Bektasovski v R

1. [1]

   BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Kirk JA which addresses grounds 1 and 2 of the notice of appeal. I agree that those grounds should be rejected. Subject to one matter I agree with his Honour’s reasons. In particular, with ground 2, having reviewed the record of the trial I am satisfied that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493 to 495). I am satisfied that there is not a significant possibility that an innocent person has been convicted (id).

2. [2]

   In [53] to [67] of his Honour’s reasons, Kirk JA addresses the issue as to whether in an appeal under s 6 of the Criminal Appeal Act 1912 (NSW), a complaint as to the wrongful admission of evidence by a trial judge should be addressed by reference to the evidence heard by the trial judge that led to the relevant ruling or the evidence that was adduced at the trial. His Honour notes that in Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 at [165] (‘Elomar’) this Court noted that a ruling on the admissibility of evidence is a decision of law that that can be challenged under the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) with its correctness to be assessed “in light of the circumstances that existed, and were known, at the time of the ruling”. In the context of a decision on the admission of evidence, that statement appears to be directed to the evidence that, at the time of the ruling, it was anticipated would be admitted; i.e. the evidence adduced at or the subject of the voir-dire.

3. [3]

   In Elomar at [165] to [167] reliance on the second limb of s 6(1) was contrasted with a challenge that raised a complaint under the third limb of s 6(1), that is “on any other ground whatsoever there was a miscarriage of justice”. Thus, in circumstances where a decision admitting evidence was not held to be erroneous, a miscarriage of justice might nevertheless arise where the evidence that was in fact adduced at the trial was materially different to that adduced on the voir-dire and inadmissible or was put to some illegitimate use that was precluded by the decision concerning its admissibility.

4. [4]

   However, what about the opposite circumstance, that is where, based on the evidence adduced on a voir-dire, it is established that there is an erroneous decision on a question of law as per the second limb of s 6(1) in admitting the evidence (or permitting its use) however the evidence that was in fact adduced at the trial was materially different and admissible (or the use that was in fact made of the evidence was limited so that the erroneous aspect of the ruling was never engaged)? In that unlikely event it is probable that the wrong decision on a question of law of the trial judge is so immaterial to the outcome or conduct of the trial that the “proviso” to section 6(1) can be invoked. In those circumstances it can be expected to be concluded that there was no substantial miscarriage “even though it could not be said that a conviction was inevitable” (Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [14]). In such a case, this Court may readily conclude for itself from the record, including the jury's verdict of guilty, that guilt was proved beyond reasonable doubt (id). Reasoning of that kind in relation to the proviso is more likely to occur where the second limb of s 6(1) is engaged (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15]). This would be a circumstance in which the jury’s verdict of guilty would have especially strong weight in applying the proviso because it would not be affected or tainted by some error in the trial (see Rogerson v R; McNamara v R [2021] NSWCCA 160 at [401]).

5. [5]

   Even though a consideration of this topic is not necessary for the disposition of the appeal, it still has practical consequences for the conduct of appeals in this Court. First as was stated in Elomar (at [167]), it means that careful consideration must be given to the framing of the grounds of appeal by reference to the relevant limb of s 6(1) of the Criminal Appeal Act 1912 that is relied on. Second, it means that it is incumbent on appellants to point to any material difference between the evidence adduced on a voir-dire and the evidence adduced at the trial that they rely on (or any discrepancy between the permitted use of the evidence and the use that was in fact made of the evidence, see R v Hiba Cornell [2015] NSWCCA 258). In the absence of that being done the Court will be entitled to assume that there are no such material differences.

6. [6]

   The applicant also seeks leave to appeal from his sentence. His only ground of appeal against his sentence is ground 3 of his notice of appeal namely that his Honour “erred in failing to make any proper assessment of the objective seriousness of the offending”.

7. [7]

   Following the applicant’s conviction on counts 3 to 5, Haesler SC DCJ sentenced him to an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 4 months (R v Bektasovski [2021] NSWDC 304). The sentence commenced on 29 January 2021 and expires on 28 July 2026. He will be eligible for release on parole on 28 May 2024.

8. [8]

   Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”), his Honour specified indicative sentences of imprisonment for 3 years and 6 months with a non‑parole of 2 years and 3 months for count 3, imprisonment for 1 year for count 4 and imprisonment for 6 months with a non‑parole period of 2 years 8 months for count 5. Counts 3 and 5 carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years. Count 4 carried a maximum penalty of 5 years.

9. [9]

   His Honour’s sentencing judgment included a description of the facts of the three offences, a summary of HL’s victim impact statement and various positive findings in relation to the applicant’s subjective case. In relation to an assessment of the objective seriousness of his offending, his Honour stated as follows:

10. [10]

    The submissions in support of this ground accepted that his Honour identified various factors bearing on the objective seriousness of the offending but contended that his Honour “fell short of the proper assessment of objective seriousness of the respective three counts”. The Applicant contended that his Honour’s reasons were “absent the assessment of, or reflection upon, the seriousness of the respective offending conduct” (citing AP v R [2017] NSWCCA 270 at [44] per Lonergan J which in turn cited Gal v R [2015] NSWCCA 242 at [39]).

11. [11]

    In Campbell v R [2014] NSWCCA 102 at [27], Simpson J (with whom Hall J agreed), stated that the “assessment of objective seriousness is, and has always been, a critical component of the sentencing process” (citing, inter alia, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). Numerous High Court authorities refer to an assessment of the “objective seriousness” or the “gravity” of the offending (eg, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]; Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [53]; Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [39]). However, there is no prescribed set of descriptors that must accompany any such assessment. Where a standard non-parole period is prescribed under s 54A of the Sentencing Act, it is common for sentencing judges to locate the objective seriousness of an offence on a hypothetical range of seriousness for such offences. However, that is not obligatory for such offences (s 54B(6); Tepania v R [2018] NSWCCA 247 at [110] per Johnson J). That is even more so with offences that do not carry standard non-parole periods. In some cases an attempt to locate the objective seriousness offence on a hypothetical range of seriousness can be unhelpful (Paterson v R [2021] NSWCCA 273 at [32] to [33]).

12. [12]

    The essence of the complaint in this case is that, even though the sentencing judge described numerous factors affecting the assessment of the objective seriousness of the offences, his Honour did not actually undertake or record the assessment itself. I reject that contention. The complaint accurately describes the effect of [12] to [16] of the sentencing judgment set out above. However, [42] of the sentencing judgment records his Honour’s overall assessment that “objectively serious offences” were committed. This suffices. Although, it may not be elegant to assess objective seriousness by using the description “objectively serious” it is nevertheless informative. It stands in contrast to an assessment that offences are relatively minor, insignificant or, to use the hypothetical range, at the lower end of the scale. In Simpson v R [2014] NSWCCA 23 (“Simpson”), Hoeben CJ at CL (with whom Adams and R A Hulme JJ agreed) concluded, in relation to the sentencing judgment in that case, that “[h]is Honour did all that was required of him by assessing both offences as being ‘objectively very serious offences’.” The assessment of objective seriousness in this case was accompanied by a far more detailed analysis of the relevant factors than occurred in Simpson.

13. [13]

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

14. [14]

    KIRK JA: After a trial which took place before Haesler DCJ and a jury in January 2021, the applicant was convicted by 11-1 majority verdict of three offences committed against one complainant (HL) relating to sexual and indecent assault. He was acquitted of a charge relating to another complainant (LM). On a further charge, relating to a further complainant (MH), the jury was unable to reach a verdict. That matter has been set down for a retrial. On the three charges for which he was convicted the applicant was sentenced to an aggregate prison term of 5 years and 6 months, with a non-parole period of 3 years and 4 months.

15. [15]

    The applicant approaches this Court challenging the three convictions. His first ground of appeal is that the trial judge erred in admitting tendency evidence against the applicant. In his second ground of appeal the applicant asserts that the verdicts were unreasonable and unsupported by the evidence. His third ground of appeal, in the alternative, challenges his sentence by alleging that the trial judge erred by failing to make any proper assessment of the objective seriousness of the offending.

16. [16]

    In my view leave to appeal should be granted but the appeal should be dismissed as regards all grounds.

17. [17]

    In relation to ground 3, I agree with the reasons given by Beech-Jones CJ at CL.

18. [18]

    I address grounds 1 and 2 in turn below. Before doing so, it is convenient to begin by summarising in brief the Crown and defence cases below.

Background

1. [19]

   The five offences with which the applicant was charged, some details of those charges, and the result in each, were as follows:

2. [20]

   The Crown case below in respect of the three successful counts was, in brief summary, as follows. The three offences were committed on the same day some time in February 2017. The complainant, HL, visited the applicant’s house after he told her that he could fix some issues she was having getting a new microphone that she had received for her birthday to work on her laptop. The two knew each other from school, but were not close.

3. [21]

   The pair went into a granny flat at the back of the applicant’s house, HL having been picked up from her home by the applicant. HL’s evidence was that the applicant beckoned her to sit on the bed with the laptop before them. She said that the applicant spent only a very short period trying to fix the microphone and laptop, before he closed the laptop and asked her to sit back in the bed with him.

4. [22]

   The applicant started kissing HL, who at first resisted but then gave in when the applicant persisted. HL gave evidence that she did not want the applicant to feel rejected. She said that while they were kissing he began to touch her breasts and vagina. He positioned her on top of him, and tried to remove her top. She resisted, and he said to take it off or he would rip it off. He also asked her why she was there, to which she said that she was there for him to fix her microphone and laptop.

5. [23]

   The Crown contended that the applicant then began to rub his penis against HL’s vagina through their clothing. She said this was forceful and that it hurt. The applicant then took hold of HL’s hair, including her hair extensions, and forced her head down onto his penis. She asked to see her phone, saying that if he allowed her to check her phone, she would do what he asked. She hoped that her father had replied to a message which she says she sent to him asking that he pick her up. He had not.

6. [24]

   The applicant persisted in coercing the complainant to perform oral sex. When giving evidence HL was asked whether she felt she could get away, to which she responded “No”, because of “how much he was persisting, being very forceful and not really giving me any room to say or do anything to get out of that situation”. She gave evidence that she “just felt like [she] couldn’t get away from him, like [she] had no choice”. She performed oral sex on him for half a minute before pulling her head away from his penis, whereupon he persisted in trying to force her head to his penis until there was a knock at the door. This was Count 3, being an offence of sexual assault under s 61I of the Crimes Act.

7. [25]

   After the knock, the applicant answered the door and the complainant went into a small laundry next to the main room in the granny flat. When the applicant returned, he forcibly positioned the complainant so that she was facing the wall and tried to pull down her underwear. She resisted, but he persisted in trying to remove her underwear. This was Count 4, being an offence of indecent assault under the now repealed s 61L of the Crimes Act.

8. [26]

   In response to the complainant’s protests the applicant explained that they would not have sex; he would only rub his penis on her vagina. He did so, but then without warning inserted his penis into her vagina. The Crown said that the applicant knew the complainant was not consenting, or was at least reckless to whether or not she consented. The applicant removed his penis, ejaculating partly inside her vagina and partly on her buttocks. This was Count 5, being an offence of sexual assault under s 61I of the Crimes Act.

9. [27]

   The applicant left the room and the complainant began to dress herself. The applicant returned with a towel and asked the complainant how she was. Her evidence was that she was in disbelief and said she was “fine”, after which the applicant suggested that the pair should have dinner at some point. The complainant says she said nothing to him but checked her phone. Her father had texted her indicating that he was outside.

10. [28]

    The applicant said she did not exactly recall what she did when she saw this text, but said that she “would’ve said that ‘He was here’, and that I needed to go”. She said once she got in her father’s car, he asked if she was alright, because although she was not crying her face was red from crying. Upon getting home the applicant contacted and then met up with a close friend of hers and told him about what had happened. She also then told the friend’s mother, and with the mother’s help, obtained and took the “morning after” contraceptive pill. She told her father a few weeks later.

11. [29]

    The applicant gave evidence. In brief, the defence case was that the complainant initiated sexual contact, and that the pair engaged in consensual sex. He says that after he was unable to fix her microphone and laptop, she placed her hand on his thigh and lent in to kiss him. He says he kissed her back, and that she began to manipulate his penis, before removing his pants and performing oral sex on him. He says he then indicated that there were condoms on a nearby shelf. She brought one to him, which he put on. The pair proceeded to have consensual sexual intercourse for a short period, after which they lay in the bed.

12. [30]

    A short time afterwards there came a knock at the door. The pair dressed and went outside, where they met his great-uncle and great-aunt. The applicant was informed he was running late for a martial arts class he had to teach. The pair went back inside, got ready, and walked down the driveway together. The applicant says they giggled because they had been caught by his great-uncle and great-aunt. The defence case was that as they walked down the driveway, the pair passed another relative of the applicant’s who was arriving at the premises, and who gave evidence that, on one occasion in February 2017, she saw the applicant with his arm around a blonde girl walking down the driveway. She said that both of them were laughing.

13. [31]

    The difference between the Crown and defence case with respect to HL was thus not as to whether or not there had been sexual intercourse. Rather, it was as to exactly what had occurred (eg whether there was any sexual activity in the laundry), whether HL consented to the sexual activity, and if she did not consent, whether the applicant understood that she did not consent in the relevant legal sense (taking account of s 61HA of the Crimes Act, as it then stood).

14. [32]

    The first count, on which the applicant was acquitted by the jury, was an allegation of aggravated sexual assault of LM under the then s 61J of the Crimes Act, the aggravating factor being the infliction of actual bodily harm. The Crown case was that the applicant and LM had previously had consensual sexual intercourse on one occasion. They arranged to meet again and at some point in late 2016, the applicant went over to the complainant’s house. In the complainant’s bedroom, they began kissing and engaging in sexual touching, but when the complainant felt that the applicant was becoming aggressive, she left to go to the bathroom. She returned, he continued to be aggressive, she told him that she did not want to continue and that she wanted it to stop. He persisted, and sexually assaulted her. She said it caused injury to her genitalia and bruising on her arm. The defence case was that the sexual intercourse on this occasion was consensual.

15. [33]

    The second count was for sexual assault of MH under s 61I of the Crimes Act as it then stood. MH was 15 at the time of the alleged offending, and so the second count on the original indictment was originally for aggravated sexual assault under the then s 61J(d). However, this charge was downgraded after the Crown accepted that the applicant had reasonable grounds for believing the complainant to be over 16. The Crown case was that the applicant and complainant had engaged in a sexual relationship after meeting on Tinder. In February of 2017, the applicant texted the complainant asking her to come over to his place for sex. She said she did not want to.

16. [34]

    On the same day, when the complainant was at home, she received a message from the applicant indicating that he would be coming over to her house for sex. She said no, but he simply replied “Ok” and proceeded to attend at the complainant’s house. She told him at the front door that she did not want to have sex, but he proceeded into the house. The pair went to the complainant’s bedroom where the pair began kissing and engaging in sexual touching. The applicant told the complainant that the pair would not have sex, but that he would only rub his penis against her. She agreed to this because, in her evidence, she “knew that he wouldn’t leave unless he got something from [her], sexually”. The Crown case was that he nonetheless proceeded to sexually assault the complainant. The defence case was that the applicant did not attend at the complainant’s house on the day on which the messages were exchanged, and that he did not sexually assault her.

Ground 1 – admission of the tendency evidence

1. [35]

   The applicant sought orders from the trial judge that the trials relating to each complainant be separated, and that the proposed evidence of offending against the complainants not be cross-admissible or usable as tendency evidence as part of the proof of each count in the indictment. The proposed evidence was identified by way of written statements of each of the complainants which were tendered on the application. His Honour rejected the applicant’s motion in a pre-trial hearing on 16 March 2020, ordering that “the trials of the accused will not be separated” and that the “proposed tendency evidence can be admitted as evidence in each trial”.

2. [36]

   The ground of appeal on this issue is that the trial judge “erred in admitting the tendency evidence against the applicant”. The following issues arise:

   1. (1)

      which version of s 101 of the Evidence Act 1995 (NSW) applied;

   2. (2)

      what evidence is relevant to determination of this ground (ie the evidence considered in determining admissibility prior to the trial, or the evidence actually then given at the trial);

   3. (3)

      the tendency notice;

   4. (4)

      the trial judge’s reasoning;

   5. (5)

      consideration of the applicant’s arguments.

3. [37]

   The evidence was admitted pursuant to ss 97 and 101 of the Evidence Act, which, at present, relevantly provide:

4. [38]

   Section 101 was amended by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW). Previously, s 101(2) required that “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” (emphasis added). The amending Act commenced on 1 July 2020. It introduced a transitional provision which provided as follows (Evidence Act, Sch 2, Pt 6, cl 28):

5. [39]

   The trial judge applied the previous version of s 101, having made his ruling in a pre-trial hearing on 16 March 2020 prior to the commencement of the amendments. The applicant was arraigned, and an indictment presented, for the first time on that date. However, the trial before the jury did not commence until 18 January 2021, after commencement of the amendments. The applicant was re-arraigned on that occasion. The indictment had also evolved in that time.

6. [40]

   The parties were invited to put in supplementary written submissions to this Court on the question of whether the amended version of s 101 applied. The Crown submitted that the hearing of the proceedings began when the trial commenced on 18 January 2021, at which time the applicant was arraigned for a second time, so that the amended s 101 applies. The applicant submitted that the hearing of the proceedings began when he was first arraigned on 16 March 2020, so that the previous version of s 101 applied.

7. [41]

   The issue depends on whether the “proceedings the hearing of which began” refers in this case to when the applicant was first arraigned (being before the amendments commenced), or when he was arraigned before the jury in January 2021 (after the amendments commenced). The statutory text does not provide a clear answer to that question.

8. [42]

   In the second reading speech introducing the amending Act, Attorney-General Mark Speakman explained (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020 at p 1917):

9. [43]

   These remarks do not address in terms a situation where the indictment is amended and the accused is arraigned again in the relevant court. However, the remarks tend to favour a construction that the relevant focus is the first arraignment, so as not to have the effect of “impacting a proceeding, the hearing of which has already commenced”. That being said, only limited weight should be given to the Attorney’s speech in this regard. The phrase “proceeding[s] the hearing of which began” is used nine times in the transitional provisions in Sch 2 of the Evidence Act, applying to various amendments made from time to time over the life of the Act. There is no reason to preference the current Attorney’s statement to Parliament over any previous statement in circumstances where it is evident that the phrase is intended to be applied in a consistent manner. Related to that point, the Attorney himself referred to this Court’s decision in GG v R, which suggests that the better guide to intent is found in prior case law.

10. [44]

    In GG v R this Court was considering the same transitional phrase as is at issue here, albeit in Sch 2 Pt 3 cl 17 of the Evidence Act (applying with respect to the introduction of s 165B of that Act). Beazley JA, with the agreement of Buddin J and Barr AJ, noted at [86] that there is “no doubt that the presentment of the indictment and arraignment of the accused person marks the commencement of the trial” (as was quoted by Attorney-General Speakman in the passage extracted above). However, that well-established principle did not address the situation where the indictment was presented, and the accused was arraigned, more than once. Her Honour referred to the “perhaps unresolved” issue of whether the trial is taken to commence on the first arraignment, but it was not necessary for the Court then to determine the point (at [101]). The matter at issue in that case was whether the hearing was taken to have commenced, as the appellant there argued, “upon arrest [of the accused], or at least at some point prior to the committal” (at [72]). That argument was rejected. Her Honour concluded at [102]:

11. [45]

    The applicant in this case correctly submitted that “what the Court did not determine in GG was which arraignment provided the demarcation point” as to when the hearing of proceedings began, in circumstances where the accused is arraigned more than once.

12. [46]

    It might well be thought that that question had been addressed by R v Adamcik (NSW Court of Criminal Appeal, 22 November 1996, unreported), a case relating to the commencement of the Evidence Act itself. That issue turned upon the same transitional phrase as is at issue here (there found in Sch 2 Pt 2 cl 2). In that case, as in this one, a pre-trial hearing had been heard in the District Court to determine the admissibility of certain evidence. That occurred prior to commencement of the Evidence Act. The trial occurred after that Act had commenced. A question arose as to whether the provisions of the Act should have been applied by the Court at the hearing of the trial. Both parties agreed that it should not have been. This Court took the same view. Barr J, with the agreement of McInerney J, stated that “the hearing of this proceeding began when his Honour commenced to consider the admissibility of evidence on the voir dire”. The case is on point with the issue that has arisen here. However, as the point seems not to have been the subject of dispute and argument it is not binding authority here.

13. [47]

    The question whether the hearing of criminal proceedings commences with the first arraignment of the accused, even if not before a jury, was considered by the High Court recently in Stephens v The Queen (2022) 96 ALJR 871; [2022] HCA 31. The issue that arose there was whether a provision which was regarded as retrospectively extending criminal liability, s 80AF of the NSW Crimes Act, applied to a matter where the provision came into operation after the first arraignment, but before a later arraignment (on an amended indictment) before a jury. There was no transitional provision. The majority of the High Court held that the provision did not apply to the case in those circumstances, significantly on the basis that the trial should be taken already to have commenced, where that was taken to have occurred when the accused was first arraigned: note [2], [8] and [44]-[46] per Keane, Gordon, Edelman and Gleeson JJ. Their Honours said the following at [8] (citations omitted):

14. [48]

    The majority explained that the “temporal operation of legislation is based on reasonable expectations” (at [33]). Their Honours also referred at [44] to s 30(2) of the Interpretation Act 1987 (NSW). That section provides, inter alia, that “the amendment or repeal of an Act … does not affect … the proof of any past act or thing”. Section 30(1)(e) also provides that the amendment or repeal of an Act does not “affect any … legal proceeding … and any such … legal proceeding … may be instituted, continued or enforced” as if the Act had not been amended or repealed. In Stephens, despite the express retrospective operation of the provision in question, the majority still considered that to apply it to extant proceedings would undermine reasonable expectations and potentially create injustice: at [37]-[43].

15. [49]

    The decision is not determinative here. The High Court was not construing the transitional phrase of “proceedings the hearing of which began before the commencement”. And, as the majority noted at [7], “the question of when a trial begins may have a different answer for different purposes”. Further, as was recently noted in JW v R [2022] NSWCCA 206 at [54] per Bell CJ, Mitchelmore JA and Hamill J:

16. [50]

    In JW v R the Court held that a special hearing pursuant to s 19 of the Mental Health Act 1990 (NSW) was a distinct hearing, and was not taken to have commenced when that Court had earlier determined whether or not the accused was fit to stand trial: at [57]-[60].

17. [51]

    In the case at hand reasonable arguments can be made either way as to whether the hearing in the District Court began either when the applicant was first arraigned and the indictment presented, or when this subsequently occurred at the beginning of the trial before the jury. In that context, although not determinative, the majority judgment in Stephen has significant force as regards when a hearing should be taken to have begun. It is open to construe the phrase “proceedings the hearing of which began before the commencement of the amendment” as referring to proceedings on indictment from the time an accused is first arraigned in the court which goes on to hear the substantive trial of the accused. That open construction can and should be adopted in light of the reasoning of the majority in Stephens. The arguments accepted by the Court there with respect to the reasonable expectations of persons affected can equally be made in the current context. Such a conclusion is also consistent with this Court’s conclusion in R v Adamcik.

18. [52]

    Thus in this matter the hearing of the proceedings commenced on 16 March 2020, being a date before the commencement of the amending Act. The pre-reform version of s 101 therefore applies.

19. [53]

    As noted, the question of the admissibility of the tendency evidence arose in a pre-trial ruling. The trial proceeded on five counts involving the three complainants. The three complainants each gave evidence. The trial judge gave a tendency direction to the jury in summing up. No complaint is made about that direction.

20. [54]

    The focus of the applicant in submissions was on the pre-trial ruling of the trial judge, by reference to the evidence then before him. However, the Crown submitted that it was for this Court to determine whether or not the evidence was properly admitted (which may be accepted), and in so doing the Crown referred to the evidence actually given by the complainants at the trial.

21. [55]

    In this case it is not necessary to resolve the point of which set of evidence should be considered by an appeal court in determining the type of ground of appeal raised here. The applicant did not take issue with the Crown’s approach. The applicant’s senior counsel accepted that, as regards this ground, he did not suggest that there was any material difference between the evidence contained in the statements that founded the tendency ruling and the evidence actually given. However, it is worthwhile to record that the correct approach to this issue does not appear clear.

22. [56]

    The appeal ground raised by the applicant with respect to the tendency issue is, and only is, that the trial judge “erred in admitting the tendency evidence against the applicant”. That ground invokes the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), namely that “the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law”. The applicant has not sought to put this ground in terms of the third limb, that is, “that on any ground whatsoever there was a miscarriage of justice”. The difference can be significant because under s 5(1)(a) of the Criminal Appeal Act a person convicted on indictment has a right to appeal against conviction “on any ground which involves a question of law alone”. Where the ground invoked is miscarriage of justice, leave to appeal is required: s 5(1)(b).

23. [57]

    It has been said that “[t]he wrongful admission of evidence constitutes an error of law”: note R v Gidley [1984] 3 NSWLR 168 at 170 per Mahoney JA. Similarly, in JJT v R (2006) 67 NSWLR 152; [2006] NSWCCA 283, at [103], Simpson J stated that the second limb of s 6(1) encompasses an “erroneous decision of any question of law (which includes admission or rejection of evidence and directions of law given to the jury)”; note further Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [13]; Rogerson v R [2021] NSWCCA 160 at [386]. In Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 the High Court held that a trial judge allowing the prosecution to call a defendant in a criminal matter was a departure from the rules of evidence and an error of law (and of such significance as to be jurisdictional error): at [50]-[55], [114]-[117]. That is not to say that all rulings on evidence raise “a question of law alone” within the meaning of s 5(1)(a), such that leave to appeal is not required. For example, an appeal “on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone”: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 301-2 per Mason and Brennan JJ. It is not necessary to address here whether or not a challenge to a tendency ruling raises a question of law alone.

24. [58]

    In judgments of this Court a distinction has been drawn between a second limb challenge to a judge’s decision to admit evidence, for which the relevant evidence to be considered is that which was considered by the trial judge, and a third limb allegation of miscarriage of justice, for which the use to which the evidence was actually put in the trial is relevant: see the line of cases starting with R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338 per Simpson J at [40]-[42]; note also, analogously, Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, at [72] per McHugh J. The point was explained in clear terms by Bathurst CJ, Hoeben CJ at CL and Simpson J in Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303:

25. [59]

    The Crown’s suggestion here that the evidence to be assessed on this second limb appeal ground is the evidence as actually given in the trial (contrary to the above authority) appears to be founded on what was said recently by Simpson AJA in Vagg v R [2020] NSWCCA 134 at [45] (with Rothman J agreeing at [80] and N Adams J agreeing at [98]):

26. [60]

    This statement is capable of being read in different ways, but on one reading it suggests that – contrary to the earlier judgments of her Honour (amongst others) – an alleged second limb error is to be assessed by reference to the evidence as actually given. If that was meant then, with great respect, it is not apparent to me that the conclusion is supported by the authorities cited.

27. [61]

    In The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61] the High Court said the following (citation omitted):

28. [62]

    This paragraph is addressed to the topic – which had hitherto divided judges of intermediate courts of appeal – of what standard of appellate review should apply to determination of whether or not tendency evidence had significant probative value. The High Court resolved that that issue was to be determined on the correctness standard. Incidentally, it may be accepted that there is no reason to think that a different approach would be taken with respect to the s 101(2) issue of whether the probative value of the evidence substantially outweighed its prejudicial effect: note Vagg at [45], and authority there cited.

29. [63]

    That there is only one correct answer to these questions does not determine the evidence by reference to which the answer is to be found. It might be argued that the High Court’s use of the present tense in the phrase “is of significant probative value” directs attention to the evidence actually given in the trial. But that appears to read a lot into a sentence which does not appear to be addressing that issue, let alone seeking to reconcile that with the logic spelt out in cases such as Fletcher and Elomar.

30. [64]

    In the other authority cited in Vagg, namely McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 at [11], the High Court said the following:

31. [65]

    This sentence is directed, in terms, to allegations of miscarriage of justice. It was the third limb of s 6(1) which appears to have been invoked by the appellant in his appeal to the High Court. That reflects the fact that the appellant successfully sought to uphold the dissenting judgment of Meagher JA in this Court. Meagher JA had recorded that the accused in that case had raised grounds based on each of the second and third limbs relating to the tendency evidence there at issue, and directed himself – consistently with the prior decisions of this Court – that the evidence relevant to consideration of those grounds would be different: see McPhillamy v R [2017] NSWCCA 130 at [34]-[45]. His Honour would have upheld the appeal based on the miscarriage ground, doing by reference to the use to which the evidence was put. He thus did not need to address the second limb argument about the pre-trial decision to allow the use of such tendency evidence. It was that approach which set the context for the appellant’s arguments in the High Court.

32. [66]

    I do not understand the High Court’s statement in McPhillamy at [11] to be addressed to the question of what evidence should be referred to in considering whether or not there has been a “wrong decision on any question of law” within the second limb of s 6(1).

33. [67]

    However, as indicated it is not necessary to resolve the point here, given the absence of any material difference between the evidence as foreshadowed and the evidence as given, and in light of the approach taken by the parties. It is sufficient to focus on the evidence as given, as suggested by the Crown.

34. [68]

    In his pre-trial ruling, the trial judge described the tendency as originally particularised by the Crown as follows:

35. [69]

    The trial judge explained that, after the amendment of Count 2, the tendency was re-particularised as follows (emphasis in original):

36. [70]

    The Crown indicated to this Court that it was this tendency which was relied upon by the Crown, save that it included the words “with females” before “who he believed…”. It is likely that trial judge omitted by those words by mistake in his judgment; there is otherwise a problem with the syntax.

37. [71]

    In his submissions, the applicant says that the amended tendency notice read as follows:

38. [72]

    The submissions cited the pre-trial judgment in support of this statement, but what is quoted does not correlate with the tendency identified in the judgment.

39. [73]

    An amended tendency notice was included in the materials provided to this Court, but the tendency there was framed in yet another way:

40. [74]

    Both of the latter two versions of the claimed tendency involved not only acting in a particular way but also having a sexual interest in teenage females. That aspect of having such an interest was not present in the two versions referred to in the pre-trial judgment.

41. [75]

    In the tendency direction ultimately given to the jury, the trial judge described the tendency as follows:

42. [76]

    The Crown had earlier, in closing address, expressed the issue in essentially the same way. These variants are much the same as the amended tendency notice addressed in the pre-trial judgment, save that instead of referring to people or females “who he believed to be 16 or 17 years of age”, it refers to “teenage girls”.

43. [77]

    Nothing was said to turn on these inconsistencies in this appeal. Indeed, the inconsistencies were not adverted to by counsel for either side. In this murky context, it is sufficient to address the version of the claimed tendency actually put to the jury, which is substantially consistent with what the trial judge addressed in the pre-trial judgment, namely, an allegation that the applicant had a tendency through persistence, pressure or coercion to seek to engage in sexual intercourse with teenage girls without their consent.

44. [78]

    The amended tendency notice identified some common features of each complainant’s allegations against the applicant, which were extracted by the trial judge. These were:

45. [79]

    In determining whether the proposed evidence would have significant probative value, his Honour identified 11 common features concerning the alleged offending. These were:

46. [80]

    The trial judge considered that the evidence had significant probative value in light of the following:

47. [81]

    As to s 101, his Honour explained that the probative value of the proposed evidence was high, and that any potentially unfair prejudicial effect of the evidence could be ameliorated by careful and firm jury directions. His Honour thus concluded that the probative value of the proposed evidence substantially outweighed the danger of unfair prejudice.

48. [82]

    The applicant contends that the proposed tendency evidence was so general as not to be of significant probative value (s 97), and that it did not substantially outweigh the danger of unfair prejudice (s 101). The case in respect of s 101 essentially rested on the submissions about s 97.

49. [83]

    Considering whether proposed tendency evidence has significant probative value for the purposes of s 97(1)(b) of the Evidence Act “requires consideration of two interrelated but separate matters: (1) the extent to which the evidence supports the asserted tendency; and (2) the extent to which the asserted tendency makes more likely the fact or facts sought to be proved by the evidence”: TL v The King (2022) 96 ALJR 1072; [2022] HCA 35 at [31], citing Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41].

50. [84]

    The applicant submitted:

51. [85]

    Although the applicant raised both matters, the submissions made on his behalf were in the main directed to the issue of whether the asserted tendency strongly supported proof of the facts going to the alleged offences, rather than to proof of the alleged tendency. The key points made by the applicant were, in summary, as follows:

    1. (1)

       The tendency was expressed too generally, thus weakening the probative force of the claimed tendency.

    2. (2)

       There was insufficient link between the charged matters to have significant probative value as regards each other.

    3. (3)

       The applicant contended that the tendency sought did “not have unusual or particular features” and that it was not “novel, unusual or distinguishing, particularly as many of these features are elements of the alleged offences”. It was said that the common features were common to many alleged sexual intercourse offences which “deprives the factors, both individually and collectively, of the significant probative value required”. Further, in particular, it was put that the fact that a teenage young man should be sexually interested in teenage young woman was nothing out of the ordinary; in contrast, for example, to a much older person having a sexual interest in teenagers.

52. [86]

    In TL v The King the High Court summarised what “significant probative value” involves in the following terms (at [28], citations omitted):

53. [87]

    With respect to generality, as the majority explained in Hughes at [64], a tendency “expressed at a high level of generality” may “mean that the tendency cannot establish anything more than relevance”, whereas a tendency “expressed at a level of particularity will be more likely to be significant”. The question here is whether the tendency here is particular or specific enough strongly to support the proof of the facts required to make out the alleged offences.

54. [88]

    The applicant submits that a tendency to seek to engage in sexual intercourse with teenage girls without their consent through persistence, pressure or coercion is, regrettably, rather general, especially when said of a teenage male. At the time of the charged offences the applicant was 18 years old. The complainants were aged 17, 15, and 17 respectively. As regards the second complainant, MH, the Crown accepted that the applicant reasonably understood her to be at least 16.

55. [89]

    However, the words used in the tendency notice and in the direction given – “persistence, pressure or coercion” – have to be understood in the context of the evidence in question. That leads to consideration of the common features of the conduct alleged by the complainants. The following points emerging from the complainants’ evidence are important:

    1. (1)

       The conduct all occurred in a short space of time, from November 2016 through to February 2017.

    2. (2)

       The conduct occurred in a home environment – for LM and MH at their home in their bedrooms; for HL, in the granny flat behind the applicant’s house.

    3. (3)

       Each complainant said that they expressed that they did not want the applicant to engage in the sexual conduct that was occurring.

    4. (4)

       The applicant nevertheless continued persisting with the conduct physically, and verbally sought to persuade the complainant to continue.

    5. (5)

       He engaged in “dry humping” against LM and HL, that is, grinding or rubbing his penis against each complainant. With MH, he said he would engage in dry humping, but in fact did not do so.

    6. (6)

       The conduct then escalated to penile-vaginal penetration. For two of the complainants (MH and HL), the applicant indicated that he would not engage in vaginal intercourse but then penetrated their vagina without consent. As regards the other complainant (LM), there was no such promise but the applicant did proceed from rubbing his genitals against her inner thigh to vaginal penetration without further warning or discussion.

    7. (7)

       The applicant did not use a condom and ejaculated inside the vagina of each complainant.

    8. (8)

       He held the complainant down in some way in the course of the penile-vaginal intercourse.

56. [90]

    These points overlap with ones identified in the tendency notice and in the trial judge’s judgment (as identified above at [66] and [67]), although not all of those points are included here. Some of the other points mentioned there, such as communications occurring through social media, add little to identification of significant links between the evidence of the complainants.

57. [91]

    In the context of the points just outlined, the tendency of acting with “persistence, pressure or coercion” towards teenage girls had particular cogency. It was not simply a generic allegation of seeking to have sexual intercourse without consent, nor simply of being persistent in the pursuit of sex. In assessing significant probative value there are “dangers in focusing on single labels such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’”: Hughes at [41]. Nonetheless, the presence of some pattern of conduct or modus operandi in the evidence can still be relevant to establishing significant probative value. The evidence here is of that kind. The fact that it was not unusual for a teenage male to have sexual interest in teenage females does not undermine the distinctiveness of the common features just identified.

58. [92]

    Senior counsel for the applicant made the following submissions:

59. [93]

    It is not necessary that the common features be capable of being described as “striking”. What is needed is a sufficient link between the distinct events as to mean that one piece of conduct has significant probative value as regards another. That link need not be peculiar. In Bauer at [57] the High Court explained (emphasis added, citation omitted):

60. [94]

    Here, the links between the features of the alleged offences were strong. The tendency alleged involved a state of mind or way of acting which involves more than merely the commission of the offence. As was observed in argument in the present case, there are other ways in which the offences with which the applicant was charged could have been committed: for example, by the use of drugs; by preying upon those affected by alcohol; in places other than the homes of those involved; by abduction; against strangers as opposed to persons known to the offender.

61. [95]

    In any case, simply because particular tendency evidence may involve conduct that has common features with other instances of the offence charged does not necessarily rob it of probative value. As Campbell JA explained in R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 (as endorsed in other decisions of this Court – see eg Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [87]-[88], and authority there cited):

62. [96]

    Here, the common features of the complainants’ evidence strongly support the existence of the tendency identified. And they can readily be seen to be important and of consequence in assessing whether or not the applicant engaged in the sexual conduct, and was reckless as to the possibility of consent, as alleged against him with respect to each of the complainants. The mode of acting is significantly more particular than merely a tendency to do those things which constitute the offences. Further, that the alleged offending occurred within a matter of months was an important common feature and was, as senior counsel for the applicant conceded, “unusual”. That factor also colours the other common features.

63. [97]

    The applicant sought to draw a comparison with McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52, where Kiefel CJ, Bell, Keane and Nettle JJ explained (emphasis added):

64. [98]

    But McPhillamy works to confirm the significant probative value of the tendency evidence in the present case rather than to undermine it. Unlike there, the evidence here concerns alleged offences close in time, involving complainants in similar positions vis-à-vis the applicant, involving similar behaviour on the part of the applicant. The evidence did more than to insinuate that, because the applicant had sexually offended against two other complainants, he was the kind of person who was more likely to have committed the offences. Rather, the evidence, if accepted, proved that the applicant had a tendency to act in a particular way, namely to adopt a particular kind of persistence in the pursuit of his sexual interests, that made it significantly more likely that he committed the offences in question.

65. [99]

    As explained above, the applicable test was that which applied under the previous version of s 101(2), that is, that “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”.

66. [100]

    On this issue, the applicant made no written submission beyond the bare assertion that the test was not satisfied. In argument, senior counsel for the applicant accepted that the applicant’s argument in respect of prejudice was the “flip side” of his argument that the tendency evidence was not of sufficient probative value to overcome the hurdle in s 97. For the reasons set out above, the potential probative value of the evidence was high. The trial judge was correct to conclude that the potential probative value of the evidence substantially outweighed any prejudicial effect it might have on the applicant.

67. [101]

    Ground 1 of the application is thus not made out. It can also be observed, incidentally, that the fact that there was an acquittal on Count 1 and no verdict on Count 2 suggests that the jury carefully followed and applied the directions as to tendency given by the trial judge.

Ground 2 – claimed unreasonable verdict

1. [102]

   The applicant’s second appeal ground is that the jury’s verdict on Counts 3, 4 and 5 – relating to the complainant HL – was unreasonable and cannot be supported by the evidence. The applicant thus invokes the first limb of s 6(1) of the Criminal Appeal Act.

2. [103]

   There is no dispute of principle as to the law to be applied in relation to this ground. The principles are well-established. They have recently been summarised by the High Court in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]-[15], by reference in particular to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The question which the appeal court must ask itself is whether it thinks that upon the whole of the evidence it was open to the trier of fact (here, the jury) to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence. The court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred.

3. [104]

   The applicant’s submissions in respect of this ground focused on four matters:

   1. (1)

      the resolution of the other counts;

   2. (2)

      the evidence of two of the applicant’s relatives, EB and AJ;

   3. (3)

      the evidence of the complainant herself; and

   4. (4)

      the evidence of a friend of the complainant, MW.

4. [105]

   I address these four matters in turn below. For the avoidance of doubt, I have also considered all of the evidence given below as a whole, and have taken account of the points raised by the applicant individually and cumulatively. I have come to the conclusion that it was certainly open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty, and nothing in the evidence has caused me to have any reasonable doubt as to his guilt. On the contrary, there was a strong case made out against the applicant in relation to Counts 3-5. The reasons for that overall conclusion are sufficiently explained in addressing the points raised by the applicant.

5. [106]

   The applicant submits that because the applicant was acquitted on Count 1 and was unable to reach a verdict on Count 2, “the jury must have accepted the evidence of the applicant as being true or at least found that the applicant may be telling the truth, in accordance with the Liberato direction provided”, such that the jury could not have been satisfied beyond reasonable doubt.

6. [107]

   This submission assumes that if the jury accepted the applicant’s evidence in part it must have been accepted in whole. That does not follow. The second step of the Liberato direction, which was given to the jury in conventional form, was that if the jury found difficulty in accepting the applicant’s evidence but thought it might be true, it must acquit. It is possible he was sufficiently believed as regards the first and second counts to create a reasonable doubt on those, but not sufficiently believed on the counts relating to HL.

7. [108]

   In any event, it is not the case that the jury must have accepted the evidence of the applicant at all. The third step of the Liberato direction informed the jury that if they did not believe the applicant’s evidence then it should be put to one side, but that the question would remain whether the prosecution had proved the applicant’s guilt beyond reasonable doubt. It is entirely possible that the jury did not believe the applicant’s evidence but held a reasonable doubt for some other reason.

8. [109]

   Both Counts 1 and 2 involved what the Crown described as “factual and legal complexities”, including that both complainants had existing consensual sexual histories with the applicant, in contrast to HL, who did not. Moreover, in respect of Count 1, the complainant LM gave evidence that she had told HL about the offence. But HL’s evidence was that she did not recall such a conversation. The jury was directed that delay can affect memory. Further, LM did not tell anyone of the alleged assault for some time. Accordingly, one path open to the jury was to reject the applicant’s evidence in respect of Count 1, but to harbour doubts about LM’s version in light of questions about her memory and the other circumstances.

9. [110]

   As regards Count 2, the applicant’s case involved an alibi, which meant the jury were directed that the date, time and place were relevant. The trial judge explained to the jury that “the case is that whatever occurred, occurred on 1 February and if it did not occur on 1 February a verdict of not guilty should be returned”. Accordingly, the jury could well have rejected the applicant’s account in favour of the complainant’s account, but entertained a reasonable doubt in respect of the date and time or place of the offending.

10. [111]

    The jury’s verdict on Count 1, and lack thereof on Count 2, thus did not mean that they must have entertained a reasonable doubt in respect of the other counts.

11. [112]

    One more point should be noted here. In reaching my own view about whether the evidence was sufficient to eliminate reasonable doubt, I have not taken into account the evidence of the other two complainants as constituting any support for the prosecution case as regards HL. Taking that approach does not contradict the conclusion above in relation to the admissibility of the tendency evidence. In assessing admissibility a trial judge is to take the evidence at its highest, and so long as it is rationally open to the jury to accept the evidence, then what weight to give to the evidence, if any, is a matter for the jury: Bauer at [69]-[70]. Properly admitted tendency evidence, and the claimed tendency itself, may in the end be given little or no weight by a jury. The fact that the jury here convicted the applicant only as regards one of the three complainants suggests that they took careful account of the tendency direction given by the trial judge and of the need to be satisfied beyond reasonable doubt for each charge. We do not know what weight the jury gave to the evidence of LM and MH. But in circumstances where it is possible that their evidence was not believed by the jury, I have not taken their evidence into account as supporting the alleged tendency of the applicant, nor have I taken into account the alleged tendency itself.

12. [113]

    The applicant put considerable emphasis on the evidence of EB and AJ. The former was the applicant’s great-aunt, who lived next door to the applicant and his family with her husband, the applicant’s great-uncle. Her evidence was that she had a close relationship with the applicant. As for the latter, she described the applicant as being her “nephew of a first cousin”.

13. [114]

    EB’s evidence was that there was a day in 2017 when a family meeting occurred at the applicant’s house. The purpose of the meeting was to discuss her husband’s cancer. She said that many such meetings were happening at that period. However, it seems implicit that the cancer had just – or only very recently – been diagnosed. EB’s evidence was that “we found my husband have the cancer, and we got to my brother-in-law’s house to go discuss thing for my husband later”. EB said that the applicant came into his house, but his mother asked him to leave, because she did not yet want him to know about the diagnosis. She recalled that the applicant went out, came back in, went upstairs, then went out again to a building at the back of the house, doing so with a girl.

14. [115]

    EB gave evidence that after the meeting had finished her husband knocked on the door to the building and informed the applicant, in English, that he needed to go to the karate school where he worked. When asked “[w]hat happened after that?”, she said that the applicant came out with a girl. When asked whether she was “able to say whether he came out immediately or –?”, she replied “yes”. She said the girl had long blonde hair and that she remembered greeting her. She said that the girl went back inside, picked up her bag, and left with the applicant. Her evidence was then that she saw the applicant come back up the driveway and close the door of the granny flat before leaving for karate school.

15. [116]

    AJ gave evidence that at the end of February 2017 she went to visit EB’s husband. She had not been in contact with the family (implicitly including EB, her husband and the applicant and his family) after a family falling out quite a few years before. However, she had heard that her “uncle” was ill with cancer. She explained that as she walked up the driveway to the house she saw the applicant with a tall blonde girl coming up the driveway. When asked what they were doing, she said “[t]hey were hug – they were laughing, carrying on”, and the applicant “had his arm around her and she was close to him”. She did not say anything to them. She said that she saw EB and her husband under the balcony at the back of their house, that is, not the applicant’s house.

16. [117]

    The applicant had also given evidence, consistently with EB’s evidence, that when he had arrived at his family house with HL he went inside, but he had seen his parents, grandfather, great-aunt and great-uncle talking in the house, and his mum had told him to use the back room. He said that he later found out this family meeting was about a serious health issue. His evidence was that after the sexual intercourse with HL in the granny flat had occurred they were laughing on the sofa bed when there was a knock on the door of the granny flat. He quickly got dressed and answered the door. It was his great-uncle and great-aunt. His great-uncle told him, in Albanian, that he was running late for the martial arts school. HL had a brief conversation with his great-aunt. Then he and HL walked up the driveway, had a bit of a giggle about being caught out, and he gave her a hug before she left. He said he recalled someone else walking down the next door driveway, although he does not recall who it was.

17. [118]

    HL’s evidence relevantly was that after the applicant had forced her to have oral sex (the subject of Count 3) there was a knock at the door, the applicant answered it, and she “heard a deep male voice, like an older male”. She did not recall if the person spoke English. She got up, grabbed her clothes, went into the laundry area and tried to put her shirt back on. The other male left and the applicant came into the laundry and asked her why she was getting dressed. She accepted that she did not cry out for help to the other male. After the further conduct the subject of Counts 4 and 5 had occurred in the laundry area she got dressed, picked up her phone and saw a text message from her dad saying he was out the front, and she left and got into her dad’s van. She denied walking past an older woman, or that the applicant gave her a hug, or that she was smiling as she walked down the side of the house. It was not put to her in cross-examination that there had been a further woman in the driveway.

18. [119]

    At the time HL’s hair was blonde and she had hair extensions, so it may be inferred her hair was long. However, neither EB nor AJ said the person they had seen was HL.

19. [120]

    The applicant submitted that the evidence of EB and AJ corroborated the applicant’s evidence as to the course of events, including the family meeting, the great-aunt and great-uncle knocking on the door of the granny flat and then interacting with the applicant and HL, and that HL was laughing and relaxed with the applicant after their interaction.

20. [121]

    Starting with the evidence of AJ, there is real doubt as to whether she was there on the same day as the events in question. As noted above, the evidence of both the applicant and EB was that there was a family meeting about the great-uncle’s cancer diagnosis. It is most unlikely that at a time when the applicant did not yet know about the new diagnosis – although he lived next door to his great-uncle and aunt and their lives were intertwined – a long-estranged relative would have found out about the diagnosis and come around to visit. There is no evidence suggesting that AJ was at the family meeting where the diagnosis was first discussed. And AJ’s evidence was that she saw EB and her husband “in the yard at the back of their place under the balcony”, which does not appear consistent with EB’s evidence about having seen the blonde girl leave having talked to her outside the granny flat behind the house of the applicant’s family. It is also relevant that AJ said her visit occurred at the end of February. HL’s evidence was that the events occurred sometime after her birthday on 7 February, when she had received the microphone that she wanted the applicant’s help with, although she was not sure quite when. The evidence of HL’s father was that he thought the events occurred a few days after HL’s birthday.

21. [122]

    Even if the jury accepted AJ’s evidence, that the complainant hugged the applicant or was laughing does not necessitate a reasonable doubt about the commission of the offences. The complainant gave evidence that she felt “bad” rejecting the applicant, and it was open to the jury to come to the view, if they did accept AJ’s evidence, that if the complainant was laughing or did hug the applicant, that she did so out of embarrassment or to avoid awkwardness. This is especially so if, immediately after having been subjected to the assault she described, she then had to face the possibility of running into family members of the man who had assaulted her, as well as facing her father, of whom she said she was wary of informing about the assault.

22. [123]

    Given these points, it was open to the jury to conclude that AJ’s evidence concerned a different occasion, and/or to regard it as not establishing a reasonable doubt in any event.

23. [124]

    The unlikelihood of it being the same occasion as the events in question has broader potential significance, because it suggests that it is quite possible that there was another occasion around that general time when a blonde young woman was seen interacting with the applicant at his house.

24. [125]

    The applicant made the submission that:

25. [126]

    That it was the only day around that time where EB saw a blonde girl coming out of the back room did not establish that that person was HL. No evidence was led from the applicant as to whether or not any other young women, blonde or otherwise, had visited him in or around February 2017. It was by no means implausible that the applicant may have had other female visitors. Senior counsel for the applicant sought to argue that the Crown should have put to the applicant that he had taken other girls to the granny flat. The criticism is without merit given that the evidence of the two relatives was not notified in advance to the Crown and only led after the applicant had finished giving evidence.

26. [127]

    Further, there are some inconsistencies between the account of the applicant and EB. The issue of whether the great-uncle spoke in English or Albanian is of little moment. More significant is that that EB’s evidence was that the applicant answered the door of the granny flat immediately. The applicant’s evidence, in contrast, was somewhat confused but did not involve an immediate answer to the door:

27. [128]

    In the circumstances, again, it was open to the jury to conclude that EB’s evidence referred to a different occasion, or in any event to prefer the evidence of the complainant to that of EB and the applicant.

28. [129]

    Insofar as the evidence is said to suggest that HL was unperturbed by what had occurred, it is necessary to take into account the evidence of HL’s father. He picked up HL from the applicant’s house. His evidence was that when she got into his vehicle she was upset, crying a little, very quiet, not bubbly and talkative as she usually was, and was “crunched up against the passenger door and just looking out the window”. He asked her what was wrong; she just said it was nothing. Further, in the weeks following she was very quiet and withdrawn, until a few weeks later when an argument escalated and “she blurted out that she’d been raped by Remzi”. HL’s evidence was consistent with her father’s in relation to how she told him about what had occurred. As to the immediate aftermath in the car, she said “My dad asked me if I was okay because I wasn’t crying, but my face was red from crying and I just told him that nothing was wrong”. When asked why she did not tell her father immediately, she said because he would have retaliated straight away. Her evidence as to the aftermath was substantially consistent with the father’s evidence. Her explanation for the delay in telling him was entirely plausible.

29. [130]

    The father’s evidence is significant in indicating that HL was not laughing and relaxed immediately after the event. The evidence is also supportive of a conclusion that she had been assaulted by the applicant.

30. [131]

    The Crown did not contest the evidence of EB and AJ in the sense of suggesting to them that they were not telling the truth. But, contrary to the submission of the applicant, the evidence does not constitute independent and unchallenged evidence of the kind considered in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. Its relevance was contingent on accepting that their evidence related to the same occasion, where there was reason to doubt that. Even if EB’s evidence related to the same occasion, whilst it was not consistent with HL’s evidence as to the course of events, the jury still might have considered, for example, that EB was mistaken in recalling, four years after the event, that the applicant and HL came out of the flat and left immediately, and/or that she had been laughing and relaxed contrary to the evidence of HL’s father.

31. [132]

    These were matters requiring the jury to weigh up the strength and relevance of the evidence, having heard all of the evidence. The conclusion that the evidence of EB and AJ did not create a reasonable doubt was open to the jury. That is so just taking account of the factual matters just described. The point is reinforced by taking account of other evidence in the prosecution case, including the evidence of a close friend of the complainant, and the friend’s mother, as discussed below.

32. [133]

    The applicant relied on a number of alleged gaps or inconsistencies in HL’s evidence, as follows.

33. [134]

    First, as referred to above, there was some evidence that before attending the applicant’s house in February 2017, HL had been told by another of the complainants, LM, that the applicant had sexually assaulted her. Despite this, the applicant submits, HL contacted him by social media and sought his assistance in fixing her microphone. It is said that this necessarily leads to a reasonable doubt as to HL’s evidence. The applicant appeared to suggest in written submissions that it indicated that HL had an interest in the applicant, apparently because, despite what ML had told her, she sought him out. Yet HL’s evidence was that she did not recall any conversation with LM about the applicant before the events in question. And the defence put to the jury that they ought not accept LM’s account of her conversation with HL. These facts undermine the point made by the applicant now.

34. [135]

    Secondly, it is said that the fact that the applicant knew that the HL’s father would collect her from the house cast doubt on the complainant’s evidence that the applicant threatened to rip her clothes. Senior counsel for the applicant said in argument:

35. [136]

    This submission is undermined by the fact that on the applicant’s own account he had intercourse with HL with them both knowing that her father would be picking her up. Further, it was open to the jury to conclude, for example, that he would have placed the gratification of his sexual interest ahead of any concern about being caught or found out.

36. [137]

    Thirdly, it is said that the complainant could not explain when she texted her father to pick her, despite giving evidence that he did text him. HL said she had “texted him at some point in the beginning, but I don’t exactly recall when”. That she could not recall exactly when she texted her father to ask to be picked up, in circumstances where it is clear that she did so, is of no great consequence.

37. [138]

    Fourthly, the applicant suggests that the fact that the applicant did not call the police or her father when she checked her phone before performing oral sex “gives rise to considerations as to whether the oral sex performed was consensual”. But the complainant gave evidence that by this time she was already “a bit nervous and scared”. She said that when he let her check her phone, she “stood there staring at my phone trying to delay it for a bit, just thinking about what I should do”. In circumstances where the applicant had, on the complainant’s evidence, also acted aggressively and forcefully towards her, it was open to the jury to conclude that her “failure” to ring police or her father was nonetheless consistent with the oral sex being non-consensual, and was consistent rather with a state of panic or confusion.

38. [139]

    The applicant submitted that “a doubt as to absence of consent would inevitably arise from the factual scenario presented by the [evidence] of the complainant offering to perform oral sex if she could access the phone” and then performing oral sex “in line with her offer” after she accessed the phone. The complainant’s evidence was that her offer was a means of buying time, after which the applicant persisted in his demands. Her evidence of what happened after she checked her phone was as follows:

39. [140]

    At the time, s 61HA(4)(c) of the Crimes Act provided that a person does not consent to sexual intercourse “if the person consents … because of threats of force or terror”. It was open to the jury to conclude that the oral sex was not consensual because to the extent that HL consented she did so because of threats of force or terror.

40. [141]

    The applicant made a related submission referring to the fact that the applicant had told an investigating police officer in April 2017 (according to a written record made by the officer) that “although she realises it was silly she continued to kiss [the applicant] and allowed his actions to eventually progress because she didn’t want him to feel rejected and because he was being so persistent so she thought it was no use to resist”. In cross-examination HL said that she did not recall saying anything about being silly, but she did say that she did not want him to feel rejected. That evidence could be understood in different ways. In any event, it was one piece of evidence to be weighed up with all the evidence the applicant did give in the trial.

41. [142]

    Further, the same police record of what HL said included that the applicant was continuing to make advances and grabbing parts of her, and that “[e]ach time the victim would state that she was not interested and would pull away but the person of interest remained persistent and the victim states that although she realises it was silly”. Senior counsel for the applicant said of the report to the police that it “was basically the first contact she had with a person in authority where she recounted what had happened”. Maybe so but, as discussed below, immediately after the events in question HL told her closest school friend and then the friend’s mother what had occurred, in accounts consistent with the version HL gave in court.

42. [143]

    Fifthly, the applicant says that there was no evidence from HL as to how her pants came to be removed, nor of how the complainant ended up on top of the applicant at one point, and one available hypothesis is that the sex was consensual. In respect of HL’s pants, she said “he tried to pull my pants and underwear down”. That she did not give an exact description of how the pants came down could well be thought to be of no great significance. As regards an earlier part of the encounter, she said “I am unsure” how she ended up back on top. It is quite possible that the applicant manoeuvred the complainant as he pleased. Again, the complainant had given evidence that by this time she was nervous and scared, and that the applicant was being forceful. It was open to the jury to conclude that the fact that the complainant ended up on top of the applicant was consistent with a lack of consent in the relevant sense.

43. [144]

    Sixthly, the applicant submits that HL’s “failure to resist or say anything to the applicant gives rise to a strong inference that … what was occurring was consensual”. It is suggested that “what has occurred is something that she has later regretted, but nonetheless has not adequately communicated such that there was any actual lack of consent”. HL’s evidence was that she did in fact resist and that she clearly communicated her desire not to have any form of sex. It was open to the jury to accept this evidence. And as the Crown points out, these submissions sit ill with the applicant’s case that HL was the enthusiastic initiator of the sexual activity. As detailed further below, the two accounts of what occurred are radically different.

44. [145]

    None of these points, whether by themselves or taken together, is of such significance as to mean that the jury should have entertained a reasonable doubt. It is not unusual that there are some discrepancies or gaps within oral evidence relating to events which occurred some time earlier. I would add that, for my part, the transcript of the applicant’s evidence in court communicates a version of events which is relatively clear, internally consistent, and compelling.

45. [146]

    The applicant also sought, faintly, to make something of the fact that the applicant got the benefit of a good character direction. The jury could take that into account but still choose to disbelieve his evidence. As discussed further below, there was good reason to think that his evidence was not credible.

46. [147]

    Evidence was given below by MW, a close friend of HL. The applicant says that inconsistencies between HL’s evidence and the evidence of MW as to what HL had told MW “should have caused the jury to have a doubt as to whether the complainant was recounting the events accurately on either occasion”. The inconsistencies identified by the applicant were: that MW said the applicant had bent HL’s wrist backwards when she gave no such evidence; that the applicant took HL’s phone off her; and that the applicant told HL that she could not have her phone back until she performed oral sex.

47. [148]

    HL’s evidence was that she did not remember whether the applicant bent back her wrist, but accepted she had not said that in her statement to police. She did not remember telling MW that the complainant had taken her phone off her.

48. [149]

    These alleged inconsistencies were put the jury in the closing address of the defence. The evidence of MW to which the applicant now points is not such that the jury must have entertained a reasonable doubt as to the commission of the offences. It was open to the jury, for example, to accept MW’s evidence about what the complainant had told him, and to conclude that the complainant could not now recall the applicant’s bending back her wrists or that he had taken her phone from her. Alternatively, the jury could have concluded that MW’s memory of what the complainant told him was not perfect, or that there had been some miscommunication when the complainant had relayed the events to MW.

49. [150]

    It is instructive to compare MW’s evidence that HL told him that the applicant had taken her phone from her, to HL’s evidence that, in the context of the applicant’s persisting in coercing the complainant to perform oral sex, she “said to him that if he let me look at my phone, I would do what he asked”. It is not difficult to imagine how HL’s account of her seeking to access her phone in circumstances where she was being forced to perform oral sex could be understood by MW in the manner he explained. Further, MW said that “the exact order [of what HL said occurred] is a bit of a blur, this was quite some time ago”, and when asked what he had been told as to what had happened in relation to the oral sex, said “I honestly can’t remember a hundred per cent”. It is not surprising that the details of what MW said HL recounted may not precisely match with HL’s evidence.

50. [151]

    The evidence of MW was not such that it ought to have caused the jury to harbour a reasonable doubt about the commission of the offences. On the contrary, even if some of the details are not completely consistent, the evidence of MW could readily be seen to provide significant support to the prosecution case. The applicant described MW as her best friend from high school. She said she contacted him when she got home from her encounter with the applicant, and asked to meet with him. She describes meeting him halfway between their two houses, then returning to MW’s home. She said she was crying and that she end up telling him the “whole story”. MW’s account is consistent with that description. He describes her as being highly distressed. His evidence of what she told him about the events involving the applicant is substantially consistent with her evidence of what occurred. His evidence as a whole provides strong support for the believability of HL’s evidence. The cross-examination of MW was very brief and did not suggest that he was not telling the truth or that he could not recall the events to any significant degree.

51. [152]

    Moreover, the evidence was that HL also spoke to MW’s mother, TW, at least to some extent about what had occurred at some time, this occurring whilst she was still at MW’s house. HL was a bit unsure of how much she had told TW. But she recalled that TW had bought the morning after pill for her. MW said that he encouraged HL to speak to his mum, and to get a morning after pill. TW’s evidence was that HL was very distressed. She said that HL said, amongst other things, “he raped me”. She also said HL told her about forced oral sex, and forced intercourse from behind whilst being held up against a sink. She said she took HL to a chemist to obtain the morning after pill. TW was not cross-examined.

52. [153]

    TW’s evidence, too, provided strong support to the prosecution case in providing contemporaneous evidence that HL was very distressed, considered she had been raped, and provided a version of events consistent with her evidence in the trial. This evidence may be contrasted with the applicant’s description of him and HL laughing and giggling after the sexual encounter.

53. [154]

    There is yet further significance to this evidence. The applicant’s version of the sexual encounter was to the effect that HL had initiated it by first kissing him, then trying to unbutton his pants and pulling them down, then manually stimulating his penis, then voluntarily performing oral sex on him, then obtaining a condom (which he had indicated to her was on the shelf), handing him the condom which he put on, followed by penile-vaginal intercourse on the sofa bed. That is a radically different description of events to that of the applicant.

54. [155]

    Of itself, the believability of the applicant’s version may readily be questioned. For example, it seems surprising that a condom should be readily to hand on a shelf in the shared family space of the granny flat. Even accepting that 18 year olds can be rather self-absorbed, it seems highly implausible that he would leave a used condom on the floor of a shared family space to be cleaned up by some other family member, as he said he did. Much more likely is that he did not use a condom at all. In any event, if HL had handed the applicant a condom which he then put on, it is very difficult to understand why she would be concerned about pregnancy and take quick steps to obtain the morning after pill.

55. [156]

    The decision of what version of events to accept out of the radically different descriptions offered was a quintessential jury task. Even allowing for minor inconsistencies in the evidence called by the prosecution, the jury’s verdict of guilt on Counts 3-5 was indisputably open to them.

56. [157]

    Nothing in the evidence requires that the jury ought to have entertained a reasonable doubt as to the commission of the offences. Nor do I have any such doubt myself. The prosecution case with respect to the three counts was a strong one. The second ground of appeal should be dismissed.

Orders

1. [158]

   The orders of the Court should be as follows:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [159]

   YEHIA J: I have had the benefit of reading the judgment of Kirk JA in respect of grounds one and two (the conviction appeal) and the judgment of Beech-Jones CJ at CL in respect of ground three (the sentence appeal) and his Honour’s additional remarks relating to ground one.

3. [160]

   I agree that grounds one and two should be rejected. Subject to one matter, I agree with the reasons of Kirk JA.

4. [161]

   In [53] to [67] of Kirk JA’s judgment, his Honour addresses the question as to what evidence is to be assessed in an appeal under s 6 of the Criminal Appeal Act 1912 (NSW), where a complaint of wrongful admission of evidence by a trial judge is made. I have had the benefit of reading his Honour’s analysis and the additional remarks made by Beech-Jones CJ at CL on that issue. I do not find it necessary to express a concluded view in light of the fact that the parties, in this case, agree that there is little difference between the evidence adduced on the voir dire and that adduced at the trial. That said, I agree with the observations made by Beech-Jones CJ at CL at [5] that careful consideration must be given to the framing of the grounds of appeal by reference to the relevant limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and that it is necessary for appellants to point to any material difference between the evidence adduced on a voir dire and the evidence adduced at the trial.

5. [162]

   In respect of ground two, I have conducted my own assessment of the case against the applicant and I am satisfied that it was reasonably open to the jury to be satisfied beyond reasonable doubt that he was guilty. I agree that ground two is not made out.

6. [163]

   Additionally, I agree that ground three should be rejected for the reasons expressed by Beech-Jones CJ at CL.