Regina v John Hamilton Preston [2004] NSWSC 1313 (21 February 2004)

[2004] NSWSC 1313

CATCHWORDS: CRIMINAL LAW – sexual assault without consent – recklessness as to whether complainant consenting – Crimes Act 1900 s.61R(1).

CRIMINAL LAW – sexual assault without consent – submission to intercourse by reason of terror – Crimes Act 1990 s.61R(2)(c).

CRIMINAL EVIDENCE AND PROCEDURE – sexual assault without consent – evidence of complainant that she believed accused had assaulted people and shot someone – evidence tendered to explain why she did not call out for assistance – not hearsay – relevant – admissible – evidence of accused’s reputation – not tendency evidence – not credibility evidence –  Evidence Act 1995  ss.55(2), 56(1), 59, 97, 102.

CRIMINAL EVIDENCE AND PROCEDURE – sexual assault without consent – evidence of complainant that she believed accused had assaulted people and shot someone – relevant to explain why she did not call out for assistance – not unfairly prejudicial to accused – discretion or requirement to exclude – Evidence Act 1995 ss.135, 137.

CRIMINAL EVIDENCE AND PROCEDURE – sexual assault without consent – summing up – evidence from complainant that she believed the accused had assaulted people and shot someone – adequacy of trial judge’s directions as to limited use jury could make of such evidence –  Evidence Act 1995  s.136.

CRIMINAL EVIDENCE AND PROCEDURE – Comment on accused’s failure to give evidence – what amounts to comment – what comment permissible by judge – Evidence Act 1995 s.20(2).

CRIMINAL EVIDENCE AND PROCEDURE – summing up – reference to different versions from complainant and accused – which to believe – must determine whether evidence of complainant is reliable evidence – whether proper direction.

SENTENCING – sexual assault without consent – accused gains entry to complainant’s house by pretext – sexual intercourse against will of complainant – complainant upset and crying – criminality aggravated when offence committed against defenceless woman in own home.

The appellant was convicted on two counts of sexual intercourse without consent. It was alleged that he had entered the complainant’s house on the pretext of wanting to speak to her and had then gone into her bathroom where she was getting dressed after having a shower, where he engaged in oral and vaginal intercourse with her without consent and that when she attempted to leave the bathroom between the acts of oral and vaginal intercourse he tripped her. The complainant said that she said “No” on a number of occasions, that she was scared, crying and shaking, that although there was another adult male in the house at the time she did not call out because she believed that the appellant had assaulted people and on an occasion had shot someone. Shortly after intercourse was completed, the complainant rushed to her bedroom where the other male was feeding the complainant’s baby. She was very distressed and could hardly speak, but told the other man what had happened and then telephoned her mother who went to the home and called an ambulance which took her to the hospital for an examination. The appellant did not give evidence but in an interview at the time of his arrest (which was admitted by consent in the Crown case) he admitted having sexual intercourse with the complainant, but denied raping or threatening her. Similarly at the trial, through cross-examination of the Crown witnesses, particularly the complainant, the appellant attempted to show that although he did have sexual intercourse with her it was by consent.


(1) The evidence of the complainant’s belief that the appellant had assaulted people and shot someone was tendered to prove the state of the complainant’s mind, her belief, and not the truth of the assertion and accordingly was not hearsay within the  Evidence Act 1995 , s.59.

(2) Evidence of her state of mind and her belief, was relevant to the issue whether there was any good reason for her not calling out for assistance (s.51(1)) and therefore, except as otherwise provided by the Act, was also admissible (s.56(1)).

(3) The evidence was not tendered as evidence of the truth of the matters asserted and so was not evidence of the character or conduct of the appellant, but it was evidence of the appellant’s reputation, at least in the eyes of the complainant.

(4) S.97 (the tendency rule) only applies if such evidence is tendered to prove that a person has or had a tendency to act in a particular way and, as the evidence was not tendered for that purpose in the present case but only to prove the complainant’s state of mind, it was not inadmissible by reason of that section.

(5) Similarly the evidence was not excluded by s.102 which excludes evidence which is relevant only to a witness’ credibility. Here the evidence went, not only to the complainant’s credibility, but also to the existence of a fact in issue, namely whether her failure to call out was due to the fact that she was scared.

(6) The evidence should not have been excluded pursuant to s.135 or 137. Although it was prejudicial to the appellant, it was also of significant probative value on the issue of consent and any prejudice was accordingly not unfair to the appellant.

(7) The judge’s directions as to the limited use to which such evidence could be put were not inadequate.

(8) Although the judge had referred to the different versions in the complainant’s evidence and the appellant’s interview, he emphasised that it was for the jury to determine whether the evidence of the complainant was reliable evidence and made it quite clear that they had to be satisfied of the truth of that evidence beyond reasonable doubt.

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 514, 515, R v Edwards (Unreported – Court of Criminal Appeal – 27 September 1995) distinguished.

(9) The judge’s directions concerning sexual intercourse as a result of terror were sufficient, notwithstanding that the complainant had used words such as “scared”, “crying”, shaking and “terror” is the word used in s.61R (2) (c) of the Crimes Act 1900.

(10) The trial judge’s directions on “recklessness” were adequate. In cases of sexual intercourse without consent an accused is “reckless” if he realises that the victim might not be consenting and is determined to have intercourse with her whether she is consenting or not, or if he fails to advert at all to the question of consent, treating it as an irrelevant factor. R v Hemsley (1968) 36 ACrimR 334 at 337-8, R v Hemming (Unreported – Court of Criminal Appeal – 11 May 1990), R v Kitchener (1993) 29 NSWLR 696, R v Tolmie (1995) 37 NSWLR 660 followed.

(11) Comment on the failure of an accused to give evidence includes any statement which directly or indirectly suggests that the accused could have given evidence, and did not do so.

Bataillard v The King (1907) 12 CLR 1282 at 1291, R v Challita (1988) 37 ACrimR 175 at 195, R v Greciun-King (1981) 2 NSWLR 469 followed.

(12) To tell the jury that merely because the appellant had exercised his right (given by law) to remain silent, they must not thereby draw any inference against him was comment, but as it was made by the judge, it was permissible.  Evidence Act 1995  s.20(2).

(13) Remarks by the judge that where the evidence of the Crown witnesses (particularly the complainant) was left undenied or uncontradicted by the appellant’s evidence in circumstances where he must have had personal knowledge of the relevant facts, any doubts which they may otherwise have about the evidence of the Crown witnesses might be more readily discounted and the evidence of those Crown witnesses more readily accepted as truth were proper and in conformity with. Weissensteiner v The Queen (1993) 138 CLR 217. R v Hallacoglu (1992) 29 NSWLR 67 at 78, R v Towers (Unreported – Court of Criminal Appeal – 7 June 1993) referred to.

(14) Comment made by the judge but which the judge wrongly attributed to the Crown Prosecutor, did not constitute a breach of s.20(2)  Evidence Act 1995  because the Crown had not made any impermissible comment, and the comment was permissible coming from the judge.

(15) Concurrent sentences of six years’ minimum term with additional terms of two years on each count were not excessive, bearing in mind that the offences each carried a maximum penalty of fourteen years and were very serious, being committed by an older, stronger man against a younger, smaller woman in her own home to which he had gained access under the pretext of wanting to speak to her. Sexual assault is a serious offence at any time, but its criminality is aggravated when it is committed against a defenceless woman in the sanctity of her own home.