Enoka v R

Court of Criminal Appeal (NSW)|2022-11-04|Before: Garling J, Adamson J, Button J

Judgment

GARLING J: The applicant, Tuii Enoka, seeks leave, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912, to appeal against his conviction for an offence of intentionally choking, contrary to s 37(1) of the Crimes Act 1900.
That offence was charged as count one on an 11-count indictment that also charged a count of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act, and nine counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act.
Following a trial in the District Court, on 24 November 2020, a jury delivered its verdicts of guilty to count one, the charge of intentionally choking, and not guilty to each other count, the charges of aggravated sexual assault and sexual intercourse without consent.
On 7 May 2021, Townsden DCJ, who had presided over the applicant's trial, sentenced the applicant to imprisonment for four years and four months, including a non-parole period of 2 years and 2 months. His Honour also imposed a 3-year Apprehended Domestic Violence Order and revoked a conditional release order which had previously been imposed upon the applicant for an offence of common assault and sentenced him to a fixed term of imprisonment for 6 months, commencing on 4 February 2019.
The applicant's sentence for the offence the subject of this appeal commenced on 4 May 2019 and expires on 3 September 2023. He became eligible for release on parole on 3 July 2021 and since then has been removed to immigration detention.

Notice and Ground of Appeal

On 13 May 2021, the applicant filed a Notice of Intention to Appeal his conviction and sentence. On 28 April 2022, before the Notice of Intention to Appeal expired, the applicant filed a Notice of Appeal against his conviction only.
The applicant relies on a single ground of appeal, with two parts, namely: "The verdict of guilty to count 1 is unreasonable in that: a. it is inconsistent with the verdict of not guilty to count 2; and b. it is inconsistent with the verdicts of not guilty to counts 2-11."

Summary of the Trial

On 2 February 2019, the complainant arranged a party bus to take her and a group of her friends from Rooty Hill to Darling Harbour and, after a while, back to Rooty Hill. The applicant was part of that group. He and the complainant had been in a sexual relationship for a few months.
The Crown case was that the applicant was possessive and controlling of the complainant and that he was also aggressive and physically violent. The conduct got worse over the course of the evening and culminated when the party bus, on its return journey to Rooty Hill, stopped at a park in Concord.
The Crown case was that the applicant then strangled the complainant until she lost consciousness. She regained consciousness and found him having penile/vaginal intercourse with her.
Meanwhile, the party bus left. The applicant took the complainant back to his house in a taxi. He then drove her home but stopped at another park where it was alleged that he sexually assaulted her again.
The defence case was that the sexual intercourse which did occur was consensual and that the complainant was an unreliable witness because she came from a religious family and was ashamed of engaging in those consensual acts with a man who was in a domestic relationship, and who had children with his partner.

The Complainant

The Crown relied on pre-recorded evidence from the complainant. She described meeting the applicant and commencing a sexual relationship with him in 2018.
The complainant recounted the events of 2 February 2019, commencing with the party bus trip from Rooty Hill to Darling Harbour. She recounted the acts of the applicant, which may be summarised as being possessive and controlling. He was aggressive and violent. She said that he drank four to five cans of pre‑mixed vodka, and that he did not let her drink any alcohol.
The group arrived at Darling Harbour at about 10pm. The applicant's behaviour continued while they were there. He was captured on CCTV in a confrontation with security staff at a nightclub. The applicant fought with members of the complainant's group of friends.
The group returned to the party bus, which commenced driving home. It stopped at a park in Concord where many of the group got off the bus. Between Darling Harbour and Concord, the complainant drank two and a half cans of pre-mixed alcohol.
The applicant walked away from the bus and lit a cigarette. The complainant approached him and told him to get back to the bus. He refused and told her to stay with him. He slapped her and when she tried to run away, he caught her and put her in a headlock from behind. He lifted her off the ground. She could not breathe properly and only managed to escape when she grabbed his testicles through his pants. She started running towards the bus again, but it was no longer there. Her purse and phone were on the bus when it left.
(Count 1) At this point, the applicant pulled the complainant by her hair and sat on her chest on the ground. He strangled her with two hands and told her he would kill her. The complainant said she passed out.
(Count 2) When the complainant awoke, the applicant's penis was inside her vagina. He was holding her down. Her bra and top had been removed and her pants and underpants were around her ankles. She told him to stop but he continued. The complainant could not remember how long the intercourse lasted.
Eventually, the intercourse stopped. The applicant then pulled the complainant onto her knees by her hair. (Count 3) The applicant forced his penis into the complainant's mouth. The complainant could not remember for how long this continued.
The applicant turned the complainant around and pushed her onto the grass. (Count 4) He put his fingers in her vagina without her consent. (Count 5) He put his fingers into her anus without her consent. He turned the complainant around and then (Count 6) performed cunnilingus without her consent. He turned the complainant around again and, without her consent, (Count 7) put his fingers into her anus and then (count 8) put his penis in her anus.
When the intercourse ceased, the complainant remained with the applicant because she was relying on him to get back to her home because her purse and phone had been left on the bus. The complainant said the applicant apologised to her.
They caught a taxi to the applicant's house, where the applicant's de facto partner and children were sleeping. When they arrived, and while the applicant was arranging payment for the taxi, the complainant asked the taxi driver to take her home, away from the applicant, but he refused.
The applicant then drove the complainant around for about half an hour. He drove the complainant to her house but before she could get out of the car he sped off again. He stopped at Whalan Reserve, got into the back seat of the car and told her to join him. The applicant complied because she was concerned for her safety.
(Count 9) The applicant took off the complainant's clothes and put his fingers into her vagina without her consent. (Count 10) He then performed cunnilingus without her consent. The complainant could not recall how long this went on for, but (Count 11) she said he then put his penis into her vagina. She was crying and had told him to stop. The applicant ejaculated in her vagina, at which point the complainant told him she was not allowed to get pregnant.
The applicant drove the complainant home. The complainant's parents were awake when she arrived, at around 5:45am. She went straight into the bathroom and showered. When she came out, her mother confronted her about why her clothes were so dirty. The complainant started crying, showed her mother the physical injuries she had sustained to her neck and reported that the applicant had caused them. She begged her mother not to tell her father. She and her mother had another conversation with her father, after which she went to sleep.
She awoke at about 6:30pm later that day, i.e., 3 February 2019. As a consequence of the conversation with her parents, the complainant went to a doctor. She reported the offences to the doctor, who told her to go to the police. She reported the offences to the police that night and then underwent an examination at the Blacktown Hospital.
On Wednesday, 6 February 2019, the complainant went to the park in Concord with detectives where she pointed out a number of locations and observed a white t‑shirt which may have belonged to the applicant. She also observed a beer carton which might have been taken on the bus by her friends. The following day, she went to Whalan Reserve with the detectives.
In cross-examination, the defence put its case to the complainant. She denied that she was not assaulted and rejected that she had wanted the applicant to leave his wife and marry her and have children with her instead. She agreed that her relationship with the applicant had been secretive because he was in a domestic relationship and also that that was why her parents would not have approved of their relationship. It was also why she had begged her mother not to tell her father. She agreed that her parents were very religious.
She gave evidence that the applicant had never assaulted or threatened her during their four-month relationship at any time before 2 February 2019. She agreed that she had previously been intimate with the applicant and that she had stayed out with him until the early hours of the morning on those occasions. She also agreed that she had never stayed overnight at the applicant's house because he lived there with his partner, his children and his mother.
The complainant disagreed with a number of the negative propositions about the applicant's behaviour during the bus trip and while at Darling Harbour. The defence thesis seemed to be that the complainant's friends were disapproving of the complainant's relationship with the applicant and that they were aggressive towards the applicant.
The complainant disagreed that, at Concord, the applicant had said he wanted to stay off the bus and had asked her to stay with him. She agreed that, when the applicant slapped her face and grabbed her around the ears and cheeks, that was a sudden and strange move, and that the applicant had never done anything like that before.
The cross-examination tested the complainant's recollection of durations and time frames. She said, for example, that to cause the applicant to release her from the headlock, she twisted the applicant's testicles for "maybe two minutes".
The complainant rejected the defence case that sexual intercourse occurred with her consent. She rejected a range of detailed propositions put to her by defence counsel to this effect.
She agreed that, on her account, she had been subject to a brutal assault in the park, that there were a lot of houses around and that she did not try to go to any of the houses to get away from the applicant.
In re-examination, she said that the first time she told her mother that she had been strangled was when she was in the doctor's rooms on Sunday night at the Mount Druitt Medical Centre.

Penerosa Faagutu

Ms Faagutu worked at the same company as the complainant and applicant. She was friends with the complainant.
Ms Faagutu gave evidence about the party bus trip including that she observed the applicant to be aggressive and possessive and controlling of the complainant. She said that she saw the complainant drink a bottle of vodka before she got on the bus.
As they got on the bus to return to Rooty Hill, the applicant grabbed her by her hair and tried to bite her arm. She said she had to grab the applicant's arm and then punch him to get him to stop holding her hair. The police took photographs of the bruises and scratches sustained by Ms Faagutu, which were tendered, and which she explained were caused by the applicant.
She said that everyone got off the bus at the park at Concord. She said she did not see the complainant or applicant at this time despite searching for them before getting back on the bus and leaving without them.
Back on the bus, she saw the complainant's bag and phone, which were collected by one of the complainant's friends, Lumepa. She said the bus driver dropped them off at the Lone Pine Tavern at Rooty Hill around midnight.
On the next day, Sunday, Ms Faagutu went with Sianalai Simanu to collect the complainant's bag from Lumepa. They arrived at the complainant's house at about 6pm. She noticed the complainant's mother was "really upset" and asked them questions about the night before. Her father was present.
The complainant then walked into the room and took the two friends outside where she reported that the applicant had strangled her, had her in a headlock and that she had thought she would die.
The following day, the police came to Ms Faagutu's workplace. She found out the complainant had been in hospital and met her at her home. The complainant then reported the sexual assaults which she said occurred at Concord.
Ms Faagutu said the only injury she noticed on the complainant before arriving at Darling Harbour was a hickey bigger than a 50-cent piece on the right side of the complainant's neck, just below her ear. In her police statement, she said that that hickey was not there before they got on the bus at Rooty Hill.
In cross-examination, Ms Faagutu agreed that she had told the applicant's counsel and solicitor that she was friendly with the applicant, but she rejected that she had told them that the applicant had not been aggressive before boarding the bus.
She agreed that the Samoan culture frowned upon the complainant's relationship with the applicant and that her family and the complainant's family were very religious. She agreed that the girls on the bus discussed the fact that they disapproved of the relationship.
Ms Faagutu was recalled later in the trial and confirmed that she took photos and videos on her phone while on the bus. Some of those were tendered as exhibits.
In further cross-examination, she revealed that she had had contact with other witnesses and the complainant in the lead up to and around the trial.
Ms Faagutu said that on the Sunday, 3 February 2019, she told the complainant's mother that she had the complainant's bag and phone because they had left the complainant and applicant in the city (which was incorrect). She told the complainant's parents that the complainant had been in a relationship with the applicant since before they got on the bus, although she acknowledged she never mentioned this in her police statements. She said the complainant's mother cried and had said she felt sorry for the applicant's partner and children.
Ms Faagutu said that, until she told the complainant's parents about the relationship between the applicant and complainant on the Sunday, she thought they knew nothing about it. She agreed that they would not have approved of the union including because the applicant had a partner and children.

Ross Calabria

Mr Calabria was the driver of the party bus hired by the complainant on Saturday, 2 February 2019. He said the applicant was disruptive and aggressive on the way from Rooty Hill to Darling Harbour. As they got to Darling Harbour, he recalled that a couple of girls came over and hit the applicant, trying to quieten him down. He saw the applicant drinking alcohol.
Mr Calabria said they arrived at Darling Harbour at about 10:30pm. The group went towards a toilet. He was told by a police officer to get the people back on the bus and to leave. After being at Darling Harbour for 20 to 30 minutes, the group got back on the bus which then left the area.
He recalled stopping at Concord because people wanted to go to the toilet. He said he was there for 20 to 30 minutes. Initially, he said that everyone got back on the bus and that he drove them back to Rooty Hill. In re-examination, he confirmed that he did not do a head count when everyone got back on the bus. He also acknowledged that he had not seen the applicant get on the bus. In further cross-examination he said that "he would have been" on the bus and that "he was on the bus on the trip back to Rooty Hill".

Mandy Ashton

Ms Ashton, a clinical nurse consultant, examined the complainant at 1:30am on 4 February 2019 at Blacktown Hospital. She used a Sexual Assault Investigation Kit ("SAIK") to conduct her examination. She recorded a history from the complainant which corroborated parts of her evidence at trial but which did not include any evidence of the second series of events at Whalan Reserve. The complainant apparently said that she caught a taxi home from Concord at around 3:30am.
Ms Ashton observed that the complainant had not suffered petechiae and there was no evidence of gas within the skin of the neck which might indicate a perforation to the windpipe. She noted a list of injuries, including multiple bruises around the complainant's neck and chest, a small abrasion inside her mouth, and tenderness to the front of her neck. There was no bleeding within the whites of the eyes, and she had normal cricothyroid clip (cartilage in the neck) which suggested there was no obvious swelling. Her voice was not husky, although the complainant said she had lost her voice after the assault. Photographs taken by Ms Ashton were tendered.
A CT scan which was conducted revealed no fracture or abnormality in relation to the blood vessels in the complainant's neck.
Ms Ashton gave evidence about the mechanisms of unconsciousness. She also explained that it was unusual for one to suffer accidental bruising in the neck or upper chest area and that they were likely caused by strangulation, love bites or suction, and blunt force trauma, respectively.
Ms Ashton noted bruises at the back of the complainant's mouth, which could have been caused by oral penetration. She also noted three small abrasions adjacent to the complainant's urethra, which were most likely caused by fingernails but could be from blunt force from a penis if it was roughly inserted. Also, a 0.5cm laceration below the complainant's anus could have been caused by blunt force trauma. She said that injuries to the anogenital area can occur as a result of consensual and non-consensual intercourse.
Ms Ashton said the complainant was distressed and declined to have a speculum examination, which was common in similar situations.
Ms Ashton was challenged in cross-examination and conceded that she could not be certain of various opinions she held. Notably, she agreed that it would be likely for someone to lose their voice if they had been strangled, which was contrary to the complainant's report that she had screamed for help after being strangled.

Agreed Facts - DNA

It was an agreed fact that DNA matching the applicant's profile was recovered from the complainant's vagina and anus. Semen was also detected on both swabs.

Habin Sun

Mr Sun was working as a taxi driver on 3 February 2019. He picked up the applicant and complainant from Concord and drove them to Willmot. The complainant borrowed his phone.
His evidence was that after the hour-long trip to Willmot, the female passenger got out of the car and went into the house and brought back a $50 note. He provided his bank details for the balance of the fare to be paid. He said another woman came out of the house and that the male passenger remained in the vehicle until the fare was settled. He said he saw the male and female passengers leave the house in a car, and that the man was driving, although his evidence about who was driving was at times conflicting.
Mr Sun did not recall being told by the complainant that she was scared, nor did he recall being asked by her to take her home. He said he did not recall any dispute between the two passengers.

The Complainant's Mother

The complainant's mother said she dropped the complainant and a friend off at Rooty Hill at 6pm on 2 February 2019 to catch the party bus. She said she planned to pick the complainant up after the bus returned at 11pm. She received no call from the complainant so started calling her from midnight, but her calls were not answered.
She stayed awake until the complainant arrived home at 5:30am. She recounted a conversation between the two of them when the complainant first arrived. She then went into the complainant's bedroom where she found the complainant's ripped and dirty top. When the complainant came into the room after her shower, she asked what had happened. She noticed the complainant's neck was red and bruised, so she asked who had caused the injuries. The complainant reported that the applicant had done so.
The complainant's father called out to them from the living room, so the complainant dressed and they went to speak to him. The complainant's mother said she told the father everything, including that the complainant had been raped by the applicant.
The complainant's friends arrived in the late afternoon, and they discussed the events of the previous evening. She said she then took the complainant to the doctor and then to Blacktown Hospital.
In cross-examination, she gave evidence which was consistent with other evidence already given. It supported the conclusion that the family was religious and disapproving of the complainant's relationship with the applicant, which was only revealed to them on the morning of 3 February 2019. She said, in contrast to Ms Faagutu's evidence, that the complainant said nothing to her friends when they came to the house on 3 February 2019.

Sianalai Simanu

Ms Simanu was another work colleague of the complainant and applicant. She attended the party bus and brought pre-mixed alcohol. She recalled drinking and said that the complainant and applicant were "interacting… being romantic and what not".
She recalled going to the bathroom at Darling Harbour and then getting back on the bus. She thought there was an altercation involving the applicant. She tried to calm the applicant down, who was being aggressive, by holding him. She had never seen him like that. At one point, he bit her armpit - a photo of the injury which resulted was tendered.
When the bus stopped at a park, everyone got off. She saw the applicant walk away.
The following day, she took the complainant's bag and phone to her home. She spoke with the complainant's mother and father, who seemed to be upset.
In cross-examination, she disagreed that it was a topic of conversation on the bus that people disapproved of the union between the complainant and applicant. She did not recall discussing the affair at the complainant's home the following day.

Diana Tuaileva

Ms Tuaileva was another colleague of the applicant and complainant. She also attended the party bus. She said the complainant stayed in her seat for the ride, that she was dancing in the seat and that she was kissing the applicant a lot.
She recalled stopping at Darling Harbour, getting off the bus and going to the bathroom. She remembered that the complainant was upset and crying. The complainant complained to her that the applicant was angry with her.
She saw police get onto the bus, and then the group of friends left Darling Harbour on the bus. She said the applicant was aggressive and that members of the group tried to restrain him. There was a lot of yelling and screaming and she said she became hysterical.
She recalled that the bus had stopped at a park, that they had gotten off the bus and that the applicant walked away from the bus carrying a box of Corona beer. She said the applicant was shirtless, and that that was the last time she saw him that night. She could not recall seeing the complainant get off the bus.
She took videos and photos while she was on the bus, which were tendered.

The Complainant's Father

The complainant's father said he did not know the complainant had a boyfriend at the time of her 20th birthday. He expected the complainant to get home between 11pm and midnight and that his wife would pick her up.
He recalled the complainant arrived around 6am or 7am, and that she was unhappy. He recalled being told by his wife that she needed to take the complainant to the doctor, and that she did so later that following day. When they got home, his wife told him that "someone did something to [the complainant]".

Dr Maria Nittis

Dr Nittis, a Senior Staff Specialist at the Forensic Medical Unit of the Western Sydney Local Health District, gave expert opinion that some of the injuries sustained by the complainant to her jaw and neck were more supportive of strangulation than suction alone. She gave evidence about the mechanism for causing unconsciousness. She also gave evidence about how reduced oxygen to the brain causes difficulties with memory.

Detective Senior Constable Daniel Villanueva

Detective Senior Constable Villanueva attended Blacktown Hospital with Detective Sergeant James and spoke to the complainant and her mother. The complainant reported the sexual assault to him. He went to the complainant's house and collected the top she had been wearing on the night of 2 February 2019.
On 4 February 2019, he arrested the applicant at his home.

Dr Damien Odoemene

Dr Odoemene was the general practitioner at the Mount Druitt Medical Centre who saw the complainant at about 8pm on 3 February 2019. He recounted the complainant's report to him about the assault.

Plainclothes Senior Constable James McCormack

Plainclothes Senior Constable McCormack attended Blacktown Hospital at about 11am on 4 February 2019 with Detective Senior Constable Daly. He spoke with the complainant and observed bruises on her. He recounted the complainant's report to him.
He went with a number of other police officers and arrested the applicant at his home. The applicant declined to participate in a recorded interview. An intimate forensic procedure on the applicant concluded that there were no red marks or cuts on the applicant's genitals or the surrounding area.

Detective Senior Constable George Jachowski

Detective Senior Constable Jachowski, on 6 February 2019, met the complainant and her mother and went with them to a park in Concord where the complainant alleged the incident occurred. He observed a Corona beer carton and a white t-shirt.
On 7 February 2019, he met the complainant and went with her to Whalan Reserve where she said something occurred in the car with the applicant. Aerial photographs of the areas were tendered.

Detective Senior Constable Asher Daly

On 4 February 2019, Detective Senior Constable Daly attended Blacktown Hospital and spoke with the complainant. He observed bruising on her and said she seemed to be in pain. Later, he was part of the group of police that arrested the applicant. He spoke with many of the witnesses who were work colleagues of the applicant and complainant.
He requested CCTV from the taxi which had carried the applicant and complainant but was later advised that the request had been overlooked and the footage had been overwritten.
He was cross-examined about the extent of the police investigation, which the defence sought to criticise.

The Applicant

The applicant gave evidence that, in February 2019, he was living with his mother, partner, children, two brothers and two sisters. He gave evidence about his workplace and the relationship he formed with the complainant, who he described as a "side chick". It was a sexual relationship which was secret from his partner.
He gave evidence about the party bus which conflicted with the other witnesses' accounts, including of his aggression. He said that the complainant asked him to sit next to her, and that she drank alcohol while on the bus. He said that he got out of his seat and was dancing, and that the complainant remained in her seat. He recalled being intimate with the complainant on the bus.
He said that at Darling Harbour he "nagged" the bouncers about letting them into the bar they were refused entry to. He denied wanting to fight them. He said that he was then targeted by the complainant's friends - they expressed their disapproval of him and began pushing and shoving him. He said he was trying to defend himself, that he couldn't breathe at one point and that he may have hit Ms Simanu to get her off him.
He said that when they got to Concord, he didn't want to get back on the bus. He denied having anything to do with the box of Corona beer. He said the white t-shirt could have been his on account of the fact that he had lost his, but that he did not know where he had lost it.
He said he walked off to get away from everyone, but that was not angry at the complainant. He then fell over and then the complainant came to help him up. They then walked together and the complainant apologised for her friends' behaviour on the bus. The applicant told the complainant he would not get back on the bus.
The applicant recalled having a smoke and they discussed the complainant's friends. He denied slapping the complainant. He said he comforted the complainant who had become upset about her friends' behaviour.
He said they then noticed that the bus had left without them. He continued to comfort here and then "from there, we start[ed] kissing and [one] thing led to [another]".
He denied putting the complainant in a headlock and lifting her off the ground. He said she did not grab his testicles. He denied pulling her hair. He denied biting her but said that he had given her a hickey on the bus.
The applicant said the complainant commenced performing oral sex on him and that she was doing it of her free will. He said they decided to have sex. The complainant took off her own jeans and they had consensual intercourse. He said he gave her hickeys.
He said he could not recall having anal sex and he denied strangling the complainant.
He recounted that they then arranged a taxi to take them home. He denied telling the complainant to "do a runner" from the taxi. He said he asked the complainant whether she wanted him to take her home first and she said no. The fare was $138, which he paid partly with cash, partly by using a bank card and partly by transferring money. He said he asked the taxi driver to take the complainant home and that the taxi driver agreed to do so if he paid $150.
The applicant recalled that the complainant looked sad and so he offered to drive her home instead of leaving her with the taxi driver. She agreed. He denied that he drove erratically. He said that they spoke about the complainant's friends while they were in the car, that they started kissing and that the complainant performed oral sex on him in the car. He suggested they go around the corner to a park - which they then did. He denied forcing the complainant into the back seat.
He said they had vaginal and anal intercourse in the back seat of the car. He ejaculated in her anus and then put his penis back into her vagina and they had sex. He said he did not want the complainant to get pregnant.
He said they each dressed themselves, and that he did not carry the complainant to the front seat. He said he could not have done so because he had a bad back. He then drove the complainant to her home, where they had a conversation and she kissed him.
He said the complainant always wanted to discuss where their relationship was going, and that he would change the subject because he was not looking for a relationship with her.
In cross-examination, the applicant rejected various propositions about his behaviour on the party bus. He was confronted with CCTV of himself outside a bar in Darling Harbour, but he maintained that he was not angry.
He said he was drunk, that he could not say how drunk he was, but that he knew what was going on around him. He said he may have been swaying but that if he fell over it was because he tripped, not because he was having trouble walking.
He said that he had had enough of the situation and that at Concord he wanted to get away from the bus. He then denied various propositions about the assaults as put by the complainant in her evidence. He confirmed that the sexual acts which took place were consensual.

Applicant's Submissions

The applicant points out that the complainant's evidence about Count 1, (intentionally choking) and Count 2 (aggravated sexual assault) is temporally and contextually intertwined. So too was the complainant's evidence constituting Counts 3-8, which all occurred at the park in Concord.
He submits the conviction on Count 1 but acquittal on Count 2 is "inexplicable" and that the differing verdicts "are an affront to logic". He describes Count 1 as "the gateway" to Count 2. He notes the circumstance of aggravation pleaded by the Crown in respect of Count 2 was that immediately before or after the commission of that offence, the applicant recklessly inflicted actual bodily harm on the complainant, being the two episodes of strangulation.
He argues that, if the jury accepted the complainant's evidence that she had been strangled to the point of unconsciousness and then woke to the applicant having penile-vaginal intercourse with her, then they could not have doubted that count 2 had been made out.
In other words, the applicant argues that because the jury was not satisfied of the applicant's guilt in respect of Count 2, they must have had a doubt as to whether the complainant was in fact strangled until she either lost consciousness or was incapable of resistance.
As to sub-ground (b), the applicant submits that the only rational explanation for his acquittal on Counts 2-11 is that the jury had doubts about the complainant's credibility. He says there "is no apparent distinction between count 1 and any of Counts 2 through 11 regarding the degree of detail or particularity in the complainant's evidence". He notes there were no other eyewitnesses to the events other than the applicant, who gave evidence that the sexual activity was consensual.
The applicant says the expert evidence about the bruising suffered by the complainant was inconclusive and that it could not exclude the defence case that the injuries were the result of consensual sexual activity.
He says also that the jury was required to be satisfied that the complainant was rendered incapable of resistance by the act of strangulation, and that that fact could not be established by the presence of bruising alone. Thus, the jury had to accept the complainant's account - which is inconsistent with its verdicts in relation to the other counts.
At the oral hearing of his application, the applicant sought to attack the Crown's reliance on a body of "objective evidence" which it says distinguishes Count 1 from each other count. In response to the Crown's point that the photographs of bruising distinguish Counts 1 and 2, the applicant argued that, at the trial, the Crown relied on the photographs of bruises to the complainant's chest and shoulders in relation to Count 2, in that they supported the complainant's account that the applicant had held her down against her will during intercourse. The applicant similarly drew attention to the Crown's reliance on the bruising to the complainant's mouth to support Count 3. The applicant also noted that the Crown had invited the jury to infer from the fact the complainant's shirt had been ripped that the applicant had ripped it while she was lying unconscious in the park at Concord, in support of Count 2. Finally, he submitted the evidence about the applicant's aggression on the party bus was used by the Crown to support each of counts 1-8.
In response to the Crown's argument that the complainant's earliest complaint was of physical assault only, the applicant submitted that in truth the evidence was "somewhat ambiguous". In any event, he said that the complainant's later complaints, which undoubtedly included a reference to sexual assaults, were made not much later in time.

Respondent's Submissions

The respondent submits that there is a logical basis to distinguish between the verdicts. It highlights that "objective evidence" was led in support of Count 1, such as photographs showing bruising injuries and expert opinion as to likely mechanisms for this bruising. Although the acts for Counts 1 and 2 were contextually intertwined and temporally related, the Crown says there is a rational basis to reconcile the verdicts.
The respondent relies on the body of evidence which supported the complainant's account on Count 1, in circumstances where there was no similar body of evidence in respect of Count 2. It points to the photographs of bruising to the complainant's neck; expert opinion about the bruising and abrasions; the presence of additional injuries other than "suction injuries"; the complainant's detailed complaint about light-headedness and dizziness to the clinical nurse; the applicant's earlier aggression which included pulling her hair, biting and pushing; and the earliest complaints made by the complainant which included a reference to strangulation but not to sexual assault.
At the oral hearing of this application, the respondent submitted that although there are acts which are relied upon to constitute both Counts 1 and 2, the elements of those offences are different. It noted that the offences were related but they were not alleged to have been simultaneously committed.
The respondent says the acquittals reflect the jury's cautious approach to the discharge of a heavy responsibility and do not necessarily mean they disbelieved the complainant.
The respondent makes similar arguments in respect of sub-ground (b). It highlights that the job of the jury was not to choose between the two accounts. It notes other evidence which did not support the complainant's account, such as that of Mr Sun, the taxi driver, and Ms Tuaileva.

Discernment

The parties agreed that the principles to be applied in a case such as this are well-settled. They both referred the Court to the comprehensive review of the law by Bell P (as his Honour then was) in Dadley v R [2021] NSWCCA 267 at [76]-[88], which it is convenient to set out here: "[76] As has been outlined in a number of cases before the High Court and this Court, the test to be applied in considering a ground of appeal based on alleged factual inconsistency between verdicts is one of logic and reasonableness: see MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie); Nguyen v R [2021] NSWCCA 85 at [61] (Nguyen); Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [10] (Keen); Bussey v R [2020] NSWCCA 280 at [58] (Bussey); Kim v R [2020] NSWCCA 288 at [26] (Kim); and Roos v R [2019] NSWCCA 67 at [42] (Roos). As was recently observed in Long (a pseudonym) v R [2021] NSWCCA 212 at [90], one cannot assume that different verdicts are inconsistent merely because a jury returns different verdicts with respect to different counts in respect of the same complainant. [77] In order to succeed on this ground, the test as stated by Devlin J in R v Stone (Court of Criminal Appeal (UK), 13 December 1954, unrep), and as approved by the High Court in MacKenzie at 366, is that the Applicant: '…must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.' [78] As Gleeson JA (with whom Harrison and Davies JJ agreed) outlined in Roos at [43], if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred, there citing MacKenzie at 367. See also Jafary v R [2018] NSWCCA 243 at [31] (Jafary). [79] Gleeson JA in Roos properly noted that it is to be kept in mind that a verdict of 'not guilty' does not necessarily imply any 'want of confidence' in the complainant, but 'may simply reflect the cautious approach to the discharge of a heavy responsibility' (at [61]), citing MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (MFA). [80] MFA was recently applied by this Court in Gage v R [2021] NSWCCA 222, where Fagan J (at [89]) noted that the joint judgment in MFA identified two factors that may cause a jury rationally to return differing verdicts for multiple counts of sexual offending against a single complainant, namely that: (i) where there is no objective evidence of sexual offences some jurors may, reasonably, not be satisfied beyond reasonable doubt upon counts for which there is only the word of the complainant, without supporting testimony; and (ii) the jury may perceive that 'the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others'. [81] Similarly, recently in Nguyen at [63], Wilson J (with whom Bathurst CJ and Beech-Jones J agreed) outlined that it is 'not universally the case that a not guilty verdict returned against one count points to the jury's rejection of the complainant as a witness of truth. A jury is entitled to, and should, take a far more careful and nuanced approach than that to assessing the reliability of witness testimony'. [82] In Ganiji v R [2019] NSWCCA 208 at [13], Basten JA (with whom Button and Lonergan JJ agreed) said that, in a case where all counts rest on the evidence of a particular witness, a conviction on one count accompanied by acquittal on another does not, absent further analysis, necessarily demonstrate inconsistency. His Honour observed that: 'The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects.' See also Keen at [9]. [83] In Bussey at [61], Harrison J (with whom Hoeben CJ at CL and Bellew J agreed) said that an appellate court should not assume too readily that mixed verdicts are inconsistent, as mixed verdicts arise 'from the burden and standard of proof, the requirement of separate verdicts and the role of the jury'. See also Martin v R [2020] NSWCCA 192 at [68]. [84] In the context of a case involving multiple sexual assaults against a single complainant, in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34] (Markuleski), Spigelman CJ observed that: 'In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above.' See also Jafary at [32]. [85] In Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56, it was observed in the joint judgment that: 'The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count', and that: 'It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.' [86] In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130], Simpson J (as her Honour then was, and with whom McClellan CJ at CL and Latham J agreed) observed that: 'Before… an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.' See also Bussey at [60]; Kim at [27]; and Jafary at [37]. [87] As Payne JA said in Kim at [37], the Court must scrutinise the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record. His Honour referred in this regard to MFA at [23], and ML v R [2015] NSWCCA 27 at [46]. [88] Questions of fact and degree are involved in every case which may affect the ultimate assessment of the effect upon the credibility of the complainant in the particular case before the Court when the complainant's evidence is not accepted to the criminal standard on some counts: see Markuleski at [36] and [238]."
As is clear from the authorities cited above, the acquittal of the applicant on counts 2-11 on the indictment does not necessarily involve a rejection of the entirety of the complainant's evidence. It follows that it would be wrong, as a starting point, to assume that in this case the jury must have either accepted all of the complainant's evidence or, alternatively, rejected all of it. It seemed to me that the applicant had approached making his submissions on this erroneous basis.
It is necessary also to keep in mind the principles set out by Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66, namely that it is not the role of the jury to determine whether the evidence of the complainant is to be preferred over the evidence of the applicant. The jury was properly directed in this case that, even if they preferred the evidence for the prosecution, they should not convict unless they were satisfied beyond reasonable doubt of the truth of that evidence. Also, even if they did not positively believe the applicant, if his evidence nevertheless raised a reasonable doubt as to his guilt, they were required to acquit the applicant.
In this case, I am satisfied that there are at least the following five matters which constitute logical bases to distinguish the jury's verdicts on Count 1 and Counts 2-11.
First, Counts 2-11 each included as an element that the complainant was not consenting to the sexual intercourse being perpetrated by the applicant. The evidence which supported that element came entirely from the complainant's account at trial, without any unequivocally corroborative evidence. The jury also had to consider this issue in the light of earlier events on that evening which included consensual intimate interactions. The jury's acquittals of the applicant on those counts may simply reflect the cautious approach to the discharge of their heavy responsibility: Roos v R [2019] NSWCCA 67 at [61]; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34]. On the other hand, count 1 involved no element of consent.
Secondly, the complainant's evidence that the applicant had choked her was corroborated by, among other evidence, photographs of bruises which were visible on the complainant's neck the day following the assault. Those photographs were especially corroborative because the bruises on her neck and jaw included vertical linear injuries which, based on the evidence of Dr Nittis, were supportive of strangulation and were directly inconsistent with the applicant's account that he merely sucked her neck.
I accept the respondent's submission that the quality of the objective evidence with respect to count 1 was of a different nature to the quality of any bruising that was relied upon by the Crown in respect of each other count. In the context of each count other than count 1, as I have explained, there was an element relating to the complainant's lack of consent which the Crown was required to prove. The evidence of bruising did not by itself exclude a reasonable hypothesis consistent with innocence because it could not be inferred from the presence of bruising that the complainant had not consented to the various sexual acts. In other words, it was reasonably possible that the bruises could have been inflicted during the course of consensual sexual relations. The same cannot be said for the bruises to the complainant's neck and jaw which unequivocally support the allegation that the applicant strangled the complainant.
Thirdly, the evidence about the complainant's earliest complaints was ambiguous, especially as to whether the complainant initially complained about the applicant sexually assaulting her. The complainant's evidence was that when her mother discovered her muddied top and noticed her bruises, her mother asked her, "who did this to you?", and she answered that the applicant had. She did not say anything about having sex with the applicant. The inference which was most clearly open to be drawn by the complainant's mother, given the state of her top and the bruises which were visible, was that the complainant had been the subject of a physical assault. The complainant's evidence was, it seems to me, too vague to support an inference that she complained at that earliest stage of being sexually assaulted.
The complainant's mother's evidence, by contrast, was that, following that conversation with the complainant, she immediately conveyed to the complainant's father that the complainant had been raped by the applicant. In other words, her evidence was either that the complainant had told her she had been raped or alternatively that she had inferred from the complainant's initial complaint to her that she had been raped.
Ms Faagutu's evidence supports the view that the complainant's earliest complaints were of a physical assault only. She said that, when she visited the complainant's house on the evening of 3 February 2019, the complainant reported the physical, and not sexual, assault to her. But by further contrast, the complainant's evidence appears to suggest that she did not even speak with Ms Faagutu when she visited on that occasion.
The evidence relating to the complainant's reports, including her later reports to medical professionals and the police, on the whole may have supported the complainant's account of events, including that she had been sexually assaulted by the applicant. But, clearly in my view, that evidence more strongly supports her account of being strangled. The ambiguous quality of the evidence may have strengthened the applicant's case at trial. But it does not assist him on this application, precisely because it is distinguishably more ambiguous in respect of the allegations of sexual assault which constituted counts 2-11 on the indictment.
Fourthly, although Counts 1 and 2 are temporally related, they were not alleged to have been committed simultaneously and in fact there must have been some time between them. On the complainant's account, at the time she was choked, she was fully clothed. The next thing she recalls is that her top and bra had been removed and her pants were pulled down. That change in the state of her clothing and what was happening could not have occurred instantaneously - nor was it alleged to have so occurred.
The applicant is correct that the circumstance of aggravation pleaded by the Crown in respect of Count 2 was that immediately before or after the commission of that offence, the applicant recklessly inflicted actual bodily harm on the complainant, including the act which constituted Count 1. By reference to the terms of 37(1) of Crimes Act, the jury's verdict means that they were satisfied beyond reasonable doubt that the applicant had intentionally choked, suffocated or strangled the complainant so as to, at least, render her incapable of resistance. Her incapacity to resist at the time that offence was committed would necessarily translate into a finding that she had not given her consent to the sexual intercourse underlying Count 2 only if her incapacity continued for a sufficient period of time so as to enable the applicant to undress the complainant and commence the acts constituting count 2.
Dr Nittis' evidence was that it does not take long for a person who has lost the supply of oxygen to the brain to lose consciousness. Her evidence was also that a person's memory may be affected by the loss of oxygen, either instead of or in addition to a loss of consciousness. But there was no evidence about the time it might take to regain consciousness or regain the capacity to form and retain memories.
In the context of the complainant's evidence about the sequence of events and the clearly open inference that at least some period of time separated the act of strangulation and the act of sexual intercourse, in my view it was not essential for the jury to reach the same verdict with respect to both Counts 1 and 2. Nor were they directed that they must do so by the Judge. As the respondent properly submitted, that the Crown relied on some acts to constitute both Counts 1 and 2 does not mean that there was no basis to distinguish between the two counts. Clearly, the two different offences were made up of different elements. In my view, there was a logical basis for distinguishing between the evidence which supported those two counts.
Finally, the applicant's own evidence is a source of distinction between the counts. In respect of Counts 2-11, the applicant's evidence in chief was that whilst he had sexual intercourse as was alleged, the complainant had consented to what occurred. The significant difference between the accounts of the complainant and the applicant was limited to the issue of consent. In respect of Count 1, the applicant completely denied that there had been any physical assault of the kind alleged. But, as noted earlier, there was corroboration from objective sources of the assault.
The jury clearly disbelieved his denial. However, in respect of the other counts, they may simply have not been persuaded, in the absence of clear corroboration, and were left with a reasonable doubt about the complainant's evidence that she had not consented.
In those circumstances and for these reasons, I am not persuaded that the applicant has established that the verdicts are inconsistent.

Orders

For those reasons, I would make the following orders: 1. Grant leave to appeal; 2. Dismiss the appeal.
ADAMSON J: I have had the benefit of reading the reasons of Garling J in draft and gratefully adopt his Honour's extensive summary of the evidence and the submissions. I agree with his Honour's reasons and proposed orders. Having reviewed all of the evidence in the trial, I am satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of Count 1. For the reasons given by Garling J, the verdict in respect of Count 1 was not inconsistent with the verdicts in respect of the remaining counts.
BUTTON J: I agree with Garling J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2022

(2020) 102 NSWLR 178

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