Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Geggo v R [2013] NSWCCA 7
• Hearing dates: 3 August 2012
• Decision date: 01 February 2013
• Before: Hoeben JA at [1]; Johnson J at [2]; Button J at [240]

Decision

Appeal against conviction dismissed.

• Catchwords: CRIMINAL LAW - conviction appeal - sexual intercourse without consent (three counts) - whether verdicts of guilty unreasonable or cannot be supported by the evidence - whether miscarriage of justice resulted from absence at trial of new (not fresh) evidence - whether miscarriage of justice as a result of comments made in Crown closing address - all grounds fail - appeal dismissed
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Criminal Procedure Act 1986
• Cases Cited: Rasic v R [2009] NSWCCA 202; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326; R v Manton [2005] NSWCCA 58; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186; R v Birks (1990) 19 NSWLR 677; R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417; Ali v The Queen [2005] HCA 8; 79 ALJR 662; Ratten v The Queen [1974] HCA 35; 131 CLR 510; Mickelberg v The Queen [1989] HCA 35; 167 CLR 259; McCullough v The Queen [1982] Tas R 43; 6 A Crim R 274; R v Kennedy [2000] NSWCCA 487; 118 A Crim R34; R v Rugari [2001] NSWCCA 64; 122 A Crim R 1; R v Liristis [2004] NSWCCA 287; 146 A Crim R 547; R v Attallah [2005] NSWCCA 277; Livermore v R [2006] NSWCCA 334; 67 NSWLR 659; KNP v R [2006] NSWCCA 213; 67 NSWLR 22; Soames v R [2012] NSWCCA 188; M v The Queen [1994] HCA 63; 181 CLR 487; TKWJ v The Queen [2002] HCA 46; 212 CLR 124
• Texts Cited: ---
• Category: Principal judgment
• Parties: Adel Poulis Geggo (Appellant); Regina (Respondent)
• Representation: Counsel: Mr PM Strickland SC; Mr P Coady (Appellant); Ms N Noman SC (Respondent); Solicitors: Legal Aid NSW (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/46637
• Publication restriction: ---

Decision under appeal

• Citation: ---
• Date of Decision: 2010-12-16 00:00:00
• Before: North DCJ
• File Number(s): 2009/46637

Judgment

1 HOEBEN JA: I agree with Johnson J.

2 JOHNSON J: The Appellant, Adel Poulis Geggo, appeals against conviction on three counts of sexual intercourse without consent pursuant to s.61I Crimes Act 1900.

3 The charges were as follows:

(a) Count 1: That on 1 February 2009 at Maitland the Appellant did have sexual intercourse (oral sex) with the Complainant without her consent, knowing she was not consenting.

(b) Count 2: That on 1 February 2009 at Maitland the Appellant did have sexual intercourse (penile-vaginal sex) with the Complainant without her consent, knowing she was not consenting.

(c) Count 3: That on 7 February 2009 at Maitland the Appellant did have sexual intercourse (penile-vaginal sex) with the Complainant without her consent, knowing she was not consenting.

4 The Appellant was convicted by a jury in the District Court at East Maitland on 18 August 2010, following a nine-day trial.

5 On 16 December 2010, the Appellant was sentenced in respect of the offences. Each count carried a maximum penalty of 14 years' imprisonment with a standard non-parole period of seven years.

6 The Appellant was sentenced to a total term of imprisonment of six years and six months, with a non-parole period of four years. That sentence comprised the following:

(a) Count 1: Non-parole period of three years commencing on 18 August 2010 and expiring on 17 August 2013, with a balance of term of two years commencing on 18 August 2013 and expiring on 17 August 2015.

(b) Count 2: Non-parole period of three years and six months commencing on 18 August 2010 and expiring on 17 February 2014, with a balance of term of two years and six months commencing on 18 February 2014 and expiring on 17 August 2016.

(c) Count 3: Non-parole period of three years and six months commencing on 18 February 2011 and expiring on 17 August 2014, with a balance of term of two years and six months commencing on 18 August 2014 and expiring on 17 February 2017.

Grounds of Appeal

7 The Appellant seeks leave to appeal against his convictions pursuant to s.5(1) Criminal Appeal Act 1912. Two grounds of appeal have been advanced:

(a) that the verdicts were unreasonable or cannot be supported by the evidence; and

(b) that the trial miscarried by reason of (a) the failure of the Appellant's legal representatives to adduce evidence of the Complainant's telephone records, (b) the failure of the Appellant's counsel to cross-examine the Complainant on the telephone records, (c) the Crown Prosecutor's cross-examination of the Appellant on his telephone records, and (d) the Crown Prosecutor's inappropriate remarks about the Appellant's defence.

8 As neither ground of appeal involves a "question of law alone", the Appellant requires leave to appeal against his convictions: s.5(1)(b) Criminal Appeal Act 1912; Rasic v R [2009] NSWCCA 202 at [12].

9 The Crown did not oppose the grant of leave. Having regard to this, and the arguability of the grounds advanced by the Appellant, it is appropriate for leave to be granted.

10 There is no application for leave to appeal against sentence.

Brief Factual Overview

11 The following basic facts are not in dispute in these proceedings. They provide a background to the contested events which gave rise to the Appellant's convictions.

12 The Appellant is an Iraqi national who has been living in Australia with his family since 1999. He was about 44 years of age in February 2009.

13 The Complainant was born in the Philippines. She came to Australia with her husband, who is Australian, in 1995. She was about 39 or 40 years of age in February 2009.

14 At all relevant times, the Appellant was the cleaners' supervisor at the Pender Place Shopping Centre in Maitland, New South Wales ("the shopping centre"). The Appellant was employed by Glad Retail Cleaning Pty Limited.

15 The Complainant worked for the Appellant as a cleaner at the shopping centre between 25 January 2009 and 10 February 2009. This was her first employment in Australia.

16 The Appellant employed two cleaners, one for the day shift and one for the night shift. The day-shift cleaner worked from 7.00 am to 3.00 pm Monday to Saturday, and 8.00 am to 3.00 pm on Sundays. The night-shift cleaner worked from 3.00 pm to 11.00 pm Monday to Saturday, and 3.00 pm to 10.00 pm on Sundays.

17 In January 2009, the Appellant offered Loida Reynolds a job as the day-shift cleaner. Ms Reynolds did not accept the position; however, she informed the Appellant that the Complainant may be interested in it. The Appellant and the Complainant met on 23 January 2009 to discuss the position. Ms Reynolds was also present. The Complainant accepted the job on 24 January 2009 after conferring with her husband.

18 The Complainant and Ms Reynolds had been friends for approximately eight or 10 years. Ms Reynolds was also from the Philippines. The Complainant and Ms Reynolds both spoke some English. However, it appears they conversed in their native language when speaking with one another.

19 The Complainant commenced work on Saturday, 25 January 2009.

20 It was the Complainant's usual practice to receive a lift to work from her husband.

21 The Appellant was not always present at the shopping centre when the Complainant was working. The Appellant resided in Sydney with his family and would travel back and forth a number of times each week between Sydney and Maitland. When in Maitland, he would sleep in his office at the shopping centre.

22 The Complainant was called into the Appellant's office some time during the morning of Friday, 30 January 2009 for a meeting. A discussion was had during which the Appellant enquired as to how the Complainant was finding the job. He also showed her pictures of his children.

23 During the evening of 30 January 2009, the Complainant attended a disco at the Belmont 16 Footers Sailing Club with the Appellant, Ms Reynolds, and Ms Reynolds' daughter.

24 The offences contained in Counts 1 and 2 on the indictment occurred on Saturday, 1 February 2009. Count 3 occurred on Sunday, 7 February 2009.

25 The events that gave rise to all counts occurred in the cleaners' room at the shopping centre, shortly after the Appellant and the Complainant arrived for work. The Appellant did not dispute that sexual intercourse took place between the Appellant and the Complainant on each of these occasions. However, the Appellant asserted that these were consensual sexual acts.

26 There was telephone contact between the Appellant and the Complainant late in the evening on the days on which the sexual acts took place. Telephone contact continued between them in the form of calls and text messages throughout the term of the Complainant's employment.

27 The Complainant's employment was terminated by the Appellant on 10 February 2009. There was a live issue at the trial concerning the reason for the Complainant's dismissal.

28 The Complainant did not, at any point, receive payment for the work she performed whilst an employee at the shopping centre.

29 Immediately following her termination on 10 February 2009, the Complainant reported the assaults to Ms Reynolds. The Complainant attended Toronto Police Station later the same day where she spoke with Detective Sergeant Mark Dixon. That evening, she attended the John Hunter Hospital with her husband and was examined by Dr Matthew Holland.

The Crown Case

30 The Crown case was based largely on the oral evidence of the Complainant. Other witnesses who gave evidence in the Crown case were Ms Reynolds, Dr Holland, Naveen Lingaiah (Client Services Manager for Glad Retail Cleaning Pty Limited), Brad Muller (Ms Reynolds' de facto partner), and Detective Sergeant Mark Dixon.

31 Several exhibits were also tendered as part of the Crown case. These included maps and diagrams of the shopping centre and surrounding area, as well as photographs of the cleaners' room. Of some significance to this appeal, photocopies of a notebook containing records of the Complainant's start and finish times were also in evidence (Exhibit C).

32 The Complainant and Ms Reynolds gave evidence in the Crown case with the assistance of an interpreter.

33 It was the Crown case that the Appellant and the Complainant were merely colleagues, and that the Complainant was not romantically interested in the Appellant.

34 The Crown contended that the Appellant made sexual advances towards the Complainant on 30 January 2009 prior to the assaults, each of which were rejected by the Complainant.

35 The first sexual advance formed part of an additional incident alleged to have occurred in the Appellant's office at the shopping centre during his meeting with the Complainant on the morning of 30 January 2009. This incident allegedly involved the Appellant exposing himself to the Complainant and asking her to perform fellatio. Objection was taken to this evidence by the Appellant's trial counsel, and the trial Judge ruled that it was inadmissible. I will return to this topic, which is relevant to the second ground of appeal.

36 The second sexual advance took place at the disco that was attended by the Appellant and the Complainant later that evening. At some point during the evening while they were seated next to each other, the Crown alleged that the Appellant placed his hand on the Complainant's leg and proceeded to rub it. The Complainant pushed the Appellant's hand away. The Appellant denied that this incident occurred.

Count 1

37 The Crown alleged the following series of events with respect to Count 1.

38 The Complainant was not originally supposed to work on 1 February 2009. The Appellant telephoned her late on the previous evening, asking her to work the next day. The Complainant informed the Appellant that she would have to catch a train, and that she would require a lift from the station to the shopping centre. The Appellant agreed to this request.

39 The Complainant caught a train that left at 5.10 am. The Appellant picked her up from the station at East Maitland at approximately 6.45 am. This was about one hour before she was required to start work.

40 Shortly after they arrived at the shopping centre, the Appellant asked the Complainant to come to his office. The Complainant told the Appellant that she needed to get changed for work. She then went to the cleaners' room alone to get changed, locking the door behind her.

41 As she was getting undressed, the Complainant heard the door unlock and she saw the Appellant enter the cleaners' room. The Complainant asked the Appellant to leave, to which the Appellant responded, "Be quiet".

42 The Appellant began kissing the Complainant's back and neck. He did not stop despite her protestations. The Appellant exposed himself to the Complainant and asked her to perform fellatio, a request that she refused. The Appellant then pulled down his trousers, took the Complainant's hand, and sat down in a chair. The Appellant placed his hand on the back of the Complainant's head and pushed her head down onto his erect penis. The Appellant pushed his penis into her mouth about four times.

Count 2

43 Count 2 followed immediately after Count 1. The Crown alleged the following events occurred.

44 Situated next to the chair in which the Appellant was sitting was a table. The Appellant picked the Complainant up and lifted her onto the table. The Complainant was not strong enough to push him off. The Appellant climbed on top of the Complainant and inserted his penis inside her vagina. She told the Appellant to stop two or three times, but he kept going. After moving his penis inside the Complainant's vagina about three or four times, the Appellant ejaculated inside the Complainant.

45 The Appellant then got dressed. The Complainant said, "You bastard, don't do that again". The Appellant did not respond. He instructed the Complainant to get dressed and then left the cleaners' room. The Complainant felt shocked.

46 The Complainant continued to work that day. At about 11.00 am, the Appellant bought the Complainant a coffee. The Complainant enquired of the Appellant as to how many women he had been with, as he had not worn a condom and the Complainant was concerned about contracting a sexually transmitted disease. The Appellant did not respond.

47 The Complainant finished work at 3.00 pm.

48 That evening, the Complainant did not inform her husband of what happened at work, as she was worried that he might retaliate on her behalf. The Complainant slept in a separate bed from her husband that night as she felt "dirty".

49 The Complainant telephoned Ms Reynolds at some point during the evening. Ms Reynolds was unable to talk and she instructed the Complainant that she would call her back later. This did not occur.

Count 3

50 The events giving rise to Count 3 occurred about one week after Counts 1 and 2.

51 The Complainant was driven to work by her husband that day. When she arrived at work, she went to the cleaners' room alone and locked the door.

52 As the Complainant proceeded to get undressed, she heard the door unlock. The Complainant again saw the Appellant enter the cleaners' room. The Complainant said to the Appellant, "Please go out it's not going to happen again", to which the Appellant replied, "Be quiet it won't take long". The Complainant responded, "No, no, I can't take it anymore, I could not look at my husband".

53 The Appellant approached the Complainant and began kissing her neck and breast. She asked him to stop. The Appellant asked the Complainant to perform fellatio on him, which she refused. The Appellant then sat down on a pile of cleaning towels and lowered his trousers, exposing his erect penis. He said to the Complainant, "Come on, suck it". The Complainant again refused.

54 The Appellant stood up, placed both his hands on the Complainant's back underneath her arms, and bent the Complainant over a pile of rags. The Appellant pulled the Complainant's underpants halfway down her legs. She tried to push him away, but was not strong enough.

55 The Appellant then inserted his penis inside the Complainant's vagina from behind. She was in pain and screamed. The Appellant used his left hand to cover the Complainant's mouth, and told her to be quiet. The Appellant then ejaculated inside the Complainant.

56 The Appellant got dressed and told the Complainant to do the same. He said to the Complainant, "Don't tell anyone". He then left the room. The Complainant wiped herself with a towel and placed it on top of the pile of rags. She then got dressed and resumed work. She could not recall whether she had any further contact with the Appellant that day.

57 Given submissions advanced on behalf of the Appellant in this Court, it is appropriate to observe that the Crown did not dispute that there was telephone contact between the Appellant and the Complainant during the course of the Complainant's employment (including the communication on 1 and 7 February 2009). Instead, the Crown contended that whatever conversations took place between them were of a work-related nature.

The Appellant's Case at Trial

58 The Appellant did not deny that he engaged in sexual intercourse with the Complainant. The sole issue at trial was consent.

59 The Appellant's case at trial consisted of the oral evidence of the Appellant, as well as the Appellant's telephone records (Exhibits D and E). The entries in the telephone records indicate calls made from the Appellant's telephone only (they do not show incoming calls). For reasons discussed below, the Complainant's telephone records were not part of the evidence before the jury.

60 Like the Complainant and Ms Reynolds, the Appellant also gave evidence with the assistance of an interpreter.

61 It was the Appellant's case at trial, that the Complainant had expressed romantic feelings towards him, and that the two of them were in a burgeoning relationship. It was also asserted that Ms Reynolds had told the Appellant that the Complainant admired him. This was denied by Ms Reynolds.

62 The Appellant contended that he and the Complainant engaged in intimate and personal conversations late at night, a factor that was said to evince the nature of the relationship between them.

63 In relation to each count on the indictment, the Appellant asserted that the intercourse was consensual. On the occasions on which intercourse took place, the Appellant maintained that he and the Complainant entered the cleaners' room at the shopping centre together. The reason for this, it was suggested, was because the Complainant did not have a key and the Appellant was required to unlock the door for the Complainant. The Complainant denied this fact, asserting that she had her own set of keys. Mr Lingaiah provided evidence corroborating the Complainant's assertion.

64 In respect of Count 1, the Appellant's case was that the Complainant commenced undressing whilst in his presence in the cleaners' room, shortly after they arrived for work. The Complainant asked to see his penis, and they performed oral sex on each other for a period of a few minutes. They then engaged in penile-vaginal intercourse on the table in the cleaners' room. After the intercourse, the Complainant told the Appellant that he had ejaculated too quickly.

65 The Appellant asserted that, during the telephone conversation that took place later that evening, the Complaint told him she was happy about what happened earlier that day.

66 There was a further incident that formed part of the Appellant's case at trial. This occurred a few days after Counts 1 and 2. This incident involved the Complainant making a telephone call to the Appellant at approximately 6.15 am, during which the Appellant informed the Complainant that he was asleep. When he enquired with the Complainant at work later that day as to why she had called, the Complainant told him she wished to have another "physical get together". The Complainant denied this. The telephone records did not support the Appellant on this issue.

67 In respect of Count 3, the Appellant again maintained that he and the Complainant had undressed together in the cleaners' room. The Complainant then bent over, placing her hands against the wall, and said to the Appellant, "insert it inside me".

68 During the intercourse, the Complainant told the Appellant to be quiet so that people next door would not hear them.

69 After the intercourse had finished, the Complainant again told the Appellant that he had ejaculated too quickly. He told the Complainant, "Next time we'll go to a hotel or motel".

70 During the telephone conversation of that evening, the Complainant told the Appellant that she had just had a whiskey and was thinking about him.

71 As regards the termination of the Complainant's employment, the reason cited by the Appellant was that he was informed by the Complainant that she needed an operation, and that she required extended time off work both before and afterward. This was denied by the Complainant. The Complainant's version was that she reminded the Appellant on 10 February 2009 that she had a doctor's appointment scheduled for 23 February 2009, and that she would only have to miss one day of work (she asserted that the Appellant already knew of the appointment).

Ground 1: The Verdicts Were Unreasonable or Cannot Be Supported by the Evidence

72 The Appellant asserts that the Crown case depended entirely or substantially on the evidence of the Complainant.

73 It was submitted on the Appellant's behalf that the Complainant's evidence lacked credibility for five reasons. These reasons formed the basis of five submissions under the first ground of appeal, namely:

(a) Submission 1: That on the morning of Sunday, 1 February 2009, the Complainant arrived for work approximately one hour early, and requested a lift from the Appellant, notwithstanding sexual advances having been made by the Appellant towards her on the previous Friday evening.

(b) Submission 2: That records of telephone calls made between the Appellant and the Complainant, especially during the evenings of 1 February and 7 February 2009, are inconsistent with the Complainant's account of the nature of their relationship.

(c) Submission 3: That the Complainant continued to change in the cleaners' room at the shopping centre after 1 February 2009 in circumstances where she knew the Appellant had a key and where she could have changed in the adjacent public toilets.

(d) Submission 4: That the Complainant gave an inconsistent account of the sexual activity which occurred between the Appellant and the Complainant on 7 February 2009;

(e) Submission 5: That the sexual assault complaint was only made after the Complainant had been dismissed from her employment.

74 The Appellant submits that, in light of the lack of credibility of the Complainant's evidence, and the significant part the Complainant's evidence played in the Crown case, the verdicts of guilty on each count were unreasonable or cannot be supported.

The Relevant Legal Principles

75 Section 6(1) Criminal Appeal Act 1912 provides that, in respect of an appeal under s.5(1), the Court of Criminal Appeal "shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence".

76 The task of the Court in determining an appeal of this sort was summarised in Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at 332-333 [31]-[34]:

"31 In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22].

32 In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29].

33 In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen, Mason CJ, Deane, Dawson Toohey JJ said at 494-495:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.'

34 The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13]."

77 It is appropriate to consider in turn each of the five submissions (see [73] above]) advanced in support of this ground.

78 In approaching these submissions, I keep in mind that the experience of the criminal courts has been that victims of sexual assault do not necessarily respond in ways that accord with some mechanical or predetermined view as to how such victims should respond. Much depends on the evidence in the particular case, including the association of the parties and the duration of that association. I will return to this topic later in the judgment.

Submission 1

79 The Appellant asserts that it was inconsistent with the Complainant's account of the nature of her relationship with the Appellant for her to, firstly, arrive for work approximately one hour early on 1 February 2009 and, secondly, request a lift from the Appellant, in light of his supposedly unwanted sexual advances on the previous Friday night.

80 The Complainant gave the following account of her understanding of the nature of her relationship with the Appellant during cross-examination (T32, 11 August 2010):

"Q. Every day that he was there, you would talk to each other?

A. WITNESS: When I got break time, he come up.

Q. And is it true that just about every day that you worked at Pender Place, that [the Appellant] would bring you coffee in the morning? Is that right?

A. WITNESS: He bought me a coffee, yes.

Q. And you'd have a chat? You'd talk to each other?

A. WITNESS: Yes.

Q. And you were becoming friendly?

A. WITNESS: Yes

Q. And you liked [the Appellant]?

A. WITNESS: No.

Q. You thought he was a nice guy?

A. WITNESS: The first time I know, I think he's nice, but, no.

Q. When did you decide that he wasn't nice?

A. WITNESS: When the first time? When he asked me to go to the office the Friday the 31st - 30th."

81 The Complainant maintained throughout cross-examination that, whilst she and the Appellant spoke to each other at work regularly, they were merely colleagues.

82 Contrary to this, it was the Appellant's case at trial that the Complainant had expressed romantic feelings towards him, as to which the Appellant gave the following account during evidence-in-chief (T31, 16 August 2010):

"Q. Okay. Now, while you were at the club that evening was there anything said to you by [Ms Reynolds], anything else said to you by [Ms Reynolds], about [the Complainant]?

A. INTERPRETER: She said to me '[the Complainant] admires you'.

Q. And had anything been said to you by [the Complainant] or [Ms Reynolds] or anybody else prior to that as to how [the Complainant] felt about you?

A. INTERPRETER: [Ms Reynolds] told me, yes.

Q. And had [the Complainant] said anything to you?

A. INTERPRETER: She said, 'I'm fond of you. Your eyes are beautiful and your eye lashes are smacking.'

HIS HONOUR: Sorry, I missed that.

INTERPRETER: 'Your eye lashes are smacking.'

HIS HONOUR: Smacking.

INTERPRETER: Makes the heart throb.

Q. Okay and when did [the Complainant] say that to you?

A. INTERPRETER: At work.

 

Q. At work and was it before you went to the club or after?

A. INTERPRETER: No, before we went to the club."

83 Ms Reynolds denied telling the Appellant that the Complainant had romantic feelings for him. To her knowledge, the Complainant did not have feelings of that kind for the Appellant (T37-38, 13 August 2010). In cross-examination, the Complainant could not recall telling the Appellant he had beautiful eyes (T32, 11 August 2010). Further, she denied that her reason for attending the disco on the Friday night was that she was developing romantic feelings for the Appellant (T33, 11 August 2010).

84 I turn now to the sexual advances made towards the Complainant at the disco and the Complainant's later request of a lift to the shopping centre.

85 The Crown argued, in written submissions, that the Complainant was entitled to interpret the Appellant's advances, at the time, as an isolated incident, and one that was not of a sinister nature. Thus, it was submitted, it was not unreasonable for her to request a lift from the Appellant for the short trip from the train station to the shopping centre on 1 February 2009. I accept this submission. There was no suggestion of any force on the Appellant's behalf when the Complainant rejected his advances. Thus, the Complainant ought not to have felt threatened by the Appellant at this point.

86 Furthermore, the Complainant swiftly rejected the advances, indicating that they were not welcome and affirming that she was not romantically interested in the Appellant. Importantly, this was the first time the Complainant had to catch a train to work. These facts are significant as they make it much more likely that the Complainant's request of a lift from the Appellant was a matter of convenience only. The jury was likely to have reasoned in this way, and I do as well.

87 The Complainant was asked in cross-examination why she caught a train to arrive for work approximately one hour early on 1 February 2009 (T6-9, 12 August 2010):

"Q. And my question is why did you arrive at work so early on the Sunday morning?

A. WITNESS: Because I had to catch the train, maybe I'm going too late. Is no other train to - the next train is about - I'm too late to work, about something eight.

Q. What are you telling us, that on Sunday morning to get to Maitland by quarter to eight you have to catch a train at Waratah at ten past five? Is that what your evidence is?

A. WITNESS: Yes

Q. There's no train after ten past five that will get you to Maitland station by quarter to eight? Is that your evidence?

A. WITNESS: I'm not sure that one. I'm not sure that one.

Q. Well what I'm putting to you is that there was no need for you to get to work at 6.45 on that Sunday morning, was there, as far as work was concerned?

A. WITNESS: I always be early when I go to work. I always.

Q. You see, I put this to you, that the reason that you arrived early on that Sunday morning, an hour before you had to start work, was so that you could spend some time with [the Appellant]?

A. WITNESS: No.

Q. What do you say to that?

A. WITNESS: No. I want to spend to work start to finish early, that's all I think, nothing to spend to with [the Appellant], no.

Q. I'm sorry, I didn't understand that. Did you say you wanted to spend time at work so you could get away early? Is that what you're saying?

A. WITNESS: To finish work early what I'm going to do it at work, not - not spend to [the Appellant]. I want to work early to finish.

Q. Well, what time did you finish that day? Have a look at your list.

A. WITNESS: Three o'clock.

Q. That's the normal finishing time isn't it?

A. WITNESS: Yes.

Q. So you didn't put down on your sheet that you started at 6.45 and you were going to go early, did you?

A. WITNESS: No, because that's only he give it to me. He said to me, 'Just put this time'."

88 Exhibit C indicates the Complainant's start and finish times for 1 February 2009. It indicates that she started work at 7.45 am, and finished at 3.00 pm. These times clearly conflict with the actual times that she started and finished work.

89 In re-examination, the Complainant asserted that, notwithstanding the hours she actually worked that day, the Appellant instructed her to write her usual start and finish times on the time sheet (T49-50, 12 August 2010). Further, the Complainant gave evidence that she in fact also started approximately one hour early on the previous Sunday, notwithstanding that Exhibit C indicated her start time to be 7.45 am (T50, 12 August 2010).

90 Whilst it is true that the Complainant's evidence concerning her start and finish times for 1 February 2009 is inconsistent with Exhibit C, it is not implausible that the Appellant could have instructed the Complainant to fill in her usual times.

91 As regards the Complainant's arrival at work one hour early, the Complainant denied strenuously in cross-examination that this was for the purpose of spending time with the Appellant. She cited multiple reasons for arriving early, including a concern about being late. This was convincing in light of the fact that it was the first time she had to catch a train to work. Moreover, it does not appear that there were any discussions between the Appellant and the Complainant prior to arriving at work on 1 February 2009 indicating any intention to rendezvous for the purpose of having sexual intercourse (see T7, 17 August 2010).

92 The Complainant's description of the nature of her relationship with the Appellant was that they were merely colleagues. In my view, nothing in the Complainant's behaviour prior to or upon arriving at work on 1 February 2009 was inconsistent with that description, and the jury would have taken the same view.

93 I reject this submission.

Submission 2

94 The Appellant's second submission under the first ground asserts that the telephone records between the Appellant and the Complainant are inconsistent with the Complainant's evidence as to the nature of the relationship between the two of them. Telephone calls late in the evening on the days when the assaults took place were of particular significance to this argument.

95 The Complainant's evidence as to her understanding of the nature of the relationship is set out above.

96 The Complainant did not give evidence-in-chief on the subject of the telephone contact between her and the Appellant. It is apparent that the Crown did not have either the Appellant's nor the Complainant's telephone records prior to trial.

97 In cross-examination, the Complainant agreed that she and the Appellant had an arrangement whereby, if she ever needed to speak with the Appellant on the telephone, she would call his mobile number, leave a missed call, and the Appellant would call her back. This was to minimise the Complainant's mobile telephone costs (T28-29, 11 August 2010).

98 The Appellant's telephone records (Exhibits D and E) clearly show a significant number of telephone calls were made from the Appellant to the Complainant's mobile telephone during the course of her employment, some of which were made outside work hours. Most of the calls lasted less than a minute; however, some were of a couple of minute's duration. There were also several text messages.

99 The Complainant gave evidence during cross-examination that the nature of the telephone contact was usually work related, involving the Appellant enquiring as to the location of the mop or bucket at the shopping centre (T34, 11 August 2010; T14-15, 12 August 2010). It was the Appellant's case at trial that the calls and texts, and their timing, exhibited the intimate and personal nature of the relationship.

100 Exhibits D and E show that a telephone call was made by the Appellant to the Complainant's mobile telephone shortly after 10 pm on 1 February 2009, following Counts 1 and 2. The call lasted two minutes and 14 seconds. The Complainant could not recall this conversation (T40, 11 August 2010). When shown the entry in Exhibit E corresponding to this particular call, she acknowledged that it was her mobile telephone number that received it, but could not recall what was said (T11-13, 12 August 2010):

"Q. Having looked at that document, do you now remember that you had a telephone call that night with [the Appellant]?

A. WITNESS: Yes, that's my number.

HIS HONOUR: But I don't think that's answering the question.

SUNDSTROM: I don't think it is either, your Honour.

HIS HONOUR

Q. Mrs ..., he asked having looked at that entry on the paper, do you now recall talking to [the Appellant] on that night?

A. WITNESS: I'm not sure. I think so but my number is here. I don't know.

SUNDSTROM

...

Q. I'm suggesting to you that when [the Appellant] made that telephone call that you've just looked at it was after you rang his phone and left a missed call on it and he rang you back, is that right?

A. WITNESS: Yes, sometimes he do that.

Q. Okay.

HIS HONOUR: But then again, that's not answering.

SUNDSTROM: It's not really, is it?

Q. Well, do you remember that that is what happened on this occasion? On 1 February, that evening, you rang, left a missed call and [the Appellant] rang you back; is that what happened or not? Or if you can't remember, say so?

A. WITNESS: I can't remember.

Q. All right?

A. WITNESS: Really, I can't remember. I'm really confused that night.

Q. Righto. And when you spoke to [the Appellant] that night and he rang, you said, 'I'm thinking of you and I'm really happy'?

A. WITNESS: Pardon?

Q. When you answered the phone you said, 'I am thinking of you and I am really happy'. What do you say to that?

A. WITNESS: Happy of what? I'm not happy he done to me.

...

Q. I'm sorry, I don't understand that. Do you agree that you had that conversation, that you said to [the Appellant], 'I'm thinking of you and I'm happy'?

A. WITNESS: No."

101 Exhibits D and E also show telephone contact between the Appellant and the Complainant late in the evening on 7 February 2009, following Count 3. Four calls were made from the Appellant to the Complainant, each of a duration of no longer than six seconds. The calls all occurred within a four-minute period shortly after 9.30 pm. A call was then made at 21:41:34 lasting one minute and 52 seconds. The following was put to the Complainant in cross-examination (T21-22, 12 August 2010):

"Q. On that night at about 20 to 11 [sic] you had a telephone conversation with [the Appellant], didn't you?

A. WITNESS: No, I don't know.

Q. You don't know?

A. WITNESS: No.

Q. Are you saying you didn't?

A. WITNESS: No, I don't know.

Q. Well I put to you that you did, you had a telephone conversation that went for almost two minutes and during that conversation you said to [the Appellant], 'I've just had a scotch, I'm hugging my pillow and I'm thinking of you'. What do you say to that?

A. WITNESS: Did he say that? No, no.

Q. No, that you said that to [the Appellant]?

A. WITNESS: No, I didn't said to him and I don't know if he rung - I didn't know if I rung him.

...

Q. You don't know if he rung you on 7 February?

A. WITNESS: No.

Q. That was the night after you say in that morning, [the Appellant] forced you to have sex with him, and you don't remember if he rang you that night?

A. WITNESS: No."

102 The Appellant placed particular significance on the timing of the telephone contact on these days; both in terms of it being outside work hours and on days on which assaults were said to have occurred. The Complainant was asked why, on the very evenings following occasions on which she said she was forced to engage in sexual activity with the Appellant, she engaged in conversations of a couple of minutes in duration. It was put to the Complainant that the telephone calls were in fact made because the Complainant had been a willing participant in the sexual intercourse, that she was happy about it, and that she wanted to speak to the Appellant. The Complainant denied all of this (T23-24, 12 August 2010).

103 In this regard, it ought be borne in mind that telephone calls and text messages were also made outside work hours on other days during the course of the Complainant's employment. Some of these calls also lasted more than a couple of minutes. The relevant days on which this communication took place were 25 January, 31 January, and 5 February 2009 (see Exhibits D and E). This reduces the weight of the Appellant's argument concerning the telephone calls on 1 February and 7 February 2009. In addition, the Crown submits that the out-of-hours calls seemed to coincide with days when the Appellant was at the shopping centre, thus increasing the likelihood that they would be for work-related purposes. This fact is compelling. Moreover, I do not accept, as suggested by the Appellant, that telephone calls of a work-related nature could not last for a couple of minutes.

104 The Appellant's trial counsel also seemed to place significant weight on the nature and content of the relevant telephone contact. The Complainant was questioned for an extended period on the content of telephone calls made between herself and the Appellant. She denied making comments of an intimate and sexual nature to the Appellant on the telephone. The Complainant persistently maintained that conversations outside work hours were of a work-related nature.

105 It is noteworthy that, when questioned on the telephone calls in cross-examination, the Complainant was relying on her recollection of events that were at least 18 months' old. That the Complainant could not recall details of mobile telephone calls made over 18 months previously is not unreasonable. It is, in fact, entirely consistent with her account that the Appellant would sometimes call her looking for the bucket and the mop. Such calls would be unremarkable, and the details are not something the ordinary person would necessarily recall 18 months later.

106 Whilst the Appellant's telephone records show some out-of-hours contact between him and the Complainant, and whilst some of this contact was late in the evening on the nights of the offences, such timing does not necessarily support an inference that the nature of the contact was intimate and personal. The Complainant gave an explanation of this contact, being that it was work related, and nothing raised by the Appellant under this submission is sufficient to impugn the credibility of the Complainant's explanation. The jury must have taken this approach and I share this view.

107 Accordingly, this submission ought be rejected.

Submission 3

108 It was submitted for the Appellant that the Complainant gave no plausible explanation for continuing to change in the cleaners' room after the first two assaults in circumstances where she knew the Appellant had a key to that room.

109 The Complainant was asked in cross-examination why she continued to get changed in the cleaners' room (T57-58, 11 August 2010):

"Q. Weren't you worried about something happening if you kept getting changed in the cleaners' room after what happened that you say happened the first time, weren't you worried about being in the cleaners' room?

A. WITNESS: Yes I do, I worry.

Q. Isn't it the case that at Pender Place quite close to the cleaners' room, there are a number of toilets?

A. WITNESS: Yes.

...

Q. Wasn't there a lock so that when people are using the toilet they could lock the door and stop anybody else from coming in?

A. WITNESS: No because they get ... (not transcribable).. toilets. Inside the toilets yes you can lock it then.

...

Q. Because that would have - if somebody was coming in to your cleaners' room that had a key that would have prevented them from catching you while you were getting changed wouldn't it if you went to the - say you went to the disabled toilet they couldn't do that there?

A. WITNESS: Yes but I didn't think like that.

Q. But you didn't think like that.

A. WITNESS: No."

110 The Complainant clearly accepted that there was an alternative location in which she could have changed, but did not think to change there.

111 The Appellant entered the cleaners' room whilst the Complainant was getting changed on two occasions during the 17-day term of the Complainant's employment. There were days during that period when the Appellant was at the shopping centre while the Complainant was working and did not come into the cleaners' room.

112 It is pertinent to note that nothing in the evidence appears to indicate that the Complainant knew which days the Appellant would be at the shopping centre. In fact, she expected him to be away in Sydney for some days each week. This supports the Complainant's evidence that she did not think to get changed elsewhere.

113 In circumstances where the Appellant had only entered the cleaners' room twice, it was not unreasonable for the Complainant to continue changing in that location. The Complainant's decision to continue changing in the very facilities provided to her for that purpose ought not form the basis of an inference adverse to her credibility.

114 This submission is rejected.

Submission 4

115 The Appellant's fourth submission under Ground 1 was that the Complainant gave inconsistent versions of what occurred during the events that gave rise to Count 3.

116 Dr Holland gave evidence in the Crown case. In respect of Count 3, he had recorded in his examination notes that the Complainant had indicated that both oral and vaginal intercourse took place on 7 February 2009 (T54, 12 August 2010). This was inconsistent with the Complainant's evidence at trial regarding Count 3, which asserted that only vaginal intercourse took place. In cross-examination, the Complainant stated that, if she did tell Dr Holland that oral intercourse occurred, it would have been because she was stressed and made a mistake (T72-74, 11 August 2010).

117 The Crown does not suggest that the history was taken inaccurately. Nor is it suggested that the Complainant did not give the above account to Dr Holland.

118 It is noteworthy, firstly, that this was the only inconsistency in the Complainant's account upon which the Appellant seeks to rely. It can hardly be suggested that the Complainant regularly changed her version of events. Secondly, the Complainant has asserted all along that the Appellant attempted to make her perform fellatio on 7 February 2009. Thus, it is possible that she simply misspoke when giving her history to Dr Holland. Thirdly, Dr Holland gave unchallenged evidence that the Complainant's mobile telephone rang during the examination, and that the Complainant told him that it was the Appellant calling her. Dr Holland described the Complainant's demeanour at that point in time as slightly upset (T59-60, 12 August 2010). This supports the Complainant's evidence of being stressed, and serves to explain why her mind might have been elsewhere at the time.

119 In my view, the Complainant's inconsistent account of what took place during Count 3 was a minor mistake in the context of the whole of her evidence at the trial. It does not indicate that she fabricated any part of her account and it does not, in my opinion, affect the reliability of the rest of her evidence. The jury would have taken the same view, fortified by the advantage which the jury had of observing the Complainant giving her testimony.

120 I reject the fourth submission.

Submission 5

121 The Appellant's final submission under Ground 1 concerns the sexual assault complaint made by the Complainant to Ms Reynolds, and its proximity to the Complainant's employment being terminated. It was central to the Appellant's case theory that the Complainant became increasingly dissatisfied at having not been paid for her work at the shopping centre, and that she fabricated the complaint after being told her services were no longer required.

122 Firstly, it is necessary to address the issue regarding the arrangement pursuant to which the Complainant was to be paid.

123 The Appellant and the Complainant both gave evidence that there was a discussion concerning the Complainant's pay at their first meeting on 23 January 2009. The Complainant's evidence as to her understanding of the arrangement arising from this conversation was that she would be paid at the end of the first two weeks of her employment (T27-28, 11 August 2010). The Appellant's evidence as to his understanding was to a similar effect (T28, 16 August 2010).

124 In fact, the Complainant was not paid by the Appellant at the end of her first two weeks. She was informed by the Appellant on 9 February 2009 (the day after she was due to receive her first payment under the arrangement) that it would be a further two weeks before she would be paid (T11, 11 August 2010).

125 The Crown accepted on appeal that there was an ongoing issue between the Appellant and the Complainant about the Complainant's pay. Both parties gave evidence at trial that, despite the arrangement, a number of enquiries were made by the Complainant as to when and how she would be paid.

126 The Complainant recalled three such occasions. The first of these was some time before 1 February 2009 (T54-55, 11 August 2010). The second was on either 5 or 6 February 2009. On this occasion, the Complainant said that she went to the office of the Appellant and asked to receive her pay as her husband had requested that she put $100.00 worth of petrol in their car. She said that the Appellant became angry and yelled, "You fucking bitch I won't pay you anything. Tell the fucking police, or anyone, they have crazy laws, I'm not scared of them, because I'm Iraqi" (T30, 10 August 2010). The third occasion was on 9 February 2009 when she was informed she would have to wait a further fortnight to receive remuneration (T11, 11 August 2010).

127 The Appellant asserted that there was a further occasion on which the Complainant enquired about her pay. This took place on 30 January 2009. The Complainant denied asking to be paid on this occasion (T52-53, 11 August 2010). The Appellant went on to say that, at the disco later that evening, he asked Ms Reynolds to confirm the pay arrangement with the Complainant in their native language (T31, 16 August 2010). Ms Reynolds corroborated this evidence (T36-37, 13 August 2010). The Complainant could not recall this discussion taking place (T53, 11 August 2010).

128 The Complainant was questioned in cross-examination as to why she repeatedly asked about being paid (T55-56, 11 August 2010) (emphasis added):

"Q. So you told us in your evidence that you were - you knew that you weren't being paid for two weeks anyway, didn't you, right from the start?

A. WITNESS: Yeah, when --

...

Q. Yeah, but then it was only a few days later that you started to ask about getting paid? Before 1 February you started asking about it?

A. WITNESS: Yes, I ask him how he pay because I give him that my name, he wanted .. (not transcribable) .. that's the subject is.

Q. I'm sorry, I didn't understand that. Can you repeat it?

A. WITNESS: I ask him how he pay because he told me going to pay me under the table, so I want it clear to him how he pay me. So I - when I ask my husband, 'What's the meaning 'under the table'?' and my husband told me is cash in hand. So I told him - that's why we are talking outside and told him I don't like paying cash in hand, so I give me tax file number. My husband told me give it to him because it's - that's no good you work. That's why we conversation that."

129 The Appellant's submission with respect to this evidence is that it demonstrates dissatisfaction on the part of the Complainant with respect to her pay and, therefore, discloses a motive to fabricate a sexual assault complaint once she was no longer employed at the shopping centre.

130 I am not persuaded that the evidence supports this inference. I accept the Crown submission that the Complainant was confused as to the terms of her employment and the concept of "under the table". In fact, it appears the Complainant's husband advised her that this was not a good arrangement. This obviously caused her some stress. Moreover, the Complainant suffered a significant language barrier, which was helped little by the Appellant also speaking minimal English. It follows that it was not unreasonable, in my view, for the Complainant to make multiple enquiries with the Appellant about her pay.

131 I turn now to the sexual assault complaint made by the Complainant to Ms Reynolds.

132 The Appellant places significance on the fact that the Complainant confided in Ms Reynolds about the pay dispute first, and only mentioned the sexual assaults after she had been dismissed.

133 On 9 February 2009, the Complainant spoke with Ms Reynolds over the telephone. Grievance was expressed by the Complainant with respect to not having been paid by the Appellant following their conversation earlier that day, and an indication was given that she wanted to leave the employment. It appears also that the Complainant indicated to Ms Reynolds that there was something else she wanted to tell her, but that she could not do it over the telephone as she was concerned her husband might overhear (T12, 11 August 2010). This evidence was corroborated by Ms Reynolds (T26-27, 13 August 2010).

134 The Complainant was dismissed on 10 February 2009. Almost immediately afterward, the Complainant reported the assaults to Ms Reynolds. Later that same afternoon, she reported the assaults to the police.

135 It is true there was a delay between the occurrence of the assaults and the making of the complaint. Nine days, in fact, passed from the date of the first assaults to the complaint on 10 February 2009. It is also true that the Complainant was not without persons in whom she could have confided, nor opportunities to do so. The evidence suggested that Ms Reynolds asked the Complainant if anything had happened between her and the Appellant one or two days after Count 3 (T12, 11 August 2010; T26-27, 13 August 2010).

136 However, upon analysis, I do not think that the delay in this case assists the Appellant in any material respect. To infer that the Complainant fabricated the sexual assault complaint from her reluctance to mention the assaults earlier than she did, or her decision to complain about her pay situation first, ignores the fact that the Complainant likely felt vulnerable and powerless at work as a result of multiple sexual assaults at the hands of her employer. This was no doubt matched by a fear of what might happen at work if she complained. She was apparently eager to be paid and probably thought that any chance that the Appellant would eventually pay her might disappear if she told someone he had raped her.

137 A number of further observations ought be made in this respect.

138 Firstly, the evidence indicates that the Complainant called Ms Reynolds during the evening of 1 February 2009, following Counts 1 and 2. The Complainant said that Ms Reynolds was unable to talk (T25, 10 August 2010). It is possible that the Complainant intended to report the first two assaults at that time but was unable to do so.

139 Secondly, the Complainant expressed reasons why she did not mention the assaults to her husband, being that she was concerned that he might retaliate towards the Appellant on her behalf (T25, 10 August 2010; T26, 11 August 2010). It follows that it is understandable that the Complainant would be worried about mentioning the assaults to Ms Reynolds over the telephone within earshot of her husband.

140 Thirdly, the Appellant's assertion that the Complainant had a motive to fabricate the assaults upon being fired ignores the Complainant's evidence that, by the time the Appellant dismissed her on 10 February 2009, she had already decided that she wanted to resign from her position at the shopping centre. This decision was reached, it seems, after her discussion with the Appellant about her pay on 9 February 2009, and his ongoing refusal to pay her (T69, 11 August 2010; T37, 12 August 2010). The fact that she already wanted to leave the shopping centre by the time she was dismissed renders less likely any suggestion that her dismissal provided any necessary catalyst to fabricate the complaint.

141 The law recognises that there may be good reason for a person delaying making a complaint of sexual assault: s.294 Criminal Procedure Act 1986. The jury was so instructed in this case. No legal rule imposes a time limit on the making of a complaint in respect of a sexual assault allegation: R v Manton [2005] NSWCCA 58 at [3]. The delay in this case was comparatively short.

142 In my view, it was not unreasonable, in the circumstances, for the Complainant to delay in reporting the sexual assaults until after her dismissal. Once again, I infer that the jury took a similar approach, correctly in my opinion.

143 Accordingly, the fifth submission is rejected.

Conclusion on Ground 1

144 I have undertaken an independent assessment of the entirety of the evidence, both as to its sufficiency and its quality.

145 The jury had the significant advantage of seeing and hearing the Complainant and the Appellant give evidence. No challenge is made to any directions given to the jury. I have kept in mind that each of the Complainant, Ms Reynolds and the Appellant gave evidence (to varying extents) through interpreters. The courts have recognised that the fact that where key witnesses give evidence through an interpreter, it may limit the ability of a tribunal of fact to assess demeanour as an aid to fact finding: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at 190 [21]-[22]. However, the jury observed the witnesses, and in particular the Appellant and the Complainant, giving evidence on matters where sexual conduct was the topic, with an associated question of consent. Even where witnesses are giving evidence through interpreters, a jury will be in a position to make assessments concerning the witnesses and their reactions to questions put to them on topics such as this. The jury had this advantage in this trial.

146 The convictions of the Appellant depended heavily on the testimony of the Complainant. The Complainant's evidence did not match perfectly with the other witnesses. It would be surprising if it did.

147 The Appellant's submissions under this ground raise questions about the credibility of the Complainant's evidence. I have considered those submissions individually and have concluded that they lack merit. I have considered them cumulatively as well, in case their combined effect may lead to a different conclusion. Having done so, I do not consider that the combined effect of these submissions serves to undermine the credibility of the Complainant.

148 The totality of the material before this Court does not disclose discrepancies or display inadequacies of the kind referred to in the majority judgment in M v The Queen [1994] HCA 63; 181 CLR 487 (at 494-495), such as to lead this Court to conclude that there is a significant possibility that an innocent person has been convicted.

149 In M v The Queen, McHugh J made the following observations (at 534):

"It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment."

150 These observations have particular application to this case.

151 Two short observations ought be made about the Complainant's evidence and the manner in which it was given (insofar as that may be gleaned from a reading of the record of the trial).

152 Firstly, throughout all of her evidence, the Complainant rarely faltered as to her version of events. She maintained a reasonably clear narrative, even under cross-examination.

153 Secondly, it ought be noted that the Complainant impressed as a woman who was extremely loyal to her husband. The evidence indicates that she asked his permission before accepting the job at the shopping centre and before attending the disco on 30 January 2009. It was also common for the Complainant to be driven to work by her husband, and she introduced him to the Appellant on her first day of work (see T26, 11 August 2010; T51, 16 August 2010). All of this renders more fanciful the suggestion that she would, almost immediately after commencing her employment, have declared her sexual interest in the Appellant and embarked upon a course of consensual sexual acts with him.

154 The jury had the opportunity to see and hear the Appellant give evidence. In convicting the Appellant on all counts, the jury was satisfied beyond reasonable doubt that the Complainant was a truthful and reliable witness, and duly rejected the fanciful account of the Appellant.

155 The evidence was such that it was open to the jury to conclude beyond reasonable doubt that the Appellant was guilty. I am satisfied to the criminal standard that the Appellant was guilty of the offences of which he was convicted. It has not been demonstrated that the verdicts were unreasonable or cannot be supported having regard to the evidence.

156 I reject the first ground of appeal.

157 If the Appellant had succeeded on the first ground of appeal, he would have been entitled to be acquitted by this Court. He has not succeeded on that ground.

158 I turn to the second ground of appeal whereby the Appellant seeks a new trial upon several bases.

Ground 2: The Trial Miscarried

159 The Appellant contends that the trial miscarried upon a number of bases, identified in the ground of appeal.

160 At some time after the conclusion of the trial, process was issued by the Appellant to obtain the Complainant's mobile telephone records. As mentioned, these records were not adduced at the trial.

161 The Complainant's telephone records were admitted as Exhibit A on the appeal.

162 An affidavit of the Appellant's trial counsel, Garry Sundstrom, affirmed 27 June 2012, was read by Mr Strickland SC. Mr Sundstrom was cross-examined by the Crown.

163 In short, it was Mr Sundstrom's evidence that he had been advised by the Appellant that it was not possible to obtain the records. Counsel accepted these instructions and no steps were undertaken to obtain such records.

164 The Appellant contends that the trial miscarried due to the absence of the Complainant's telephone records from evidence adduced at the trial.

165 The Appellant submits that the failure of the Appellant's trial counsel to obtain and tender the records caused a series of irregularities in the conduct of the trial, namely:

(a) the Appellant's legal representatives were unable to cross-examine the Complainant on her telephone records;

(b) the Crown's cross-examination of the Appellant on his telephone records was unfairly prejudicial, being based upon premises which, had the Complainant's telephone records been available, would have been shown to be inaccurate.

166 The Appellant seeks to have his conviction on each count set aside on the grounds that these irregularities amounted to a miscarriage of justice.

Relevant Legal Principles Concerning Fresh and New Evidence

167 The Appellant submits that there was a miscarriage of justice so that the convictions ought be quashed under s.6(1) Criminal Appeal Act 1912.

168 The Appellant seeks that this Court have regard to the Complainant's telephone records, and consider what effect they might have had on the result of the trial had they been obtained and tendered at that time.

169 Mr Strickland SC made clear that this ground of appeal did not contend that the Appellant's trial counsel had been incompetent. No reliance was placed upon the principles in R v Birks (1990) 19 NSWLR 677 at 685.

170 Mr Strickland SC accepted that this ground of appeal called for the application of principles surrounding suggested fresh or new evidence.

171 Counsel agreed that this Court should approach the matter by application of the principles in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417, where Kirby J referred to the following seven principles (at 427-428 [63]):

"First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.

Second, great latitude must be extended to an accused in determining what evidence by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512).

Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).

Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.

Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399).

Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:

Is the evidence fresh?

If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or 'plausible' (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)?

If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ 301-302.

Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of the criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)."

172 The onus is on the Appellant to show that the absence of the new evidence at the trial resulted in a miscarriage of justice: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at 143 [63].

173 As mentioned earlier (at [169]), Mr Strickland SC did not seek to invoke the principles in R v Birks. However, this ground does involve some assessment of what the Appellant's legal representatives did before and at the trial, concerning the Complainant's telephone records. For this reason, the principles concerning fresh and new evidence are to be applied in determining this ground. It must be kept in mind that a criminal trial is adversarial in nature and that, as a general rule, an accused person is bound by the conduct of the trial by counsel.

174 In TKWJ v The Queen, Hayne J (Gummow J agreeing) said at 158 [106] (footnotes omitted):

"Account must be taken of the nature of a criminal trial. A criminal trial is not an examination of all the material that exists and bears on the question of an accused's guilt. It is an accusatory and adversarial process in which the prosecution and the defence are responsible for deciding the ground on which the trial will be fought and the evidence that each will lead. That is why the rules about fresh evidence on appeal have developed as they have. And the decisions that are made by the parties about how the trial is to be fought are decisions made on material that may in some respects be incomplete and in other respects turn on questions of professional judgment about which reasonable minds may differ."

175 It is not to the point for an accused person to show that, in certain respects, the trial might have been conducted differently: Ali v The Queen [2005] HCA 8; 79 ALJR 662 at 665 [12]. It is necessary for the Appellant to demonstrate that a miscarriage of justice has occurred.

Did The Failure To Adduce the Complainant's Phone Records Cause A Miscarriage Of Justice?

176 The Appellant concedes on this appeal that the Complainant's telephone records constitute "new evidence" and not "fresh evidence", in the sense explained in R v Abou-Chabake. This concession is made on the basis that the records were constructively available to the Appellant's legal representatives at the trial, insofar as they could have been obtained through the exercise of reasonable diligence ([69] Appellant's written submissions; T15-16, 3 August 2012).

177 The Appellant's trial counsel, Mr Sundstrom, gave evidence that the Appellant informed him that it was not possible to obtain the Complainant's telephone records; the Appellant having been advised of this himself by the relevant telephone company. As a result, no attempt was made to subpoena them prior to trial.

178 The Appellant concedes that the records were constructively available at trial, and it is appropriate that these records be characterised as "new evidence", as opposed to "fresh evidence".

179 I mention, in passing, an argument advanced on behalf of the Appellant, in respect of the Complainant's telephone records, in written submissions. After conceding that the telephone records constituted "new" and not "fresh" evidence, the Appellant then sought to invoke the concept of "great latitude" that is to be extended to accused persons in determining what evidence could have been adduced with reasonable diligence.

180 With respect, that is not the correct approach to be taken in accordance with the principles emerging from the authorities summarised in R v Abou-Chabake. "Great latitude" is to be extended to an accused person in determining whether evidence, by reasonable diligence, could have been available at trial. Here, Mr Strickland SC concedes that the Complainant's telephone records could have been available at trial with the exercise of reasonable diligence. This concession is understandable. The Appellant's legal representatives at trial acted upon their client's instructions that the Complainant's telephone records could not be obtained. No further or independent enquiry was made in this regard. This is a clear situation where the Appellant cannot satisfy the fresh evidence test. The concept of "great latitude" has no role to play in these circumstances.

181 The Appellant must satisfy the new evidence test. New evidence, as opposed to fresh evidence, will only support a determination that a miscarriage of justice has occurred in a very narrow set of circumstances. The evidence must be so cogent as to satisfy the Court as to the Appellant's innocence, or invoke a reasonable doubt as to the Appellant's guilt. In such circumstances it will not matter that the evidence is merely "new" and not "fresh": R v Abou-Chabake per Kirby J at 427-428 [63]; affirming Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ at 518-519.

182 This is a strict test. It requires more than would be required if the evidence had not been available (constructively or otherwise) to the Appellant at his trial.

183 The new evidence, the Complainant's telephone records, must be considered in the context of the whole of the evidence which was before the jury at the trial: R v Abou-Chabake per Kirby J at 427-428 [63]; affirming Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 per Toohey and Gaudron JJ at 301. An assessment must be made as to whether the absence of this evidence from the jury's consideration at the trial amounted to a miscarriage of justice such that the verdict on each count ought be set aside.

The Complainant's Telephone Records

184 The Complainant's telephone records, admitted on appeal (Exhibit A), relate to the period between 23 January and 9 February 2009 inclusive.

185 Unlike the Appellant's telephone records, the Complainant's records show both outgoing and incoming calls, as well as outgoing and incoming text messages.

186 Some of the entries in the records correspond with entries in the Appellant's telephone records, as would be expected. In particular and of significance to this appeal, the calls made during the evenings of 1 February and 7 February 2009 are present also in the Complainant's records. Like the Appellant's records, the Complainant's records include calls and text messages made outside work hours.

187 The Complainant's telephone records also reveal information pertaining to the geographical location of both the caller and the receiver at the time of each call.

188 Submissions to this Court proceeded upon the basis that the Complainant's telephone records were reliable evidence.

189 I turn to consider the submissions advanced for the Appellant in respect of the claimed irregularities that flowed from the failure of the Appellant's legal representatives at trial to adduce the Complainant's telephone records.

Cross-Examination of the Complainant on the Telephone Records

190 It was submitted for the Appellant that the absence of the Complainant's telephone records at the trial deprived his trial counsel of the opportunity to cross-examine her as to why she made various telephone calls, and as to the content of the conversations had therein. It was contended that this amounted to a miscarriage of justice.

191 Whilst this submission was directed to the telephone contact between the Appellant and the Complainant generally, a substantial part of the written submission was directed to a series of calls made by the Complainant during the afternoon of 30 January 2009. These calls followed the meeting that took place in the Appellant's office at the shopping centre. Five of these calls lasted for longer than 30 seconds, the longest lasting for almost two minutes. The calls all occurred between 2.30 pm and 8.30 pm.

192 As mentioned earlier in this judgment (at [35]), evidence of an additional incident that occurred during the meeting between the Appellant and the Complainant in the Appellant's office on 30 January 2009 was not before the jury. The Appellant's trial counsel had objected to the following paragraph of the Complainant's statement to police wherein she outlined this incident as follows (at [12]):

"... After a while I had to go back to work, he took hold of my hand and said, 'Hang on just wait' I said, 'What for?' he said, 'Come here can you suck my Cock?' I was in shock, at first I thought he was joking, I said, 'What I don't do that to my husband, why would I do that to you.' He had taken his penis out and said, 'Come here and feel it' I said, 'No, no put it away.' I said, 'I respect to you, you respect to me. I am not that easy. I have husband and kids and you have the same as me I don't want to put shit on top of my husband head. Just be friends that's all.' He said, 'Okay you go' ..."

193 This evidence was excluded by the trial Judge upon the basis that its prejudicial effect outweighed any probative value.

194 On appeal, the Appellant asserts that, had the Complainant's telephone records been available, the Appellant's trial counsel would not have objected to paragraph 12 of the Complainant's statement to police. This view was expressed upon the basis of the telephone calls and text messages from the Complainant to the Appellant later in the afternoon of 30 January 2009. It was the Appellant's submission that the records of these calls would have opened up a material line of questioning concerning the nature of the relationship between the Appellant and the Complainant.

195 The Appellant submits that it was inconsistent with the Complainant's account of the nature of the relationship for her to contact the Appellant following his supposedly unwanted sexual advances in his office, and for her to attend the disco with him later that evening. The Appellant also seeks to impugn the Complainant's credibility on the basis that she lied about the amount of contact between the two of them on 30 January 2009.

196 The Appellant also asks this Court to draw the broader inference that the additional telephone calls recorded in Exhibit A, made throughout the entire term of the Complainant's employment, further illustrate the existence of an intimate and sexual relationship to an extent that was not before the jury at trial. This submission was based on the quantum of telephone contact, and the proximity of certain contact to significant events in the factual substratum of this case.

197 The Crown asserts that additional lines of questioning would not have assisted the Appellant at trial. It was submitted that the Complainant had already been cross-examined as to the nature of her telephone communication with the Appellant. She had given evidence that the conversations between her and the Appellant were work related and not personal. She also could not recall there having been any personal discussions between them. It was contended by the Crown that confronting the Complainant with evidence of further telephone contact would not materially alter this position.

198 The Crown also pointed to the limited amount of face-to-face contact between the Appellant and the Complainant, as indicating a lack of opportunity to develop a relationship of the kind suggested by the Appellant. There is considerable force in this submission. Given the number of days the Appellant spent in Sydney during the initial week of the Complainant's employment, there was little time for the Appellant and the Complainant to spend together (either at work or socially).

199 In asking this Court to take into account the calls made by the Complainant to the Appellant on 30 January 2009 in the context of the additional incident that occurred in the Appellant's office, the Appellant must accept all inferences that may be drawn from this evidence, including those adverse to his case.

200 The Crown points to two such inferences which cause some difficulty to the Appellant. The first of these is the comment in paragraph 12 of the Complainant's statement to police that she does not perform fellatio on her husband. The Crown submits that this reduces the likelihood that she would engage in such behaviour with the Appellant. The second is the Complainant's rejection of the Appellant's advances on that occasion. This, according to the Crown, supports an inference that the Complainant was not romantically interested in the Appellant. It is also supportive of the Complainant's testimony that she rejected his advances on other occasions (including on the days of the assaults).

201 There is considerable force in these submissions, which I accept.

202 I observe, as well, that Exhibit A in fact contains evidence that contradicts various assertions made by the Appellant at trial. In particular, the locations of each party as recorded in Exhibit A are, at times, inconsistent with the Appellant's evidence as to his location. The Crown submits that, had this evidence been before the jury, it may in fact have proved damaging to the Appellant's credit. This is a persuasive submission.

203 To my mind, there is nothing that operates adversely to the Crown in the calls made by the Complainant to the Appellant on 30 January 2009. It is a fact that they attended the disco on that evening. It must be borne in mind that the records indicate the number and duration of calls only, and not the content of any calls.

204 Whilst the Complainant chose to attend the disco on the Friday after the Appellant had made advances towards her, the Crown points to the fact that the plans to attend the disco were arranged by the Appellant and Ms Reynolds, not the Complainant. Further, the Complainant was initially reluctant to attend the disco, and only changed her mind after receiving multiple telephone calls.

205 The new evidence does not support the inferences sought by the Appellant. Taken at their highest, the Complainant's telephone records merely increase the quantum of communication between the Appellant and the Complainant. They do not reveal the content of any communication.

206 Furthermore, and importantly, the number of calls recorded in Exhibit A is not significantly greater than the number of calls that were before the jury in Exhibits D and E at the trial. The Crown submitted that, of the 40 calls in Exhibit A that lasted for longer than 10 seconds, only 11 were not in evidence at the trial. It is difficult, therefore, to ascertain what benefit would be derived from the additional calls. Clearly, there was a dispute as to what was said during each of the telephone conversations, but this dispute cannot be resolved by the telephone records alone.

207 It has not been demonstrated that the absence of the Complainant's telephone records had any material effect on the trial. The evidence falls far short of demonstrating that a miscarriage of justice occurred.

208 It follows that, if there was a benefit lost by not having the Complainant's telephone records in evidence at the trial (and I do not believe there was), it was not such as to result in a miscarriage of justice.

209 I reject the Appellant's submission that a miscarriage of justice resulted from the absence of the Complainant's telephone records at trial.

The Crown's Cross-Examination of the Appellant

210 It was submitted for the Appellant that the Crown's cross-examination of him at trial was unfairly prejudicial. It was contended that, had the Complainant's telephone records been before the jury, the questions posed to him would have been inaccurately premised.

211 Much of the Crown's cross-examination focused on certain telephone calls that the Appellant asserted were made to him by the Complainant in proximity to significant events. Insofar as the cross-examination suggested that the Appellant was lying or mistaken about these calls, it was submitted that his credibility was unfairly tarnished.

212 It was the Appellant's case at trial that the Complainant had expressed romantic interest in him during the first week of her employment at the shopping centre. The Crown challenged this aspect of the Appellant's case during cross-examination on the basis that the available telephone records did not disclose after-hours calls. I accept that the Complainant's telephone records do, in fact, show some contact at the relevant times; namely, a call on 25 January 2009, a text message on 28 January 2009, multiple calls on 30 January 2009, and two text messages on 31 January 2009. These records may have assisted the Appellant concerning the number of calls. However, they could not assist him on the content of any of those calls.

213 The Appellant also took issue with the Crown's cross-examination of him in respect of other calls that he asserted were made to him by the Complainant but which were not evident in Exhibits D and E. It was submitted on the Appellant's behalf that, had the Complainant's telephone records been before the jury, much of this cross-examination would have been blunted.

214 The difficulty facing the Appellant on this issue is that the Complainant's records do not, in my view, support the assertions he is making. The call that the Appellant says was made to him by the Complainant one or two days after 1 February 2009, seeking another "physical get together", is not recorded in Exhibit A.

215 Further, Exhibit A completely contradicts what the Appellant says happened on the evening of 7 February 2009. The Appellant said he received a missed call from the Complainant. According to Exhibit A, the Complainant did not call the Appellant that evening. The Appellant also says that he had two conversations with the Complainant that night. Exhibit A reveals only one call of a sufficient length to constitute a conversation.

216 If the Complainant's telephone records had been available at trial, they might have provided some modest assistance to the Appellant, but they would have also undermined his evidence in other respects.

217 The Appellant says that the absence of the Complainant's telephone records caused a series of irregularities in the trial. However, the records added little by way of probative material that could be of assistance to the Appellant's case. In fact, in some aspects, the records are damaging to the Appellant.

218 The Appellant has not demonstrated that a miscarriage of justice occurred as contended for in this submission.

A Further Aspect of Ground 2 Complaining of the Crown's Closing Address

219 Included in Ground 2 is a free-standing complaint about the content of the Crown closing address.

220 During the Crown trial advocate's closing address to the jury, reference was made to the significant factual dispute between the Appellant and the Complainant regarding the nature of their relationship. The Appellant submits that the remarks were highly prejudicial.

221 The relevant portion of the Crown's closing address is as follows (emphasis added):

"The Crown says that there's been a lot of evidence led before you or sought to be led before you that has very little weight that amounts to a scurrilous attack upon the complainant's credibility and character. The Crown says what you have to accept as a foundation for it is that the complainant declared to [Ms Reynolds], before the day that they went to the disco, that she was romantically interested in the accused. The Complainant denied that and [Ms Reynolds] also did too. It's just the accused that asserts it."

222 Two aspects of the above passage fall for consideration by this Court:

(a) the Crown trial advocate's description of the evidence of the Appellant regarding the nature of his relationship with the Complainant as a "scurrilous attack" upon the Complainant's character and credit; and

(b) the Crown trial advocate's submission to the jury that the Appellant's evidence on the matter had "very little weight".

223 The Crown submits that no complaint was made by the Appellant's experienced trial counsel concerning this comment, and that this indicates the lack of impact of the words at trial.

224 Comments of Crown Prosecutors during their closing address have been the subject of judicial consideration on numerous occasions: see McCullough v The Queen [1982] Tas R 43; 6 A Crim R 274; R v Kennedy [2000] NSWCCA 487; 118 A Crim R34; R v Rugari [2001] NSWCCA 64; 122 A Crim R 1; R v Liristis [2004] NSWCCA 287; 146 A Crim R 547; R v Attallah [2005] NSWCCA 277; Livermore v R [2006] NSWCCA 334; 67 NSWLR 659; KNP v R [2006] NSWCCA 213; 67 NSWLR 227; Soames v R [2012] NSWCCA 188.

225 The Court in Livermore v R reviewed the relevant authorities and stated (at 667 [31]) that there are five features of a Crown address that have consistently been held to justify the intervention of this Court:

"(i) A submission to the jury based upon material which is not in evidence.

(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.

(iii) Comments which belittle or ridicule any part of an accused's case.

(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.

(v) Conveying to the jury the Crown Prosecutor's personal opinions."

226 It is submitted for the Appellant that the trial had been conducted upon the basis of a strong challenge to the credibility and reliability of the Complainant. The Appellant had given evidence, which was in conflict with that of the Complainant in critical respects. It was submitted that an emotive and excessive submission had been made by the Crown that a "scurrilous attack" had been made upon the Complainant's "credibility and character". It was submitted that the challenge to the evidence of the Complainant was forensically legitimate, and that the Crown submission was unfair and should not have been made. It was submitted that it had a tendency to deflect the jury so as to give rise to a miscarriage of justice.

227 Submissions are sometimes made by the Crown, during closing address, to pre-empt submissions expected to come in the closing address of the defence: see R v Attallah at [109]; Livermore v R at [40].

228 What the Crown trial advocate did in the present case may be described as a form of pre-emptive attack on what was anticipated by the Crown to be a key aspect of the Appellant's closing address. It ought be noted in this regard that much of the cross-examination of the Complainant was devoted to the nature of her relationship with the Appellant and the assertion that she had expressed romantic interest in him.

229 It was submitted on behalf of the Appellant before this Court that the evidence given by him concerning the nature of his relationship with the Complainant, and the cross-examination of the Complainant on that topic, did not amount to an attack on the Complainant's character. Instead, it was submitted, it constituted legitimate cross-examination of the Complainant based on instructions. The Appellant submitted that the Crown's comment to the jury suggested that his trial counsel had done something improper in adducing this evidence.

230 The Appellant's trial counsel was entitled to test the evidence of the Complainant, especially with respect to the nature of her relationship with the Appellant. Counsel was required to put his instructions to her, that she had romantic feelings for the Appellant.

231 The word "scurrilous" is defined by the Macquarie Dictionary as meaning "grossly or indecently abusive". During the course of oral submissions in this Court, the Crown did not seek to defend the use of that term. Instead, it was submitted that the term was perhaps used by the Crown trial advocate in a more colloquial sense.

232 It was submitted by the Crown that the remarks by the Crown trial advocate were a legitimate, albeit strongly worded, criticism of the evidence of the Appellant.

233 In my view, the Crown trial advocate should not have used the words under challenge. It was inflammatory to assert that a "scurrilous attack" had occurred.

234 However, to the extent that the Appellant submits that these words constituted a strong (adverse) comment directed to the Appellant's trial counsel (and thus the Appellant), it is noteworthy that trial counsel made no complaint about them, and did not seek a correction or withdrawal from the trial Judge.

235 The absence of complaint from the trial counsel indicates that no prejudice to the Appellant was perceived in the atmosphere of the trial.

236 Further, it should be kept in mind that Ms Reynolds supported the Complainant, and not the Appellant, on the issue of whether the Complainant had expressed any romantic interest in the Appellant. This was an important aspect of the trial, and the Crown was entitled to remind the jury of this, using appropriate forceful language. However, the language selected was inappropriate and should not have been used.

237 That said, it has not been demonstrated that the Crown trial advocate's closing address gave rise to a miscarriage of justice.

Orders

238 The Appellant has not succeeded in his challenge to his convictions by the jury at trial.

239 The appeal against conviction should be dismissed.

240 BUTTON J: I agree with Johnson J.

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Decision last updated: 01 February 2013