Smith v R

1. [1]

   HOEBEN CJ AT CL: I agree with the reasons of Davies J and the orders which he proposes.

2. [2]

   DAVIES J: The applicant stood trial in a judge-alone trial before his Honour Judge Bozic SC in the District Court on the following counts:

3. [3]

   On 15 December 2016, the applicant was found guilty of Counts 1, 2 and 3, and was found not guilty of Counts 4 and 5.

4. [4]

   On 1 May 2017, the applicant was sentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years and 6 months commencing 1 November 2014 and expiring 30 April 2019. The balance of term of 2 years 6 months is set to expire on 31 October 2021. The indicative sentences were as follows:

5. [5]

   In addition, there were two offences on a s 166 certificate of possess a prohibited drug, and have custody of a knife in a public place. In each case a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed.

6. [6]

   The applicant seeks leave to appeal against his conviction upon the following grounds:

   1. (1)

      The verdicts of guilty for Counts 1, 2 and 3 are unreasonable having regard to the nature and quality of the evidence and the verdicts of not guilty on Counts 4 and 5; and

   2. (2)

      His Honour erred in the directions given to the jury in that:

   3. (3)

      he failed to give a proper Markuleski direction; and

   4. (4)

      he failed to give any hearsay warning regarding the evidence of complaint(s) made to Paul Claxton, Keith Saunders and Kerry Smethurst.

7. [7]

   At the hearing, counsel for the applicant sought leave to withdraw ground 2(a) in the light of a recent decision of this Court in Roos v R [2019] NSWCCA 67. Leave was granted and ground 2(a) was withdrawn.

8. [8]

   I note that the applicant’s written submissions describe ground 2 as relating to “directions given to the jury”. This is clearly in error. The trial was conducted by the trial judge alone, and the substance of this ground goes to the alleged failure of Judge Bozic SC to warn himself adequately.

9. [9]

   Before setting out the evidence relevant to the case at hand, it is useful to delineate the requirements for leave under each ground of appeal. These requirements are not disputed by the applicant. For ground 1, which involves a question of fact, leave is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). As for the second ground, leave is required under r 4 of the Criminal Appeal Rules as trial counsel for the applicant did not seek the direction now complained of.

The Crown case

1. [10]

   Briefly stated, the complainant and the applicant were in an abusive and dysfunctional relationship. The complainant was functionally illiterate. It was the Crown case that on an evening in November 2012 at the Redfern residence of the complainant’s friends Paul Claxton and Keith Saunders, the applicant barricaded the complainant in a room, physically assaulted her, digitally penetrated her and had penile/vaginal intercourse with her without her consent. The complainant was said to have reported the assault to Mr Claxton and Mr Saunders the following day. This conduct constituted counts 1 and 2 on the indictment, and was referred to as the “Redfern Incident”.

2. [11]

   It was alleged that on another occasion in 2015 the applicant held a knife to the complainant’s throat, causing a small cut. The Crown case was that directly after this took place, the complainant reported the incident to her neighbour Kerry Smethurst. This incident constituted count 3 and was referred to as the “Knife Incident”.

3. [12]

   The Crown alleged that on the same day as the Knife Incident, the applicant came to the complainant’s house with a sawn-off shotgun and threatened the complainant. This formed the basis of count 4 and was referred to as the “Shotgun Incident”.

4. [13]

   The fifth and final count was alleged to have occurred just after the Shotgun Incident. It was the Crown case that the applicant took a yellow-handled knife out of his bum bag and threatened the complainant before proceeding to have penile/vaginal intercourse with her without her consent. This was described as the “Lake Haven Incident”.

5. [14]

   The complainant provided statements on 2 December 2012 (which was typed up and formalised on 20 May 2013) and 21 July 2015; two recorded interviews on 14 September 2015; and one recorded interview on 8 June 2016. She also provided evidence at the trial. It was the Crown’s case that the complainant’s evidence did not stand alone in relation to counts 1, 2 and 3. The Crown submitted that counts 1 and 2 were supported by the complaint evidence of Keith Saunders and Paul Claxton, and that count 3 was supported by the complaint evidence of Kerry Smethurst. The Crown accepted that there was no corroboration for counts 4 and 5.

6. [15]

   The Crown also relied upon tendency evidence in relation to counts 3, 4 and 5. It relied on five incidents involving acts of violence as tendency evidence. It was the Crown case that these acts relied on as tendency evidence were acts of violence committed upon a female with whom the applicant was in an intimate relationship during or following an argument. It was submitted that this evidence could be relied upon in support of the complainant’s allegation that she and the applicant argued, that he became angry and threatened violence. The Crown accepted that if this tendency evidence were to be rejected, the Crown’s case for counts 4 and 5 would rest entirely upon the complainant’s evidence.

Evidence

1. [16]

   As the first ground of appeal turns upon the evidence before the trial judge, it is important to set out the complainant’s evidence (both at trial and from her prior statements), along with the evidence of Mr Saunders, Mr Claxton and Ms Smethurst, which the Crown relied upon as corroboration for certain counts. The applicant did not give evidence at the trial, but his record of interview with the police was tendered as evidence.

2. [17]

   The complainant met the applicant around 2012 and they entered into a relationship shortly thereafter. The complainant gave evidence that a few months before Christmas 2012 she caught the train with the applicant to Central station. They were going to visit the Redfern residence of two friends, Paul Claxton and Keith Saunders. She said that she brought the applicant along so that he could meet her friends. She had consumed Valium earlier that day. At the Redfern premises, the four of them had some drinks and smoked marijuana, before all going to bed around 11pm. The applicant and the complainant retired to the same bedroom.

3. [18]

   Once inside, the applicant closed the door and barricaded it shut using a chest of drawers and a blue barrel. He proceeded to push the complainant around, punching her down her side, grabbing her arms, grabbing her mouth, throwing her around the room and attempting to rip off her pyjamas. She tried to scream but the applicant told her to “shut the fuck up, don’t scream”, and put his hands over her mouth. To save her pyjamas from ripping, the complainant told the applicant, “I will take it off”. She was naked and said to the applicant, “No you don’t have to do this to me. Why are you doing this to me?” to which the applicant responded, “shut the fuck up”. The complainant said that the applicant then “put his hand on my vagina so he could put his penis inside me”. He digitally penetrated the complainant before engaging in non-consensual penile/vaginal intercourse. The digital and penile penetration lasted about five minutes, before the applicant got up and began pacing around the room. He then got back into bed and told the complainant to “shut up and go to fucking sleep”.

4. [19]

   During the night, the complainant woke up and needed to go to the bathroom. The applicant asked her what she was doing. When she explained that she was going to the bathroom, the applicant said, “you’re not fucking going anywhere, get back into bed”. The complainant begged the applicant to allow her to go to the toilet, but he would not let her go and she ended up going to the toilet in the corner of the bedroom.

5. [20]

   In the morning, the complainant told the applicant that she needed to go to the bathroom and he moved the cupboards out of the way. She went straight to the lounge room where her friends were and said to Mr Claxton and Mr Saunders, “[the applicant] raped me last night”. She said, “look at what he’s done to me” and lifted up her top to show them the bruises down the side of her body. At trial, she confirmed that she did not have those bruises prior to attending the premises in Redfern. The applicant then entered the room and Mr Claxton asked him if he had hurt the complainant the night before. The applicant replied, “no she’s a fucking liar”.

6. [21]

   The complainant subsequently left the Redfern premises and the applicant followed her. As soon as she arrived home in the Central Coast, she reported the incident to the police and made a statement. In that statement, she reported the physical assault upon her, but made no mention of the sexual assault. The police took photos of the bruises on her body.

7. [22]

   The complainant did not report the sexual assault until her interview with police on 14 September 2015, and did not mention the digital penetration until her further police interview on 8 June 2016. She said that she did not initially report the sexual assaults because she was embarrassed and felt degraded.

8. [23]

   The complainant gave evidence that there was an incident where the applicant “cut [her] throat, just nicked [her] throat”. She said that this took place at her unit in Lake Haven sometime after the applicant’s release from custody. She said that the applicant used a “pirate’s knife” that was as “wide as [her] shoulders” to cut her throat. In her oral evidence, the complainant first stated that her throat was cut twice, but later asserted that it was only cut once. She gave the following evidence about the applicant’s conduct:

9. [24]

   A man named Alec was also in the unit at that time, and witnessed everything that the applicant did. The complainant said that Alec did nothing to assist her and asked for the bong. The applicant then let the complainant get back up before going to retrieve the knife and putting it to her throat. The complainant asked the applicant, “What are you doing, what are you doing all this for?” She said that the applicant then “gave me a little nick and I felt a warm sensation”. There was blood on her hands.

10. [25]

    The complainant then said, “You fucking arsehole. Why are you doing all this to me?” She said that the applicant did not seem to care and replied, “It’s all right, I’ve got a witness”, referring to Alec. He then told her that if she rang the police he would stab her “all over [her] body”. After the incident, the complainant told Ms Kerry Smethurst, her neighbour, about the attack. She said to Ms Smethurst, “Look what he’s done to me now”, to which Ms Smethurst just shook her head.

11. [26]

    The complainant gave evidence that on the same day as the Knife Incident the applicant came out with a double-barrelled, sawn-off shotgun. He cocked the shotgun, placing two bullets in the two barrels. She gave evidence that he kissed the first bullet and said that it was for her, and blew on the second bullet saying it was for him. At this point, Alec left the complainant’s unit. The complainant said that the applicant proceeded to assault her and said that he was going to “blow [her] fucking head off”.

12. [27]

    The complainant gave evidence that directly after the Shotgun Incident, the applicant “started smacking [her] around” and then pushed her onto the lounge and put the gun to one side. He pulled out a yellow-handled knife from his bum bag and told her to take her pants off. She said, “no, there’s no need for this, you don’t have to do this”. The applicant responded by grabbing the knife and saying, “I’ll stab you here, here, here and here”, gesturing all over her body. The complainant then took off her clothes and the applicant proceeded to have non-consensual sex with her on the lounge. The knife was left on the lounge during the intercourse.

13. [28]

    The complainant said that she was trying to call out to get someone to notice and call the police but that the police weren’t called. She said that she told the applicant that she did not want to have sex with him, saying, “you don’t have to rape me, I’m going out with you”. She said that the penile/vaginal intercourse lasted around two or three minutes before the applicant got off and drifted to sleep.

14. [29]

    The following day, the complainant said that she went to Sydney and complained to her daughter about being “raped” before going to Redfern Police Station and making a formal complaint.

15. [30]

    As outlined above, the complainant made a number of prior statements. These were the subject of cross-examination as to inconsistencies between those statements and her evidence in chief. It is unnecessary to go through each inconsistency in great detail, but I will outline those inconsistencies highlighted by the trial judge in his judgment and relied upon by the applicant in his submissions on appeal. The effect of these inconsistencies will be discussed when considering the first ground of appeal.

16. [31]

    In her statement to police on 20 May 2013, the complainant said that she had gone to Redfern with the applicant as he had been evicted from his house in Wyong. She said that she had contacted Mr Saunders and he had agreed that the applicant could live at his place in Redfern. Under cross-examination at trial, the complainant said that she could not recall saying this to the police and later denied saying it at all. She said that the applicant had not been evicted and didn’t need a place to live as he was living with her at the time.

17. [32]

    In that same statement, the complainant asserted that on the day in question she had met the applicant and Mr Saunders at Central station. Under cross-examination she denied both of these statements, reasserting that she caught the train down to Central with the applicant and that she met Mr Saunders at his property.

18. [33]

    The complainant also said in that statement that the applicant had asked her to go into the bedroom to have a private chat, after which she had been assaulted. She denied this in her oral evidence, saying she had no reason to talk privately with the applicant.

19. [34]

    In her statement dated 21 July 2015, the complainant stated that the events giving rise to counts 3, 4 and 5 occurred on separate days. The Knife Incident was said to have occurred on 25 or 26 March 2015, the Shotgun Incident around 20 June 2015 and the Lake Haven Incident around 14 May 2015. Under cross-examination as to this inconsistency, the complainant stated that the three Incidents occurred on the same day.

20. [35]

    In the same July statement, the complainant described the knife used by the applicant in the Knife Incident as a “serrated knife”, which she believed was a “large hunting knife” about 30 to 50cm long. Under cross-examination the complainant reiterated that the knife was a pirate style knife, but gave somewhat varied descriptions of the knife.

21. [36]

    The complainant subsequently stated that she had felt “under a little bit of duress” when signing the July 2015 statement. Accordingly, in her first interview with police in September 2015 the statement was read to her. After hearing the statement, the complainant confirmed, “That’s exactly what happened”.

22. [37]

    Mr Saunders gave evidence at trial, having provided a statement a few weeks earlier. In his evidence, Mr Saunders confirmed that he had known the complainant since about 2006 and that he first met the applicant in November 2012 when the applicant turned up at the doorstep of his property in Redfern/Waterloo with Mr Claxton and the complainant. He said that he was not expecting to see the complainant and the applicant, nor was he expecting to see Mr Claxton.

23. [38]

    His first observation of them was that they were “nice, happy, a bit intoxicated maybe”. He recalled that the complainant was intoxicated and the applicant “maybe not as much but yes”. He gave evidence that they all consumed alcohol, marijuana and Valium at the house that evening. He told the applicant and the complainant that they could stay the night.

24. [39]

    The next thing he remembered was waking up in the morning and going to the lounge room. Mr Claxton had already left for work. The complainant emerged from the bedroom, told Mr Saunders that the applicant had raped her and said, “Look he tore my sleeve”. She showed him the ripped sleeve and the marks under her arms. When asked if he could remember the complainant showing him anything else, he replied, “maybe a bruise on her leg but I’m not a hundred per cent sure. I can’t remember”. He thought he remembered the complainant saying, “[the applicant] got nasty with me last night and wouldn’t let me out of the bedroom and raped me”.

25. [40]

    Mr Saunders said that the complainant did not say anything else to him about the sexual assault “until about a year later” when he went to visit her in Lake Haven. At Lake Haven, the complainant gave a version of events that accorded with what she had told Mr Saunders that morning in Redfern.

26. [41]

    Mr Saunders first made a statement to the police on 3 November 2016, a few weeks before the trial began. Under cross-examination, Mr Saunders acknowledged that he did not use the word “rape” in his prior statement to the police. In that statement, he alleged that the complainant had said, “[the applicant] got nasty and forced himself on me”.

27. [42]

    When asked about this discrepancy, Mr Saunders responded, “I didn’t want to use the word rape because I was not sure if that’s what she had used…But I’ve been thinking about it and I’m pretty sure she did say that word”. Despite first saying in oral evidence that he was not “one hundred per cent” sure that the complainant had used the word “rape”, he ultimately asserted that he was “a [sic] hundred per cent sure” that the complainant used the words “rape”, “nasty” and “got physical with me”.

28. [43]

    Mr Claxton did not give evidence at trial, but the statement he gave to police dated 26 August 2016 was tendered by consent. In that statement, Mr Claxton said that he first met the applicant around the beginning of 2015 when the complainant introduced the applicant to Mr Claxton and Mr Saunders on a trip down to Redfern.

29. [44]

    He said that at some time during 2015 the complainant came on her own to his house in Redfern and was moderately affected by alcohol. He said that she stayed the night and that the next morning the complainant said to him and Mr Saunders in their living room, “Bob raped me”. He said that he responded by telling her that she needed to go to the police before going to his bedroom. When he returned, Mr Saunders informed him that the complainant had gone to see her daughter.

30. [45]

    It is relevant to note that the date referred to by Mr Claxton, being some time in 2015, is a number of years after the night in November 2012 when the sexual assault was said to have taken place.

31. [46]

    Ms Smethurst confirmed that she was a neighbour of the complainant and had known her for over three years. Ms Smethurst first met the applicant when he visited her with the complainant. She said that the complainant usually visited her daily.

32. [47]

    She agreed that sometime in late 2014 or over a year prior to September 2015 she did not see the complainant for a few days. When Ms Smethurst finally saw the complainant she had bruising under her left eye. The complainant told Ms Smethurst that she hadn’t been coming over as things were not too good.

33. [48]

    At about 10am sometime in early July 2015, the complainant came to visit Ms Smethurst. She appeared to be a bit distressed and upset but not crying, and showed Ms Smethurst a mark on her neck. Ms Smethurst described that mark as a little cut that was a couple of centimetres long but not bleeding. The complainant said to Ms Smethurst, “Look what he has done”. The complainant did not say anything else and left almost immediately.

34. [49]

    Ms Smethurst told the police that the two aforementioned incidents were the only two violent episodes that the complainant had ever mentioned to her and that she had never seen signs of aggression from the applicant to the complainant. She said that the only noticeable difference observed when the applicant was around was that she saw less of the complainant.

35. [50]

    Under cross-examination, Ms Smethurst conceded that the complainant had never said that it was the applicant who gave her the mark on her neck or the black eye. She agreed that when the complainant said, “Look what he’s done” no mention was made of who “he” was.

36. [51]

    In the applicant’s record of interview conducted on 22 July 2015, he was asked about counts 3, 4 and 5. No questions were asked about counts 1 and 2 because at the time of the interview, the complainant had not yet made the complaint about the sexual assault at Redfern. He described his relationship with the complainant as a “shit relationship” and said that the allegations made by the complainant were “dead set bullshit”. He said that the complainant had a motive to lie as she was upset that he had recently started dating a younger woman.

37. [52]

    He said that he and the complainant “argue every fucking day” but denied the allegations. He said that in the past he had grabbed the complainant by the throat and threatened her but that he had never punched her. He said that they were both alcoholics and that the only time he had ever hurt the complainant was when they were “revved up” and she fell backwards and hit her head after a physical altercation between them.

38. [53]

    The applicant specifically denied holding a knife to the complainant’s throat. He acknowledged that he did carry a knife. He said he loved knives and that his nickname was, “the Bladerunner”. However, he denied carrying a knife in the way alleged by the complainant and denied ever using a knife to threaten the complainant. When the details of the alleged sexual assault (count 5) were put to the applicant he called the complainant a “fucking liar” and said that any sex they had was consensual. He also said that if he had raped her, she would have gone to the police that night. He said that in the past, she had reported altercations between them on the day of the event.

39. [54]

    When asked about the Shotgun Incident, the applicant denied having access to a shotgun or ever having brought a gun to the house. When asked if he had friends who had guns, he replied, “No comment”.

40. [55]

    It is convenient to deal with this ground first because, if made out, any error on the part of the trial judge might assist in the determination of Ground 1.

41. [56]

    Ground 2 is directed to the trial judge’s alleged failure to give himself a hearsay warning in relation to the evidence of complaints made to Mr Claxton, Mr Saunders and Ms Smethurst. This evidence has been outlined above and need not be repeated here.

42. [57]

    In order to advance this ground of appeal, the applicant must first obtain leave under r 4 of the Criminal Appeal Rules (NSW). Leave must be sought as trial counsel for the applicant did not seek the direction now complained of. The operation of r 4 was recently considered by this Court in Roos v R [2019] NSWCCA 67. In that judgment, Gleeson JA (Harrison and Davies JJ agreeing) set out the relevant considerations under r 4:

43. [58]

    His Honour went on to cite Mason P in Picken v R; R v Picken [2007] NSWCCA 319, who said at [22]:

44. [59]

    In the present case, the error identified by the applicant is the failure to give a hearsay warning. It is suggested that such a warning ought to have been given in the light of the complainant’s “lack of reliable and consistent evidence”.

45. [60]

    No detailed submissions were made in relation to this ground of appeal. The applicant’s written submissions simply said this:

46. [61]

    In oral submissions a similar point was made by counsel for the applicant:

47. [62]

    Section 165(2)(c) of the Evidence Act 1995 (NSW) provides:

48. [63]

    The direction now complained of was never sought by the applicant’s trial counsel. There was ample opportunity for such a direction to be sought, particularly in the light of the several discussions at trial between the trial judge and counsel about various directions that the judge ought to give himself. There is no obligation on a judge to give a warning under this subsection if it is not requested by a party: Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [232]; Groundstroem, Christoffer Andreas v R [2013] NSWCCA 237 at [57].

49. [64]

    Nevertheless, at the outset of his judgment, Judge Bozic SC gave himself a complaint direction in the following terms:

50. [65]

    After a detailed analysis of the complainant’s evidence, Judge Bozic SC returned to the question of the complaint evidence and said the following:

51. [66]

    These comments by the trial judge suggest that he was fully aware of the caution that needed to be exercised in relation to the evidence of complaint and that his decision ultimately to accept the complaint evidence was heavily informed by his analysis of the credibility of the complainant. Whilst there were undeniable inconsistencies in the complainant’s evidence, these were considered at length by the trial judge. The complainant’s unreliability was the only basis on which it was suggested that a warning should have been given.

52. [67]

    In any event, the applicant has failed to identify and formulate the direction said to have been required at trial. In Greenhalgh v R [2017] NSWCCA 94, Basten JA noted (at [21]):

53. [68]

    Accordingly, the applicant has failed to demonstrate error in respect of this ground and leave under r 4 is refused.

54. [69]

    This ground of appeal is expressed in the following terms:

55. [70]

    The legal principles that govern an assessment of whether a judge alone verdict is unreasonable are well known. These principles are set out by the plurality (French CJ, Bell, Keane and Nettle JJ) in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 where their Honours said:

56. [71]

    Accordingly, the question for this Court is not whether the judgment of Judge Bozic SC was correct, but whether his ultimate finding of guilt in relation to each of Counts 1, 2 and 3 was reasonably open to him. Specifically, the Court must determine whether it was open to the trial judge to find the applicant guilty on counts 1 to 3 in the light of the nature and quality of the evidence and in the light of the acquittal on counts 4 and 5.

57. [72]

    The applicant submitted that the trial judge’s verdict in relation to counts 1 and 2 was unreasonable in the light of the unreliability of the complainant’s evidence, the delay in her complaint about the sexual assault and subsequent explanation of that delay and the quality of the complaint evidence from Mr Saunders and Mr Claxton.

58. [73]

    In terms of reliability, the applicant argued that the inconsistencies in the complainant’s account of the Redfern Incident rendered her account of events wholly unreliable. These contradictions, it was submitted, could be seen in the complainant’s inconsistent account about the applicant being evicted from his home; the complainant meeting the applicant at Central station; the complainant meeting Mr Saunders at Central station and the applicant asking the complainant to have a private talk in the bedroom. The applicant submitted that in the light of the insufficiencies in the complainant’s evidence, and the importance of that evidence to the Crown case, it was not open to the trial judge to be satisfied of the applicant’s guilt to the requisite standard.

59. [74]

    In terms of the delay, the applicant highlighted that the complainant did not report the 2012 sexual assault until 14 September 2015. In oral argument, counsel for the applicant acknowledged that any assessment of the delay must be made with reference to the explanation proffered. Here, it was submitted that the complainant’s explanation that she was “too embarrassed” and that she felt “ashamed” and “degraded” were wholly insufficient in the circumstances. The applicant advanced a number of reasons why it was not open to the trial judge to accept the complainant’s explanation.

60. [75]

    The applicant submitted that when the complainant gave her statement to police in July 2015 about the events giving rise to counts 3, 4 and 5, she described these events in “graphic” detail, particularly as to the further alleged sexual assault. In that statement, the complainant said the following:

61. [76]

    It was submitted that the complainant’s willingness to provide this level of detail in July 2015 undermines any suggestion by the complainant that she was too ashamed or embarrassed to report the Redfern Incident prior to doing so in September 2015. Counsel for the applicant submitted that even if one accepts that there was a sufficient explanation as to why the complainant did not raise the sexual assault when first reporting the physical assault in 2012, any such explanation ceases to carry weight by the time she made her July 2015 statement. He argued that the complainant’s statement of July 2015 detailed sexual acts that would cause embarrassment akin to that alleged to be caused by the Redfern Incident.

62. [77]

    It was further submitted that any suggestion that the complainant was “too embarrassed” is inadequate given that, on her own evidence, the complainant had told both Mr Claxton and Mr Saunders about the sexual assault. Counsel for the applicant also made reference to the fact that the complainant had spoken with a female officer, Constable Nicole Bird, when first reporting the physical assault in 2012, and that she had various opportunities to speak with other female police officers after that initial report.

63. [78]

    In terms of the complaint evidence, the applicant was critical of the evidence of both Mr Saunders and Mr Claxton. In terms of Mr Saunders, the applicant criticised his use of the word “rape” in his oral evidence, which did not appear in the statement he had made days earlier, and drew attention to Mr Saunders’ initial ambivalence in his oral testimony as to whether the complainant had used the word “rape”. The applicant also drew attention to Mr Saunders’ statement that Mr Claxton had left for work prior to the complainant entering the lounge room and recounting the sexual assault. It was emphasised that this ran contrary to the complainant’s assertion that she immediately reported the sexual assault to both Mr Saunders and Mr Claxton.

64. [79]

    Mr Saunders’ evidence was said to be particularly questionable given his drug consumption on the day in question. Inherent in this submission, as acknowledged by counsel in oral argument, is a challenge to the sub-finding that Mr Saunders was an acceptable witness.

65. [80]

    As for the evidence of Mr Claxton, counsel for the applicant submitted that, contrary to the conclusion of the trial judge, Mr Claxton’s evidence referred to a night in 2015 and not the night of the Redfern Incident. It was submitted that both the date and the surrounding circumstances of Mr Claxton’s account differed so significantly from that of the complainant’s account of the Redfern Incident that he must be referring to a different occasion. Particular emphasis was placed upon the fact that in Mr Claxton’s version of events, the complainant was staying in Redfern on her own (as opposed to staying with the applicant) and that the next morning she went to visit her daughter (as opposed to returning to the Central Coast). In the light of these differences, it was submitted that Mr Claxton’s evidence could not be relied upon as corroboration that a complaint was made by the complainant on the morning following the Redfern Incident.

66. [81]

    Somewhat akin to the applicant’s submissions in relation to counts 1 and 2, the submissions in relation to count 3 focused on the inconsistencies in the complainant’s account of the Knife Incident and the quality of Ms Smethurst’s complaint evidence.

67. [82]

    In terms of the inconsistencies, the applicant relied upon the complainant’s inconsistent descriptions of the knife in question, submitting that the descriptions “materially varied beyond any and all acceptable limits of description”. In his written submissions, counsel for the applicant noted that the complainant had described the knife as a “serrated knife”, “a large hunting knife” and a “pirate’s knife”. Further, the applicant placed emphasis upon the complainant’s contradictory evidence about the chronology of events constituting counts 3, 4 and 5 and about whether the complainant’s throat was cut once or twice. These inconsistencies were said to undermine the reliability of the complainant’s account of the Knife Incident. Consequently, it was submitted that there was insufficient evidence to warrant a finding of guilt on count 3.

68. [83]

    As for the evidence of Ms Smethurst, it was submitted that this evidence did not corroborate the complainant’s account of the Knife Incident. Counsel for the applicant emphasised that the complainant did not identify the applicant when reporting the Knife Incident to Ms Smethurst. Counsel for the applicant argued that the complainant’s statement, “Look what he’s done to me now” was ambiguous and invited speculation. He stated that even if one were to accept that the complainant was referring to the applicant, there remains a real difficulty in accepting the veracity of the complaint itself as the evidence is tainted by the unreliability of the complainant.

69. [84]

    Whilst the acquittal on grounds 4 and 5 was not relied upon as a distinct ground of appeal, the applicant relied upon these acquittals as further evidence that the complainant’s evidence in relation to counts 1 to 3 should not have been accepted by the trial judge. In essence, the applicant submitted that the trial judge’s rejection of the complainant’s evidence in relation to the last two counts worked to undermine the reliability of her evidence in relation to the remaining counts. The consequent poor quality of her evidence, combined with the applicant’s assertion that there was insufficient corroborative complaint evidence, meant that it was not open to his Honour to find the applicant guilty on counts 1 to 3.

70. [85]

    The submission that underpinned the whole challenge to the verdict based on its unreasonableness was the unreliability of the complainant’s evidence. That was said to manifest itself not only by reason of the inconsistencies in the statements and interviews of the complainant but also in the way that those inconsistencies undermined the complaint evidence from Mr Saunders, Mr Claxton and Ms Smethurst.

71. [86]

    The trial judge was, however, very conscious of the issues raised by the inconsistencies in the various statements and interviews and the inconsistencies that arose from the complainant’s own evidence. His Honour said at the outset of his judgment when considering which directions he ought to give himself (p 4):

72. [87]

    The trial judge summarised a number of the inconsistencies with the Redfern incident as follows (pp 18-19):

73. [88]

    His Honour then set out his approach to those inconsistencies in this way (p. 42):

74. [89]

    His Honour went on to consider the complaint evidence and said this (p. 42):

75. [90]

    In assessing the significance of the reasoning of the trial judge set out above, it must be remembered that the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 stressed at 493 the importance of the jury (or here, the judge, as Filippou makes clear) being the body entrusted with the primary responsibility of determining guilt or innocence. That consideration provides a stronger brake on this Court reaching a view concerning the unreasonableness of a verdict where the judge, as here, set out in considerable detail how he has dealt with the inconsistencies in the evidence that give rise to the doubt in the first instance.

76. [91]

    Further, the finding of guilt is not to be disturbed unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence is all one way, or the judge has misdirected himself on a matter of law as to result in a miscarriage of justice. There has been no misdirection in the present case and the evidence is not all one way. There is evidence to support the allegation made against the applicant, although it may be accepted that it is not easy to make consistent all the details surrounding the events.

77. [92]

    Given his Honour’s finding that he had no hesitation in accepting the evidence of Mr Saunders, the inconsistencies surrounding the detail assume considerably less importance. Cross-examination ultimately resulted in Mr Saunders being more certain than he was initially that the complainant had told him she had been raped. It was open to his Honour to accept Mr Saunders’ evidence. Mr Saunders clearly made a favourable impression on the judge who described him as “transparently honest”. In that regard, the trial judge had the advantage over this Court which can only read Mr Saunders’ evidence in the transcript.

78. [93]

    Further, additional support derives from Mr Claxton’s statement. It may be accepted that the statement itself contains errors, particularly as to the year of the offending. However, it appears that the first time Mr Claxton was approached for his recollection of events was shortly before the trial, almost four years after the offending. The other error he made in his statement about when the complainant and the applicant first met (which he alleges occurred in 2015) more easily enables a conclusion to be drawn that the offending took place in the year they met, being 2012, and not 2015 as he said.

79. [94]

    Although it was open to the defence to make the submissions concerning Mr Claxton’s statement that were made, it was ultimately a matter for inference by the trial judge whether Mr Claxton’s statement supported both the complainant and Mr Saunders. A consideration in that regard was the fact that the defence was prepared to allow Mr Claxton’s statement to be tendered without his being cross-examined. There is no other evidence to suggest that there were two occasions when the complainant was sexually assaulted at Mr Claxton’s premises. It cannot be said, therefore, that the trial judge’s conclusions about what Mr Claxton’s statement demonstrated were not open to him.

80. [95]

    In the light of the acceptance by the trial judge of the evidence of Mr Saunders and Mr Claxton, and when his Honour provided detailed reasons for accepting the honesty and reliability of the complainant notwithstanding the inconsistencies in her evidence, the applicant fails to show that his Honour’s conclusion as to the applicant’s guilt in respect of counts 1 and 2 was not open to him.

81. [96]

    Two matters were said to point to the unreasonableness of the verdict with respect to count 3. The first matter was the inconsistent statements made by the complainant in relation to the type of knife used by the applicant and the confusion about the dates when this incident occurred in relation to the incidents the subject of counts 4 and 5. The second matter concerned the complaint to Ms Smethurst.

82. [97]

    His Honour acknowledged the inconsistencies in relation to the knife. He said (at p. 20):

83. [98]

    When his Honour later came to consider count 3 he said (at pp 39-40):

84. [99]

    In relation to the complaint evidence of Ms Smethurst, the main point made by counsel for the applicant at the trial was that that Ms Smethurst’s evidence related solely to the complainant’s statement, “Look what he has done”. It was suggested that the complainant did not name the applicant, and that “he” might have been the complainant’s son.

85. [100]

    Ms Smethurst gave her evidence by the Crown Prosecutor leading her through her statement. At the outset the Crown Prosecutor indicated that he understood there was “no problem with me paraphrasing”, and counsel for the applicant agreed.

86. [101]

    The cross-examination, in its entirety was as follows:

87. [102]

    His Honour’s conclusion that it was not speculation that the reference to “he” was a reference to the applicant, was open to him on the evidence. His Honour was entitled, when considering that matter, to have regard to the complainant’s evidence that she had told Ms Smethurst about the knife incident. Her evidence was that she said to Ms Smethurst, “Look what he’s done to me now”. There was no evidence at the trial that could enable any inference to be drawn that the complainant’s son might have injured her. As can be seen from the cross-examination, all that was suggested to Ms Smethurst about the complainant’s son was that he and the complainant had argued, but Ms Smethurst denied it. Nothing else was put to her to suggest any violence on the part of the son.

88. [103]

    During the cross-examination of the complainant, questions were asked of her concerning the death of her brother in 2006. His Honour intervened to enquire of the relevance of the questions. In the absence of the complainant, counsel for the applicant said this:

89. [104]

    The only further mention of the complainant’s son was the matter put to Ms Smethurst, and the suggestion in submissions that “he” might be a reference to the son. His Honour was entirely correct in saying that it was not speculation that the reference to “he” was a reference to the applicant. What would amount to speculation, in the light of the evidence, would be that the person referred to was in fact the complainant’s son.

90. [105]

    His Honour concluded in relation to Count 3 (at p. 41):

91. [106]

    The different descriptions of the knife used were subsidiary to what the Crown had to prove. The offensive weapon in the indictment was said simply to be a knife, not a hunting knife (his Honour correctly recited the terms of the indictment at the commencement of his judgment). His Honour had the complainant’s evidence that the applicant used a knife to cut her on the neck. His Honour had the complainant’s evidence that she told Ms Smethurst and showed her the wound. His Honour had Ms Smethurst’s evidence of what the complainant said to her, and her evidence of seeing the wound. He had the applicant’s ERISP where he disclosed his fascination for knives. The applicant fails to demonstrate that it was not open to his Honour to find the count proved on that evidence, notwithstanding inconsistencies in the description of the knife used.

92. [107]

    In my opinion nothing is shown to indicate that the verdict in relation to count 3 was unreasonable.

93. [108]

    When his Honour came to discuss counts 3, 4 and 5 he said this (pp 36-39):

94. [109]

    His Honour has provided detailed reasons why he could not be satisfied beyond reasonable doubt regarding the offending constituting counts 4 and 5. The absence of corroboration was a significant matter, as was the daughter’s different account of what the complainant allegedly told her daughter. It is not difficult to understand why the tendency evidence was not sufficient to overcome the difficulties with the complainant’s inconsistent accounts. That may be contrasted with the corroborative evidence from Mr Saunders, Mr Claxton and Ms Smethurst, all of which the trial judge accepted.

95. [110]

    This Court has recently considered the nature of the enquiry to be made where there are apparently inconsistent verdicts: AH v R [2019] NSWCCA 152. Justice Simpson reviewed the various authorities in this Court and the High Court at [53] to [62]. I am satisfied that the trial judge’s reasoning which led him to the acquittals for counts 4 and 5 is in accordance with those authorities, and that no error is demonstrated by reason of the convictions for counts 1, 2 and 3 notwithstanding the acquittals on counts 4 and 5.

Orders

1. [111]

   I propose the following orders:

   1. (1)

      Grant leave to appeal against conviction with respect to ground 1.

   2. (2)

      Refuse leave to appeal with respect to ground 2.

   3. (3)

      Dismiss the appeal.

2. [112]

   FAGAN J: I agree with Davies J.