Audish v R

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 R v Al Batat & Ors (No 9) [2020] NSWSC 1101 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep) R v Watt [2000] NSWCCA 37 SKA v R (2011) 243 CLR 400; [2011] HCA 13 Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 Texts Cited: Nil. Category: Principal judgment Parties: Ricardo Audish (Applicant) Crown (Respondent) Representation: Counsel:

T. Game SC; T. Kent (Applicant) A. Bonner (Respondent)

National Criminal Lawyers (Applicant) Office of the Director of Public Prosecution (Respondent) File Number(s): 2017/11492 Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter which could identify the victim is prohibited.

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, co-accused WS, RO and FA is prohibited.

HEADNOTE [This headnote is not to be read as part of the judgment] On 25 March 2021, the applicant was convicted by jury on three counts of sexual intercourse without consent knowing the complainant ("AK") was not consenting in circumstances of aggravation (being in company with other persons, "WS" and "RO") contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offending conduct occurred on 15 October 2016 at Lugarno Pizzeria, which was owned by the applicant's brother. AK was invited to the pizzeria by an employee, FA, who was 17 years old and with whom AK was then in a sexual relationship. The Crown case was that on one occasion, charged as count 1, the applicant had sexual intercourse with AK without her consent, in company. As regards counts 2 and 3, the Crown case was that the applicant participated in a joint criminal enterprise with WS and RO (both of whom were under 18 years of age at the time), to have sexual intercourse with AK without her consent in company, which they each did after the applicant had sexual intercourse with AK. Hearsay evidence of representations by WS, FA and RO (none of whom were to be, or were, called at trial) was admitted and used against the applicant following a pre-trial voir dire and a pre-trial hearing. This included evidence given by Detective Sergeant Natasha Telfer (the officer in charge of the investigation of the events of 15 October 2016) as to what WS said to her during a police interview on 15 December 2016 (the "WS Police Interview"); transcripts of various telephone calls on 15 December 2016 (the "Call Transcripts"); and evidence of conduct and intercepted calls during an incident on 23 and 24 December 2016 after RO saw AK and her friend on a train to Parramatta in a chance encounter (the "Parramatta Conduct"). Notwithstanding objection by the applicant to most of this evidence being admissible against him, it was tendered against the applicant either in reliance upon, or the applicant says could only have been relevant as, hearsay representations of third parties admitted against the applicant under s 87(1)(c) of the Evidence Act 1995 (NSW). For the purpose of s 87(1)(c) of the Evidence Act, the Parramatta Conduct was found on the voir dire, and at the pre-trial hearing, to be in furtherance of a common purpose that WS, RO and others had with the applicant, being to provide a false version of the events of 15 October 2016 to give to the authorities. The false version of events was that it was only FA and WS, and not the applicant and RO, who had had sexual intercourse with AK on 15 October 2016 and that RO was not present at the pizzeria that night. The applicant was convicted and sentenced to an aggregate term of imprisonment of 13 years with a non-parole period of 8 years. The applicant appealed against his conviction. The issues raised on the appeal against conviction were: (1) Whether Sweeney DCJ and Arnott DCJ erred in admitting evidence pursuant to s 87(1)(c) of the Evidence Act of representations of third parties in the absence of the accused. (2) Whether Arnott DCJ failed to direct adequately and erred in his Honour's directions as to the use which could properly be made of representations made in the absence of the applicant and admitted pursuant to s 87(1)(c). (3) Whether the verdicts of guilty to counts 1, 2 and 3 were unreasonable and/or not supported by the evidence. The Court (Stern JA, Davies and Ierace JJ agreeing) held allowing the conviction appeal in part and to the extent necessary granting leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): As to issue (1) (1) Having regard to the conclusions of this Court in R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 and Higgins v R [2020] NSWCCA 149 ("Higgins") and having regard to the operation of s 87(1)(c) of the Evidence Act against a background which presumes the operation of the common law co-conspirators rule (as held in Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250), in criminal proceedings, s 87(1)(c) of the Evidence Act should be construed as requiring that the common purpose relied upon is a common purpose embraced by the offence charged. The Crown's contention that Higgins was plainly wrong should be rejected: [85]. R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127; Higgins v R [2020] NSWCCA 149, applied. Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250, considered. (2) The evidence of the Parramatta Conduct should not have been admitted against the applicant under s 87(1)(c) of the Evidence Act. That evidence was not admitted as being in furtherance of a common purpose embraced by the offence charged. This error led to a miscarriage of justice. There was a real chance that this evidence affected the jury's verdicts: [86]-[89]. Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, considered. (3) The Crown's submission, that even if this Court found that the Parramatta Conduct was erroneously admitted, the appeal should be dismissed, relying upon the proviso in s 6 of the Criminal Appeal Act 1912 (NSW), should be rejected. Having considered the whole of the record of the trial, and recognising that there was evidence, other than the evidence of the Parramatta Conduct, that significantly damaged the applicant's credibility, the Court was not satisfied that the evidence properly admitted at trial established the applicant's guilt beyond reasonable doubt: [90]. Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, considered. As to issue (2) (4) The trial judge did not give the jury any direction as to what representations by FA, WS and/or RO were established by, or to be taken from, the Parramatta Conduct, nor as to what admissions by the applicant were made thereby. The explanation given by the trial judge was inadequate to ensure that evidence of the Parramatta Conduct was not used in an impermissible manner: [99]-[100]. (5) As regards one of the Call Transcripts (call 26) and the evidence of the WS Police Interview, the jury was given no guidance from the trial judge at all. Again, that was inadequate having regard to the limited bases upon which those representations could properly be relied upon against the applicant (even if they could be tendered as admissions of the applicant), that is, as only going to the applicant's credibility: [99]-[101]. (6) There was a miscarriage of justice, and it was in the interests of justice that leave be granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) notwithstanding that no objection was made to the terms of the trial judge's direction at trial: [104]. As to issue (3) (7) Given that the sexual intercourse between the applicant and AK took place in the back area of the pizzeria but not in one of the two toilets, how small that area was and that the evidence is consistent with WS and RO being generally around that area, it was open to the jury to conclude that the applicant had sexual intercourse with AK "in company" as alleged in count 1: [121]. (8) The jury should have entertained a doubt as to the applicant's guilt on the charges the subject of counts 2 and 3. There was insufficient evidence to exclude the applicant's innocence on those counts and the circumstantial matters relied upon by the Crown did not overcome these difficulties. The Crown case relied upon conjecture that a look out was necessary, that the applicant was physically proximate when WS and RO had sexual intercourse with AK and that in this way he provided encouragement to them to do so. Whilst the evidence was not inconsistent with these propositions, it did not exclude a reasonable doubt as to the applicant's guilt: [122].

JUDGMENT

1. STERN JA: The applicant seeks an extension of time and leave to appeal (to the extent required) and appeals, under s 5(a)-(c) of the Criminal Appeal Act 1912 (NSW), against both his conviction following a trial by jury, and his sentence, for three counts of sexual intercourse without consent knowing the complainant (referred to, pursuant to s 578A of the Crimes Act 1900 (NSW), as "AK") was not consenting in circumstances of aggravation (being in company with other persons, being the persons referred to, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), as "WS" and "RO") contrary to s 61J(1) of the Crimes Act. On 27 August 2021 the applicant was sentenced to an aggregate term of imprisonment of 13 years expiring on 24 December 2033 with a non-parole period of 8 years expiring on 24 December 2028. The maximum penalty for each of the offences was 20 years, with a standard non-parole period of 10 years.
2. The applicant was convicted on 25 March 2021 and sentenced on 27 August 2021. He filed a notice of intention to appeal against his conviction on 6 April 2021. However, he did not file a notice of appeal until 26 June 2024. In support of his application for an extension of time for filing his notice of appeal, the applicant relies upon an affidavit of Michael Moussa dated 25 June 2024. Whilst, as the applicant concedes, the explanation for the significant delay which Mr Moussa gives in his affidavit is less than satisfactory, given my conclusions as to the merits of the appeal, I would grant an extension of time for filing the notice of appeal and, to the extent necessary, grant leave to appeal.
3. The offending conduct occurred on 15 October 2016 at Lugarno Pizzeria, which was owned by the applicant's brother. AK was invited to the pizzeria by an employee, FA, who was a 17 year-old with whom AK was then in a sexual relationship. The Crown case was that on one occasion, charged as count 1, the applicant had sexual intercourse with AK without her consent, in company. As regards counts 2 and 3, the Crown case was that the applicant participated in a joint criminal enterprise with WS and RO (both of whom were under 18 years of age at the time), to have sexual intercourse with AK without her consent in company, which they each did after the applicant had sexual intercourse with AK. The Crown case was that AK did not consent to sexual intercourse with the applicant because she was substantially intoxicated by a drug that she smoked that evening, or she was unconscious or asleep and that the accused knew AK did not consent or was reckless as to whether AK gave consent.

The offending

1. AK was 18 years old at the time of the offending. She met FA in September 2016. In the afternoon of 15 October 2016, FA called AK and asked if she wanted to meet him, smoke some weed and have pizza that night. At around 8.00pm, FA, who had WS in the car, picked AK up from Riverwood train station and drove her to the pizzeria. At 8.24pm, they went into the back area of the pizzeria where RO and the applicant were, entering through the back gate. FA introduced the applicant to AK as his boss. AK and FA went into the bathroom where they had consensual sexual intercourse. Afterwards FA left and then came back into the bathroom and told AK that "all the boys wanted to have sex with [her]." AK responded "[n]o or hell no."
2. WS then came into the bathroom whilst AK was still getting changed. She told WS to "get out" but FA said that it was okay for WS to stay there. WS stayed in the room while AK was getting changed and during this time, WS was packing a bong with weed. AK then smoked the substance in the bong. WS repacked the bong, he smoked the bong for a few seconds and AK then smoked this also. After this AK felt very out of it, like she "got hit in the head." She said that on previous occasions when she had smoked from a bong she had felt "[c]alm" but this time, "[i]t was different." AK said "[e]verything was spinning" and that she started coughing and walked outside because she couldn't breathe. She did not have her shirt on. When she went outside FA, RO and the applicant were standing outside, watching her, and WS was still in the bathroom. AK went over to FA, who was near the back gate, and leaned against him, hugging him, as she was not feeling well. The applicant approached AK and asked if she was okay. AK did not respond and she described feeling "really dizzy" and said she "started shaking."
3. AK said that after that, "[i]t was just black." Her next recollection was leaning over some chairs and feeling someone having sexual intercourse with her. AK said that at first she did not see who was behind her but then she saw it was the applicant having sex with her. The next thing AK remembered was the applicant ejaculating on the floor. She did not see anyone else nearby when this happened. AK said that the applicant did not speak with her before or after this sexual intercourse and that she did not consent to this sexual intercourse. The applicant's evidence at trial was that FA told him that AK wanted to have sex with him, that the applicant asked AK three times "[a]re you sure you want to sleep with me", and AK said she did, and that the sexual intercourse was consensual. It should be observed that there was significant evidence, not the subject of this appeal, from which the jury could have found that the applicant's evidence, including as to this, was not credible.

The evidence the subject of grounds one and two

1. The evidence the subject of grounds one and two must be considered in context. That includes evidence that preceded 15 December 2016 that was admitted on the basis that it established and could be referable to the common purpose to concoct a false version of events. Broadly, this evidence established that on 5 December 2016, police attended both the applicant's parents' home and WS's home. Telephone intercepts of calls (most of which were in Chaldean and translated in the transcripts tendered at trial) started that afternoon. The first transcript records a telephone call between WS and RO which includes some suggestion that the applicant's name should not be mentioned to police. The Crown alleged that following this, a meeting took place on 6 December 2016 between the applicant, FA and WS. Also on 6 December 2016, both WS and FA attended St George Police Station in Kogarah and WS spoke with police (including Detective Sergeant Telfer) and he received a number of telephone calls during the interview. The transcripts of calls around the time of the interview were tendered. These showed that WS and the applicant discussed what WS would tell police and that the applicant told WS not to mention his name "just like we agreed" and also not to mention the name of the young one (which I would infer was a reference to RO). Transcripts of calls between 7 December and 13 December 2016 included further discussion between the applicant, FA and WS about what WS had said to police, and what the applicant would say to the police. This transcript includes references to learning or knowing, or changing, "the story" and the applicant telling WS to tell the police that "it's got nothing to do with me".
2. On 15 December 2016, WS attended Fairfield Police Station. At about the same time as he started his police interview there was a call between him and the applicant during which the applicant told WS not to mention any names, to tell police that the applicant did not know anything about "the issue" and not to mention either the applicant or WS's cousin's name (RO is WS's cousin). During the interview WS told Detective Sergeant Telfer that only he and FA had had sex with AK and, when asked, denied that the applicant had had sex with AK.

The evidence

1. For convenience, the transcript of calls the subject of grounds one and two will be referred to by the call number allocated to the transcript during the voir dire or by its product number. These calls include calls made or received by the applicant. However, Senior Counsel for the applicant stated in his oral submissions on the application that it is only the evidence of representations by persons other than the applicant that the applicant contends should not have been admitted. I will approach ground one on this basis.

The Call Transcripts

1. Call 25 is a call from RO to WS (and a third voice) at 8.59pm on 15 December 2016. It relevantly included the following exchange: "RO: We just left the shop WS: Listen, you, delete everything, delete everything, they are looking for you. Now, you are the gang leader. Third voice [described by the interpreter as "maybe Peter or Ricardo"]: Mother fucker, it's enough, creating stories".
2. On the voir dire the applicant objected to call 25 being admitted. The applicant's "three pillars of objection" to call transcripts being admitted on the voir dire were: relevance, whether what was said in the call could be construed as an admission by the applicant, and whether what was said in the call was a representation that, for the purposes of s 87 of the Evidence Act, was made by some semblance of authority on behalf of the applicant. On the voir dire it was held that call 25 was not admissible against the applicant. However, at the trial call 25 was tendered by the Crown through Detective Sergeant Telfer. The applicant did not object. At the time of tender, the Crown did not indicate that this was tendered as an admission of the applicant under s 87(1)(c) of the Evidence Act. Indeed, there was no discussion at the trial as to the basis upon which call 25 could be admitted. At trial the applicant was cross-examined to a limited extent on call 25 and it was put to him that he was on this call and that he was the one who said "it's enough, creating stories" (to both of which he said that he did not remember). No submission was made by the Crown in closing submissions about this call.
3. Having regard to the matters set out above, I would reject the contention of the applicant on appeal that objection was taken to the tender of call 25. I would also reject the contention that call 25 should be taken to have been admitted under s 87(1)(c) of the Evidence Act. The only part of call 25 that could relate to the common purpose of concocting a false version of events is the reference to "creating stories", that was identified on the transcript as possibly being a statement by the applicant. It was then put to the applicant that it was him. In these circumstances, I would find that call 25 was admitted on the basis that it might be found to include an admission by the applicant of having created stories and not under s 87(1)(c) and will not consider call 25 further.

The WS Police Interview

1. The applicant contended that evidence of the WS Police Interview, being the oral evidence of Detective Sergeant Telfer as to what WS said during his police interview on 15 December 2016, was only relevant to the alleged common purpose of concocting a false account of the events of 15 October 2016 and thus should not have been admitted under s 87(1)(c) of the Evidence Act. In this passage of oral evidence, Detective Sergeant Telfer said that during his police interview on 15 December 2016, WS said that only he and FA had sex with AK on 15 October 2016, that no-one else touched or even saw her, that the applicant did not have sex with AK but was busy at the front of the pizzeria and didn't go out the back, that the only time the applicant saw or met AK was when she said goodbye to him and when asked about RO, WS asked who that was, denied having a cousin with that name and said there was no-one with that name.
2. The applicant did not object to this evidence being tendered at trial. I would thus approach this evidence on the same basis as I have set out above in relation to call 26.

The Parramatta Conduct

1. Whilst there is some lack of precision as to what is involved in the Parramatta Conduct, it broadly comprises a series of events as described in evidence primarily by AK and her friend Ms Davey, and telephone calls, in the evening of 23-24 December 2016 that followed on from RO seeing AK and Ms Jessica Davey on a train in the Parramatta area and RO then calling and telling WS of this.
2. The evidence of the Parramatta Conduct includes transcripts of a number of calls between the participants in the events of 15 October 2016 or by WS to Detective Senior Constable Kristy Calderon at the St George Police Station. As set out by the applicant in oral submissions and later supplemented by a document filed by the applicant after the hearing (with the leave of the Court) entitled Schedule and Chronology of Intercepted / Recorded Calls relating to "Parramatta Incident", these comprise the calls considered at [37]-[50] below.
3. Evidence of the Parramatta Conduct also includes evidence from AK and Ms Davey about the evening of 23-24 December 2016 including that WS and FA approached them at Parramatta train station and WS asked if he could speak with AK; that AK said she was going to buy shoes and walked into Westfield; that WS caught up to her and told her "[t]here was only two of them [that night at the pizzeria]" and that "[AK] was so fucked that night that [AK] was asking for it"; that WS and FA showed AK their drivers licences and said that as they were both under 18 years old they would not go to gaol; that AK and Ms Davey went into a shoe store and WS and FA followed them into the store; that WS paid for AK's shoes; that WS asked AK to drop the charges "a lot of times"; that WS said to AK that the applicant was there that night but only talked to AK once; that AK said that she remembered the applicant behind her, touching her; that AK said that she remembered that there were more than two of them there that night; that WS said that the applicant was sorry; that WS apologised repeatedly and said there was only two of them there that night; that AK asked about the videos from 15 October 2016 and FA said that he had deleted the videos because AK had "reported [FA] to the police"; that RO had hidden on the train and expressed concern to WS that AK might identify him; and that WS attempted to call Detective Sergeant Telfer when with AK.
4. CCTV footage showing WS and FA walking with AK and Ms Davey on the evening of 23-24 December 2016 was also tendered at trial.

Further context - recordings of the applicant's discussions on 12 January 2017

1. When considering whether any injustice was caused to the applicant by the matters he complains of, it is also necessary to have regard, by way of context, to the transcript of a recording of a conversation between the applicant, WS and RO when detained in a police cell on 12 January 2017. This evidence was relied upon against the applicant at trial and is not the subject of grounds one or two. The transcript includes WS saying, "[m]ake her a liar, make her a liar. They don't have proof" and of the applicant saying, "[w]e will say we don't know, he went in with her" in relation to RO and, "[a]nd she agreed and then we did whatever we did. And say [the applicant] and the other one doesn't know anything about the issue", and later, "[s]ay "[the applicant] doesn't know about this issue." Say "[f]or two days"", and "[t]he most important thing is you don't mention about me." The applicant said this latter statement three times. The applicant was recorded as admitting to having had sexual intercourse with AK. The applicant is also recorded as saying to FA that he had seen FA having sex with AK. In cross-examination, the applicant initially said that he did not know that FA had had sexual intercourse with AK, though he gave evidence that FA told him that he (FA) had had sexual intercourse with AK.

The Crown's reliance at trial upon the Call Transcripts and evidence of the WS Police Interview and the Parramatta Conduct

1. At trial the Crown opened generally on the basis that the jury would hear transcripts of translations of multiple calls and that it was the Crown case that the applicant, WS and FA developed a story that included that the applicant did not have sexual intercourse with AK and that there was no person with RO's first name involved in the events of 15 October 2016, and that they agreed to provide that story about what occurred on 15 October 2016. The Crown made specific reference to a number of the telephone calls described above. The Crown also made detailed reference to the Parramatta Conduct including to the calls by WS to Detective Senior Constable Calderon on 24 December 2016.
2. In response to a question from the trial judge in the absence of the jury, the Crown submitted that the common purpose to concoct a false version of events was an act relied upon by the Crown as consciousness of guilt. In response, the trial judge indicated that the Crown would have to identify "what statements constitute consciousness of guilt" and noted the "general objection to the common purpose." The Crown then submitted that "the purchasing of the shoes" was a separate event, not part of the common purpose, but was an act acceded to by the applicant. The trial judge then indicated that the Crown would need to do more to identify what "aspects" were relied upon as consciousness of guilt so that his Honour could decide whether those acts were capable of constituting consciousness of guilt. Some days later, in an interchange during the cross-examination of the applicant, the Crown told the trial judge that it had considered its position and did not propose to address on consciousness of guilt, just on credibility.
3. In closing the Crown submitted that "those telephone calls which you've received" together with the conversation recorded on 12 January 2017 proved that the applicant, FA, WS and RO "planned to try and deceive the police, the authorities, about what happened on that night of 15 October", that the intercepted telephone calls "clearly establish that the accused and others got their heads together and manufactured false stories. They discussed the false stories on the telephone", that "the intercepted telephone calls you might think prove beyond any doubt that the accused, [WS, FA and RO], got their heads together and decided to lie about what happened on the night of 15 October" and that the applicant agreed with the others to "transmit those false stories". The Crown also referred repeatedly to the Parramatta Conduct, including to the telephone call by WS to Detective Senior Constable Calderon and Ms Davey's 000 calls, to what the jury had heard in "telephone calls", and generally to "those conversations that were captured" by the intercepts. The Crown also relied upon evidence of the WS Police Interview. The Crown submitted that "not only was the accused prepared to lie to the police and to get others to lie, and you might think that is really significant. He was prepared to get others to lie for him." The Crown submitted that "the accused made sure that those lies were told to the police." These submissions, on their face, rely both upon intercept material to which no objection was taken, and to the evidence the subject of grounds one and two.

The trial judge's directions to the jury

1. The trial judge directed the jury as to what use they could make of the accused's lies, telling the jury that the only use they could make of the fact that the applicant lied about these matters was in their assessment of his credibility. In giving this direction, the trial judge said that this was a direction that he was giving to the jury about the "aspect" of the Crown case in which the Crown submitted that the applicant had, over time, created three different false stories about what happened on 15 October 2016. In describing this "aspect" of the Crown case, the trial judge did not refer to any of the representations made by WS, FA or RO, to the alleged common purpose of concocting a false story to give to the authorities or to the Crown's contentions about the applicant having arranged for others to lie.
2. After this, the trial judge referred to the evidence that the jury had heard of RO being on the train and seeing AK, and the telephone calls that were exchanged following this, that the Crown submitted showed that RO wanted to hide himself from AK. The trial judge also referred to the evidence of a three way telephone call in which, the Crown submitted, the applicant encouraged RO and WS to go and speak to AK and that the Crown submitted that that was in furtherance of "a plan that had been developed amongst them to give a false account to the police" which included that only FA and WS had had sexual intercourse with AK. The trial judge then said: "Generally speaking, an accused is not to be held liable for the acts or statements of others if he is not present when those acts were done or those statements were made; and, of course, the accused was not present on the train. He was not present when the complainant and her friend were approached at Parramatta. However, this pocket of evidence that I have just referred to falls outside that category, and falls into an exception to this rule. The exception to the rule is that where there is an agreement to engage in a common enterprise to, in this case, have a false account given to the police and to persuade the complainant that the false account was, in fact true, there is this exception. And this exception permits, in certain circumstances and for certain limited purposes, evidence of acts done and statements made by other knowing participants in the common enterprise which is still alive in the absence of one of their number to be admissible in the case against him. In other words, what I am saying is, the fact that the complainant was approached at Parramatta and, on the Crown case, there was an attempt to persuade her the [sic] false account to the police, that the accused and [RO] were not involved, is admissible against him if you are satisfied of certain circumstances being fulfilled. It is admissible against him and can be taken into account, although he was not present, on the issue whether there was a common enterprise, as alleged by the Crown, and also the nature of that enterprise. If these acts were done or statements were made in carrying out the purpose of an enterprise then that evidence may also be regarded as evidence of his participation in it. But there are certain conditions that have to be satisfied before such acts or statements done in his absence can be used as evidence against the accused who was absent. First, you must be satisfied, in the light of all the evidence, not solely the evidence of the statements or acts itself but the other evidence in the case too, that at the time of the statements or the acts in question the common purpose of having a false account being conveyed to the police that only [FA] and [WS] had sex with the complainant existed and was shared amongst those participants. Further, what was said or what was done must be in furtherance of it. I think that is sufficient explanation of that aspect of the case."

Ground one: admission of evidence under s 87(1)(c) of the Evidence Act

1. The proper construction and ambit of s 87(1)(c) of the Evidence Act is central to ground one. Section 87(1)(c) provides: 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that- … (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
2. The nub of the applicant's contentions on ground one is that, having regard to the authority of this Court in R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 (Simpson AJA, Johnson and Harrison JJ agreeing) ("Dolding") and Higgins v R [2020] NSWCCA 149 (Payne JA, Rothman and Bellew JJ agreeing) ("Higgins"), and the further decision of Hamill J in R v Al Batat & Ors (No 9) [2020] NSWSC 1101 ("Al Batat"), s 87(1)(c) of the Evidence Act did not permit the admission of a previous representation by a third party without careful analysis of what the hearsay representations are, and unless the representations were made in furtherance of a common purpose which is itself directly related to or in furtherance of, the charged conduct. The applicant says, further, that this position is consistent with the explanation of the co-conspirators rule set out in Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 ("Ahern") and Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 ("Tripodi"), noting that in Dolding at [24], and in the earlier decision of this Court in R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep) at 9 ("Macraild"), s 87(1)(c) of the Evidence Act was said to reproduce the common law relating to representations by co-conspirators as set out in Ahern and Tripodi.
3. The applicant says that the evidence was improperly admitted because the common purpose relied upon by the Crown to justify its admission under s 87(1)(c), being the common purpose to concoct a false version of events, was separate in time and substance to the joint criminal enterprise alleged in relation to the charged offences.
4. The applicant also contends that, in any event, there was no sufficient evidential foundation to find that the applicant was a party to a common purpose that would render the whole of the Parramatta Conduct admissible against him as his involvement was limited to two brief telephone calls, and that much of the evidence that was admitted was merely a narrative statement of past events or gratuitous utterances or could not give rise to any inference of consciousness of guilt as against the applicant.

Determination

1. The central issue in ground one is whether the admission of the Call Transcripts and evidence of the WS Police Interview and the Parramatta Conduct led to a miscarriage of justice and whether, to the extent necessary, leave should be granted under rule 4.15 to the extent objection was not taken to the admission of the evidence. As to the latter, given that I have found that no objection was made by the applicant to call 26 or to evidence of the WS Police Interview, that material can only properly form part of this ground of appeal if there has been a miscarriage of justice such that the applicant lost a real chance of acquittal and it is in the interests of justice that leave be granted: ARS v R [2011] NSWCCA 266 at [147]-[148]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]; Gould v R [2023] NSWCCA 103 at [82]-[90].
2. As to the substance of ground one, a number of legal principles are relevant. First, an admission by a third party as to what an accused might have done is hearsay which is not admissible against the accused save where the third party had authority to speak on behalf of the accused as to the matter the subject of the admission. The Evidence Act defines "admission" in the Dictionary as follows: admission means a previous representation that is - (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding.
3. The hearsay rule is set out in s 59(1) of the Evidence Act: 59 The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
4. The exception for admissions comes from s 81 of the Evidence Act: 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation - (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission.
5. In Ahern at 95, the general position was summarised as: "… anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime. The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact. That is where the dilemma lies in cases of conspiracy because, to assume the participation of the latter in order to admit the evidence on the basis of implied authority is to assume the very fact which is sought to be proved by that evidence. If there were no prerequisite to the admission of such evidence "hearsay would lift itself by its own bootstraps to the level of competent evidence" … In accordance with accepted principle, such evidence was held to be admissible "only if there is proof aliunde that he is connected with the conspiracy"." (Footnotes omitted).

Ground two: erroneous and inadequate directions to the jury

1. The applicant's central contention in conviction ground two was that, even if the evidence the subject of conviction ground two could properly have been admitted against the applicant having regard to the terms of s 87(1)(c) of the Evidence Act, it was necessary that the jury was given clear guidance as to what use could be made of such evidence, and that the trial judge did not give the jury the necessary guidance. The applicant contends, and I would accept, that there was a large body of evidence before the jury which involved hearsay representations. So much is clear from my summary of the evidence under conviction ground one. The applicant says that the jury needed to be, but was not, properly directed as to what it could do with that evidence and this was particularly so given that the Crown ultimately relied upon this large body of evidence only on the question of credibility. Nor was any attention given to the extent to which, if at all, the evidence admitted under s 87(1)(c) of the Evidence Act would be admissible solely on the issue of the applicant's credibility. This, the applicant says, led to a miscarriage of justice.
2. I would accept the applicant's contentions and grant leave under rule 4.15 to the applicant to advance these contentions on appeal notwithstanding that his counsel did not object to the trial judge's directions to the jury nor submit that the trial judge should give any further direction.
3. The trial judge had the responsibility of deciding what the real issues were in the case, of telling the jury what those issues were, and of instructing the jury on so much of the law as the jury needed to know to decide those issues: Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence and the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence: Domican v The Queen (1992) 173 CLR 555 at 561; [1992] HCA 13 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). The requirement that a trial judge be astute to secure for the accused a fair trial according to law involves an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case find or base a verdict: Pemble at 117-118.

Ground three: unreasonable verdicts

1. By ground three, the applicant contends that the verdicts of guilty to each of counts 1, 2 and 3 were unreasonable and/or not supported by the evidence.
2. The Crown's case as to the offending was that the applicant, WS, RO and FA were all part of a joint criminal enterprise to sexually assault AK. As this Court held in FP v The Queen [2012] NSWCCA 182 at [126] (R A Hulme J, McClellan CJ at CL and Schmidt J agreeing) the element of "in company" in s 61J of the Crimes Act involves the following components: "1. that the alleged co-offender … had sexual intercourse with the complainant without her consent, knowing that she was not consenting; 2. that the applicant shared a common purpose that this would occur; and 3. that the applicant was physically present when it occurred, such presence being sufficiently proximate if (a) it afforded encouragement to the alleged co-offender or (b) it operated to intimidate or coerce the complainant."
3. The element of common purpose involves some overlap between the offence being committed "in company" and the elements of a joint criminal enterprise: Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 (Bell CJ, Button and Ierace JJ agreeing) at [123]. However, as Bell CJ also held at [123]: "In order to establish that an offence was committed "in company", it is necessary that the applicant was also physically present, such presence being sufficiently proximate if (a) it afforded encouragement to the alleged co-offender or (b) it operated to intimidate or coerce the complainant. Physical presence at the commission of the offence is not a necessary element of a joint criminal enterprise; Dickson v R at [47] (Bathurst CJ, Johnson and Fullerton JJ agreeing)."
4. The Crown said in its closing address that the jury could infer that the applicant, WS, RO and FA had agreed to sexually assault AK from the circumstances in which the events of 15 October 2016 took place. The Crown's submission was also that the applicant was encouraged to have sexual intercourse with AK by the physical presence of either FA, WS or RO, and that each of WS and RO were encouraged to have sexual intercourse by the physical presence of the applicant. The Crown relied upon: 1. AK's evidence that FA said to her on 15 October 2016 that "[a]ll the boys want to have sex with you now"; 2. FA letting WS stay in the bathroom with the bong after FA and AK had consensual sexual intercourse; 3. RO, WS and the applicant were standing in the corridor outside the bathroom when AK came out and watched her as she came out after having sexual intercourse with FA and after having smoking the bong; 4. the confined space in which the sexual intercourse took place as is apparent from photographs, a video crime scene walkthrough and the plan set out at [16] above; 5. that anyone accessing the fridge/freezer would have had a clear line of sight down the corridor and anyone opening the door to go to the bathroom would have seen the applicant having sexual intercourse with AK or would have heard or seen WS and RO having sexual intercourse with AK in the bathroom; 6. that the pizzeria was open at the time and yet the evidence from one of the takeaway drivers that was led at trial was that he did not know of the events involving AK; 7. the inference that the Crown contended should be drawn in those circumstances that each of the applicant, WS and RO believed that the others would ensure that they were not caught in the act and that the applicant, WS and RO acted together to ensure nobody used the bathrooms at that time; 8. the short period of time AK was present at the pizzeria, being from 8.24pm to 9.31pm; 9. that the applicant, WS and RO had sex with AK in age order, oldest to youngest; 10. that someone, probably FA, recorded the sexual intercourse between AK and RO and then deleted it; and 11. that on 12 January 2017, WS is recorded as saying to the applicant "[y]ou wanted to fuck her. Did I ask you to fuck her? Did I?"

Conclusion

1. The orders I propose are: 1. Time to file application for leave to appeal and notice of appeal extended to 26 June 2024; 2. To the extent required, leave to appeal granted; 3. Appeal allowed in part; 4. Applicant's convictions on counts 2 and 3 on the indictment dated 26 February 2021 are quashed; 5. Applicant is to be retried on count 1 on the indictment dated 26 February 2021, being the charge of having sexual intercourse with another without consent knowing that the other person does not consent to the sexual intercourse and in circumstances of aggravation, namely that he was in company with WS and others, contrary to 61J(1) of the Crimes Act 1900 (NSW); 6. List the matter in the arraignment list in the District Court of New South Wales on Friday, 15 November 2024.
2. DAVIES J: In relation to grounds 1 and 2, I agree with Stern JA for the reasons her Honour gives.
3. From my own independent examination of the evidence I consider that the jury ought to have had a reasonable doubt about whether the evidence was sufficient to conclude that there was a joint criminal enterprise involving the applicant in respect of counts 2 and 3. I consider, however, that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of count 1.
4. Accordingly, I agree with the orders her Honour proposes.
5. IERACE J: In relation to grounds 1 and 2, I also agree with Stern JA, for the reasons given by her Honour.
6. From my independent examination of the evidence, I am also satisfied that the jury ought to have had a reasonable doubt as to the sufficiency of the evidence to conclude that the applicant was a member of a joint criminal enterprise in respect of counts 2 and 3. I also consider, however, that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of count 1.
7. Accordingly, I also agree with the orders proposed by her Honour.

Amendments 29 January 2025 - Removed paragraph numbering from sketch plan below paragraph 16. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 January 2025