Taleb v R

1. [1]

   PRICE J: I agree with Davies J.

2. [2]

   DAVIES J: On 9 September 2013 the Appellant stood trial before her Honour Judge Huggett DCJ and a jury on six counts as follows:

3. [3]

   The Appellant was convicted in respect of counts 1, 4 and 5 but was found not guilty in relation to counts 2, 3 and 6.

4. [4]

   On 14 February 2014 he was sentenced by Judge Huggett as follows:

5. [5]

   The Appellant now appeals against his conviction and sentence on the following grounds:

6. [6]

   Both the Complainant and the Appellant gave evidence. The evidence of the Complainant was as follows.

7. [7]

   The Complainant was born on 14 July 1994. At the time of the offences, April 2012, she was 17 years old living with her family in Panania.

8. [8]

   The Complainant first met the Appellant when she visited the Fitness First gym in Granville with a friend on 6 April 2012. When she went to the reception area she met the Appellant for the first time. The Appellant worked at the gym. He was wearing the Fitness First uniform and she had a conversation with him. He asked if he could mind her handbag while she worked out at the gym. She allowed him to do that.

9. [9]

   Two days later the Complainant located a note in her handbag that said "Fitness First" with the message "Call me" and a mobile telephone number on it. The Complainant did not know who owned the number. She sent a text message.

10. [10]

    On 14 April 2012 the Appellant sent a text message to the Complainant asking her if she wanted to go for a drive. She agreed. The Appellant asked if it was okay if he brought a friend and again she agreed. The Appellant and his friend picked her up from near her house somewhere between 9:30pm and 10pm on that day. The Appellant introduced his friend as "Carlos" who was driving a small four door car. They drove to the wharf side of the Georges River in the Georges River National Park on River Rd, Revesby.

11. [11]

    They parked the car and the three of them sat in the car listening to music and smoking cigarettes. There were no other cars in the car park. After a while the Appellant invited the Complainant to walk with him down to the wharf. Carlos remained in the car. As they walked to the wharf the Complainant noticed that the Appellant was limping and using a pair of crutches. He told her that he had had a motorcycle accident.

12. [12]

    The Complainant and the Appellant sat down on the wharf and after some small talk the Appellant moved closer and started to kiss the Complainant on her neck. She moved away and told him not to do that. The Appellant smiled and laughed and told the Complainant to relax.

13. [13]

    He then pushed the Complainant onto her back and began to kiss and lick the left side of her neck and suck very hard. This caused the Complainant pain. She tried to move away from the Appellant, saying "Don't do that". In a subsequent medical examination conducted on 15 April 2012 Dr Houston observed that the Complainant had a bruise to the left side of her neck which the Complainant said she did not have prior to 14 April. This conduct formed the basis of Count 1 in respect of which the Appellant was found guilty.

14. [14]

    The Appellant then moved one of his hands and squeezed the Complainant’s left breast firmly from outside of her clothing. It caused her discomfort. The Complainant told him to stop and she bit one of his wrists. This formed the basis of Count 2 in respect of which the Appellant was found not guilty.

15. [15]

    The Appellant then rang Carlos to ask him to come down to the wharf. When he arrived, the Appellant told Carlos to stay at the wharf whilst he and the Complainant walked back to the car.

16. [16]

    Both the Appellant and the Complainant got into the back seat of the vehicle. The Appellant removed his t-shirt and asked the Complainant to sit on his lap. When she did so the Appellant started to kiss her again and lick around her neck. He had his hands firmly around her waist. The Complainant tried to move her head to get away from him. However, he kept kissing and licking her neck. This formed the basis of Count 3 in respect of which the Appellant was found not guilty.

17. [17]

    The Appellant then pulled down the Complainant’s bra and exposed her breasts. He commenced to suck and lick the right breast with what she described as “a lot of force, it hurt, it caused pain”. She tried to move her torso away from the Appellant and said loudly, “Stop, no, don’t do that”. Dr Houston observed that the Complainant had a bruise or bite mark to her right breast. The Complainant said that she had no such bruise or mark prior to that evening. That conduct formed the basis of Count 4 in respect of which the Appellant was found guilty.

18. [18]

    The Appellant then pushed the Complainant onto her back and lay on top of her with his chest against her chest. He unzipped her jeans and, as she struggled, he inserted a finger into her vagina which caused pain. The Complainant told the Appellant to stop and said “No”. After a period of struggling, she desisted, saying in evidence that “He wouldn’t stop so I kind of gave up”. She estimated that the Appellant’s finger remained inside her vagina for approximately ten minutes. Dr Houston observed that the Complainant had a bruise on her left thigh which the Complainant said was not present prior to that evening. This conduct formed the basis of Count 5 in respect of which the Appellant was found guilty.

19. [19]

    After the Appellant removed his finger from the Complainant’s vagina, he sat up, pulled down his pants and revealed his penis which was in a semi-erect state. He asked the Complainant whether he would get anything in return to which she replied "No." The Appellant then got out of the car, went to the back of it and commenced to masturbate until ejaculation. This conduct formed the basis of Count 6 in respect of which the Appellant was found not guilty.

20. [20]

    Shortly afterwards Carlos returned to the car. The Complainant was in the back seat of the car. Carlos sat in the front passenger seat and the Appellant drove the vehicle from the park to a place near the Complainant’s home where she got out of the car.

21. [21]

    Soon after arriving home the Complainant initiated a series of text messages with a family friend, Mr Islam Omar, who was a police officer. In those messages she made complaint regarding the actions of the Appellant.

22. [22]

    On 15 April 2014, after urging by Mr Omar, the Complainant made a formal report to the police and participated in a medical examination by Dr Houston.

23. [23]

    On 29 April 2012 police spoke to the Appellant because a van he was driving was parked in the middle of the street at an intersection in Auburn. When they checked his licence they ascertained there was a notification in relation to the Appellant arising out of the allegations that the Complainant had made against him. The Appellant was invited to attend Auburn Police Station and agreed to do so.

24. [24]

    At the police station he was asked if he knew a girl by the name of Dina and he said that he did not. He was placed under arrest and agreed to participate in an ERISP. During the ERISP he denied knowing a girl with the Complainant’s name and said that he did not know what the police officers were talking about when they referred to an incident of a sexual nature that took place at about 10pm on 14 April at Georges River National Park on Henry Lawson Drive, Revesby. He also denied that he had any friends by the name of Carlos.

25. [25]

    The police officers then put to him the details of the complaint and the Appellant said that he did not know what they were talking about, that he did not know the girl concerned, that he had never been to Revesby and that he had not put his phone number in her bag.

26. [26]

    The police identified the Complainant’s phone number as being in the Appellant’s phone and they read the texts that had passed between the Complainant and the Appellant. The Appellant claimed that none of those texts refreshed his memory about the matter. He denied the allegations that were put to him.

27. [27]

    When he gave evidence at the trial the Appellant admitted that he did not tell the police the truth in the ERISP and said that he did so because he was scared.

28. [28]

    The true position, according to the Appellant in his evidence, was that the sexual interactions that took place on the night concerned were all consensual. In fact, on the Appellant’s account of the events, the Complainant had initiated the contact almost from the moment she got into the car when she pulled down his hoodie and tickled him with her nails on his neck.

29. [29]

    The Appellant called evidence from the person he had introduced to the Complainant as Carlos whose name was Kahled Raad. Mr Raad was not present at the time the sexual interaction took place, either at the wharf or in the car. The significance of his evidence for the Appellant was that he said that everything between the Appellant and the Complainant appeared normal. They were laughing and talking. Nothing stood out as being unusual.

30. [30]

    The Appellant was born in Lebanon in 1992 and at the date of sentence was aged 21. He was one of six children. He was born with a form of cerebral palsy known as cerebral diplegia which required the use of crutches. The Appellant had received treatment from the Children's Hospital at Westmead from the age of five and had undergone many operations. He had metal plates in his hips but he still experiences a great deal of pain.

31. [31]

    The Sentencing Judge found that he was raised in a loving environment with significant support from his parents and siblings who assisted him with his needs at home.

32. [32]

    The Appellant completed his Higher School Certificate in 2010 and subsequently completed an Advanced Diploma of Information Technology at the Australian Careers Business College in Parramatta. Following the completion of his Diploma he worked as a receptionist at Fitness First, Granville.

33. [33]

    He was single at the time of the sentence hearing but previously had been in a couple of intimate relationships.

34. [34]

    There was no history of alcohol or illegal drug abuse, mental health problems nor antisocial behaviour. He had no criminal convictions.

35. [35]

    Although he maintained his innocence and had tended to minimise his offending behaviour and showed no empathy towards the Complainant, as the Sentencing Judge found, he indicated a willingness to engage in counselling to address his offending behaviour.

36. [36]

    The pre-sentence report said that his risk of re-offending was low to medium. The Sentencing Judge found that his prospects of rehabilitation were reasonable to good.

Ground 2: Unreasonable verdict

1. [37]

   The Appellant submitted that the verdicts of not guilty on counts 2, 3 and 6 called into question the guilty verdicts on counts 1, 4 and 5. The principles have been comprehensively analysed in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 especially at [23] and [34]. Subsequently, in R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 Simpson J (with whom McClellan CJ at CL and Latham J agreed) said:

2. [38]

   The Appellant submitted that grounds 1 and 2 were not entirely discrete from each other. This was because of the Crown’s suggested reason for the guilty verdicts on counts 1, 4 and 5 and the not guilty verdicts on counts 2, 3 and 6, being that they could only be explained by the presence of bruising related to the events that gave rise to counts 1, 4 and 5. In other words, the most obvious reason that the jury distinguished between the counts was that there was some other objective evidence (bruising) that supported counts 1, 4 and 5.

3. [39]

   The Appellant accepted that the rationale for the distinction made by the jury in the counts in respect of which there was conviction and those for which he was acquitted was the presence of bruising. In that way, the Appellant submitted, the possible causes of the bruising was a highly relevant matter and ought to have resulted in the Trial Judge permitting questioning about other sexual activity engaged in by the Complainant. Without that other evidence the jury’s verdict was unreasonable. I shall, accordingly, consider the grounds together.

4. [40]

   A voir dire was held at the commencement of the trial on a Notice of Motion filed by the Appellant which sought the following order:

5. [41]

   The report of Dr Houston was in the form of an expert certificate pursuant to s 177 of the Evidence Act 1995 (NSW). The examination of the Complainant was carried out on 15 April 2012. In the report Dr Houston recited the history given including that after she arrived home the Complainant had a long shower. The report also noted that she complained of pain in her genital area which had settled and pain for bruises on her thigh from the struggle.

6. [42]

   Under the heading “7. Answers to direct questions” the following appeared:

7. [43]

   The report then went on to note the bruising apparent on clinical examination. Dr Houston also took a buccal sample and both a vulval and a low vaginal swab.

8. [44]

   In the last paragraph headed “Opinion, based wholly or substantially on the above knowledge” Dr Houston relevantly said:

9. [45]

   Ms Wedervang examined the swabs taken by Dr Houston and also the Complainant’s bra to see if DNA was present. Her Certificate disclosed the following:

10. [46]

    The SMS messages on the Complainant’s phone were reproduced.

11. [47]

    The events complained of took place in the period 9.30pm to 10.45pm on 14 April 2012. The first of the messages sent by the Complainant is recorded at 10:49pm to a friend Youseff Nader. The message said:

12. [48]

    At 11:10pm she sent a message to another friend Alec Cohen saying:

13. [49]

    Thereafter, commencing at 11:30pm there are a large number of messages between the Complainant and Mr Omar until 1:26am the following day, 15 April.

14. [50]

    At 3:43am on 15 April the Complainant sent a description to Mr Nader of what happened that was similar to what had been sent to Mr Cohen the night before.

15. [51]

    From 12:51pm on 15 April until 3:30pm on that day there are numerous messages exchanged between the Complainant and a person known as Jason Samman who appears to be someone the Complainant communicated with through Facebook. Those messages make no reference to the sexual assault and can be regarded as very flirtatious messages involving discussions about sexual matters and perhaps included the sending of sexual images to or from the complainant.

16. [52]

    Thereafter, there are text messages to and from Mr Omar until 7.06pm on 15 April interspersed with text messages to and from Jason Samman of a similar kind to those referred to in the previous paragraph. They are followed by messages with Mr Nader that suggested he was coming to the Complainant’s house. The last of those messages on 15 April was at 8.51pm. They resumed at 3.53am on 16 April and continued until 6.17am. The messages to and from Jason Samman resumed at 4.51am and continued through 16, 17 and 18 April. There were a few further messages with Mr Omar on the afternoon and evening of 16 April.

The legislation

1. [53]

   Section 293 of the Criminal Procedure Act 1986 (NSW) provides:

The trial judge’s rulings

1. [54]

   The Sentencing Judge’s reasons for the ruling on the voir dire were as follows (at T31, 9/9/13)

2. [55]

   Thereafter, further debate ensued particularly with regard to Dr Houston’s report and the injuries that had been noted. Her Honour then said (at T 42):

3. [56]

   However, there were a few other exchanges relevant to those rulings. Shortly after what appears at [54] above her Honour said this (at T 33.1):

4. [57]

   Shortly afterwards, the trial advocate said (at T 34):

5. [58]

   Despite her Honour saying that she was not giving a formal ruling at that stage but that she would give a formal ruling, she did not ultimately do so. It may be regarded as unfortunate that a formal ruling was not given on so significant a matter. It seems to have been overlooked in the desire not to delay the trial. Nevertheless, a reading of the trial transcript discloses that the parties largely worked on the basis that what was set out in [54] and [55] above constituted her Honour’s rulings with respect to the three areas of evidence argued at the voir dire.

6. [59]

   Counsel for the Appellant at the trial was permitted to ask the Complainant and Dr Houston about the bruising. Consistently with her Honour’s ruling about Dr Houston’s evidence the Complainant was asked this question in cross-examination:

7. [60]

   In cross-examination Dr Houston gave the following evidence:

8. [61]

   Notwithstanding what the trial judge and the trial advocate had said in the passages set out in [56] and [57] above, when Dr Houston was being examined by the trial advocate the transcript discloses the following:

9. [62]

   At the conclusion of Dr Houston’s evidence the trial advocate raised with her Honour in the absence of the jury the fact that her Honour had indicated earlier that she would allow a question along the lines of whether or not what she observed was consistent or not with what the complainant alleged. The Trial Judge said that she thought the Crown was going to ask something along the lines of the final paragraph of the report (at [44] above) but she thought, in any event, that the jury could draw its own inferences from the injuries.

10. [63]

    Her Honour’s disallowance of the trial advocate’s question was favourable to the Appellant.

11. [64]

    Counsel for the Appellant addressed the jury about the evidence of bruising. He said this (at T 31-32, 17/9/13):

12. [65]

    It is to be noted that counsel for the Appellant did not make reference specifically to Dr Houston’s evidence during cross-examination that the bruising could have been caused by consensual sexual activity at another time.

(b) The DNA evidence

1. [66]

   In addition, evidence was permitted that any DNA found was not the Appellant’s DNA.

2. [67]

   When Ms Wedervang gave her evidence the Crown Advocate obtained from her that the Accused’s DNA profile was not able to be identified on the low vaginal swab, that she would not expect DNA from the finger of a person who had digitally penetrated the vagina of the Complainant still to be present and detectable 24 hours after an incident and that she was not able to find a DNA profile matching the Accused on any of the areas of the bra which had been tested.

3. [68]

   She was asked about the way DNA is deposited and on which surfaces it is more likely to be detected. There was then a question and answer as follows:

4. [69]

   In the absence of the jury the Appellant’s counsel complained about that question and answer which it was said suggested that the absence of the Appellant’s DNA on the bra could be explained away by some means. That led her Honour to tell the jury when they returned:

5. [70]

   Counsel for the Appellant addressed about the DNA evidence including the fact that the Appellant’s DNA was not found on the bra notwithstanding that it was alleged that he sucked and licked on the Complainant’s breast.

(c) The text messages

1. [71]

   The text messages that the jury saw were contained in exhibit D. They were the text messages that passed between the Complainant and Islam Omar commencing at 11:30pm on 14 April 2012 (Number 2119) and concluding on 16 April 2012 at 7:37pm (Number 2241).

2. [72]

   On the third day of the trial prior to the Complainant giving her evidence counsel for the Appellant raised with her Honour matters concerning the text messages about which he was entitled to cross-examine the Complainant. He produced a document that became MFI 2 which identified the text messages by number, with a statement of what it was he wished to establish by cross-examination.

3. [73]

   When counsel for the Appellant cross-examined the Complainant about the text messages the following evidence was given:

4. [74]

   The jury did not have the document that was ultimately MFI 3 that contained the details of all of the text messages including those that had been cross-examined about. Consistently with Her Honour’s ruling on the voir dire counsel for the Appellant did not ask any questions about the texts suggesting they involved sexual banter or sexual related matters, although they did in fact suggest those things.

5. [75]

   It is, perhaps, noteworthy that the Appellant’s counsel did not seek to tender a table including all the text messages except the ones colour-coded red (those which the trial judge excluded by virtue of s 293). It seems likely that this was a tactical decision because such a tender would have disclosed complaints to a number of people apart from Mr Omar.

6. [76]

   In his final address to the jury counsel for the Appellant said only this about the text messages:

The Appellant’s submissions

1. [77]

   The Appellant submitted that he should have been permitted to go further than simply asking if the bruising was explicable by other consensual activity, and to put that it was not caused by the matters alleged.

2. [78]

   In his written submissions the Appellant argued that sub-paragraphs (4)(a)(i) and (ii) of s 293 were satisfied in relation to the text messages together with the history taken by Dr Houston and the findings of Ms Wedervang, in that the temporal connection was established given the continuation of reliance by the Crown of the Complainant’s evidence beyond the initial contact with Islam Omar. The suggestion of continued sexual activity satisfied sub-para (i) and was “connected” under sub-para (ii) by the evidence of the Complainant being in the form of text messages. The Appellant submitted that no narrow approach should be given to the required connection in accordance with R v Morgan (1993) 30 NSWLR 543 at 544.

3. [79]

   The Appellant further submitted that it would be open for a jury to find that a woman who had been sexually assaulted would be unlikely to have engaged in further consensual sexual activity shortly thereafter.

4. [80]

   The link between the three matters (the bruising, the DNA evidence and the text messages) was identified by the Appellant in his reply to the Crown’s supplementary written submissions on the appeal. The Appellant sought to put evidence before the jury by cross-examination that the bruises did not relate to the circumstances in which the complainant said they were caused. The evidence of the DNA and the text messages were sought to be put before the jury since the bruises were said to be relevant to sexual activity and to show that they were relevant to sexual activity other than the sexual activity charged.

5. [81]

   In his oral submissions, Mr James QC argued that it was sub-s (4)(c) that was engaged. This was because the issue was said to be whether or not the injury was attributable to the sexual intercourse alleged to have been had by the accused person. The question which arises from this reliance on sub-s(4)(c) is whether it was relied upon before the trial judge and, therefore, whether Rule 4 applies.

6. [82]

   An examination of the transcript makes it clear that paragraph (4)(c) was not only not relied upon by the Appellant at the trial but was expressly abjured. The transcript records the following:

7. [83]

   The Appellant submitted that it was enough that the exceptions to s 293 were invoked and that for Rule 4 purposes it was not necessary that all bases be articulated. I do not agree.

8. [84]

   In Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195 Simpson J said (speaking of various sections of the Evidence Act 1995 (NSW):

9. [85]

   Although James J and Hall J in Vickers reserved their opinion on the point, the passage was approved in this Court in Shepherd v R [2011] NSWCCA 245 at [26], Sulaeman v R [2013] NSWCCA 283 at [129]-[130] and Poniris v R [2014] NSWCCA 100 at [54]-[55]. I consider that those passages in Simpson J’s judgment correctly state the law with regard to rule 4.

10. [86]

    If it was not argued below that the evidence should be admitted by reason of the exception in paragraph (4)(c), and where counsel for the Appellant agreed that paragraph (4)(c) did not apply, it must be concluded that the point was not taken below. It is not enough to say that reliance was placed generally on s 293: Vickers at [76]. Ordinarily a party is bound by his or her counsel’s conduct of a case. The Appellant would need to demonstrate that the approach by the Appellant’s counsel at the trial has resulted in a miscarriage of justice.

11. [87]

    For reasons which will become apparent, counsel’s agreement with the trial judge that paragraph (4)(c) had no application was correct. In those circumstances, reliance now by the Appellant on para (4)(c) means that rule 4 applies.

Section 293(4)(c)

1. [88]

   To bring himself within this exception the Appellant needed to show (i) that he did not concede the “sexual intercourse so alleged” and (ii) that the evidence was relevant to whether the presence of (relevantly) injury was attributable to the sexual intercourse alleged against him. In addition, the tailpiece to the subsection needed to be satisfied.

2. [89]

   The relevance was said to be that the injury being the bruising could have come from other vigorous sexual intercourse or sexual activity. The DNA evidence and the text messages suggested other sexual activity and the Appellant ought to have been allowed to explore in cross-examination that other sexual activity. The Appellant submitted that if Dr Houston had known of the DNA evidence and the evidence of the text messages suggesting further sexual activity her opinion about the cause of the thigh bruising might have been different.

3. [90]

   Although the Crown made oral submissions at the hearing of the appeal that the bruising to the thigh was not attributable to the sexual intercourse that submission was abandoned in subsequently filed submissions dealing with paragraph (4)(c). That abandonment was properly made: Dimian v R (1995) 83 A Crim R 358.

4. [91]

   The injury is therefore a relevant one for paragraph (4)(c).

5. [92]

   However, the Appellant is unable to satisfy the requirements of sub-paragraph (4)(c)(i) because he does concede that sexual intercourse took place. The sexual intercourse was digital penetration of the complainant’s vagina. The Appellant submitted that he did not concede the “sexual intercourse alleged” because that sexual intercourse was intercourse without the consent of the complainant.

6. [93]

   The question is, therefore, whether “sexual intercourse alleged” is a reference only to the physical act or whether it includes the issue of consent in its description or classification. There are a number of reasons why the Appellant’s construction of the paragraph should be rejected.

7. [94]

   First, “sexual intercourse” is defined in s 61H(1) of the Crimes Act 1900 (NSW). Section 293 applies to prescribed sexual offences, a number of which are offences involving sexual intercourse. Section 293 was originally enacted as s 409B of the Crimes Act. It may be taken, therefore, that when s 293 uses the term “sexual intercourse” it means the same thing as the definition in s 61H of the Crimes Act because that Act creates the offences which the Criminal Procedure Act declares to be prescribed sexual offences. That definition deals only with the physical acts that constitute sexual intercourse. Matters touching consent are found in the individual sections which create the offences.

8. [95]

   The Crown submitted that the present offence charged under s 61I had three elements, being (1) that the Appellant had sexual intercourse with the complainant, (2) that the complainant did not consent to that sexual intercourse, and (3) that the Appellant knew that the complainant was not consenting. In that way, it can be seen that the issue of consent is not contained within the “sexual intercourse” itself. The Appellant admitted (1) so that element was made out. In that way, and because consent was a separate element, the sexual intercourse alleged was conceded. The Crown’s submission should be accepted.

9. [96]

   Secondly, resort may be had under s 34 of the Interpretation Act 1987 (NSW) to the Second Reading Speech whether to confirm the ordinary meaning of a provision or to determine the meaning of an ambiguous provision in legislation. When the predecessor of s 293 was introduced as s 409B of the Crimes Act the Second Reading Speech in the Legislative Assembly relevantly said:

10. [97]

    Thirdly, the cases which have considered paragraph (4)(c) have tended to the view that the paragraph is speaking of the physical act of sexual intercourse.

11. [98]

    In R v Tubou [2001] NSWCCA 243 Heydon JA (with whom Wood CJ at CL and Sully J agreed) said:

12. [99]

    In R v Mosegaard [2005] NSWCCA 361 the appellant was charged with three counts of sexual intercourse without consent. He conceded that those acts of sexual intercourse took place but said they were by consent. The complainant alleged other acts of sexual intercourse during the relevant events but those acts were neither charged nor conceded by the appellant. He sought to cross-examine the complainant in relation to earlier acts of sexual activity with other people on the basis of various injuries said to have been sustained by the complainant.

13. [100]

    McClelland CJ at CL (with whom Grove J and Smart AJ agreed), having first noted at [148] that Tubou had not resolved problems associated with s 293(4)(c), said:

14. [101]

    In R v Baden Cram [2008] NSWDC 225 Hulme DCJ (as his Honour then was) said:

15. [102]

    If “sexual intercourse so alleged” means sexual intercourse without consent, it is difficult to see what work there is for s 293(4)(c)(i) to do, because every person accused of such an offence would satisfy the sub-paragraph. The views expressed by McClellan CJ at CL, Heydon JA and Hulme DCJ should be followed. The reference in the sub-paragraph to “sexual intercourse” is a reference to the physical act. In the present case that act is conceded. The Appellant does not fall within s 293(4)(c). There was no miscarriage of justice.

Section 293(4)(a)

1. [103]

   To bring himself within this exception the Appellant needed to demonstrate that the relevant other sexual activity (i) took place “at or about the time of the commission” of the offence charged, and (ii) the evidence of such sexual activity formed part of a “connected set of circumstances” in which the offence charged was committed. In addition, the tailpiece to the subsection needed to be satisfied.

2. [104]

   Section 293(4)(a) has been discussed in a number of cases in this Court. A fairly broad and liberal approach was taken in R v Morgan (1993) 30 NSWLR 543 in a somewhat unusual case where the complainant alleged three acts of sexual intercourse against the appellant. The complainant had been drinking with the appellant, the complainant’s boyfriend and another woman. Within an hour of the alleged sexual assaults by the appellant the complainant had consensual sexual intercourse with her boyfriend. It was held that both limbs of paragraph (4)(a) were satisfied in the circumstances.

3. [105]

   In JWM v R [2014] NSWCCA 248 Hall J (with whom RA Hulme and Davies JJ agreed) said:

4. [106]

   By contrast with Morgan, in R v Burton [2013] NSWCCA 335 Simpson J (RA Hulme J and Barr AJ agreeing) held that evidence of a complainant’s sexual interest in another man in a bar on the evening she alleged a later sexual assault by the accused was not relevant, with the result that s 293 was never engaged. However, even if the evidence was relevant it satisfied neither limb of paragraph (4)(a).

5. [107]

   Simpson J said:

6. [108]

   What is relied on in the present case are text messages showing the complainant engaging in sexual banter the day after the alleged assaults, and DNA evidence suggesting other sexual activity within days of the assault alleged. It is difficult to see, in view of Simpson J’s analysis in Burton how the evidence could be relevant in the first instance. It is precisely the sort of evidence that s 293 was designed to exclude. Even if the evidence of Dr Houston is additionally considered to provide some other explanation for the bruising, arguably making the evidence relevant, neither limb of paragraph (4)(a) is satisfied. In a similar analysis to the position in Burton at [79], much occurred between the events complained of and the subsequent text messages.

7. [109]

   More particularly, even allowing for what Basten JA said in GEH at [13] that in some circumstances the temporal element in (a)(i) and the relationship element in (a) (ii) should be read together, it cannot be said that there is any connection between the events complained of and the matters sought to be introduced by the appellant to enable (a)(ii) to be satisfied in the present case.

8. [110]

   In Baden Cram the complainant had consensual sex with another man earlier on the same night at the same party. The accused sought to introduce that evidence in reliance (inter alia) on s 293(4)(a) to provide an alternative explanation for an injury alleged by the complainant to have resulted from the non-consensual intercourse. Hulme DCJ said:

9. [111]

   In the present case, what the Appellant relies upon is the presence of the DNA and text messages on the day following the assaults which are said to suggest that the complainant may have been visited by a person with whom she was communicating by text messages and who might have been a boyfriend or someone with whom she was having some sort of sexual relationship.

10. [112]

    As the trial judge noted in her reasons for her ruling, it was not clear what the DNA was from (it was not from the Appellant), the bra was not taken to be examined for three or four days after the assaults and the DNA could have been present for up to five days. Further, it is pure speculation from the text messages 2202 to 2217 that anyone in fact visited the complainant, let alone had sex with her. Those messages were exchanged between 8.46pm on 15 April and 9.23 am on 16 April. The evidence was that the complainant went that night, somewhere between 9.30 and 10.30 pm to the hospital to be examined.

11. [113]

    Unlike some other cases where s 293 has been considered (Morgan, GEH, Tubou and even Baden Cram) where other sexual intercourse was admitted by the Complainant, there was no such admission in the present case. All that can be said here is that it is likely there was some sexual activity within about 4 to 5 days because of the presence of the DNA. The evidence that it occurred the following night was pure speculation. In those circumstances, the temporal element in (4)(a)(i) is not established.

12. [114]

    The submissions that the relationship element in (a)(ii) is established because the text messages continued over a few days must be rejected. In the first place, it is not established that the sexual activity suggested by the DNA was related to the text messages or took place at some point in the midst of them. Secondly, the mere fact that the Complainant was continuing to send text messages does not make any later sexual activity connected to the events associated with the assault. The relationship element in (a)(ii) is not established.

13. [115]

    If I am wrong about these matters, it is necessary to consider the tailpiece to the subsection.

14. [116]

    The trial judge’s rulings were, if anything, favourable to the Appellant. He was permitted to cross-examine the complainant about other vigorous sexual activity and about certain text messages suggesting that she had not been sexually assaulted, without the full context of those messages being before the jury which would show multiple early complaints. DNA evidence suggesting sexual activity with a person or persons other than the Appellant was before the jury. The trial advocate was not permitted to ask the doctor if the bruising was consistent with the sexual assaults alleged. On the other hand Dr Houston was asked by the Appellant if the bruising could have come from consensual vigorous sexual activity and she said that it was possible.

15. [117]

    All of these matters meant that the probative value of what was sought to be asked was slight indeed. It was suggested that Dr Houston’s evidence might have been different if she had been provided with the other evidence in circumstances where the complainant had denied any other vigorous sexual activity. However, she had already admitted that it was possible the bruising could have come from consensual vigorous sexual activity.

16. [118]

    Mr James QC submitted that the Appellant should have been able to put to the complainant that the bruising arose from other consensual sexual activity in which she engaged at or about the time of the alleged assaults and that the bruising had not been caused by the Appellant. However, the complainant denied the former proposition which was allowed to be put to her. Further she gave evidence that the bruising was not present before the assaults.

17. [119]

    Where the probative value was so slight, it was easily outweighed by any distress, humiliation or embarrassment that the complainant might suffer. The tailpiece to the subsection is not satisfied.

Section 293(6)

1. [120]

   For this subsection to apply it would need to be shown that it had been disclosed or implied in the prosecution case that the complainant had or had not taken part in sexual activity, and that the accused might be unfairly prejudiced if the complainant could not be cross-examined in relation to the disclosure.

2. [121]

   The Appellant relied upon what was contained in Dr Houston’s report under the heading “7. Answers to direct questions” where the complainant told Dr Houston that she had not had sexual intercourse within 7 days of the examination (see [42] above). The Crown had notified the solicitors for the accused on 30 August 2013 that the Crown would not be relying on that statement.

3. [122]

   In circumstances where the Crown stated that it did not intend to rely on the statement it cannot be said the information was (or would be, since this was a motion prior to the trial) disclosed in the case for the prosecution. In Spratt v Director of Public Prosecutions [2010] NSWSC 355 part of the complainant’s statement provided evidence of her relationship and sexual experience with a person (not the accused) prior to the alleged sexual offence committed by the accused. Sometime after the statement was served the DPP notified the defence that the Crown would not rely on those parts of the statement dealing with that sexual experience of the complainant. The accused argued that the evidence had been disclosed in the case for the prosecution and that it, therefore fell within the exception in s 293(6).

4. [123]

   Hidden J said:

5. [124]

   A similar view was reached by Giles JA (with whom James and Harrison JJ agreed) in Rolfe v R [2007] NSWCCA 155 at [55] and by Hulme DCJ in Baden Cram at [19].

6. [125]

   I agree with the view expressed in these cases. The Crown has an obligation to disclose relevant evidence. However, not all of that evidence may be led by the Crown. The concern about unfair prejudice to the accused if not permitted to cross-examine on the material disclosed or implied in sub-s(5)(b) points strongly to the conclusion that “case for the prosecution” is a reference to the case presented or to be presented in court and not a reference to anything referred to in material provided by the prosecution. Where, as here, the Crown has said that material will not be relied upon, s 296(6) is not engaged.

7. [126]

   Despite those matters the jury distinguished amongst the counts charged in a way that is explicable by bruising in relation to each of the three counts that resulted in guilty verdicts. The acquittal in relation to Count 6 is explicable by the nature of what was alleged. The Appellant engaged in an act of masturbation outside the car in which the complainant was seated. The jury could easily have concluded that there was no act of indecency “towards a person” being the complainant. The other two counts where not guilty verdicts were recorded involved word against word with no supporting evidence.

8. [127]

   I am satisfied from examining the evidence and the summing up that there was evidence on which the jury could reasonably have convicted the Appellant whilst at the same time acquitting him on counts 2, 3 and 6. The trial judge was not in error in excluding the evidence sought to be admitted by the Appellant involving cross-examination of Dr Houston regarding her history taking, Ms Wedervang about her findings, and of the Complainant regarding the text messages concerning sexual banter and other sexual activity involving her.

9. [128]

   I would grant leave to appeal in relation to Ground 2 but dismiss the appeal on grounds 1 and 2.

Ground 3 – The sentence was manifestly excessive

1. [129]

   The overall sentence was a non-parole period of three years with an additional term of three years. That was in fact the sentence imposed for count 5 with the sentences for counts 1 and 4 being fixed terms of imprisonment that were made wholly concurrent with the sentence for count 5. The appeal against sentence was, as senior counsel for the Appellant acknowledged, really a complaint against the sentence for count 5 although he suggested that the imposition of the two fixed terms for counts 1 and 4 might have had the effect of increasing the sentence on count 5.

2. [130]

   No complaint was made about the Sentencing Judge’s approach in principle either to her factual findings, her assessment of the medical evidence concerning the Appellant, or her approach to the sentencing in principle.

3. [131]

   The Appellant submitted that, while there was no hierarchy of offences covered by the sections the offending was at a reasonably low level. The Appellant further submitted that an examination of other cases raised the equal justice principle of consistency in sentencing.

4. [132]

   The Sentencing Judge found that while the Appellant did not cause substantial harm to the complainant bruises were occasioned in the course of the commission of counts 1, 4 and 5. Furthermore, a degree of force was used. The Sentencing Judge accepted that there was no gratuitous violence nor acts of degradation nor humiliation. However, the evidence established beyond reasonable doubt that the complainant expressed her lack of consent both by words and action until such time as she ceased struggling because the Appellant would not stop. Her Honour said that actual knowledge as to lack of consent was objectively more serious than a reckless state of mind.

5. [133]

   Her Honour noted that there was no hierarchy as to the seriousness of the various kinds of intercourse recognised by the law but said that the nature of the intercourse and its duration were relevant to a consideration of objective seriousness.

6. [134]

   Her Honour noted that the pre-sentence report stated that the Appellant’s risk of re-offending was low to medium. Her Honour thought that his age, his lack of record and considerable family support meant that his prospects of rehabilitation were reasonable to good.

7. [135]

   Although general deterrence was an important factor in sentencing for sexual offences, her Honour did not consider that specific deterrence had any significant role to play given her finding that the offending by the Appellant was an aberration.

8. [136]

   Her Honour noted the standard non-parole period but said that she had determined that there were reasons for the imposition of a non-parole period less than was the standard non-parole period prescribed. These matters related primarily to the nature of the sexual intercourse and the absence of gratuitous violence. Count 5 was not, however, properly characterised as being at the very bottom of the scale of relative seriousness given that the Appellant had actual knowledge of her lack of consent and the fact the act of intercourse was of a relatively long duration.

9. [137]

   Her Honour found that special circumstances were present.

10. [138]

    As I have said, the Appellant effectively received a non-parole period of three years with an additional term of three years for two indecent assaults and an act of sexual intercourse without consent that was not at the bottom of the scale of relative seriousness. As noted earlier, the maximum penalty for the offence of sexual intercourse without consent was 14 years’ imprisonment and there was a standard non-parole period of 7 years.

11. [139]

    Although the offending was opportunistic the guilty verdicts encompassed two separate occasions on the night concerned. The first was down near the wharf and the second was some little time later in the car. The complainant had made it clear to the Appellant at the wharf that his advances were unwelcome. Despite that, he acted a second time when they were in the car and notwithstanding the complainant’s protests about what constituted an indecent assault the Appellant persisted in his actions resulting in sexual intercourse over a period of ten minutes during which the Complainant again protested.

12. [140]

    The Appellant drew attention to a number of cases which were said to be comparable and provided a schedule of other cases involving offences against s 61I. There is a wide variation, as one would expect, in the sentences imposed, with the sentences tending to show an increase after a standard non-parole period was provided for the offence concerned. It cannot, however, be said that the sentence imposed even for count 5 alone is out of the range of sentences shown in the schedule. Even if it could be said to be on the high side it is within the appropriate range. If any adjustment were made to the sentence for count 5 there would need to be an adjustment in terms of concurrency and accumulation for one or more of the indecent assault offences: s 7(1A) of the Criminal Appeal Act 1912 (NSW).

13. [141]

    In my opinion, it cannot be said that the sentence is unreasonable or plainly unjust (Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357) and is not therefore manifestly excessive.

14. [142]

    I propose the following orders:

15. [143]

    SCHMIDT J: I agree with Davies J.