Groundstroem v Attorney-General for New South Wales

1. [1]

   Christoffer Groundstroem applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction for four offences of sexual assault. The applicant stood trial charged with four counts of aggravated sexual assault of his then wife, the complainant, between 1 March 1992 and 30 April 2003. The alleged circumstance of aggravation was that, at the time of the assault, the applicant maliciously inflicted actual bodily harm on the complainant. The actual bodily harm for the first assault was bruising, and for the remaining three counts was internal injuries causing bleeding.

2. [2]

   On 26 September 2011 the jury found him not guilty on the aggravated counts but guilty on the statutory alternative count of sexual assault in respect of the four counts. He was sentenced to an overall term of imprisonment of seven years and six months with a non-parole period of five years commencing 26 September 2011. The non-parole period expired on 25 September 2016 and the overall sentence will expire on 25 February 2019.

3. [3]

   The applicant appealed to the Court of Criminal Appeal on a single ground only, namely, that the trial judge erred in failing to inform the jury of the significant forensic disadvantage suffered by the applicant as a consequence of delay. On 31 October 2013 the appeal was dismissed: Groundstroem, Chistoffer Andreas v R [2013] NSWCCA 237.

4. [4]

   An application for special leave was refused by the High Court on 16 May 2014: Groundstroem v The Queen [2014] HCATrans 114.

Background facts

1. [5]

   The background to the offending and the facts relating to the four counts charged are summarised in the judgment of Adams J in the Court of Criminal Appeal as follows:

2. [6]

   In addition to the complainant’s evidence and the evidence of complaint to various relatives, the Crown relied on two significant admissions made by the applicant, one to a psychiatrist whom he had consulted, Dr Cassimatis, and one to a Sergeant Smith at Gosford Police Station. The details of those admissions are set out in the judgment of Adams J as follows:

3. [7]

   The issue at the trial was consent. The applicant’s case was that he and his wife had anal sex to which she consented and liked. He gave evidence at the trial to that effect.

4. [8]

   In relation to the admission to Dr Cassimatis, the applicant said that it was a lie that he had to tell Dr Cassimatis in order to get his wife and children back. He agreed that he went to Gosford Police Station and spoke to Sergeant Smith because he wanted the allegations that were being made against him by his wife to stop. However, he denied admitting to Sergeant Smith that he had raped his wife.

5. [9]

   Complaint was first made by the complainant to police on 28 September 2009. As the facts make clear, she alleged that she was anally raped on many occasions. The four counts charged were described as representative of the numerous assaults. As the facts also note, contextual evidence was given concerning a number of the other assaults on her.

Legislation

1. [10]

   Relevant provisions of the Act are these:

Legal principles

1. [11]

   In Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 the following is said:

The basis of the application

1. [12]

   It is a little difficult to identify the precise bases on which the applicant relies because of the somewhat discursive narrative of the documents setting out his complaints about the trial. It appears that the grounds are these:

(1) Fresh evidence about complainant’s medical history

1. [13]

   The applicant does not identify what aspect of the complainant’s medical history amounts to fresh evidence. He refers to the fact that the complainant suffered from endometriosis/bleedings in Finland before moving to Australia which led to her conceiving Nicholas in 1989. Other references in his narrative imply, but do not state, that any bleeding about which the complainant complains were not related to sexual assault of any kind but were related to her pre-existing condition, presumably, the endometriosis. For example, he says:

2. [14]

   He went on to submit that the medical history was the cornerstone of the evidence which would encourage jurors to ask hard questions about the complainant’s “believability”.

3. [15]

   The applicant further submitted that the allegations the complainant made against him,

4. [16]

   The applicant’s submissions appear, in an indirect way, to criticise the competency of the lawyers who acted for him at the trial although he accepted that both counsel and his instructing solicitor “both gave me a very thorough explanation prior to trial of why the sexual history of an accuser is completely untouchable in court”. The thrust of the criticism appears to be that he found the discussions with his lawyers “contradictory and confusing”, and he did not think of using the medical history evidence as part of the defence.

5. [17]

   His submissions on this aspect conclude by saying:

6. [18]

   There appear to me to be a number of problems in relation to this medical evidence.

7. [19]

   First, the medical evidence is not even identified by the applicant. If it was the fact that the complainant suffered from endometriosis, that would have been an obvious matter to raise with the complainant in cross-examination to challenge her evidence that the bleeding came from the anal rapes. That is the more so when the complainant herself gave evidence in chief of having been diagnosed with endometriosis which she described as a condition that affects the uterine wall. Her evidence was that she conceived their first child, Nicholas, because that had the potential to obviate the need for treatment for that condition.

8. [20]

   Secondly, the complainant’s evidence was that the bleeding came from the anus and not from the vagina, and only occurred after she had been subjected to anal intercourse.

9. [21]

   Finally, the evidence would have no significance because the jury was clearly not satisfied beyond reasonable doubt that the complainant sustained bleeding or other injury from the sexual assault. The applicant was found not guilty of the aggravated form of sexual assault which was dependent upon establishing actual bodily injury. The fact that the complainant may have suffered from a condition which involved bleeding from the uterus would not have had an impact upon her credibility in claiming she had anal intercourse, which was not disputed by the applicant, and that that intercourse resulted in bleeding.

10. [22]

    In that way even if the other requirements for fresh evidence were satisfied, which they would appear not to have been since the evidence was clearly in existence and referred to in the trial, the evidence would not have made any difference to the outcome.

11. [23]

    The applicant also refers in his submissions to two occasions where he asserts the complainant was raped at a young age and was molested by her father as a toddler. It is far from clear if this forms part of the medical evidence that he now wishes to adduce, because the reference to this material occurs in the part of the submission where he accepted that his lawyers gave him a thorough explanation as to why the sexual history of a complainant was not able to be led. If those two asserted occasions are put forward as part of the medical history, s 293 of the Criminal Procedure Act 1986 (NSW) would make evidence of them inadmissible. The applicant does not assert, and it is not the case, that any of the exceptions in s 293(4) are applicable.

12. [24]

    This matter does not cause a doubt or question in my mind concerning the applicant’s guilt.

(2) The other fresh/new evidence

1. [25]

   It is not clear from the applicant’s submissions whether these matters are to be regarded singly or in combination to raise a doubt or question about his guilt. I will, however, first consider each of them individually, and thereafter in combination.

2. [26]

   The applicant does not identify this report. It is said to contain an admission on the complainant’s part that she came from a physically violent childhood. The applicant submits that her evidence at the trial “strongly implied that having come from a single parent household she knew nothing of any abuse, especially sexual”.

3. [27]

   The relevant evidence given by the complainant which the applicant is likely to be relying on (he does not identify it) was in relation to her account of the first time she said that the applicant raped her. The relevant question and answer in the transcript were this:

4. [28]

   The context was that the complainant said to the applicant the following day, after finding bruising on her legs and around her vagina and having pain in the pubic bone area, that what he did constituted rape. His reply was:

5. [29]

   Even if there was evidence that she had suffered some quite different form of abuse in her childhood, that casts no doubt on her knowledge of whether rape within marriage was common or normal.

6. [30]

   I do not have a doubt or question in my mind concerning the applicant’s guilt from evidence of the type described but not identified by the applicant.

7. [31]

   The applicant asserts that the complainant misled the jury and/or committed perjury in relation to her reasons for attending the Turning Point course. The applicant asserts that the complainant was introduced to the course by a Sandi Forbes after she heard about what the applicant says were the complainant’s nightmares and flashbacks. He claims that Ms Forbes has told him that she understood the complainant came from a violent background, something the applicant claims the complainant directly or impliedly denied.

8. [32]

   Once again, the applicant has not identified the misleading or false evidence. It seems, however, that this matter relates to the applicant’s assertion about the Family Court report and the complainant’s evidence about her childhood. I have already set out what that evidence was. She did not say that she did not come from a violent background, nor did she imply it.

9. [33]

   There is no statement from Ms Forbes and, even if there was, it would be inadmissible hearsay about a collateral matter going only to the complainant’s credit.

10. [34]

    More significantly, the applicant does not identify what was misleading or untruthful about what the complainant said were her reasons for attending the course. She was asked in cross-examination if she recalled doing the course in 1993 and she agreed that she did. In answer to the cross-examiner’s question “Did the course have a bit of an effect on you?”, the complainant said:

11. [35]

    This matter does not cause me to have any doubt or question concerning the applicant’s guilt.

(c) Literature/experts on “Turning Point” course

1. [36]

   The applicant submitted that the complainant’s accusations about him and the way her behaviour changed so radically in 1993 and 2003 were due to the combined factors of:

2. [37]

   There is no evidence relating to flashbacks, PTSD or medications. The complainant was not cross-examined about them.

3. [38]

   She was cross-examined at some length to suggest that she was making the complaints out of vindictiveness, because she blamed the applicant for Nicholas’s death. She denied that she blamed him for Nicholas’s death. That was a matter the jury, no doubt, considered when deciding that the sexual assault allegations were true.

4. [39]

   It is not clear what the applicant means when he says that the complainant’s accusations and behaviour changed. As to the accusations, the evidence was clear that the accusations by the complainant to the applicant commenced after the first allegation of rape in 1992, an allegation reported at the time to her sister in Sweden. She continued, thereafter, to make similar accusations as the sexual assaults continued. There is no evidence that the accusations changed. They pre-dated the matters in (a) and (e). As noted above, after the complainant’s denial that she only started arguing with the applicant after attending the Turning Point course, no further questions were asked about the matter.

5. [40]

   There is no evidence of when the complainant had flashbacks because, as I have said, she was not cross-examined about them. It is not even demonstrated that the complainant suffered from PTSD, let alone when it was diagnosed.

6. [41]

   To the extent that the complainant’s behaviour changed throughout the relevant period, the evidence and cross-examination dealt with that issue.

7. [42]

   None of these matters could constitute fresh evidence. None of the matters is shown to have been unknown to the applicant at the time of trial. I do not have any doubt or question concerning the applicant’s guilt by reason of these matters.

(d) Dr David Smith

1. [43]

   The applicant submitted that the complainant was examined by the gynaecologist, Dr David Smith, when she was pregnant with Sebastian. The applicant submitted that if she had been injured or suffered bruising as a result of his treatment of her, this would have been ascertained by Dr Smith.

2. [44]

   This matter is irrelevant because the jury did not accept beyond reasonable doubt that the complainant suffered injury from the sexual assaults. I do not have any doubt or question about the applicant’s guilt from this matter.

(e) The 48 hour rule

1. [45]

   The applicant refers to what he calls the “48 hour rule” in the Sexual Assault Bench Book. This is a section of the Bench Book dealing with medical examinations of sexual assault victims. Paragraph [22] of the Bench Book reads as follows:

2. [46]

   Once again, this is entirely irrelevant in the light of the jury’s verdict. In any event, paragraph [22] says nothing about the length of time bleeding may last. It is concerned with whether linear abrasions might be seen in the anal canal. This matter could have been dealt with at the trial if admissible. It is not fresh evidence.

3. [47]

   I do not have any doubt or question about the applicant’s guilt as a result of this matter.

(f) English skills

1. [48]

   The applicant submits that the complainant should not have been believed about her English skills, and that her lack of English skills provided no basis for an absence of earlier complaint. The applicant submits that the complainant perjured herself in relation to what she said about her English skills.

2. [49]

   The complainant gave evidence about her English skills. She also gave evidence of her reasons for not having complained earlier. To some extent the lack of an early complaint was challenged in cross-examination but there was no challenge raised to her evidence concerning her English skills.

3. [50]

   It is clear also that the failure to make earlier complaint was related to other matters as well. The complainant said that she did not feel strong enough to do it, and she expressed concern to her sister-in-law that if the applicant went to gaol, she and the children would be left with insufficient income to survive.

4. [51]

   The issue of the complainant’s English skills is an entirely collateral matter that could not have made any difference to the outcome.

5. [52]

   I do not have any doubt or question about the applicant’s guilt from this issue.

Conclusion

1. [53]

   Even when considered as a whole, the matters raised in (a) to (f) above do not raise any doubt or question concerning the applicant’s guilt.

2. [54]

   The application fails to adduce or even identify precisely the evidence now sought to be relied upon. Even assuming the evidence is as the applicant asserts, such evidence is not fresh evidence. There is no reasonable prospect that whatever evidence might be admissible would have made any difference to the outcome.

3. [55]

   The case ultimately depended on whether the jury accepted the evidence of the applicant. If it did not, the case against him was a strong one, particularly because of the admissions made to Dr Cassimatis and Sergeant Smith. Significantly, the first visit to Dr Cassimatis where the applicant said “1993 maybe he forced himself on his wife and bruised her”, was long before the complainant left him. That put the lie to what the applicant said was a lie he told Dr Cassimatis just to get the complainant and the children back.

4. [56]

   Sergeant Smith was an independent witness who made a record in the COPS system. The trial judge gave the jury a lengthy warning about Sergeant Smith’s evidence, as his Honour was bound to do, but it was powerful evidence that tended to support what had been said to Dr Cassimatis, as well as the complainant’s evidence.

5. [57]

   I do not have a doubt or question as the applicant’s guilt. Having considered all submissions and material, I decline to direct an inquiry or to refer the case to the Court of Criminal Appeal under s 79(1) of the Act.