware of the existence of the recordings, and a copy of them was in the possession of his legal representative well before he entered his pleas of guilty to the charges in December 2014 and September 2015. Even allowing for the sort of latitude spoken of in Ratten v The Queen in determining whether evidence is fresh evidence, the recordings cannot be regarded as such.

14. [255]

    Although the statements of August 2018 were not available to the applicant at the time of the proceedings against him in 2015, the evidence each contains was. Whilst there are differences between what ES said to Ms Soulayman in the 2014 conversations and what she said in her two statements to the private investigator, the differences are immaterial to determining whether the evidence is fresh evidence (although they do have considerable relevance to the question of the cogency and veracity of it). The 2018 statements then, are not fresh evidence that the Court would admit on the appeal.

15. [256]

    That is not, however, the end of the matter, since the Court is ultimately concerned with whether there has been a miscarriage of justice. In considering that, the issue of cogency and veracity is significant. The Court is required to form some view of the credibility and reliability of the fresh evidence: Gallagher v The Queen at 398.

16. [257]

    In this instance, the Court has had the opportunity to observe the witnesses, and to see the evidence of the accounts of the relevant events given by each contemporaneously. In that sense, the Court is not greatly at a disadvantage to the position that any jury might have been in, were the evidence to have been available at a trial.

17. [258]

    Having seen ES give her evidence before this Court, and examining that evidence in the context of her statements to police in 2014, the conversations with Ms Soulayman in February of that year, the statements of August 2018, the CCTV footage from Macarthur Square, and the other evidence in the brief of evidence relevant to those allegations, I would not describe ES’s present evidence as either credible or reliable, and I think it is highly unlikely that any jury would be likely to believe it, or even to give it sufficient weight as to raise a reasonable doubt as to the applicant’s guilt of the charged offences.

18. [259]

    ES’s August 2018 statements and her evidence to this Court are inconsistent with the accounts that she gave as a 13 year old child, within days of the events taking place. Unlike those contemporaneous accounts, her present evidence is implausible, and lacking in cogency. Indeed, I would go so far as to conclude that it is false.

19. [260]

    If the matter had proceeded or did proceed to trial in circumstances where the applicant were able to raise ES’s changed evidence, that evidence would fall to be assessed in light of all of the other relevant evidence.

20. [261]

    The jury would see ES as a 13 year old girl giving the police a highly detailed account of events that is consistent with the account given by PS, and with the CCTV footage from Macarthur Square. The level of detail provided could only have come from her own observations and things she experienced herself. It would not have been possible for ES to provide the extensive amount of detail she gave to police, that happened to coincide with PS’s account of events, having been told by PS no more than that she had been raped, as ES said in her August 2018 statement. It would have been almost equally impossible for ES to give such a detailed version of events that corresponded with PS’s account, and with CCTV footage, on the basis of what PS could tell her during a short bus ride on 5 January 2014, as ES said occurred in her evidence to this Court.

21. [262]

    It is fanciful to conclude otherwise, and I am not persuaded that there is a reasonable possibility that any jury would take a different view. That is particularly so when consideration is given to the substance and presentation of ES’s accounts to police.

22. [263]

    In her police interviews, given in circumstances where she was made aware of and clearly understood the importance of telling the truth, ES described what had happened in language all her own, and in a remarkably vivid and compelling manner. She gave that account without any pressure from the investigating officers, and generally by responding to open ended, non-leading questions.

23. [264]

    The evidence is consistent with the evidence of PS, PS’s family and a family friend, who saw both complainants very soon after the events, and provided an account of the level of PS’s distress when she made complaint, and ES’s concern for her friend.

24. [265]

    That evidence will be contrasted with the accounts given to Ms Soulayman by ES, and the way in which that evidence was, to use Ms Soulayman’s word, “coaxed” from her. On the basis that the evidence was admissible, it is evidence which, in my conclusion, is highly unreliable, but further, it is evidence which could lead a tribunal of fact to suspect criminal interference with a witness going beyond that to which Ms Soulayman pleaded guilty. There is, in my opinion, real danger to the applicant in the Soulayman and related evidence.

25. [266]

    In her evidence to this Court, Ms Soulayman was a most unimpressive witness.

26. [267]

    She maintained that ES had come to her to unburden herself of her guilty secret of having lied to police. It is clear however, from things said by Ms Soulayman herself that, for a reason which is not established on the available evidence, she made it her business to induce ES to resile from her account of the Macarthur Square events, and further, to record her recantation.

27. [268]

    There is firstly the evidence of the text communications between Ms Soulayman and Hallal prior to and after the recording of 27 February 2014 was made. Although Ms Soulayman said she was unaware of any connection between Hallal and the applicant, there is nothing to explain who Hallal is relevant to these events, and what the basis of his or her interest in them may have been. It is, at the very least, suspicious.

28. [269]

    Ms Soulayman referred to another individual as providing her with information that led or contributed to her forming a view that no sexual assault had taken place on 5 January 2014. Before this Court she referred to “Irene” having told her “on the day this all happened” that an application was made for victims compensation. That is, Ms Soulayman had information on 5 January 2014 about the Macarthur Square incident that played, it seems, a material role in her decision to speak to ES and make her tell the “truth” about what had occurred.

29. [270]

    There is no evidence as to Irene’s identity, the basis for her knowledge of or interest in these events, speedily obtained as it was, or as to whether Irene has any connection with the applicant or any other person involved in these events. Again, it is, at the very least, suspicious.

30. [271]

    Ms Soulayman’s manner in Court did nothing to dispel any concern that she had an undisclosed motivation for her actions. Having watched her carefully as she gave her evidence, and considered the recordings and her August 2018 statement, I would not discount that she did have such a motive. She impressed me as a witness upon whose evidence no reliance could be placed.

31. [272]

    If the recordings she made were tendered to any tribunal of fact (and there is a real issue as to the legality and therefore admissibility of the first of the recordings) that tribunal of fact would have to assess the electronic recordings in that overall context. The tribunal would also have regard to other, disturbing, features of the making of the recordings in which, after holding out a promise of a future apprenticeship, Ms Soulayman chides, hectors, and badgers a 13 year old girl who trusted her as a mother, into disowning the account she had earlier insisted was the truth.

32. [273]

    Ms Soulayman manipulated ES for her own ends. She held out the prospect of an apprenticeship to ES; she reminded ES of what she had done for her, giving her money and work; she berated ES for not telling her the truth; she appealed to ES’s pride as a “Rosey girl” who could not be forced to do anything she did not wish to do; she belittled ES’s concern at what had taken place in the cinema; she tried to make her feel responsible for the fate of two “family men” who were “locked up”; and finally, she appealed to ES’s gratitude to her for loving her, to induce her to recant her account of what had happened on 5 January 2014. It is little wonder ES finally broke, and conceded that Ms Soulayman’s assertions about what had occurred were “true”.

33. [274]

    Her later account to police of feeling that she had to say what Ms Soulayman wanted her to say to keep her happy could only reinforce for any tribunal of fact the injustice done to ES by Ms Soulayman.

34. [275]

    The danger to the applicant is that a tribunal of fact might wonder, or even conclude, that he or someone close to him had enlisted Ms Soulayman to undertake the very task she busied herself with on 27 and 28 February 2018, to interfere with a witness.

35. [276]

    Since the first recording was likely to have been made in breach of s 7(1) of the Surveillance Devices Act 2007 (NSW), in that, as appears from the recording and from ES’s account to police at the time, she was unaware that a recording was being made, the recording might be excluded as unlawfully obtained evidence.

36. [277]

    Assuming for present purposes however, that the evidence was admitted, perhaps pursuant to s 138 of the Evidence Act, I am unable to conclude that the evidence would have the effect, or possibly have the effect, of leading a jury to have a reasonable doubt, or giving rise to a likelihood of a different verdict with respect to counts 8 and 12: Gallagher v The Queen at 399.

37. [278]

    The evidence contained in the statements of August 2018 does nothing to improve the prospects of such an outcome.

38. [279]

    Most of what Ms Soulayman states is inadmissible: as opinion evidence; or hearsay; or speculation. Were she to be called to give such evidence as she could, it would be open to the Crown to cross-examine her, likely to good effect.

39. [280]

    In her two August 2018 statements ES gave an account of events each of which contradicted the other in some respects, and which differed materially from what she had said to Ms Soulayman on 28 February 2018. In her evidence before this Court, even under the gentle cross-examination of the Crown, ES presented as a witness who struggled to keep her story straight. She raised some significant matters for the first time, and contradicted other things she had said in earlier statements to Mr Creighton, such as PS’s motivation for “falsely” claiming she had been sexually assaulted.

40. [281]

    It is likely that any jury would conclude, as I did, that ES had been persuaded to give false evidence in her August 2018 statements, and to this Court, by some person, and did so. Her accounts to police in January and March 2014 continue to ring true, particularly when assessed against the other evidence available to be called in support of the charges.

41. [282]

    Finally, it must be recalled that ES’s evidence went directly only to count 8, the least serious of the allegations, and to count 5 of the indictment (assuming that the Crown proceeded on all fourteen charges in the absence of a resolution by way of pleas of guilty). PS’s evidence was capable of standing alone, undiminished by the suspect testimony of ES. The counts that related to HB were entirely unaffected by the “fresh evidence”.

42. [283]

    It remained to the Crown to present a joint indictment, and seek to rely upon evidence pursuant to s 97 of the Evidence Act, with HB’s evidence admitted relevant to all counts concerning PS, and PS’s evidence admitted relevant to all counts concerning HB.

43. [284]

    Taking into account all of these features, I am unable to conclude that the evidence is “fresh evidence”. Even if it were, and noting the applicant’s submission that he should be acquitted, this is not evidence which, even when viewed in the most favourable light possible (and that is not much more than a darker shade of grey) it is not evidence of such cogency as to show the applicant’s innocence, or raise a reasonable doubt as to his guilt. It cannot lead to his acquittal. Neither is the evidence of such a standard as to require the verdicts to be set aside and a new trial ordered: it is not credible, it is not capable of belief, and it is not plausible.

44. [285]

    The absence of the “fresh evidence” at any trial cannot be said to have occasioned a miscarriage of justice and the applicant’s contentions in this regard must be rejected.

45. [286]

    This second aspect of the applicant’s case for a miscarriage of justice arises from what he asserts was the improper pressure placed upon him by his legal representative to enter pleas of guilty, coupled with asserted inadequacies and incompetence in the legal advice given to him.

46. [287]

    Where an applicant entered a plea or pleas of guilty and subsequently seeks to appeal against conviction, it is necessary to conduct an examination not into the applicant’s guilt or innocence, but into the integrity of the plea of guilty: Sabapathy v R [2008] NSWCCA 82 at [14], per Giles JA, with whom Adams and Latham JJ agreed. An inquiry into the question of guilt is not required because the plea is an admission of the necessary legal ingredients making up the offences.

47. [288]

    For the Court to consider setting aside pleas of guilty entered by an applicant, some feature must be demonstrated that calls the integrity of the plea into serious question. In Sauer v R [2006] NSWCCA 81 Grove J set out features that may have such an affect, at [8]:

48. [289]

    It must be observed that a person need not be guilty to validly plead guilty, and to be kept to that plea by the courts. The question was considered in Meissner v The Queen (1995) 184 CLR 132, where Brennan, Toohey, and McHugh JJ said, at 141 to 142,

49. [290]

    The applicant having entered his pleas in open court in December 2014 and September 2015, to conclude in this case that the pleas were compromised, it is necessary to assess their validity. That is so even with respect to the pleas entered on 11 December 2014 since it is clear from the transcript of the arraignment proceedings, and from the file note made by Ms Popovic that, having entered a plea of guilty to count 1, the applicant was given an opportunity by the presiding judge, at the behest of Ms Popovic, to reconsider that plea. With the benefit of advice, and that opportunity, the applicant did not seek to alter the plea entered as mistaken. Instead, he went on to enter a plea to count 12. It is no mere coincidence that he “mistakenly” entered pleas of guilty to the two counts he had asked his solicitor to persuade the Crown to accept in full discharge of the indictment, with the possibility of count 8 being taken into account.

50. [291]

    To conclude that the pleas were compromised, it would be necessary to accept the applicant’s evidence as to the improper conduct of Mr Rahme, and to accept his evidence in preference to that of his solicitor. This Court is able to make an assessment of the credibility of each as a witness, having seen both give evidence, in circumstances where there is some evidence independent of both to consider.

51. [292]

    The applicant’s evidence falls to be assessed in the light of his concession that he has consistently lied during the course of the police investigation, and the District Court proceedings, including presenting a letter to that court which he told this Court was false in its contents.

52. [293]

    The applicant lied to his employers when first asked about the events of 5 January 2014, he says because his co-accused told him to, and he was concerned for his employment. Although when speaking to police on 9 January 2014 he must have understood that much more was at stake than his employment, he lied extensively in an interview that contains 1530 questions and answers. Having entered his pleas of guilty, he says that he lied to the author of the pre-sentence report, and lied to Ms Hare during a two hour interview, by, he asserts, parroting what he says he was told to say by Mr Rahme, evidently so successfully that she assessed him to be a reliable historian.

53. [294]

    The applicant subsequently penned a letter to the sentencing court that he now says was dictated by a fellow unnamed gaol inmate and was false. He also asked his father to make a false statement as to his remorse, and tendered that to the sentencing court.

54. [295]

    That level of deliberate falsehood, if it was falsehood, is such as to necessarily give strong pause to any court assessing the veracity of anything said by the applicant, particularly where what he says is said in support of a significant benefit to him. After all, as the applicant said in his affidavit, in the District Court, he was prepared to tell anyone whatever they needed to hear, if it meant he could “get out”. How much more might that be the case where the applicant’s assertions to this Court go to support his application for the convictions to be set aside and acquittals entered?

55. [296]

    Those concerns were not allayed by seeing the applicant give his evidence before us. I judged him to be unreliable, a witness who would say whatever he regarded as necessary to advance his case. He was even prepared in evidence to implicate his father in, at least, making a false statement, if not perverting the course of justice, to serve his ends.

56. [297]

    In his evidence the applicant produced, without notice to the Crown or to the Court, a diary note which he said he made to the dictation of Mr Rahme, who told him what to say to Ms Hare. It is contended that this corroborates the applicant’s assertions in this regard. There are a number of reasons why the diary note does not serve that function.

57. [298]

    Firstly, the diary was produced very late in these proceedings with no adequate explanation offered for the lateness. Because of that, the Crown had no opportunity to examine the diary, visually or forensically. The Crown Prosecutor in this Court had the diary in her hands for less than half a minute. In those circumstances, the Crown was disadvantaged in seeking to deal with that evidence, and some caution must attach to it.

58. [299]

    Secondly, the diary itself was not tendered; only a photocopy of a single leaf of the original is in evidence. It is thus not possible to make any comparison with the note entered by the applicant, he says, to Mr Rahme’s dictation, and other entries in the notebook, to see if there is internal consistency in the entries overall.

59. [300]

    Thirdly, the note, entered across the spaces for 17, 18, 19, and 20 September is written in English, that being the applicant’s second language. The only other entry available to the Court to compare to that entry is noted in the space for 19 September: it is in the Arabic language. That suggests that notes made by the applicant for his own use may have been more usually made in the Arabic language. (The notation can do no more than raise the suggestion, because of the way the document was tendered – in re-examination, without cross-examination on it by the Crown, and where the information about the Arabic language entry came from counsel and the then unsworn applicant answering questions from the Court.) There must at least be a question mark as to why the applicant wrote a note designed as an aide memoire for himself in English, rather than in his native tongue.

60. [301]

    The diary entry has all the hallmarks of a self-serving statement produced at a later stage to support the applicant’s claim. In the absence of any contemporary evidence to support the existence of such a note, I do not accept on balance that it is what it is claimed to be.

61. [302]

    The other feature of some significance in the applicant’s evidence is his concession in cross-examination that Mr Rahme gave him thorough advice about his options, telling him, on the applicant’s evidence, “we can go to trial, but I wouldn’t recommend it because it’s too risky”.

62. [303]

    That is a concession that Mr Rahme laid out the options for the applicant, with one of those options being to proceed to trial, and left the choice to his client. That course is not one that could be regarded as bringing improper pressure to bear, or “forcing” a client to do anything.

63. [304]

    The concession is also consistent with Mr Rahme’s evidence, supported by conference and other file notes. Whilst not the most detailed and thorough file record that one could hope to see on a solicitor’s file, the notes provide general support for Mr Rahme’s evidence that the applicant’s early intention was to plead not guilty, and he took sensible steps to prepare the matter, for his client, including sounding out trial counsel who might be available to take the brief.

64. [305]

    After the Crown took over the prosecution of the HB allegations from police, and decided to jointly indict the applicant with those and the PS and ES charges, with tendency evidence to be called; and subsequent to the unsuccessful application for bail to the Supreme Court, Mr Rahme deposed, and his file notes support, that the applicant raised the issue of a plea. The applicant’s aim at that point was, according to Mr Rahme, to get the best outcome he could for himself.

65. [306]

    A wish to achieve the most favourable, or least unfavourable, outcome is not inconsistent with a plea properly entered. The fact that an applicant later changes his or her mind, or thinks a better outcome might have been achieved by taking a different course, is not a circumstance that vitiates the validity of the plea of guilty.

66. [307]

    The applicant claims that, had he known about the Soulayman recordings he would not have entered pleas of guilty. I have already concluded, in part based upon the applicant’s own evidence, that he did know about the recordings, from his family and from Mr Rahme. It is likely that he accepted at the time Mr Rahme’s advice that the evidence was problematic, and not as significant as the applicant hoped it was. Such advice was entirely sensible and proper.

67. [308]

    The applicant also asserts that, had he known his residency visa would be cancelled, he would never have entered pleas of guilty. This assertion has to be considered in circumstances where, on the evidence, the applicant’s citizenship and residency was in serious jeopardy months before he entered his pleas of guilty, it appears, through his own fault.

68. [309]

    The Departmental records produced by Ms Ahmed make clear that, contrary to the applicant’s claimed, but unfounded belief, he was not a citizen of Australia. The travel identity document issued to him by the Australian Government in 2013 records the applicant’s nationality as “stateless”. It might be assumed that the applicant would be familiar with the identity document issued to him.

69. [310]

    It is also apparent from the records that, although the application for citizenship had been approved, citizenship itself had not been bestowed, and would not be until a pledge of commitment was taken. The applicant never made the pledge and that failure, without explanation, was the precipitating feature for the Department to cancel the citizenship approval in June 2014, six months before the first pleas of guilty were entered. Although there is some reason to conclude that the applicant may not have been aware of that decision, it seems that that was because he had not advised the Department of a change in his address. That fault can hardly be laid at Mr Rahme’s feet. It was the applicant’s responsibility to attend to matters connected with his citizenship, particularly in circumstances where he never instructed or funded Mr Rahme to do so on his behalf.

70. [311]

    Mr Rahme could never have given the applicant the advice he asserts he should have received, as Mr Rahme was given inaccurate information as to the applicant’s immigration status, information that was or should have been known to the applicant. A legal advisor cannot be expected or required to go behind a client’s instructions on the assumption that he or she has been given incorrect information.

71. [312]

    It seems to be the applicant’s belated attention to his citizenship status that has prompted these proceedings, rather than any genuine claim that the applicant has been the victim of a miscarriage of justice at his solicitor’s hands.

72. [313]

    Having seen Mr Rahme give his evidence, I accept him as a witness of truth, whose testimony may be accepted as reliable.

73. [314]

    On my assessment of the evidence the Crown was able to call against the applicant, the advice given to him by Mr Rahme was sound. The case against the applicant was a strong one. The prospect that all three allegations would proceed by way of a joint trial only strengthens that conclusion, as does the likelihood that tendency evidence would be admitted.

74. [315]

    On a plea, the applicant was sentenced for three counts on indictment, with two charges taken into account (and, contrary to the applicant’s submissions and grounds of appeal, not the subject of convictions). Had the matter proceeded to trial, there was a real prospect that the applicant may have been found guilty of more, and more serious, charges. Had that occurred, his sentence could only have been significantly longer.

75. [316]

    Predicting the outcome of a jury trial is not a perfect science; it is a matter of assessing the evidence, the likely impact of the evidence on the tribunal of fact, and the likely outcome overall. There is no certainty that the prediction, no matter how well informed, and no matter how much experience underlies it, will manifest. Mr Rahme’s assessment was sound.

76. [317]

    This Court must make the assessment in circumstances where, because of the pleas entered, no trial was conducted. The task is thereby made all the more difficult. Bearing in mind those exigencies, had the matter proceeded as a trial, and even on the basis that the “fresh evidence” had been adduced, there is a strong possibility that the applicant would have been found guilty of an indictment containing considerably more than three counts.

77. [318]

    In my conclusion, there has been no miscarriage of justice, and the grounds of appeal proposed by the applicant are without merit.

78. [319]

    As earlier observed, this application has been brought well out of time. An extension of time is required.

79. [320]

    In his affidavit of 14 September 2014 the applicant gave an account of events which followed the imposition of sentence upon him, addressing the question of the extended delay in bringing this application.

80. [321]

    He said that, although Mr Rahme lodged a Notice of Intention to Appeal on the day sentence was imposed, he withdrew instructions from Rahme and Associates soon after, engaging Fortis Law Group. He deposed that the solicitor from that firm did not explain anything about the appeal when visiting him, and usually discussed unrelated matters such as soccer. He was not given any written advice or other relevant information. In mid-2017 the applicant withdrew instructions from Fortis Law Group as he “was unable to see any light at the end of the tunnel and decided to just accept [his] fate”. He “lost hope in the legal system and in lawyers” and could not understand why things were so bad for him.

81. [322]

    Later that year the applicant spoke to another inmate with “citizenship issues” and, as a consequence, began to worry that he may have the same difficulties, and face deportation or immigration detention. In January 2018 he instructed his current lawyers for advice as to his citizenship status and, having received that advice, instructed them to “re-open” his criminal matter.

82. [323]

    That evidence explains why a fresh Notice of Intention was filed on 20 September 2018, but it does not explain why the earlier Notice was allowed to lapse, and why nothing was done to materially advance the matter in the period of two years or so between the applicant abandoning his intention to appeal, and commencing the current proceedings.

83. [324]

    It is tolerably clear that the applicant abandoned his intention to appeal, until such time as he became aware that he may face adverse consequences for his residency in Australia. That is what seems to have prompted these proceedings. I do not regard that as a reasonable explanation for delay.

84. [325]

    Delay alone would not be enough to prevent an applicant from bringing a meritorious appeal, since the Court is ultimately concerned to ensure that the interests of justice are served. This is not a matter, however, where the merit of the application dictates an extension of time being granted.

85. [326]

    I would refuse an extension of time in which to bring an appeal against conviction, and dismiss the application

86. [327]

    Presumably with the expectation - or hope - that his convictions for, at least, the PS and ES offences may be quashed, the applicant took no steps to prosecute his application for leave to appeal against sentence beyond filing the Notice of Intention and associated documentation in September 2018. No proposed grounds were identified or submissions made. With no grounds to address, or submissions to which to respond, the Crown did not address the application for leave to appeal against sentence.

87. [328]

    That leads to a practical dilemma. The applicant’s NPP expires early in the new year and it is clearly desirable that his application be heard with expedition, and by the same bench as presently constituted. The former could only be achieved by displacing some other matter, which would be unfair to the affected litigant; as a matter of practical reality the latter cannot be achieved before the year ends. The only possible means of dealing with it prior to the expiration of the NPP is to determine it on the papers.

88. [329]

    In those circumstances, I would propose that leave be granted to the applicant to file any proposed grounds of appeal against sentence and written submissions in support by 26 July 2019, with the Crown to file its submissions by 2 August 2019. Any submissions in reply by the applicant should be filed by 9 August 2019.

89. [330]

    If grounds and submissions are filed, the application will be considered on the papers, by the bench as presently constituted, without further oral hearing before the Court.

90. [331]

    I propose the following orders:

    1. (1)

       Extension of time in which to bring the application for leave to appeal against conviction refused.

    2. (2)

       Application for leave to appeal against conviction dismissed.

    3. (3)

       The applicant is to file and serve any proposed grounds of appeal against sentence, together with written submissions by 26 July 2019.

    4. (4)

       The Crown is to file its written submissions by 2 August 2019.

    5. (5)

       Any submissions in reply from the applicant are to be filed by 9 August 2019.

    6. (6)

       Any application for leave to appeal against sentence will be dealt with on the papers.