[1988] HCA 39
ARS v R [2011] NSWCCA 266
Boensch v Pascoe (2019) 268 CLR 593
[2019] HCA 49
Coughlan v The Queen (2020) 267 CLR 654
[2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651
[2022] HCA 25
Dickson v The Queen (2017) 94 NSWLR 476
Source
Original judgment source is linked above.
Catchwords
[1988] HCA 39
ARS v R [2011] NSWCCA 266
Boensch v Pascoe (2019) 268 CLR 593[2019] HCA 49
Coughlan v The Queen (2020) 267 CLR 654[2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651[2022] HCA 25
Dickson v The Queen (2017) 94 NSWLR 476[2017] NSWCCA 78
Domican v The Queen (1992) 173 CLR 555[1992] HCA 13
Fennell v The Queen [2019] HCA 37(2019) 373 ALR 433
FP v The Queen [2012] NSWCCA 182
Gould v R [2023] NSWCCA 103
Hargraves v The Queen (2011) 245 CLR 257[2011] HCA 44
Higgins v R [2020] NSWCCA 149
Hofer v The Queen (2021) 274 CLR 351[2021] HCA 36
James v The Queen (2014) 253 CLR 475[2014] HCA 6
Libke v The Queen (2007) 230 CLR 559[2007] HCA 30
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Macdonald v RObeid v RObeid v R (2023) 112 NSWLR 402[2023] NSWCCA 250
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Orreal v The Queen (2021) 274 CLR 630
[2021] HCA 44
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
[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
Judgment (21 paragraphs)
[1]
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:
[2]
T. Game SC; T. Kent (Applicant)
A. Bonner (Respondent)
[3]
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.
[4]
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.
[5]
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].
[6]
JUDGMENT
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.
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.
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.
[7]
The offending
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."
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."
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.
[8]
The evidence the subject of grounds one and two
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".
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.
[9]
The evidence
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.
[10]
The Call Transcripts
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".
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.
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.
[11]
The WS Police Interview
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.
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.
[12]
The Parramatta Conduct
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.
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.
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.
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.
[13]
Further context - recordings of the applicant's discussions on 12 January 2017
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.
[14]
The Crown's reliance at trial upon the Call Transcripts and evidence of the WS Police Interview and the Parramatta Conduct
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.
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.
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.
[15]
The trial judge's directions to the jury
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.
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."
[16]
Ground one: admission of evidence under s 87(1)(c) of the Evidence Act
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.
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.
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.
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.
[17]
Determination
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].
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.
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.
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.
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).
[18]
Ground two: erroneous and inadequate directions to the jury
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.
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.
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.
[19]
Ground three: unreasonable verdicts
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.
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."
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)."
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?"
[20]
Conclusion
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.
DAVIES J: In relation to grounds 1 and 2, I agree with Stern JA for the reasons her Honour gives.
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.
Accordingly, I agree with the orders her Honour proposes.
IERACE J: In relation to grounds 1 and 2, I also agree with Stern JA, for the reasons given by her Honour.
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.
Accordingly, I also agree with the orders proposed by her Honour.
[21]
Amendments
29 January 2025 - Removed paragraph numbering from sketch plan below paragraph 16.
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Decision last updated: 29 January 2025
The applicant relies upon three grounds of appeal against his conviction. The first two relate specifically to the admission and use against the applicant of certain hearsay evidence of representations by WS, FA and RO (none of whom were to be, or were, called at trial) being:
1. 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");
2. transcripts of various telephone calls on 15 December 2016 (the "Call Transcripts"). The calls the subject of this ground are set out at [20]-[26] below; and
3. evidence of conduct and intercepted calls during an incident on 23 and 24 December 2016 in which RO and later FA and WS (but not the applicant) saw AK in Parramatta in a chance encounter and then made various telephone calls, interacted with AK, purchased AK a pair of shoes and called the police with AK (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 by Sweeney DCJ on the voir dire, and by Arnott DCJ at a 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, or to concoct a false account to give, to police (which, for convenience, I will refer to as the "common purpose to concoct a false version of events"). 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 Lugarno Pizzeria that night. As set out below, when the Call Transcripts and evidence of the WS Police Interview were admitted at trial, there was no discussion as to the basis of admission (and no objection by the applicant). There was no suggestion at trial that this evidence was admitted other than by reference to the alleged common purpose to concoct a false version of events. No other basis for this hearsay evidence being admitted was identified on the voir dire or the pre-trial hearing. I would thus accept the applicant's contention that the basis upon which the evidence was admitted (albeit without objection) was as evidence that went to that common purpose, and thus under s 87(1)(c) of the Evidence Act.
As to the relevance of the hearsay representations which were admitted as admissions by the applicant, as constituted or evidenced by the WS Police Interview, the Call Transcripts and the Parramatta Conduct, the Crown initially contended that the admissions were relevant by way of consciousness of guilt, but ultimately, at trial, the Crown relied upon the admissions solely as going to the applicant's credibility. By ground one, the applicant contends that both the judge on the voir dire and the trial judge (at both the pre-trial hearing and at the trial) erred in admitting the evidence under s 87(1)(c) of the Evidence Act. By ground two, the applicant contends that the trial judge erred in the directions his Honour gave as to the use which could properly be made of this evidence. As to both grounds one and two, the applicant contends that there was a clear likelihood that the jury impermissibly used the Call Transcripts, and evidence of the WS Police Interview and the Parramatta Conduct to draw inferences adverse to the applicant such that a miscarriage of justice occurred.
The applicant contends that sufficient objection was taken to all of the evidence the subject of ground one to avoid the need for him to seek leave under the Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 ("rule 4.15") but accepts that he requires leave under rule 4.15 in respect of ground two as no objection was taken to the trial judge's direction to the jury. The applicant submits that such leave should be granted given that "the jury was left with a very large body of clearly prejudicial evidence with no clear or sufficient direction on how that evidence, in whole or in part, could permissibly be used to reason towards the guilt of the applicant."
By ground three, the applicant contends that the verdicts were unreasonable and/or not supported by the evidence. The applicant contends that the evidence, at its highest, could not establish that the applicant was a party to any joint criminal enterprise relating to, or had any knowledge of, sexual intercourse taking place between AK and each of WS and RO until after that sexual intercourse took place. In these circumstances, the applicant contends that the verdicts on counts 2 and 3 should be quashed, and that in lieu of the conviction on count 1, the applicant should be found guilty instead of sexual intercourse without consent contrary to s 61I of the Crimes Act and sentenced by this Court in respect of that offence.
Having regard to the matters set out below, the conviction appeal should be allowed on all grounds. In these circumstances, the applicant's conviction should be quashed and the matter should be remitted to the District Court for retrial. There is no need to consider the sentence appeal.
All references to grounds of appeal in this judgment are to grounds advanced in support of the applicant's appeal against conviction.
The next thing AK could recall was WS having sex with her in the bathroom whilst she was on the toilet seat. AK described her head banging against the wall during this. AK's evidence was that she didn't really see or hear anything whilst this was happening and she had no memory of what happened between the applicant having sex with her and WS having sex with her. She did not consent to this sexual intercourse. After that, the next thing AK could remember was RO doing "[t]he same thing", that is, "[p]ushing in and out from behind." AK had no memories of what happened between WS having sex with her and RO having sex with her. While RO was having sex with her, AK said she could hear a phone recording in the background, coming from outside, but she did not otherwise see or hear anything else while RO was having sex with her. AK did not consent to this sexual intercourse.
The next thing AK remembered was WS and FA helping her to walk into the kitchen. WS then drove AK up and down the street in the same car they had driven to the pizzeria. After this, AK walked to a roundabout "just down the road" and called her ex-boyfriend at 9.31pm. AK did not see or speak to the applicant or RO after that night. Forensic testing conducted by Ms Lisa Wedervang (forensic biologist) of vaginal smears showed the presence of DNA originating from at least two individuals. Semen detected at the top of AK's bra and at the scene had the same profile as the applicant. Only a very small amount of THC, a metabolite of cannabis, was detected in a sample of AK's blood taken at Liverpool Hospital and tested by Dr Shuang Fu (forensic toxicologist).
The following sketch plan of the pizzeria, showing the various locations referred to above, was in evidence:
Call 26 is a call from FA to WS at 11:41pm on 15 December 2016. Call 26 relevantly included:
"FA: Ha everyone says something, every one is saying something different and you will make a mistake (inaudible).
…
FA: No matter what, you are going to make a mistake (inaudible).
…
FA: Fuck her Mum you will see what I am going to do to her, if she ask me if: "[WS] (inaudible word)?" I will answer her: "I don't know about this subject". I will tell her: "I don't know what happened between her and [WS]". (both laughing) I swear this is what I am going to tell her, that's it.
WS: Yeah, if she will tell: "When he was with you stuff like that if has [joint] or something did you a cigarette or a cannabis with him?" Say to her: "No".
…
WS: Don't say cigarette then they will tell you: "Has something in it". Tell them (inaudible) "He didn't have morphine or anything"."
As is apparent, call 26 suggested both discussion between FA and WS as to what would be said, presumably to police, and some knowledge by FA and WS that AK had been given some substance which affected her cognition.
The Crown did not seek to tender call 26 against the applicant on the voir dire. However, as with call 25, at trial, the whole of the transcript of call 26 extracted above was tendered by the Crown through Detective Sergeant Telfer. Again, 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 and there was no discussion at the trial as to the basis upon which the transcript of call 26 was admitted. The applicant was not cross-examined on call 26.
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 26. The transcript was tendered at trial without objection. Having regard to its substance, the only possible basis upon which it could properly have been relied upon against the applicant would be if it could be attributed to the applicant as an admission under s 87(1)(c) of the Evidence Act. The Crown did not suggest it could have been tendered on any other basis. Thus, whilst call 26 was admissible having regard to the authority of Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]-[272] (Bathurst CJ, Hoeben CJ at CL and Bellew J), that did not relieve the trial judge of his obligation to ensure a fair trial according to law: Perish v R at [272], relying upon Pemble v The Queen (1971) 124 CLR 107 at 117-118; [1971] HCA 20 (Barwick CJ) ("Pemble"); James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [24]. Thus, subject to the requirements of rule 4.15, and to a consideration as to whether the admission of the evidence was inconsistent with a fair trial, this evidence may properly be the subject of ground one. Moreover, as relevant to ground two, the trial judge was nonetheless required to give the jury a direction as to how this evidence could properly be relied upon against the applicant.
As the applicant submits, to some extent this evidence goes beyond any common purpose to concoct a false account of events. It goes to the extent to which AK was intoxicated on the evening of 15 October 2016 and who had knowledge of that. The applicant submits that the evidence of jokes being made about the fact that WS and FA were juveniles is, if relied upon against the applicant, damaging evidence. The applicant also says that the evidence that WS said that the applicant was "sorry" might have been seen by the jury as evidence that the applicant was in fact sorry, or had said that he was, which may have been seen by the jury as evidence that the applicant knew that he had done something wrong and that the evidence that a recording of events on 15 October 2016 was deleted might also suggest some recognition of wrongdoing. In this regard, it should be observed that during the oral evidence of AK the applicant objected to AK's evidence that WS told her that the applicant "says he's sorry too" but the trial judge ruled that this was admissible as it was in "accordance with the common purpose."
On the voir dire the applicant objected to the Parramatta Conduct as a whole being admitted against him. I would accept the applicant's contention that that objection covered AK and Ms Davey's evidence (statements from both AK and Ms Davey were tendered on the voir dire) and all call transcripts for the evening of 23-24 December sought to be tendered by the Crown on the voir dire. This includes calls 30, 31, 32, 33 and 35 and 36 (which are considered further below). I would also accept the applicant's submission that these telephone calls should be treated as having been admitted over his objection notwithstanding that he did not object to their tender at trial. That failure to object was explicable on the basis that the question of the admissibility of the telephone calls under s 87(1)(c) of the Evidence Act had already been determined.
The Crown contended on the voir dire that the Parramatta Conduct should be admitted against the applicant as it was in furtherance of the common purpose of concocting a false version of events that commenced on or about 6 December 2016. The Crown contended that the applicant was informed at various stages of the evening of 23 December and early morning of 24 December 2016 of what was occurring. The Crown also relied upon the fact that the applicant agreed to provide some money towards the shoes that were purchased for AK that evening as being part of an attempt to persuade AK to agree to their false version of events.
On the voir dire it was found that the "whole of the conduct involving [WS] and [RA] with [AK] on 23 and 24 December, including the two phone calls to the police" was admissible against the applicant. Whilst the primary judge did not expressly say this, having regard to the Crown's submissions it would appear that this was because it was evidence which was in furtherance of the common purpose that the applicant was participating in at the time (and this was the basis upon which the statements and conduct were found to be admissible as against FA on the voir dire). I would thus accept the applicant's contention that on the voir dire the evidence of the Parramatta Conduct was found to be admissible against the applicant under s 87(1)(c) of the Evidence Act.
Some of the call transcripts which fall within the ambit of the Parramatta Conduct were first sought to be tendered at a pre-trial hearing before the trial judge. These include two transcripts (product 20689 and product 20696), which together with product 20726, tendered on the voir dire as call 30, all appear to relate to one call (which for a period (call 30) was joined by the applicant). The timings marked on the transcript appear to be incorrect as the call appears to start with product 20696 (probably) incorrectly marked as commencing at 10.56pm, when RO tells WS that AK is on the train and which involves WS, RO and (for at least some of the time) someone named "Sandra". Likely next in time (although marked as beginning at 10.47 pm) appears to be product 20689 involving WS and RO. Call 30 (also referred to as product 20726 and probably incorrectly marked as being at 11.32pm) involves WS, RO and the applicant.
Product 20696 records RO telling WS that AK is on the train, describing her as "the one we fucked", and that he (RO) is also on the train. It includes WS saying, "[g]o to her, go to her, go to her", "give her the telephone and … tell her someone wants to talk to you and don't show your face a bit", and RO saying, "I can't, I can't." There is then in product 20689 discussion about what RO will say to AK when he sees her, including RO saying "[s]ay you agreed with your own will", "[d]on't worry about money. I will give you money", "[t]hrow all my money that I have in her face all the of you … just to finish this matter". Product 20689 ends with WS saying, "Hey [AK], can I talk to you? Can I talk to you? How are you? Ha how are you?" This point in time presumably coincides with the point at which, on AK's evidence, WS and FA approached AK and Ms Davey on the platform at Parramatta train station and asked to talk to her.
The applicant objected to product 20696 and product 20689 on the basis that he was not a party to the call at the time and because it predated any evidence of agreement by him (in call 30) to the course of action of WS and FA approaching AK on 23 December 2016. The trial judge found that product 20696 and product 20689 were admissible under s 87(1)(c) of the Evidence Act on the basis that the call was in furtherance of the common purpose to concoct a false version of events. His Honour held that this purpose subsumed the purpose of persuading AK to drop the charges. He also held that the call was not in furtherance of "a common purpose that was not relevant to the charges before the court". In the trial judge's reasons for finding this call admissible, his Honour explained that product 20696 and product 20689 should be taken together with call 30 at 11.32pm on 23 December 2024. The trial judge observed that no objection was taken to call 30 (which he referred to, by reference to its product number, as "call 20726"). During call 30, the following exchange occurred:
"WS: … [RO] saw the other one there we are going [FA] and I to talk to her.
RO: I am with her here at the station.
RA [the applicant]: Okay go then [WS] okay.
RO: Go.
…
RO: Okay you all go out, I will talk to her [WS]."
His Honour found, as regards product 20696 and product 20689 (and product 20927 considered below) that s 87(1)(c) was satisfied and that:
"… the representations were to be taken to be admissions by the accused. I also considered the evidence of the admissions should be admitted against the accused in the substantive proceedings."
The applicant's position as regards this call is somewhat opaque. As set out above, Senior Counsel for the applicant made it clear in his oral submissions that the applicant's contentions on ground one focussed upon the admission and use of hearsay evidence. However, the list of calls included in the Parramatta Conduct, provided by the applicant, includes call 30. As call 30 was not suggested to be relevant at trial other than to the extent that it supported the trial judge's conclusion that product 20696 and product 20689 could reasonably be seen as representations that could be attributed to the applicant under s 87(1)(c) of the Evidence Act, whether or not there was error in admitting call 30 falls within the ambit of ground one. I would also accept the applicant's contention call 30 was objected to, and dealt with by the judge, as part of the Parramatta Conduct on the voir dire.
Call 31 is the transcript of a call between the applicant and WS at 12.09am on 24 December 2016. It includes the following:
"RA: Where are you?
WS: We are with her here now, I am going to buy her shoes to convince her.
…
WS: What are you saying? I told you she is here now. I am trying to convince her, little by little.
RA: Did you buy me a cover, did you buy me a cover?
WS: No, no. Not now, just leave me alone for now [RA] until I finish from here.
RA: I swear if you don't buy me a cover.
WS: [RA], I swear to God I'm gonna make you pay $15 because the shoes are $35.
RA: Yeah that's fine. Buy the cover, it's a present."
At the pre-trial hearing, the trial judge referred to call 31 by reference to its product number, as "call 20759", and observed that no objection was taken to it. Again, however, I would accept the applicant's contention that this was objected to, and dealt with by the judge, as part of the Parramatta Conduct on the voir dire.
Calls 32 and 33, at 12.21am and 12.23am on 24 December 2016 respectively, are calls from WS to Detective Senior Constable Calderon at St George Police Station (and including, at some points, AK) in which WS seeks to persuade AK to tell the police that AK wants to drop the charges arising out of the events of 15 October 2016. AK does not do so. During the calls AK tells Detective Senior Constable Calderon that "… he saw me getting off the train, and he started following me trying to ask me to like, drop everything. And he won't leave me alone and…". WS then tells Detective Senior Constable Calderon that "… I'm just telling her what's the right to do ... begging her … I just wanna see if she wants to drop it. She said she wants to drop it."
Calls 35 and 36 occurred at 12.32am and 12.34am on 24 December 2016 respectively. They record exchanges between FA and WS, in which WS is asking FA to come to where he is and WS says to AK that FA is coming. These transcripts were approached on the voir dire, by Sweeney DCJ, as part of the Parramatta Conduct which, as set out above, was found to be admissible against the applicant over his objection. These transcripts were also part of exhibit 24, tendered at trial through Sergeant Townsend without objection by the applicant. I would, however, accept the applicant's contention that he objected unsuccessfully to this call being admitted on the voir dire. His failure to object at trial must be seen in that context.
Exhibit 24, tendered at trial without objection, also included the transcript of a call between RO and the applicant at 12.40am on 24 December 2016. Whilst it is not referred to in the transcript of the voir dire proceedings, this was one of the transcripts before the Court on the voir dire (behind tab 45(e) of Exhibit A, being the Crown Voir Dire Bundle). In these circumstances, whilst it is not entirely clear that the Crown sought to tender this against the applicant, I will treat this as forming part of the Parramatta Conduct which the applicant objected to, but was admitted under s 87(1)(c) of the Evidence Act, on the voir dire. This is a call from RO to the applicant, telling him that "these animals talked to her" but that he (RO) had hidden himself after he saw her on the train and was "watching them from a distance."
Product 20927 is the transcript of a call at 12.55am on 24 December 2016 between WS, FA, AK and a person whom I will describe as FR, during which WS asks FR why he told AK that "whatever happened between [WS], [AK] and [FA] was funny?" AK says that FR told her that, "they were laughing about us." During the conversation WS also says, "… I have been begging her for one hour now or two hours for her to drop it but if she … I don't know what she want to do, I am telling her do you wanna drop it yes or no, say anything, yes or no."
At the pre-trial hearing, the trial judge found, over the applicant's objection, that product 20927 was admissible under s 87(1)(c) of the Evidence Act. His Honour held that it was reasonably open to find that some of what was said in this call was said in furtherance of the common purpose of concocting a false version of events, representing the false account that only WS and FA had had sexual intercourse with AK, and that this was taken to be an admission of the applicant under s 87(1)(c). The applicant contends that this call transcript is "quite … damaging" because it suggests that those on the call were trivialising what had happened to AK.
The evidence of the Parramatta Conduct also includes the 000 calls by Ms Davey on the evening of 23 December and early morning of 24 December 2016 (see above at [31]). Whilst it does not appear that the transcript of these calls was before the judge on the voir dire, I would accept the applicant's contention that his objection to the Parramatta Conduct as a whole included objection by the applicant to Ms Davey's evidence (in the form of a police statement which was one of the exhibits on the voir dire) that she called emergency services twice in the early morning of 24 December 2016. Transcripts of the 000 calls were tendered at trial through Sergeant Townsend, without objection, as exhibit 19. In the 000 calls, Ms Davey tells the operator that "a guy who sexually assaulted my friend [AK] a couple of months ago" was following them and that he kept trying to talk to AK and that AK was "very scared." The evidence was capable of being prejudicial to the applicant to the extent that conduct that caused AK to be fearful should be attributed to the applicant.
In cross-examination, it was put to the applicant that he developed a false story with FA, WS and RO that the applicant and RO did not have sex with AK and that WS had lied to police in the WS Police Interview at the applicant's request. Though Senior Counsel for the applicant on the appeal submitted that the applicant was not cross-examined on the Call Transcripts or the Parramatta Conduct, it is evident that the applicant was cross-examined on call 25 (one of the Call Transcripts, see above at [20]-[22]) and calls 30 and 31 (calls related to the Parramatta Conduct, see above at [30], [39], [42]). However, and ultimately, nothing turns on what calls were put to the applicant in cross-examination.
The Crown then submitted that the "accused's willingness to act together with [WS, FA and RO] to create these false stories about what happened on 15 October", and his agreement with them to "transmit those false stories" demonstrated his capacity and willingness to lie, that he was not a truthful, credible or reliable witness, and that the jury should reject his evidence. The Crown submitted that the applicant's "complete unwillingness to acknowledge that he with those others developed a false story about what happened" demonstrated his lack of credibility and lack of honesty. The Crown submitted, in respect of the applicant's contentions that the reason he did not want his name mentioned was to protect his wife, children and house, that the jury "might think that he is not trying to protect his wife; he was trying to protect himself", and that the "false stories" were created for the police, and to be provided to the court and a judge. No mention was made of this evidence, however, when the Crown addressed as to the particular matters about which the jury needed to be satisfied in order to convict on each of counts 1 to 3, albeit that some reliance was placed on "admissions" made by the applicant during the recorded conversation on 12 January 2017.
The trial judge did not direct the jury as to what "representations" were conveyed by this evidence, what representations they could take to be admissions of the applicant, and how any such admissions could be used against the applicant. The jury was not directed that this evidence was ultimately only relevant on the issue of credibility. Indeed, the trial judge's direction that the jury could take this evidence into account "on the issue whether there was a common enterprise" as alleged by the Crown, and also on the issue of "the nature of that enterprise", may well have suggested to the jury that this evidence may be directly relevant to the common enterprise charged and not just to whether there was a common purpose to concoct a false version of events. These difficulties with the trial judge's direction to the jury go to ground two.
The Crown accepts that the common purpose to concoct a false version of events came into existence on 5 or 6 December 2016 and was a different purpose from the joint criminal enterprise alleged in the counts on the indictment but submits that this common purpose could properly be relied upon as a basis for admitting the evidence under s 87(1)(c) of the Evidence Act. The Crown contends that that provision should not be construed as if the common purpose in furtherance of which the relevant representation was made must be the same common purpose which underlies the offence(s) charged. In support of this contention the Crown relies upon the language of s 87(1)(c) of the Evidence Act, in particular that it refers to "a" not "the" common purpose and includes the words "whether lawful or not", that the subsection applies in both civil and criminal proceedings and that the rationale at common law for the principle underlying s 87(1)(c) lies in the principles of agency.
The Crown submits that Dolding was not addressing the issue that arises in the present case as Simpson AJA in Dolding was addressing the question whether a common purpose "that is completely at large, unrelated to the issues which are being tried or on which the parties are joined" could be relied upon under s 87(1)(c). As to Higgins, the Crown submits that it can be distinguished because there was no common purpose relied upon at trial whereas in this case, there were two common purposes relied upon at trial, being the joint criminal enterprise with which the applicant was charged and the "common purpose that exists later" to concoct a false version of events. The Crown also says that the passages relied upon by the applicant in Higgins are obiter in any event, and that if in this regard Higgins is held to be binding and not distinguishable then those passage in Higgins are plainly wrong and should be overturned.
Further, the Crown observes that at the time all of the evidence the subject of ground one was admitted the Crown's position was that the admissions were acts undertaken in consciousness of guilt. Whilst the Crown later abandoned that position and relied upon the admissions solely as going to the applicant's credibility, for the purposes of ground one, the decisions that the evidence should be admitted must be considered by reference to the position of the Crown at the material time. The Crown also submits that s 87(1)(c) permits the admission of both evidence going to particular representations, evidence establishing the common purpose relied upon under ss 57(2) and 87(1)(c) and that the evidence of the Parramatta Conduct was admitted for the purpose of establishing the common purpose. This latter contention can be rejected at the outset. Both on the voir dire and at the pre-trial review, the evidence the subject of ground one was admitted as being in furtherance of, not as establishing, the common purpose.
Section 57(2) of the Evidence Act provides:
57 Provisional relevance
(2) Without limiting subsection (1) [which is not presently relevant], if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed.
As held in Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250 (Bell CJ, Basten AJA and Button J) at [143] ("Macdonald"), ss 57 and 87 of the Evidence Act were enacted for the apparent purpose of overcoming the "bootstraps" problem identified in Ahern. However, as held in Macdonald (at [148]), the suggestion that s 87 was enacted to reproduce the common law rule relating to representations by co-conspirators (see Macraild) should be treated with caution. Rather, s 87 does not so much reproduce (in the sense of give effect to) as assume the existence of the common law co-conspirators rule: Macdonald at [148]. In Macdonald, it was held (at [147]) that an apparent purpose of s 87(1)(c) of the Evidence Act was to avoid the need to establish the existence of the common purpose by evidence extraneous to the representation, the admissibility of which was in dispute. However, where the representations do not themselves establish the relevant common purpose, as a practical matter it must be established by evidence extraneous to the representations: Macdonald at [151].
Second, as the applicant submits, and as is clear both on the face of s 87 and from Dolding at [22] (affirmed in Higgins at [31] and Macdonald at [146]-[147]), s 87 is not itself directed to the admission of evidence in substantive proceedings. Rather, it concerns an intermediate stage, namely the admission of evidence for the purpose of determining whether a previous representation made by a person (X) is to be taken to be an admission by a party to the substantive proceedings (Y). The test at this intermediate stage was described by Simpson AJA (at [39]) as "not a demanding one." In this regard Simpson AJA found in Dolding (at [26]) that there was no element of discretion in the intermediate evidentiary determination under s 87(1)(c) of the Evidence Act. As the Crown submits, it follows that the correctness standard applies on appeal: Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [14].
As Simpson AJA held in Dolding (at [23]), after the intermediate determination under s 87(1)(c) is made, there remains a further, necessary, evidentiary decision, being the determination whether evidence of the previous representation by X is taken to be an admission by Y. In Macdonald (at [152]), it was held that the substantive question whether a representation of a third party was in fact made in furtherance of a common purpose so as to be an admission of an accused is one for the trier of fact.
Third, in Dolding (at [42]) Simpson AJA (Johnson and Harrison JJ agreeing) held that the meaning of the word "representation" is central to the application of s 87(1)(c), and the hallmark of the concept of a representation (which will include words and non-verbal conduct) is the assertion of a fact or state of facts: see Dolding at [45], [47]. Pausing here, as is immediately apparent, a proper application of s 87(1)(c) of the Evidence Act, consistent with the authority of Dolding, required a process of reasoning that was lacking on the voir dire. Contrary to the requirements of s 87(1)(c) of the Evidence Act, and likely because the Court was not taken to Dolding, there was no analysis on the voir dire as to what representations of WS, FA or RO were to be taken to be admissions by the applicant. Whilst this may be because an assumption was made that the relevant representation was that a false account should be concocted and given to the authorities, the analysis nonetheless lacked this necessary analytical step.
I would also conclude that, consistent with the principles set out above, the trial judge erred at the pre-trial hearing in admitting the entirety of the call transcripts without identifying the extent to which, if at all, they comprised or evidenced the representation that his Honour identified, namely, to concoct a false version of events. The evidence went well beyond that, and, for example, included evidence of persons other than the applicant trivialising what had happened to AK but not going in any way to the concoction of the false version of events. Given the matters below, I have not separately relied upon these matters in support of my conclusion on the appeal.
Fourth, in Dolding, Simpson AJA rejected a contention by the Crown that the first stage of the evidentiary enquiry required under s 87(1)(c) of the Evidence Act could be satisfied if the relevant representation was made by a third party in furtherance of "a common purpose unrelated to the common purpose alleged by the Crown". In that case, the Crown had relied upon the judgment of Greg James J (with whom Grove J) agreed in R v Watt [2000] NSWCCA 37 ("Watt") at [32], in which his Honour held that a conversation could be admissible under s 87(1)(c) if it was made in furtherance of "a (not the) common purpose". As to this Simpson AJA held that the statement of Greg James J in Watt was not essential to his Honour's conclusion, and said (at [32]):
"If, by his short judgment, Greg James J intended to say that s 87(1)(c) permits (and requires) the admission of evidence of a representation made by a third party in furtherance of a common purpose unrelated to the common purpose alleged by the Crown, I would respectfully disagree. In my opinion it is clear from the terms of s 87(1)(c) that evidence of a representation made by a person who shares a common purpose with the party to the litigation is confined to representations made in furtherance of the common purpose alleged." (Emphasis in original).
In using the definitive article "the" rather than "a", Simpson AJA should be taken to have held that s 87(1)(c) requires that the representations (to be admitted) are made in furtherance of the common purpose alleged by the Crown as part of the offending conduct. Contrary to the Crown's contention, Simpson AJA's conclusion in Dolding (at [32]) was not simply that a common purpose "unrelated to the common purpose alleged by the Crown" is insufficient to engage s 87(1)(c) of the Evidence Act. Had her Honour intended so to hold, her Honour would not have expressed herself in the way that she did. For the same reason, I would reject the Crown's contention that Simpson AJA's conclusion in Dolding (at [32]) should be read simply as if her Honour was only holding that a common purpose "extraneous to the proceedings" is insufficient to engage s 87(1)(c). Whilst Simpson AJA observed in Dolding (at [33]) that it was, in any event, difficult to see how a representation made by a person in furtherance of a common purpose extraneous to the proceedings could pass the relevance test, that observation does not support a conclusion that her Honour intended her conclusion in Dolding (at [32]) to be so limited.
I would, however, accept that Crown's submission that the conclusion of Simpson AJA in Dolding (at [32]) was not essential to her Honour's decision given that her Honour found (at [40]) that the evidence in that case met the undemanding test imposed by s 87.
Dolding was, however, approved and relied upon by this Court in Higgins (Payne JA, Rothman and Bellew JJ agreeing). In Higgins the applicant was convicted on three counts of sexual assault alleged to have been committed whilst the complainant was a student at a school where the applicant taught. The trial judge found that one of the assaults ceased when a third party, Brother Downey, entered the classroom. At trial, the complainant was permitted to give evidence that later that afternoon, Brother Downey drove him home and told him to tell his parents that he had missed the bus and "fell over and hurt my backside". The complainant's mother was permitted to give evidence that Brother Downey told her that day that the complainant had fallen over and hurt his bottom. The trial judge ruled that this evidence was admissible as an admission by the applicant, and granted leave, under s 87(1)(c) of the Evidence Act, to adduce the evidence on the basis that, as submitted by the Crown, there was a common purpose existing at the time that Brother Downey walked into the classroom to cover up what had occurred, and the evidence was in furtherance of the common purpose.
Payne JA identified (at [23]) the representation to which this evidence went as being an implied representation that Brother Downey had witnessed the sexual assault and intended to cover it up. Having considered paragraph [32] of the judgment of Simpson AJA in Dolding, Payne JA noted (at [39]) that the Crown accepted on appeal that no common purpose between the applicant and Brother Downey was alleged in the trial, rather "a" common purpose to cover up the sexual assault by the applicant, and which was not "the subject of any allegation made at the applicant's trial", was submitted to be a sufficient basis to admit the evidence (referred to above) against the applicant at trial. His Honour said that that submission could not be accepted for the reasons explained in Dolding. Payne JA said (at [38]) that in Dolding (at [32]) Simpson AJA had rejected a submission that "evidence of a representation made by a third party in furtherance of a common purpose unrelated to the common purpose alleged by the Crown was admissible". Contrary to the Crown's submission, Payne JA was not limiting the ambit of what Simpson AJA said in Dolding (at [32]). Rather, Payne JA was simply recording the submission made by the Crown in Dolding.
In Higgins, having referred to the judgment of Hidden J in Watt (at [9]-[10]), Payne JA described (at [41]) Hidden J's reference to the "evidence being "in furtherance of the common purpose embraced by the offence charged"" as "correctly identif[ying] the basis of admissibility of the evidence as being that the evidence was in furtherance of a charged offence." Whilst Payne JA went on to deal with the question of relevance, nothing that his Honour then said should be taken to detract from the very clear statement (at [41]) as to the proper ambit of s 87(1)(c) of the Evidence Act.
Contrary to the Crown's contention, these statements of Payne JA in Higgins as to the proper application of s 87(1)(c) of the Evidence Act are of direct application in the present case where the question is whether a common purpose that is not embraced by the offence charged can be relied upon to support the admission of hearsay evidence. Moreover, whilst his Honour agreed with the statement of Simpson AJA in Dolding that it was "difficult to see how a representation made by a person in furtherance of a common purpose extraneous to the proceedings could pass the relevance test", such that it could be said that the analysis of Payne JA set out above was not necessary for his Honour's decision that the trial judge erred, I would nonetheless give great weight to the considered conclusions of this Court in Higgins.
Both Dolding and Higgins were applied by Hamill J in Al Batat.
Having regard to the conclusions of this Court in Dolding and 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), 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. A common purpose relied upon merely for the purpose of the operation of s 87(1)(c) of the Evidence Act is insufficient to render representations in furtherance of that common purpose admissible for the limited purposes of the subsection. I would reject the Crown's submission that s 87(1)(c) of the Evidence Act does not require "a direct relationship" between the common purpose relied upon for the purposes of that section and the commission of an offence charged on the indictment. The Crown's contention that Higgins was plainly wrong should be rejected.
It follows that 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. The Crown said on appeal that from the time of the voir dire it had relied upon an alleged common purpose to concoct a false version of events that came into existence from on or about (at the latest) 6 December 2016. The Crown did not lead any evidence to suggest that the common purpose was developed earlier than that date. The Crown also accepted on appeal that a common purpose to deceive the police (which is the essence of the common purpose to concoct a false version of events) was a different purpose from the joint criminal enterprise to commit the offences. As is clear, the common purpose to concoct a false version of events formed no part of facilitating the conduct the subject of the charge and was not relied upon by the Crown to prove the conduct alleged.
Whilst on the voir dire the Crown's written submissions suggested that the evidence of the Parramatta Conduct was "not only potentially relevant to the issue of consent, but also is very relevant to the continuing existence of a joint criminal enterprise between the Accused persons", the common purpose to concoct a false version of events was not itself relied upon as proof of any elements of the offence charged and did not form part of the charged conduct.
This error led to a miscarriage of justice. Evidence of the Parramatta Conduct was put to the jury in circumstances in which it should not have been. It was evidence prejudicial to the applicant, showing him not just to be someone who had himself lied about the events on the 15 October 2016, but who had taken steps to persuade others to lie, to persuade AK to drop the charges, and to act in a way which caused AK to be fearful. It was relied upon adversely to the applicant to a material extent by the Crown in closing submissions.
In these circumstances, I am satisfied that there was a real chance that this evidence affected the jury's verdicts: Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [47] (Kiefel CJ, Keane and Gleeson JJ) and [118] (Gageler J, as his Honour then was). Further, there is a real chance that the jury relied upon the Parramatta Conduct not simply as going to the issue of the applicant's credibility, but also as showing consciousness of guilt on the part of the applicant or as in some way supporting the conclusion that the conduct the subject of the charges involved a joint criminal enterprise.
The Crown submitted 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. That contention 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, I am not satisfied that the evidence properly admitted at trial established the applicant's guilt beyond reasonable doubt: Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44 at [20] (Kiefel CJ and Keane J) and [41] (Gordan, Steward and Gleeson JJ). In this regard, I have had particular regard to the live issue before the jury as to whether the complainant consented to sexual intercourse with the applicant, as to which the applicant's credibility was critical, and the paucity of evidence (discussed in the consideration of ground three) as to WS and RO's involvement in relation to count 1 and as to the applicant's knowledge and involvement in relation to counts 2 and 3 on the indictment.
As is apparent, I have reached these conclusions on the basis of the evidence of the Parramatta Conduct alone. In these circumstances it is unnecessary to consider whether leave should be granted to the applicant under rule 4.15 to rely upon call 26 and the evidence of the WS Police Interview on ground one.
I would, however, have granted that leave. As I have already indicated, call 26 and the evidence of the WS Police Interview were admitted at trial without objection. Notwithstanding this, I am satisfied that the admission of both call 26 and the WS Police Interview was inconsistent with the trial judge's overriding obligation to ensure a fair trial and led to a miscarriage of justice and that it is in the interests of justice that leave be granted under rule 4.15. Evidence of the WS Police Interview was relied upon by the Crown in closing submissions. Call 26 was not but was circumstantially related to the WS Police Interview. Both call 26 and the evidence of the WS Police Interview were adverse to the applicant, and may have been relied upon by the jury to conclude that the applicant had sought to, and had, influenced the account that WS gave to the police and also that the applicant had some knowledge that AK had been given some substance that affected her cognition: see [24] above. I am satisfied that there is a real chance that that evidence, together with that of the Parramatta Conduct, affected the jury's verdicts.
Ground one should be upheld and a retrial ordered. Given this conclusion, it is unnecessary to consider the applicant's further submissions in support of this ground.
Notwithstanding my conclusion as to ground one, this is a case in which the overall efficiency of the system of justice may be better served by this Court determining ground two: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ) and [101] (Bell, Nettle, Gordon and Edelman JJ).
Whilst the applicant did not object to the admission of some of the evidence the subject of grounds one and two, the applicant did object on the voir dire to the Parramatta Conduct (to the extent that evidence was then sought to be tendered) and at the pre-trial hearing the applicant objected to calls which formed part of the Parramatta Conduct. Further, during AK's oral evidence, there was an exchange between the trial judge and counsel for the applicant at trial in which counsel referred back to his general objection to the intercept evidence that was considered at the pre-trial hearing, being that it could not be admitted as an admission against the applicant under s 87(1)(c) of the Evidence Act. The applicant's conduct in the voir dire proceedings, pre-trial hearing and at trial made it clear that a live issue was the extent to which representations by persons other than the applicant could be relied upon as admissions against the applicant.
As is apparent from the summary of the trial judge's direction set out above at [56]-[58], 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 trial judge simply directed the jury that the Parramatta Conduct was admissible against the applicant on the issues of whether there was a common enterprise (which was not specified) and the nature of that enterprise, provided that the jury was satisfied that at the time of the statements or acts in question, the common purpose of concocting a false version of events was shared amongst the participants to the enterprise and that what was said or done was in furtherance of that common purpose. That explanation was inadequate to ensure that evidence of the Parramatta Conduct was not used in an impermissible manner. As regards call 26 (which as set out above did not involve the applicant) 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.
The trial judge should have, but did not, explain to the jury that all of this hearsay evidence was relevant, if at all, only on the issue of the applicant's credibility. The jury should also have been directed as to how that large body of hearsay evidence could be relevant on the issue of the applicant's credibility. Instead, the jury was left at large as to how they were to use this hearsay evidence once they were satisfied that (as regards the Parramatta Conduct) it was in furtherance of the common purpose of concocting a false account of events. The jury was not directed that they could not use this evidence as supporting a finding of consciousness of guilt. They were not directed that this evidence could not be relied upon as proving the joint criminal enterprise to have sexual intercourse with AK, alleged by the Crown, nor that it could not go to the issue whether AK consented to sexual intercourse with the applicant or with WS or RO.
The jury was not directed, moreover, that call 26 could not be relied upon as supporting a conclusion that the applicant was aware on 15 October 2016 of AK taking, or was party to AK being given, some substance which affected her cognition or that the Parramatta Conduct could not be relied upon to suggest that the applicant was aware of the extent of AK's intoxication on the evening of 15 October 2016. The jury was not directed as to what they should make of steps that were taken to seek to persuade AK to drop the charges, to the extent that this was a representation that was separate to the representation that a false version of the events of 15 October 2016 should be concocted. The jury was not told that they should not construe the hearsay evidence that the applicant "was sorry" as an admission by the applicant that he had done something wrong.
These many deficiencies in the directions given to the jury as to the use that could be made of the evidence is particularly problematic given that the trial judge had already given the jury a direction as to the use they could make of the applicant's "lies", which direction did not include any reference to the Call Transcripts or the evidence of the WS Police Interview or the Parramatta Conduct.
Further, contrary to the Crown's submission on appeal, at both the voir dire and the pre-trial hearing, the Parramatta Conduct was admitted not as establishing the common purpose of concocting a false version of events, but on the basis that it was in furtherance of that common purpose. Having regard to the terms of s 87(1)(c) of the Evidence Act, it is thus clear that the Parramatta Conduct was admitted as representations made by third parties, for the purpose of determining whether they should also be taken to be admissions of the applicant. Some explanation as to what those representations, and admissions, were was thus required and the Crown's contention to the contrary should be rejected.
In the circumstances, I am satisfied that there was a miscarriage of justice, and that it is in the interests of justice that leave be granted under rule 4.15 notwithstanding that no objection was made to the terms of the trial judge's direction at trial. I am not satisfied that no substantial miscarriage occurred. Having considered the whole of the record of the trial, I am not satisfied that, but for the matters which I have upheld in ground two, the evidence properly admitted at trial established the applicant's guilt beyond reasonable doubt.
In these circumstances it is unnecessary to consider the applicant's further submission that, once the Crown decided not to press the representations as being relevant by way of consciousness of guilt, they could not be relied upon as going to the applicant's credibility alone and that, in any event, no attempt was made to contend that they could be admissible under the provisions going to credibility evidence in the Evidence Act. Even if the evidence could have been relied upon as to the applicant's credibility, the directions to the jury led to a miscarriage of justice.
I would thus also uphold ground two.
A statement of Razia Al Bukhari, who was a driver who was on duty at the pizzeria on 15 October 2016, was read onto the record at trial. His evidence was that the applicant, WS and RO were working at the pizzeria that night and Mr Bukhari and one other driver were also working. He could not remember if any customers were in the restaurant that night. After Mr Bukhari got back to the pizzeria at about 7.30pm he saw FA was also there with one other guy. The applicant made a pizza for the other guy. He said that FA, WS, RO and the other guy walked out into the back area behind the kitchen, and that the applicant would also go out the back area for a short time and come back. WS, FA, RO and the other guy would sometimes be out the back and sometimes in the kitchen area. Mr Bukhari left at about 9.30pm.
By way of context, as to the period before the applicant had sex with AK, her evidence was she saw "[t]he boss", which could be inferred to be a reference to the applicant, when she first arrived at the pizzeria, the applicant was one of the three men watching her when she came out of the bathroom after having smoked the bong, and that the applicant came and asked if she was okay when she was hugging FA. When the applicant was having sex with the applicant she did not see anyone else nearby and the chairs she was leaning over at that time were towards the rear of the corridor near the back gate but behind an unmarked closed door separated from the service area and the customer area of the restaurant. The applicant gave no evidence of seeing the applicant after he had sexual intercourse with her.
There is no evidence of the applicant, WS and RO having any discussion about having sexual intercourse with AK before they did so. There was no evidence that, at the time, WS or RO were aware that sexual intercourse would or did take place between the applicant and AK, nor that the applicant was aware that sexual intercourse would or did take place between each of WS and RO and the applicant. There was no evidence of any discussions between the applicant and either WS or RO, or both of them, about the applicant having sexual intercourse with AK before it took place. Nor was there any evidence of the applicant having any discussions with WS or RO about them having sexual intercourse with AK before it took place. There was no evidence as to where WS and RO were when the applicant was having sex with AK, nor where the applicant was when WS or RO were having sex with AK. There is thus no evidence that WS or RO were present in the corridor whilst the applicant was having sexual intercourse with AK, nor evidence that the applicant remained in the corridor or in the vicinity of the bathrooms, or stood watch, after he had sexual intercourse with AK. There is no evidence of any of the applicant, FA, WS or RO saying or doing anything by way of encouragement to the other to have sexual intercourse with AK.
The principles applicable on an appeal which complains that a verdict is unreasonable are well established. The principle to be adopted is set out by the High Court in M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ) ("M"); SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] (French CJ, Gummow and Kiefel JJ); see also Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84]-[86] (Bathurst CJ, Johnson and Fullerton JJ agreeing). As set out in M (at 493), the Court must ask itself "whether it 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". That question is "one of fact which the court must decide by making its own independent assessment of the evidence": at 492.
Subsequently, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], Hayne J (with whom Gleeson CJ and Heydon J agreed) ("Libke") expressed the test for whether the convictions sustained below were unreasonable in the following terms:
"… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt." (Footnote omitted, emphasis in original).
The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45] ("Pell") made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:
"As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M." (Footnote omitted.)
Subsequently, in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [12], the High Court confirmed the continuing authority of M as the test for unreasonableness.
A Court of Criminal Appeal must not disregard the benefit the jury enjoys in seeing and hearing the witnesses before it: Pell at [37]. The jury's advantage includes, but is not limited to, its capacity to see and hear the witnesses give their evidence: see e.g., The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66].
Where, as here, the case is largely circumstantial, the Court is required "to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard" and in so doing, to form its own judgment as to whether "the prosecution has failed to exclude an inference consistent with innocence that was reasonably open": Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]. A circumstantial case cannot be considered in a piecemeal fashion: R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 at [82].
The applicant's contention is that the evidence was inadequate to establish to the criminal standard that the only inference which could reasonably be drawn was that the applicant was aware of and complicit by way of agreement with non-consensual sexual intercourse taking place between WS and RO and AK, nor that the applicant was a party to any joint enterprise that he have sexual intercourse with AK. The applicant says that the statement of FA to the complainant that "all the boys wanted to have sex with [AK]" was not capable of supporting an inference beyond reasonable doubt that the applicant wanted to have sex with AK and had communicated that to FA before he said those words. The applicant contends, further, that even if an inference should be drawn that there was a need for some lookout, that could easily have been WS, RO or FA and there was no basis to draw an inference that it was the applicant. These contentions should be accepted.
Having conducted my own independent assessment of the evidence at trial, consistent with the relevant principles set out above, I am satisfied that it was open to the jury to draw the inference that the applicant's guilt was proved to the criminal standard as regards count 1. 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.
I could not, however conclude that the Crown excluded an inference consistent with the applicant's innocence on counts 2 and 3. The jury should have entertained a doubt as to the applicant's guilt on those charges. There was simply 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. Ultimately, 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 is not inconsistent with these propositions, it did not exclude a reasonable doubt as to the applicant's guilt.
In the circumstances, I would uphold ground three only as regards counts 2 and 3, quash the applicant's convictions on each of counts 1 to 3 but reject the contention that the verdict on count 1 was unreasonable.