Vasilevski v R

THE COURT: The applicant, Steve Vasilevski, was charged on indictment with the following offences:

Section 61I of the Crimes Act 1900 (NSW), under which Counts 3, 4, 5 and 7 were brought, is in the following terms:

Section 323 of the Crimes Act, under which Count 9 was brought, is in the following terms:

Following a trial before Baly SC DCJ and a jury in the District Court of New South Wales at Newcastle between 18 February 2019 and 27 February 2019, the jury found the applicant not guilty on Counts 1-5, 7 and 8 but guilty on Counts 6 and 9.

At the time that the offence constituting Count 6 was committed, the applicant was the subject of an apprehended domestic violence order and was also on bail for other offences. He was arrested on 19 December 2016 and was refused bail. He was released on bail on 9 January 2017.

On 15 April 2017, the applicant was arrested and charged in relation to contravention of the apprehended domestic violence order and refused bail in respect of all charges that were then pending. The conduct the subject of the contravention was the assault which became Count 6 on the indictment. There was a mention before a magistrate in the Muswellbrook Local Court on 19 April 2017 relating to bail. As shall be seen, this mention was relevant to what ultimately became Count 9 on the indictment.

On 29 May 2017, the applicant was arrested in respect of matters that ultimately formed the basis of Count 9.

On 10 May 2019, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant was sentenced by Baly SC DCJ to an aggregate term of imprisonment consisting of a head sentence of 4 years with a non-parole period of 3 years in respect of Counts 6 and 9. Her Honour nominated indicative sentences of imprisonment of 2 years and 6 months in respect of Count 6, 3 years and 6 months in respect of Count 9 and 14 months for breach of the apprehended violence order. Also before the court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) was the related offence of contravening an apprehended domestic violence order (s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)), which attracted an indicative sentence of one year.

The applicant appeals his conviction and seeks leave to appeal the aggregate sentence.

The applicant appeals against his conviction on Counts 6 and 9 and his sentence on the following grounds:

During the course of the hearing, counsel for the applicant sought and was granted leave to add a further ground of appeal, which was expressed in the following terms:

The essence of the applicant’s appeal against his conviction on Counts 6 and 9 is captured in the following three paragraphs of the written submissions filed on his behalf (at paras 26, 34 and 36):

The additional ground of appeal was not felicitously drafted. It was formulated following questions from the Court as to: (i) the terms in which the jury had been directed in respect of Count 9; (ii) the lack of particularisation as to the “true evidence” referred to in Count 9; and (iii) whether or not the jury’s decision to acquit the applicant on Count 7 was inconsistent with its decision to convict on Count 9.

The applicant and the complainant had been in an ongoing sexual relationship since early 2015. The complainant gave evidence that she was aged 19 when she first met the applicant who, at that time, was aged about 40 and was married with two children. In cross-examination, the complainant agreed that the relationship between herself and the applicant commenced in about late February 2015, and ended on 19 December 2016. The assault occasioning actual bodily harm the subject of Count 6 occurred on the evening of 18 December 2016 (or early in the morning of 19 December 2016) at a graveyard near Denman to which the applicant and the complainant had driven.

The applicant, having abused her verbally, threatened the complainant en route to the graveyard. At the graveyard, he said that he wanted to kill her, told her to get out of the car and tried to run her over. She then threw a rock at him which hit him on the head. At some point, the applicant hit her on the left leg with a “full swing” using a bamboo stick which was in the car. They then returned to the applicant’s house in Paxton Street, Denman. At that point, the complainant left the applicant’s company and took refuge in a house up the road in circumstances described more fully later in these reasons.

Later that day, the complainant said that she returned to the Paxton Street property and was sexually and physically assaulted by the applicant. These allegations formed the basis of Counts 7 and 8 on the indictment in respect of which the applicant was found not guilty.

The Crown alleged that the applicant caused the complainant to write and execute a statutory declaration on 20 February 2017 which was in the following terms:

At the time this statutory declaration was made, the only sexual assault allegation that the complainant had made against the applicant was that which ultimately formed the subject of Count 7 on the indictment, namely that on 19 December 2016, in Denman, the applicant had sexual intercourse with the complainant without her consent and knowing she was not consenting (see [16] above). The allegations which gave rise to Counts 1-5 on the indictment, Counts 3-5 of which were also allegations of sexual assault, were not made until February 2019, shortly before the trial commenced.

It follows that the “rape accusations” referred to in the statutory declaration, extracted at [17] above, must be taken to be those that related to the sexual assault which was alleged in Count 7 to have occurred on 19 December 2016, the day following the physical assault which was the subject of Count 6.

Notwithstanding the acquittal on Count 7, it is necessary to refer in some detail to the evidence adduced in support of that charge and the evidence in support of Count 6.

The events the subject of Count 6 began on the evening of 18 December 2016. The complainant said that on that evening, the applicant drove her from his house at Paxton Street, Denman, past the train tracks to the graveyard. She said that, along the way, he “called me a lot of names and stuff”, of a derogatory nature, and “said he was going to kill [the complainant]”.

The complainant gave evidence that, at the graveyard, the applicant told her to get out of the car, and that they were “[s]creaming back and forth”. She said that she was screaming at him to “take me home” and to “please stop” and that he was saying that “he’s going to kill me, that he was going to end me.”

After the applicant threatened to kill her, the complainant said that he got back into the car and prepared to run her over. She went on to say that after he attempted to run her over a couple of times, the applicant got out of the car and told the complainant to get into the car.

The complainant gave evidence that she had picked up a rock in each hand, and kept saying that she did not want to get back into the car and that she was really scared. When the applicant started walking towards her, she said that she “thought he was going to hit [her]”, and so she “ducked and [threw] a rock at the same time, and it had got him on the forehead”.

The complainant also gave evidence that the applicant hit her once on her left leg with a “full swing” with a piece of bamboo that she had with her in the car. She also gave evidence that, before they got back to Denman, the applicant punched her in the face leaving her nose “pretty sore”.

Upon arriving at Paxton Street, the applicant and the complainant returned to the applicant’s house. At about 12:15am on 19 December 2016, police attended the premises, and spoke briefly to the applicant. He had a towel around his head. The complainant had taken off and gone to another house down the street, and went to sleep in a back sunroom.

The complainant did not know Ms Therese Garland, the owner of the house to which she had gone. Ms Garland found her there at about 5:30am on 19 December 2016. The complainant told Ms Garland that she was running away from “Steve”. Ms Garland had to go to work and arranged for a neighbour, Ms Amanda Limon, to check on the complainant’s welfare. After speaking to Ms Limon, Ms Garland telephoned police, who attended Ms Garland’s premises at about midday. The complainant told Detective Senior Constable Mawhinney that the applicant had “bashed me again last night”. Detective Mawhinney observed abrasions, scratches and bruising on the complainant’s legs. The injuries were later photographed.

The complainant told Detective Mawhinney that she did not wish to take any action. Ms Garland suggested to the complainant that she could not go back to the applicant, but the complainant said:

Between 10:59am and 4:32pm on 19 December 2016, the applicant and the complainant exchanged no fewer than 143 text messages. The text messages reveal a considerable degree of conflict, but by 12:39pm, the applicant was asking the complainant to come to his house. Eventually she agreed.

The complainant’s evidence was that they then went into the lounge room; the applicant “was making out like he was tired” and he wanted to go into the bedroom to lie down.

She was asked during examination-in-chief if she wanted to lie down with the applicant, to which she replied:

She said that she was lying on her stomach with her face in a pillow and the applicant then inserted his penis into her anus. Asked by the Crown if she wanted him to do that, she said:

Precisely what occurred immediately thereafter is not clear on the evidence. What is clear is that police were called again, and attended at about 5:40pm. They saw the complainant seated outside:

At about 6:45pm the complainant sent the applicant a text message which read:

The complainant returned to Ms Garland’s house. Ms Garland arrived home at about 5:45pm. The complainant told Ms Garland that she had been raped. An ambulance and police were called and the complainant was taken to the local (Muswellbrook) hospital. She was later taken to the John Hunter Hospital in Newcastle, where she was examined by Dr Anousha Victoire. She told Dr Victoire that she had been raped between 1:00pm and 2:00pm.

In cross-examination, the applicant’s counsel put to the complainant that she had not only consented to various forms of sexual intercourse, including penile/anal intercourse, but had instigated it. It was the applicant’s case that consensual penile/anal intercourse took place in his house on 19 December 2016.

Counsel also put to the complainant that she did not go to the graveyard with the applicant in the circumstances she described the night before and that the applicant did not assault her.

The complainant rejected both propositions.

Dr Victoire gave evidence that she performed a medical and forensic examination of the complainant on 20 December 2016 at John Hunter Hospital. Reading from her report, Dr Victoire gave evidence as follows:

Dr Victoire gave further evidence in relation to accidental injury, stating that:

The applicant did not give evidence.

On 20 February 2017, the complainant made the statutory declaration, the terms of which have been set out at [17] above.

The complainant gave evidence that on 20 February 2017 the applicant drove her to a carpark, and told her that he wanted her to write a statutory declaration. According to the complainant, the applicant spoke to someone on the telephone, asking how to write the statutory declaration legally. After the applicant wrote out a draft copy, the complainant “rewrote it with him”. When questioned whether the applicant had told her why he had this document, the complainant gave evidence as follows:

The complainant gave evidence that she did not want to do it because “writing out false shit really is a big thing”. However, she felt “obligated to”, giving evidence as follows:

The statutory declaration was witnessed at a pharmacy, after which the complainant said she “handed it back to [the applicant]… and that was the end of it.”

The applicant did not give evidence but evidence was adduced at the trial that the statutory declaration was in the possession of his then solicitor, Mr Nikopolous, who appeared on his behalf at a bail related mention in the Local Court on 19 April 2017 (as noted at [6] above) after the applicant had been charged with the sexual assault the subject of Count 7 on the indictment. The applicant had also been charged at that time with the assault the subject of Count 6.

There was evidence adduced at trial that, in the course of the bail mention, Mr Nikopolous informed the Court that the applicant denied the allegations of sexual assault on 19 December 2016 and contended that the applicant and the complainant had no sexual contact on that day.

The complainant was cross-examined about the statutory declaration. When questioned as to whether she knew what was in the statutory declaration before she signed it, she gave evidence that:

The complainant agreed that she knew that at the time of signing the statutory declaration it would be treated as a legal document and would be shown to a judge and the police. It was put to the complainant in cross-examination, but denied by her, that the applicant had nothing to do with the preparation of the statutory declaration. The complainant denied signing the statutory declaration because it was true, giving the following evidence:

Professor Hayes, an expert witness called for the prosecution, gave evidence in relation to the complainant’s statutory declaration in which the complainant stated that her allegation of rape was “false”, and whether this was uncommon in terms of domestic violence relationships. The Professor said:

Professor Hayes gave evidence in relation to whether the complainant’s mild intellectual disability would have had any bearing upon that issue, as follows:

The applicant’s case with respect to Count 9, as revealed by the cross-examination of the complainant, was that she had prepared the document “of [her] own free will”, that she had done so because its contents were true, and that the applicant had nothing to do with it. The complainant rejected these propositions.

Before turning to a consideration of the applicable legal principles and the grounds of appeal, it is necessary to refer to one further aspect of the evidence at trial.

Under cross-examination, the complainant agreed that she had made a false allegation about the applicant to police previously. The complainant agreed that on 8 May 2018, she was sentenced at Muswellbrook Local Court for the offence of making a false allegation with intent to subject another to investigation.

Professor Hayes gave evidence about the complainant’s previous false allegation in relation to the applicant kidnapping her, and offered the following conclusions:

Appeals from convictions on indictment are only as of right if the grounds relied upon involve questions of law alone. In all other cases, leave must be granted to appeal from a conviction on indictment: s 5(1) of the Criminal Appeal Act 1912 (NSW). While the additional ground of appeal raises a question of law alone and is therefore brought as of right (subject to r 4 of the Criminal Appeal Rules), Ground 1, as is accepted, requires leave. We consider this an appropriate case to grant leave.

It is convenient to deal first with the additional ground of appeal, as it relates to Count 9.

That ground raises for consideration whether the conviction on Count 9 can be reconciled with the acquittal on Count 7. The applicant submitted that the two verdicts are inconsistent. For the reasons which follow, that submission cannot be sustained.

The elements of an offence against s 323(a) of the Crimes Act are:

Having regard to the manner in which Count 9 was formulated, it was necessary that the Crown prove beyond reasonable doubt:

An allegation of sexual intercourse without consent contrary to s 61I of the Crimes Act (the subject of Count 7 on the indictment) requires the Crown to prove beyond reasonable doubt three elements, as follows:

By s 61HE(3) of the Crimes Act, the third element may be established by proof that the accused person actually knows the complainant did not consent, is reckless as to whether or not the complainant consented, or has no reasonable grounds for believing that the complainant consented.

Failure by the Crown to prove any one or more of the elements to the requisite standard will result in acquittal.

For the purpose of the consideration of this ground of appeal it may be assumed that the evidence that the Crown contended was true (and that the applicant sought to have the complainant withhold) was either or both of:

That is consistent with the manner in which the trial was conducted. In summing up, the trial judge told the jury that, in relation to Count 7, the issue was consent. Notwithstanding what had been put on the applicant’s behalf in the Muswellbrook Local Court on 19 April 2017, to the effect that he denied any sexual contact with the complainant on 19 December 2016, at trial the applicant did not dispute that on that date penile/anal intercourse took place. Cross-examination of the complainant was to the effect that she had not only consented to various forms of sexual intercourse, including penile/anal intercourse on 19 December 2016, but had instigated it.

It may therefore reasonably be concluded that the jury acquitted the applicant of Count 7 either because they were not satisfied beyond reasonable doubt that the complainant did not consent, or not satisfied beyond reasonable doubt that the applicant knew that the complainant did not consent.

No particulars were furnished nor requested as to what was the “true evidence” which the Crown alleged the applicant intended to cause the complainant to withhold. In the way the trial was conducted, the applicant could have been in no doubt that the “true evidence” was the complainant’s account that on 19 December 2016, the applicant had sexual intercourse with her without her consent. In short, the “true evidence” was the “rape accusations” which the complainant purported to withdraw in the statutory declaration. This is clear from the trial judge’s written directions to the jury in relation to Count 9 which were as follows:

The complainant’s “rape accusations” can be taken to have involved two components:

It may be assumed (and is apparent from the transcript of cross-examination of the complainant) that those allegations were contained in a statement or statements that had, by the time of trial, been served on the applicant. Certainly, no complaint was made at trial that the applicant was unaware of the evidence the Crown relied upon to prove Count 9. Nor was any such complaint made on appeal.

Although proof of the offence of sexual assault entails a further element, namely that the accused person knew that the complainant did not consent, in the way the trial was conducted we do not infer that the “true evidence” the subject of Count 9 included an assertion to that effect. An accused’s knowledge is proved, generally, by inference from other evidence. That is not to overlook that a complainant may give evidence that intercourse was verbally or physically resisted, from which an accused’s knowledge as to lack of consent may be inferred.

We will deal now with the four matters of fact that it was necessary for the Crown to prove to establish the applicant’s guilt on Count 9.

In relation to Fact (i), namely that the applicant caused the complainant to write the statutory declaration, the thrust of the applicant’s case to the jury was that it was a document that the complainant was capable of preparing herself, with the implication that she had done so.

The Crown Prosecutor emphasised that the language employed in the statutory declaration was not language the complainant would use. He also referred to the complainant’s relatively detailed evidence about the circumstances in which she said that the statutory declaration had been prepared, including her evidence that she left it with the applicant after she had executed it and to the fact that the statutory declaration was used on the applicant’s behalf by his solicitor at the bail mention on 19 April 2017.

The jury’s verdict establishes that it was satisfied beyond reasonable doubt that it was the applicant who caused the complainant to write the statutory declaration. Fact (i) is therefore established.

Since the applicant’s case (through cross-examination of the complainant) was that he did not cause her to write the statutory declaration, he made no case with respect to his intention. However, it is inherent in the jury’s verdict that the necessary intention was proved. Fact (ii) is therefore established.

The third fact required to be established was that the complainant was a witness to be called in proceedings in the Muswellbrook Local Court against the applicant.

The expression employed in s 323(a) of the Crimes Act “to be called as a witness in any judicial proceeding” was considered by Gleeson CJ in R v Lansdell (NSW Court of Criminal Appeal, 22 May 1995, unrep) (Lansdell). In Lansdell the charge was attempting to induce a person to be called as a witness in a judicial proceeding to give false evidence. The accused in that case had sought to procure a person who, it may be assumed, would not otherwise have been called as a witness, to give false evidence, and therefore to be a witness. There Gleeson CJ said (at 6-7):

Applying the test stated by the Chief Justice, it was, in this case, objectively highly likely that the complainant would be called as a witness in the proceedings against the applicant, whether on 19 April 2017, or another date (the indictment did not specify the date of the proceedings in which it was contended that the complainant would be influenced to withhold true evidence).

It is true that the indictment specified the Muswellbrook Local Court as the court where the proceedings were to take place, and that location was not established by the evidence of Ms Lyte, a solicitor for the Director of Public Prosecutions. That, plainly, was not regarded by counsel who represented the applicant at trial as a matter of any significance; nor has it struck counsel on appeal as of any significance. It is not, in our opinion, critical to proof of the charge. The location of the court was not a material fact.

Fact (iii) was therefore established.

Consideration of Fact (iv) raises the issue whether the jury could have been satisfied beyond reasonable doubt that “evidence” that was sought to be withheld could be characterised as “true evidence” in light of the acquittal of the applicant on Count 7.

Cross-examination of the complainant on the statutory declaration was, with one exception, entirely directed to the proposition that the applicant had nothing to do with the document and that it was written by the complainant “of [her] own free will” and that she appreciated its significance. She disagreed that it was written of her own volition.

Cross-examination concerning the truth or otherwise of the “evidence” the subject of Count 9 was confined to the question and answer set out at [48] above.

That was the extent to which any issue about the truth of the “evidence” the subject of Count 9 was raised in terms in the course of the trial, although the complainant was obviously cross-examined at length about the substance of the “rape accusations” to which she had referred in the statutory declaration and which formed the basis of Count 7. In this context, the complainant’s evidence on Count 7 at trial necessarily translated to an assertion that “the evidence” the subject of Count 9 was “true evidence” – that is, that the applicant had had sexual intercourse with her and that that sexual intercourse was without her consent.

Had the jury convicted the applicant of Count 7, it could be inferred that it accepted, beyond reasonable doubt, the complainant’s evidence of non-consensual sexual intercourse. That would have been sufficient to establish Fact (iv). The converse does not, however, necessarily follow. Viewed in isolation, the acquittal on Count 7 establishes neither that the sexual intercourse did not take place, nor that (if it did) it was consensual. The most that can be read into the acquittal on Count 7, again viewed in isolation, is that the jury was not satisfied beyond reasonable doubt of one or more of the elements of the offence charged, namely:

These three elements were the subject of clear written and oral instructions to the jury by the trial judge.

Notwithstanding what had been put on his behalf in the Muswellbrook Local Court on 19 April 2017 (denial of sexual contact on 19 December 2016), the applicant did not dispute that, on that date, penile/anal intercourse had taken place. That being the case, element (i) set out in [85] above was satisfied. This meant that the applicant’s acquittal on Count 7 was either because the jury was not satisfied of elements (ii) and/or (iii) set out in [85] above.

It may, in our opinion, be inferred from the applicant’s conviction on Count 9 that the jury must have acquitted the applicant on Count 7 because they were not satisfied to the requisite standard of element (iii) above. Were the jury satisfied beyond reasonable doubt that the sexual intercourse was without the consent of the complainant (being element (ii)), then, axiomatically, it could not have been satisfied beyond reasonable doubt of the equivalent component of the Count 9 charge, that is, the complainant’s evidence that sexual intercourse was non-consensual (the “rape accusations”). The two verdicts would be logically inconsistent. It should not be inferred that the jury acted illogically.

There is no necessary inconsistency of the kind contended for by the applicant between the acquittal on Count 7 and the conviction on Count 9. They can sit together for the reasons set out above.

There was evidence at trial to support the jury entertaining a reasonable doubt as to whether the applicant knew or believed that the complainant did not consent to the sexual intercourse the subject of Count 7 or was reckless as to that fact. This evidence included text messages sent between 10:59am and 4:32pm on 19 December 2016, which suggested at least some equivocation on the part of the complainant as to her feelings towards the applicant. The culmination was that, at the applicant’s request, she went to his home and went into his bedroom with him. She did not suggest that that was other than voluntary. She said that he wanted her to lie down with him; when asked if she wanted to do so, she said:

For these reasons, it was open to the jury to have found beyond reasonable doubt that Fact (iv) was established, namely that the evidence which the applicant sought to have the complainant withhold by executing the statutory declaration was “true evidence”.

We do not consider that, in the circumstances of the case, there was any deficiency in the trial judge’s direction to the jury. Although the “true evidence” was never identified by the trial judge with particularity, it was sufficiently clear from the text of the statutory declaration that this consisted of the complainant’s rape accusations which the applicant had persuaded her to withdraw through the statutory declaration. The purported withdrawal was the relevant withholding of that evidence. The jury’s verdict on Count 9 must be understood to mean that it accepted as true the complainant’s “evidence” in the form of the rape accusations that had resulted in the applicant being charged with sexual intercourse without consent, the offence the subject of Count 7.

Whilst it is true that her Honour could have directed the jury that if they acquitted the applicant on Count 7 because they did not accept the complainant’s evidence that she did not consent to the sexual intercourse that occurred on 19 December 2016, no such direction was sought. The real contest insofar as Count 9 was concerned was whether the jury were satisfied that the applicant had caused the complainant to prepare the statutory declaration.

In opening the case for the applicant before the jury, the applicant’s then counsel said in respect of Count 9 that the applicant denied causing the complainant to write the statutory declaration. The thrust of the Crown’s final address to the jury in relation to Count 9 was that the applicant had in fact caused that to occur.

In his final address to the jury, the applicant’s counsel took issue with the Crown submission that the language used in the statutory declaration was unlikely to be that of the complainant. He also emphasised that there was no evidence of any threat or use of physical violence, even on the complainant’s version of events, to have her execute the statutory declaration and was critical of her evidence in relation to its preparation. He referred to the complainant’s conviction for the offence of making a false accusation with intent to subject another to investigation, emphasising the serious nature of this offence. He submitted that the circumstances in which the events underpinning this charge occurred disclosed “planning and foresight on the part of the complainant concerning the accused and wanting to set him up…”

In short, the thrust of the applicant’s case in respect of the statutory declaration was that it was a document that the complainant was capable of preparing herself, with the implication that she had done so. As with the Crown’s address to the jury, no attention was paid to, nor any analysis made, of what was the “true evidence” withheld in terms of Count 9 on the indictment.

In her summing up to the jury, the trial judge said very little about Count 9, simply summarising the brief submissions that had been made by the Crown and the applicant’s counsel. The trial judge also gave a description of the elements of Count 9 and provided the jury with a document which contained that description. It has been set out at [67] above.

We are satisfied, having regard to the trial judge’s directions and the way the case was conducted at trial, that the jury could have been in no doubt that the effect of the statutory declaration was to withdraw the “rape accusations” which the complainant adhered to in the course of the trial. By their verdict on Count 9 and the acquittal on Count 7, the jury must be taken to have rejected the applicant’s case that he did not cause the complainant to execute the statutory declaration, but had a reasonable doubt as to the applicant’s state of knowledge that the complainant was not consenting to sexual intercourse.

The additional ground of appeal should be rejected.

For similar reasons, we also do not consider that the jury’s verdict on Count 9 was unreasonable, as contended in appeal ground 1. Upon the whole of the evidence, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on this count. The fact that the statutory declaration was deployed by the applicant’s solicitor on 19 April 2017 in the Muswellbrook Local Court was entirely consistent with it having been procured by the applicant, knowing that the complainant had made accusations against him and would be a witness in proceedings.

The foregoing analysis has proceeded on the footing that “true evidence” when used in s 323 of the Crimes Act means “objectively true evidence”, the applicant’s argument being, as has been seen, that the evidence could not have been objectively true evidence if it had been rejected by the jury. But there is a nice question of construction that was not explored in argument, namely whether “true evidence” when used in s 323 (as well as ss 321 and 322) means “objectively true evidence” or “the evidence that a witness truly believes and would give under oath”, whether or not that evidence is objectively true or not.

The difference may be illustrated by way of example. A person to be called as a witness may be persuaded not to give evidence that he or she saw a person at a particular place on a particular day, notwithstanding that such evidence represents the person’s true belief as to what he or she saw and was what the witness would say on oath in the witness box in a hearing. That person’s evidence may be objectively wrong and “untrue”, for example if it were a case of mistaken identity, but nonetheless is evidence which the person believes to be true.

Someone who persuaded that person not to give his or her honest but mistaken evidence would not commit the offence if “true evidence” bears the first of the two meanings identified in [101] above but this construction might not be thought to further the purpose of s 323 of the Crimes Act, which is to prevent interference with witnesses by persuading them to give either false evidence or to withhold true evidence.

If the second interpretation outlined above in [101] were correct, viz. that “true evidence” means the evidence that a prospective witness would give and believe to be true, no question of potential inconsistency in verdicts of the kind considered above would arise. The only inquiry would be as to whether or not the person to be called as a witness was persuaded to withhold some or all of the evidence he or she was otherwise prepared to give. In this context, in R v Danahay [1993] 1 Qd R 271 at 282-283, Williams J (with whom Thomas J agreed) observed:

“True testimony” as opposed to “true evidence” is the expression used in s 127(1) of the Criminal Code (Cth) as well as in s 37 of the Crimes Act 1914 (Cth).

In the absence of any argument on this point, it is sufficient to observe that, irrespective of which interpretation of “true evidence” is correct, we would not set aside the jury’s verdict on Count 9 as unreasonable or grant leave to appeal.

The first point to be made is that the charge uses the language of “with intent to influence”. This language does not reflect the terms of s 323(a) of the Crimes Act. True it is that s 323 of the Crimes Act is headed “Influencing witnesses and jurors”, but this heading does not form a part of the Act: see s 35(2) of the Interpretation Act 1987 (NSW). Whether or not the expression “with intent to influence” constituted “similar words” to those actually employed under s 323(a) of the Crimes Act within the meaning of s 11 of the Criminal Procedure Act was not the subject of any argument before this Court and no point was taken in respect of that question. (Section 11 of the Criminal Procedure Act provides that the “description of any offence in the words of an Act or a statutory rule or other document creating the offence, or in similar words, is sufficient in law”.)

Prosecutors ought, however, to take care in formulating counts on an indictment, to adhere as closely as possible to the language of the statute creating the offence.

The second point to be made is that, as has been seen, Count 9 was expressed in terms of the withholding of “true evidence” as opposed to the giving of “false evidence”. These are two distinct concepts. In the course of the trial, both in addresses to the jury and the summing up, Count 9 was referred to from time to time in terms of the giving of “false evidence” as opposed to the withholding of “true evidence”. The two are distinct concepts and should not be conflated. No point, however, was taken on appeal in this regard.

The test for whether a jury verdict is “unreasonable, or cannot be supported” within the meaning of s 6(1) of the Criminal Appeal Act is whether the court “thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v R (1994) 181 CLR 487 at 494-5; [1994] HCA 63 (M v R). The court is obliged to undertake its own “independent assessment of the evidence, both as to its sufficiency and its quality”: Morris v R (1987) 163 CLR 454 at 473; [1987] HCA 50. The burden of persuading the court that appellate interference is required is upon the person who impugns the verdict: MacKenzie v R (1996) 190 CLR 348 at 370; [1996] HCA 35 (MacKenzie).

However, the court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations”: M v R at 493; Jones v R (1997) 191 CLR 439 at 451; [1997] HCA 56 (Jones).

In R v Baden-Clay (2016) 258 CLR 308 at 329-330; [2016] HCA 35, the High Court stated that:

Where the M v R test is sought to be employed in circumstances not involving legal or technical inconsistency between verdicts of acquittal and conviction, the legal test becomes one of “logic and reasonableness”: MacKenzie at 366-8; Jones at 450; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [6]; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [93] (TK).

The question is whether the jury must, as distinct from might, have entertained a doubt as to the applicant’s guilt: Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113].

In TK, Simpson J (as her Honour then was), with whom McClellan CJ at CL and Latham J agreed, described the approach to be taken as follows. At [128] and [130], she said:

Further, at [158], her Honour said that:

Finally, a verdict of acquittal on one or more counts involving the same complainant does not mandate a conclusion that the jury regarded the complainant as untruthful generally. As explained in MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [34]:

The essential thrust of the applicant’s case in relation to his conviction on Count 6 is reflected in para 27 of his submissions, namely that the complainant was the central witness in the prosecution case and “as such everything depended on her as a reliable historian”.

Whilst it is correct that the complainant was the central witness in the prosecution case, as will be demonstrated, not everything in relation to Count 6 “depended on her as a reliable historian”.

To the extent that the applicant called in aid the complainant’s “belligerent, dismissive and rude behaviour during cross-examination”, it is certainly the case that at various points in her cross-examination, the complainant exhibited these characteristics, but we do not consider that it is accurate or fair to characterise the entirety of her evidence in that way. Further, a distinction must be drawn between the form and the substance of the evidence that the complainant gave. It is true that she became frustrated at various points of the cross-examination with questions she considered to be repetitive or obvious. That is not a unique phenomenon. Moreover, the court should be conscious, with regard to any lay witness, of the pressures that necessarily attend what, for most people, is a one off experience in the witness box.

Insofar as the applicant placed reliance upon the complainant’s history of making a false complaint against the applicant (see [53]-[55] above), that was a matter in respect of which counsel for the defence addressed the jury. That may or may not have had a role in the jury’s decision to acquit in respect of Counts 1-5 and 7-8, but there were other reasons why the jury may have acquitted on those counts. For example, with respect to Counts 3-5 which involved allegations of sexual assault, as the Crown submitted, it may have been the case that the jury had a doubt as to the applicant’s knowledge as to the complainant’s consent or lack thereof, as opposed to simply rejecting the Count by reference to its scepticism as to the complainant’s credibility more generally: see, for example, TK at [158], cited at [115] above.

We do not consider that the jury’s verdict in relation to Count 6 was unreasonable. In particular, we do not think that the jury’s acquittal of the applicant in relation to Counts 1-5 and 7-8 rendered the conviction on Count 6 unreasonable. This is so for the following reasons.

First, the jury was told by the Crown Prosecutor, properly and correctly, that it was not obliged to reach the same verdict on each count. So also the trial judge, in her summing up to the jury, said that:

Secondly, Counts 1-5 were only the subject of complaint by the complainant in a statement made on 12 February 2019, shortly prior to the trial, even though they dated back to events a number of years beforehand. Under cross-examination the complainant was vaguer in her recollections of these events by contrast with the events which were alleged to have taken place forming the basis of Count 6.

Count 6, by way of contrast with Counts 1-5, was the subject of complaint more or less immediately. Thus the complainant explained what had happened to her to Ms Garland as described at [35] above on the following morning and repeated this explanation to DSC Mawhinney that morning: see [27] above.

Thirdly, the fact that the complainant had effectively taken refuge in Ms Garland’s home following her return to Paxton Street from the graveyard with the applicant is consistent with her account that she had been bashed by the applicant.

Fourthly, the complainant’s complaint to DSC Mawhinney included her showing the Detective an injury on her leg where she said the applicant had struck her with a bamboo stick. In this context, a suggestion put to the complainant in cross-examination, namely that the mark on her leg occurred later on 19 December 2016 after she returned to the house in the afternoon was contradicted by the fact that she had shown DSC Mawhinney the injury earlier that day. In other words, this line of attack by way of cross-examination as to the origins of the injury to the complainant’s leg misfired.

Fifthly, the decisions by the jury to acquit on Counts 3-5 and 7, all of which involved allegations of sexual assault, were not necessarily to be explained by a rejection by the jury of the complainant’s credibility as a witness. Rather, and has been observed above, they were capable of being explained by the jury’s non-satisfaction that the applicant was aware, in respect of each of those counts, as to the complainant’s lack of consent. This possibility was far from remote in light of aspects of the cross-examination of the complainant, in which she accepted that she had not expressly indicated to the applicant that she did not consent to their sexual interaction on those particular occasions. Thus, in relation to the earlier allegations of sexual assault, the following exchange occurred:

Later, in answer to a question in which it was suggested to the complainant that she had been seeking out the applicant in order to have sexual intercourse with him, she answered:

Specifically in relation to the sexual assault allegation the subject of Count 7, the complainant was asked whether she wanted to lie down with the applicant, to which she said:

All of the foregoing matters provide a sufficient basis for differentiation by the jury between Count 6 and the other Counts in relation to which the applicant was acquitted. For all of these reasons, the challenge to the conviction on Count 6 as unreasonable should be dismissed.

The application for leave to appeal against sentence is limited to a complaint that the aggregate sentence of 4 years’ imprisonment with a non-parole period of 3 years was manifestly excessive.

The indicated sentences were as follows:

Although the appeal is mounted on the basis that the indicated sentences were manifestly excessive, the applicant's submissions acknowledged that it is the aggregate sentence imposed pursuant to s 53 of the Crimes (Sentencing Procedure) Act which is under challenge as “unreasonable or plainly unjust”. Although the indicative sentences are not amenable to appeal, they may be a guide to whether a House v R (1936) 55 CLR 499; [1936] HCA 40 (House v R) error is established in the aggregate sentence. However, even if any one or more of the indicated sentences might be regarded as excessive, it does not necessarily follow that the aggregate sentence is excessive (see JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]).

In assessing the objective seriousness of Count 6 as falling in the mid-range, the sentencing judge noted that the injury to the complainant’s leg, delivered with some degree of force, whilst not severe was also not trifling. The assault resulted in an abrasion and bruising to the complainant’s left calf.

The applicant challenges the factor the sentencing judge found aggravated that offending, being the applicant’s use of a bamboo stick as a weapon. The finding that the offences the subject of Counts 6 and 9 were aggravated by the applicant being subject to a grant of conditional bail at the time of the offending was not challenged.

Her Honour’s appointment of the objective seriousness of Count 9 in the mid-range, and the breach of the apprehended domestic violence order in the upper end of the mid-range, was not challenged. Insofar as concerns the offending the subject of Count 9, the sentencing judge found that the complainant was vulnerable to the applicant's demands that she execute the statutory declaration due to her mild intellectual disability, the nature of her relationship with the applicant, the disparity in their ages and her drug taking. Her Honour did not regard the absence of any violence or threats as a mitigating factor, since an allegation of conduct of that kind would have constituted a more serious charge (see R v Burton [2008] NSWCCA 128 at [89]-[90] (Burton)).

The applicant’s counsel at the sentence hearing conceded there were no mitigating factors upon which reliance could be placed in the appointment of any of the indicative sentences.

There is no challenge to the degree of notional accumulation of the indicative sentences reflected in the aggregate sentence, or the degree of notional accumulation between Count 6 and the breach of the apprehended domestic violence order the subject of the s 166 certificate, the sentencing judge having accepted that breach of that order, imposed for the protection of the complainant, overlapped with the sentence to be indicated for Count 6.

The only challenge to the facts the sentencing judge found established for the sentence on Count 6 concerned whether, in light of the applicant being acquitted of the assaults charged as Counts 1, 2 and 8 on the indictment, the Crown was able to establish that the assault the subject of Count 6 was not an isolated act of violence.

In respect of that issue, the applicant submitted that the indicated sentence of 2 years and 6 months, against the statutory maximum of 5 years’ imprisonment, was excessive because the sentencing judge took into account what were described in the applicant’s written submissions as “uncharged acts of violence”. That submission proceeds on the assumption that the sentencing judge was prohibited from undertaking any enquiry into whether the assault the subject of Count 6 was an isolated act of violence, or whether it was representative of a wider course of assaultive conduct the complainant was subjected to in her relationship with the applicant.

The assumption that other acts of violence were irrelevant for sentencing purposes is misplaced (see R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209). It is clear from the proceedings on sentence that the applicant’s counsel was aware that the sentencing judge intended to take into account the complainant’s evidence of other assaults she had suffered (other than the evidence led to prove Counts 1, 2 and 8), which had been led at trial for context purposes, in order to determine whether the assault the subject of Count 6 was an isolated act. Both the Crown and the applicant’s counsel were invited to advance submissions as to whether that evidence proved the uncharged acts of violence to the criminal standard. It was in that context that the applicant's counsel objected to parts of the complainant’s victim impact statement which referred to injuries other than those she sustained as a result of the assault the subject of Count 6. That submission was noted in the sentencing reasons, as was counsel’s further submission that the sentencing judge should treat the complainant’s evidence of other assaults with caution, given what he submitted was the sustained challenge to her credit where she admitted under cross-examination in the trial to making a false report of kidnapping.

The sentencing judge acknowledged the need to examine the complainant’s evidence in considering whether other acts of violence were available for sentencing purposes, and a need for a close examination of the evidence given by other witnesses bearing upon that issue, including the expert evidence of Professor Hayes.

The applicant does not identify any House v R error in her Honour’s assessment of that evidence. Neither does he challenge her finding that the complainant was assaulted on other occasions, including being struck in an action the complainant described as a “haymaker” (that is, blows to both sides of her head and face); by the applicant holding a knife to her right leg and tapping it resulting in some cuts and bruises and on another occasion hurting her ankle. Her Honour made express reference to the complainant's evidence when she was asked to recall other occasions where violence was inflicted as follows:

Her Honour also referred to Professor Hayes’ evidence where she described the complainant as having a mild intellectual disability and compromised cognitive reasoning and adaptive behavioural skills. Professor Hayes assessed the complainant’s verbal functioning age at 11 years and 4 months and her non-verbal age at 7 years and 3 months. So far as the false report of sexual assault was concerned, the sentencing judge extracted lengthy passages from Professor Hayes’ evidence which addressed the circumstances in which the report was made. It is not necessary to refer to that evidence. Her Honour was satisfied that despite the complainant’s intellectual disability and low cognitive functioning, while her conduct in making a false report of kidnapping was suggestive of a level of planning or foresight, it was in essence a “naïvely executed” plan motivated by her fear of the applicant and her view that he should be kept in custody, with bail refused. In those circumstances, the sentencing judge did not regard the complainant’s misconduct as so adversely affecting her credit that it gave rise to a doubt as to her honesty and reliability. She was satisfied the complainant’s evidence of uncharged acts of violence should be accepted.

The sentencing judge found as follows:

Importantly, although her Honour found the other acts of violence allowed for a finding that the assault the subject of Count 6 was not an isolated event, she made no finding that the assault was more objectively serious for that reason. To have used the evidence for that purpose would have constituted error. The finding of objective seriousness in the mid-range was based upon other factual findings, including that at the time of the assault the complainant was vulnerable on account of her mild intellectual disability and that she was in a graveyard late at night, isolated and alone with the applicant. Her Honour expressly disavowed any reliance upon the complainant’s vulnerability as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act in order to avoid any suggestion of double counting.

In our view, in light of the foregoing, there is nothing in the appointment of an indicative sentence of 2 years and 6 months for Count 6 that is suggestive of error leading to the appointment of an excessive aggregate sentence.

The applicant cited Evans v R [2017] NSWCCA 281 (Evans) as a single comparator against which he submitted the seriousness of the conduct the subject of Count 9 should be assessed. That submission was also advanced without any challenge to the findings upon which the sentence was based, including, in particular, that the offence was committed to dissuade the complainant from giving evidence of the applicant’s sexual offending which, by being committed in a domestic context, required a significant element of general deterrence.

The approach of referring the Court to other sentencing decisions where the challenge to a sentence is one of manifest excess has been frequently criticised by this Court, there being little utility in comparing a sentence under challenge with sentences imposed in other cases where the issue for the Court is not to achieve “numerical or mathematical equivalence” between sentences but “consistency in the application of the relevant legal principles”: see Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [18], [49] and R v Pham [2015] HCA 39 at [28]. In this case there is even less utility in that approach where a single case is cited as a comparator.

Since the applicant relied upon a particular passage in Evans in the judgment of Adamson J (with which Hoeben CJ at CL and Davies J agreed) which might be thought to suggest that a different approach ought to be taken to the use of comparative sentences where a breach of s 323(a) of the Crimes Act is involved, it is necessary to set out those passages of the judgment where Adamson J dealt with the question whether the sentence indicated in that case was excessive.

The sentence under review in Evans was an aggregate sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 6 months. The sentence comprised one count under s 323(a) of the Crimes Act and a second count of indecent assault. Multiple offences, including two counts of common assault, contravention of an apprehended domestic violence order and intentional destruction of property (all offences arising in the context of domestic violence) were taken into account on a Form 1. A further offence of common assault was before the Court on a s 166 certificate. The count under s 323(a) consisted of the applicant sending 16 text messages over a period of two weeks to the complainant inviting her, or asking her, to withdraw her complaint to police which resulted in him being charged. The text messages were part of a course of communication over a two month period. The content of the text messages were set out in the judgment at [33].

The sentencing judge described that conduct in the following terms:

A sentence of 3 years and 2 months was indicated for that offence.

On the appeal, Adamson J was satisfied the indicative sentence was excessive which, in turn, led to the aggregate sentence being excessive.

In reasoning to that conclusion and after setting out the terms of s 323(a) of the Crimes Act, Adamson J said (at [46]-[50]):

On re-sentence, a sentence of imprisonment of 1 year was indicated for the s 323(a) offence and the aggregate sentence reduced to 3 years and 6 months’ imprisonment, with a non-parole period of 2 years.

Although at [46] Adamson J referred to the need to have regard to a range of sentences which tend to be imposed for other offending of a like nature, she did not refer to other sentencing cases from which a range of sentences for a breach of s 323(a) might be discerned.

The applicant’s counsel did not refer to any cases other than Evans, from which he invited the Court to find that although the applicant’s offending was serious, because the complainant was willing to assist him by signing a false declaration having been made to feel responsible for the fact that the applicant would be separated from his children, and that no threats of violence were involved, an indicative sentence of 3 years and 6 months was excessive.

We are unable to see how an absence of threats of violence was relevant in the assessment of the objective seriousness of the offending in Evans and, accordingly, how the absence of any threats of violence by the applicant in the present case was relevant. The approach of the sentencing judge and her citation of Burton was correct.

In Burton at [89]-[90], Johnson J held (Campbell JA and Grove J agreeing) that it was wrong, as a matter of law, to have regard to the absence of threats in assessing the objective seriousness of an offence against s 323(a) of the Crimes Act:

While there are features of the facts in Evans which are comparable to the facts found by the sentencing judge in the present case, principally that the offences were committed in the context of relationship violence, there remains a range of features of the applicant’s offending which are not comparable, including the vulnerability of the complainant by reason of the nature of her relationship with the applicant, his domination of her, and her intellectual disability, being the most marked. In addition, where in Evans the acts relied upon as constituting the offending conduct went no further than invitations or requests that the applicant’s partner withdraw her complaint, the applicant in the present case drafted the statutory declaration which he then persuaded the complainant to replicate and thereby execute. The integrity of the criminal justice system was also impacted in a more direct and serious way. As the sentencing judge found, the false declaration must have been provided to the applicant’s solicitor and presented to the Local Court. In addition, on re-sentence in Evans, the offending was appointed well below the mid-range of seriousness, a finding which must have been erroneously influenced by taking into consideration the absence of any threats of violence. Finally, on re-sentence a discount of 20 per cent was applied for the plea of guilty before a sentence of 1 year was indicated.

In those circumstances, we are not persuaded that the challenge to the indicative sentence imposed by the sentencing judge on Count 9 was excessive, whether by reference to Evans or on any other basis.

Having concluded that none of the indicative sentences are excessive, and after taking into account the significant degree of concurrence in the appointment of the aggregate sentence, including, as the Crown noted in its submissions, where the aggregate sentence was only six months longer than the indicated sentence for Count 9, we are not persuaded that the aggregate sentence was “unreasonable or plainly unjust”.

The orders of the Court are: