Goundar v R

Court of Criminal Appeal (NSW)|2024-02-22|Before: Davies J, Hamill J, Sweeney J

Solicitors: Powerhouse Law Australia Pty Ltd (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2021/99430 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 23 May 2023 Before: Bright DCJ File Number(s): 2021/99430

HEADNOTE [This headnote is not to be read as part of the judgment] On 23 February 2023, Shane Goundar (the applicant) was convicted by a jury of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The applicant was sentenced to imprisonment for 2 years with a non-parole period of 12 months expiring 19 February 2024. The applicant and the complainant began a sexual relationship in July 2020. In April 2021, they decided to go away for the weekend. After drinking heavily all day, the pair returned to the motel where they were staying. The complainant said that she was in and out of consciousness. At one stage, she came to consciousness to find that the applicant was trying to penetrate her anus. She said "Stop" and the applicant stopped. He then resumed vaginal penetration. At the point where vaginal penetration resumed, the complainant began visibly crying. She said "Stop" multiple times, but the applicant continued the penile/vaginal intercourse for around two minutes. It was this sexual intercourse that formed the basis of the charge. The complainant made an immediate and distressed complaint to her mother. She also made early complaints to a motel employee, a triple 0 operator, police and a doctor. The complainant's mother gave evidence that the complainant had told her that the applicant had penetrated her anus. This was inconsistent with other evidence the complainant had given. At the request of the applicant's trial counsel, this inconsistency was brought to the jury's attention by the tender of par 24 of the complainant's mother's statement. No further directions about the inconsistency or the mother's complaint evidence were sought. The applicant sought leave to appeal against his conviction on three grounds as follows: Ground 1: A miscarriage of justice was occasioned by her Honour in her summing up regarding complaint evidence. There was a lack of direction to the jury concerning the alleged complaint evidence to the complainant's mother; Ground 2: The verdict is unreasonable or cannot be supported having regard to the evidence; and Ground 3: A miscarriage of justice occurred by the failure to give a complete direction to the jury on being satisfied beyond a reasonable doubt that the complainant was an honest and reliable witness whose evidence was accurate in vital respects (Williams v R [2021] NSWCCA 25). The Court (per Davies J, Hamill J and Sweeney J agreeing) held, dismissing the appeal: As to Ground 1: (1) The trial judge's summing up, the opening and closing addresses of the Crown and the closing address of the applicant all made it clear that penile/vaginal intercourse after the complainant said "No" and "Stop" formed the basis of the charge. The jury could have had no doubt about what act constituted the offence: [44]-[51] (Davies J); [111], [113] (Hamill J); [135] (Sweeney J). (2) In circumstances where the tender of par 24 was sought by the applicant's trial counsel, its tender was forensically helpful to the applicant and no further direction about the mother's complaint evidence or the question of anal penetration was sought, no miscarriage of justice occurred: [54], [57] (Davies J); [112], [115] (Hamill J); [135] (Sweeney J). Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288; Greenhalgh v R [2017] NSWCCA 94; Latu v R [2023] NSWCCA 19; Kumar v R [2023] NSWCCA 156, cited. As to Ground 2: (3) Where there is no evidence beyond the complainant's account, or any inadequacy touching the evidence, the principal enquiry is whether, by reason of inconsistencies and discrepancies, the jury ought to have had a doubt: [69]-[72] (Davies J); [123], [129] (Hamill J); [135] (Sweeney J). Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Hanna v R [2023] NSWCCA 182; Rubinstein v R [2023] NSWCCA 288, considered. M v The Queen (1994) 181 CLR 487; [1994] HCA 3, cited. (4) On a consideration of the whole of the evidence, particularly the immediacy and distress of the first complaint and the fundamental consistency of the complainant's subsequent accounts, the inconsistencies put forward by the applicant do not give rise to any doubt about the applicant's guilt: [74]-[94] (Davies J); [122]-[131] (Hamill J); [135], [137] (Sweeney J). MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited. Z (a pseudonym) v R [2022] NSWCCA 8, distinguished. As to Ground 3: (5) The summing up as a whole, including the standard directions on complaint evidence and the jury needing to assess the truthfulness and reliability of the evidence, reveal that there was nothing more that needed to be said about the complainant's evidence: [100]-[107] (Davies J); [117]-[120] (Hamill J); [135] (Sweeney J).

Judgment

DAVIES J: The applicant was charged with one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). He pleaded not guilty, and stood trial before Judge Bright and a jury from 16 to 23 February 2023.
On 23 February 2023 the jury returned a verdict of guilty.
On 23 May 2023, Judge Bright sentenced the applicant, taking into account an offence of common assault and an offence of destroy or damage property on a Form 1 to imprisonment for 2 years commencing 20 February 2023 and expiring 19 February 2025 with a non-parole period of 12 months expiring 19 February 2024.
The applicant now seeks leave to appeal against his conviction on the following grounds:
A miscarriage of justice was occasioned by her Honour in her summing up regarding complaint evidence. There was a lack of direction to the jury concerning the alleged complaint evidence to the complainant's mother.
The verdict is unreasonable or cannot be supported having regard to the evidence.
A miscarriage of justice occurred by the failure to give a complete direction to the jury on being satisfied beyond a reasonable doubt that the complainant was an honest and reliable witness whose evidence was accurate in vital respects (Williams v R [2021] NSWCCA 25).
There is no appeal against the sentence imposed.

The allegations

The complainant met the applicant when she was working at Repco, an automotive parts retailer, in Minchinbury. The applicant was an owner and mechanic at Pro Autocare in Mt Druitt, and was a customer of Repco.
A friendship began in July 2020 which became a sexual relationship within a week or so. However, the relationship was "very on and off".
On 8 April 2021, the complainant and the applicant decided to go away for the weekend. They travelled to the Central Coast in the applicant's car, and stayed at the Bayview Hotel in Woy Woy. The complainant said that she was quite intoxicated that evening, and that she and the applicant engaged in sexual intercourse. Because she was highly intoxicated she said to the applicant, "If I do pass out, you can do what you want." However, she said that she did not become unconscious at any stage that night. She said that when the applicant finished sexual intercourse, she wanted to keep going. She said that the applicant took Viagra, and they had further consensual intercourse.
The following day, 9 April 2021, they checked out of the hotel. They went to some shops and ultimately to a restaurant bar in Terrigal where they consumed alcohol. Later, they went to a bottle shop where they purchased more alcohol. At around 2:30pm, they checked into the Galaxy Motel at West Gosford. They consumed some alcohol and then went for a swim in the pool. They consumed more alcohol in the pool area before returning to their room.
At around 5:00pm, the complainant and the applicant walked a short distance to the Gosford RSL Club. They did not stay long. The complainant said she was very intoxicated and could barely stand, and she said that she wanted to go back to bed. She said the applicant was also very intoxicated.
She said that she had no idea how she got back to the motel and she had no idea what happened after she got inside the room. She did not recall getting into bed or the state of her dress or undress at the time when she got into bed. She estimated that she had had approximately 20 drinks on that day by that time.
The complainant said that she remembered waking up with the applicant on top of her, having penile/vaginal intercourse with her. She said she was in and out of consciousness for approximately an hour. No complaint is made about that sexual intercourse.
At one stage she started to feel pain around her anus, and she came to consciousness to find that the applicant was trying to penetrate her anus. She said that she was still on her back at that time. She said that she said "Stop" multiple times. The applicant stopped and went back to vaginal penetration. No complaint is made about the attempted penetration of her anus.
At the point where vaginal penetration resumed, the complainant said that she had started visibly crying and pulled her knees towards her chest in the hope that the applicant might stop. She said that she said "Stop" multiple times. She also said words like "Maybe that's enough" and "I don't want this". She said that she was telling the applicant to stop for around two minutes. She said that he did not stop the penile/vaginal penetration, and after two minutes she used one or two hands to push the applicant off. She said that when she was telling him to stop he did not seem to acknowledge anything she said. She was feeling "scared, intimidated". She was crying for the whole of the two minutes and afterwards she was screaming.
It was this sexual intercourse that formed the basis of the charge.
After the two minutes, the complainant got up. She believed that the applicant said that she "wanted this". She said, "How could you keep doing that if you could see that I was visibly crying" and she said she wanted to go home. The applicant told her that she was overreacting, and he did not want her to call her mother because he did not want to get into trouble.
The complainant found the applicant's phone and called her mother. Either just before or just after she called her mother, the applicant put his hands around her neck and gave her a forceful push to sit her back on the bed.
At about this point, the complainant also noticed a smashed up microwave oven and a smashed glass on the floor of the room.
When the complainant spoke to her mother she told her she needed to be picked up. Her mother asked what was going on, and the complainant said that she would tell her mother when she get home. At that point the applicant was extremely angry, pacing, and huffing and puffing.
The complainant then spoke with her father on the phone who insisted on speaking with the applicant. The complainant handed the phone to the applicant and a conversation ensued.
Shortly afterwards, the phone in the motel room rang and the complainant picked it up. It was a motel employee who said that she had spoken to the complainant's mother and that, if the complainant was not down at reception within five minutes, someone would come up to get her.
The complainant endeavoured to pack her bag discreetly without alerting the applicant because he was still pacing backwards and forwards, throwing insults towards her, and he was visibly aggressive.
The complainant said that when she got to the office of the motel, the woman in the office (Ms Kaihau) gave her a hug.
She apparently spoke to her mother on the phone again, but "brushed over what happened". The complainant's mother said that in the conversation with the complainant at the time the complainant was in the reception area the complainant: …was very upset and crying and she said that they were having sex in the room. That she had asked Shane to stop and he wouldn't stop. That he had become angry. That he called her names and that he put his hands around her throat.
Having heard the conversation between the complainant and her mother, because the complainant had the phone on speaker-phone, Ms Kaihau then said to the complainant, "I need to hear it from your words, were you raped?", to which the complainant responded, "Yes". Ms Kaihau called triple 0 and the complainant spoke with the triple 0 operator. The complainant said later that she did not recall speaking to the triple 0 operator.
When the triple 0 operator asked the complainant what happened, the complainant said: I was with my ex-boyfriend, and we'd just been drinking a little bit, and, um, I was, yes, I've just been a bit, uh, intoxicated. So …But, um, I don't know, I think he just kind of took advantage of that…then he just, I don't know, it's a, a bit of a blur 'cause I'm under the influence myself. But, um, he's just really intoxicated, and he, he put his hands on me, and threw the microwave, and threw a couple of glasses, and…
The complainant was asked whereabouts the applicant put his hands on her and she said, "On my throat". She was then asked if the applicant penetrated her and she said, "Yeah, but I was…so I couldn't take control. …I partially, like, I was, I had so many drinks that I was kind of, like, in and out of consciousness, so I didn't really know."
The complainant was then taken to Gosford Hospital for an examination. Whilst she was there she participated in a recorded interview for a domestic violence offence (the "DVEC") with Senior Constable Brett Spencer. In the DVEC the complainant said that they left the RSL and went back to the motel. She then said: And we had a couple more drinks and um I kinda I had way too much to drink, way too much to drink and I was kinda just passed out in bed in and out of consciousness. Um for about approximately an hour. I could not confirm that time with you but approximately and (sic) hour in and out and then towards the end I woke up crying in tears because I didn't fully understand the grasp of what was going on but once I realised what was happening I told him no. I said this is like I'm not ok, this is not ok with me um and that is when he started to get a little bit aggressive. Bit frustrated with my response and my um um bloody I dunno frustrated in general that I was not wanting to continue what we were doing. Um and that's when I pursued to call my mum and I couldn't find where my phone was and he wouldn't tell me where my phone was and he was trying to calm the situation. Tell me like don't make a big deal. I don't want this to be a thing like your overreacting. He tried to calm the situation down in a sense and that and that way I was feeling a bit unsafe because I didn't have my phone and I just felt really um a little bit scared because he started to get a you know a bit up tight. … … like don't worry it's all cool like your overreacting like just calm down like like lets not run a mock here and I was like look I don't want to get you in trouble, I don't want to get anyone involved, I don't want to get the police involved. I just wanna go home and that's when I think he started to get really frustrated with me… And started to pace back and forth just really in his own head overthinking things. He started calling me every name under the sun. … calling me a whore. He was calling me a slut, and um I can't tell you exactly how it all placed out like that because as I said I was extremely intoxicated and before that I was in and out of consciousness so just coming you know back to it. … … I don't have all my thought collected but I know these things happened but I just couldn't tell you what order they all happened in. Um but yeah he defiantly [scil. definitely] grabbed me by the throat and like started penetrating me and I was just balling my eyes out crying telling him to stop and he just said I was overreacting and to just shut up and like he said that I liked it because we had this kind of thing going on where I said to him the day prior to yesterday that I kind of wanted to be unconscious but conscious as well as kind of thrill of it but obviously when I'm crying you know telling him to stop that's not part of it. (reproduced as in the original)
The history recorded by Dr Stephanie Dean at Gosford Hospital on that night was as follows: When asked what happened to her, [the complainant] said that yesterday (09/04/2021) she had about 20 drinks from 10am till around 1930pm with her ex-boyfriend Shane. She was very intoxicated and doesn't remember how she got from the RSL to the motel. She remembers coming around lying on the bed (?naked) at around 8pm, and was in and out of consciousness over the next hour. During this time when she came around Shane was penetrating her vagina; he also tried to penetrate her anus a couple of times, which hurt. She's not sure if he put his penis in her mouth. She doesn't think a condom was used; she doesn't think he ejaculated. When she woke up she cried a lot, and told him she didn't want to do this. He said she was overreacting, that she did want to. She was crying a lot, saying she wanted to go home. He put his hand across the front of her throat for a few seconds to push her down again. He was angry, and verbally abusive; he called her a slut, whore, white bitch. He spat on her face. She was trying to find her phone and gather her stuff. She eventually managed to call her dad, and when Shane went out for a smoke she left.
When the complainant arrived home at about 4 o'clock in the morning, she had a conversation with her mother, but she did not recall what she said.
The complainant's mother said that when the complainant came home, she asked the complainant what happened. Her evidence then continued: She said that on Thursday night, they had gone - they had been at another hotel, and they had - when they went back to their room, they had sex. Shane had asked to have anal sex which she had never done, so she agreed to it, but then verbalised to him that it was painful, and she had also pain afterwards, but they had - there were no other things happened that night. And then, the following day, they went to another motel, and they had gone out and they had been drinking a lot. She had about 20 drinks. When they came back to the motel, she was - yeah, she was not fully aware of what was happening, and when she became aware of what was happening, he was having sex with her… Q. Okay… A. …so she asked him to - to stop and she asked him multiple times, and he wouldn't stop, and she started to cry and she tried to get away from him. And he wouldn't really let her get away, and when she did manage to turn over, he then tried to have anal sex with her. And she was - by this time, she was crying a lot and he became really angry, said like you want it. And then, when she eventually tried to get away, he pushed her back down by having his hands around her throat. And he called her all sorts of names, like "whore" and "slut". Yeah, and then, when she finally did get away, she was looking for her phone, couldn't find her phone but found Shane's phone, and I believe in that time, he - he was still very much in a rage and had started smashing things up, throwing the microwave, glasses et cetera. So she rang me and she was very distressed.
In cross-examination she was asked this question: Just in relation to the conversation you had with your daughter at about 4am on 10 April when she came home. You gave some evidence about that conversation. Now, is this right, that during that conversation in relation to the anal sex, she said to you: "He was actually penetrating my anus."? The complainant's mother answered "Yes".

Ground 1: A miscarriage of justice was occasioned by her Honour in her summing up regarding complaint evidence. There was a lack of direction to the jury concerning the alleged complaint evidence to the complainant's mother

The summing up

In the course of her summing up the sentencing judge reminded the jury of the evidence of complaints made by the complainant. Her Honour first dealt with the motel receptionist, Ms Kaihau. Her Honour then said that the next complaint was to the complainant's mother, and her Honour read out the evidence of the complainant's mother (set out at [31] above), and then said: So the Crown relies upon what she told her mother at approximately 4am that morning, particularly that she said when she became aware what was happening, that he was having sex with her, she asked him to stop and she asked him multiple times and he would not stop. So that is the complaint about the allegation before the court.

Submissions

In his written submissions, the applicant submitted that her Honour was in error on the facts, as the complainant herself made no allegation about the applicant trying to have anal sex at that stage. Further, contrary to the trial judge's final words, "So that is the complaint about the allegation before the Court", it was not evidence that originated from the complainant. The applicant relied in that regard on the complainant's agreement in cross-examination that, if she had told her mother that the applicant penetrated her anus in the motel room, it would not be correct.
The applicant also drew attention to what was contained in par 24 of the complainant's mother's statement to the police (this paragraph became Exhibit C at the trial in circumstances which will be later explained). In that paragraph the complainant's mother said that the complainant told her that she and the applicant had had sex on the Thursday night (the night before) at another hotel where she agreed to have anal sex, "but it hurt a lot and I told him to stop". In that statement she also spoke of what occurred on the night in question in the Galaxy Motel where she said: Shane then tried to have anal sex with me. He was actually penetrating my anus. I kept telling him to stop. The applicant submitted that what the trial judge read out to the jury from the complainant's mother's evidence and what was contained in Exhibit C both contradicted the complainant's evidence of what she had told her mother.
The applicant submitted that the complainant's evidence in cross-examination was that she did not ask the applicant to stop penile/vaginal intercourse, but that it was only when his penis was against her anus that she asked him to stop and he did.
The applicant submitted that the trial judge failed to draw the jury's attention to the contradictory material about a further attempt at anal intercourse in the complainant's mother's evidence, and that the failure left this prejudicial allegation to the jury without correction or any direction to the jury immediately before it retired to deliberate its verdict. The applicant submitted that the passages of evidence were not evidence of complaint but were highly prejudicial to the applicant's case, especially when it was adduced by the Crown at the critical time before the jury commenced its deliberations. The applicant submitted that that was done without caution or direction by her Honour on how such evidence was to be used by the jury.
In oral submissions, the ground was argued far more narrowly. Mr Smith of Senior Counsel submitted that the tender of Exhibit C without a clear direction from the judge may have misled the jury into thinking that the offence was constituted by the act of anal intercourse described by the complainant in that Exhibit, set out above at [35]. Mr Smith asserted that the trial judge got the complaint muddled up when Exhibit C went into evidence, and her Honour should have made it clear to the jury that the act relied upon was not the anal intercourse referred to in the mother's statement. Mr Smith accepted that no direction was sought by counsel, but submitted that counsel ought to have sought such a direction.
Senior Counsel provided, subsequent to the hearing of the appeal, a form of the direction which he submitted should have been given by the trial judge. The direction was: The defence case is that [RS] was not accurate in her account, that there were gaps in the account she gave, and that there were differences and inconsistencies between those various accounts she gave to other people. The tender of paragraph 24 of a statement of [JS] dated 23 April 2021, now Exhibit C is to show the conversation [RS] had with her mother at 4am on 10 April 2021. Even though, at the request of the defence, it is tendered by the Crown, the defence rely upon it to show the difference between the statement [RS] made to her mother on 10 April 2021 and her evidence in court as to what happened at the alleged time of the offence. There is reference to an alleged complaint about anal penetration. It is important for you to know that the Crown's case is not that anal intercourse constituted the offence. This is not what you need to decide as constituting count 1 and it is not what the complainant is alleging occurred on this night in her evidence in court. Therefore, it would be wrong for you to use this piece of evidence in any other way against the accused because it is your job, and entirely a matter for you members of the jury, as judges of the facts, to decide whether any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability.

Determination

At the conclusion of the summing up, counsel for the applicant drew attention to what her Honour had said later in her summing up when she summarised the evidence of the complainant's mother (set out at [31] above), and went on to say: She [the mother] was cross-examined. She was asked questions in relation to the 4am conversation specifically, had the complainant said that the accused was penetrating her anus. She said, yes, and I think that is in relation to the events the night before. The parties can correct me if that is wrong.
Counsel said to her Honour that the penetrative anal sex occurred on the night in question and not the night before, as her Honour had said. Debate then ensued, during which her Honour said that the complainant was speaking of the night before in relation to the applicant penetrating her anus. Her Honour said to counsel for the applicant that he had not clarified in his question to the complainant's mother (at [32] above) which night was being spoken of.
At that point, counsel for the applicant sought to tender par 24 of the complainant's mother's statement dated 23 April 2021. Discussion then followed about how best for the matter to be dealt with to minimise prejudice to the applicant, and it was agreed that leave would be given to the Crown to reopen its case to tender par 24 of the statement. When the jury returned, the Crown tendered par 24 and it was marked as Exhibit C. Counsel for the applicant did not seek any further directions from the trial judge about Exhibit C or on the issue raised by the complaint evidence to the complainant's mother touching on anal sex or attempted anal sex. As noted earlier, Senior Counsel at the hearing of the appeal submitted that trial counsel ought to have done so.
In those circumstances, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies. It is necessary, therefore, for the applicant to demonstrate that a miscarriage of justice has occurred from the asserted lack of direction concerning the complaint evidence to the complainant's mother.
It is difficult to see, in the first place, how this evidence about anal sex was highly prejudicial to the applicant. The Crown case never concerned anal sex or attempted anal sex. The direction which it is now said should have been given would have told the jury the same thing. The act of sexual intercourse said to give rise to the offence was the penile/vaginal sexual intercourse which occurred after the applicant ceased to attempt anal sex with the complainant on the night in the Galaxy Motel.
In her summing up the trial judge said: The Crown case is that the accused had penile vaginal intercourse with the complainant after she said "No" and "Stop".
Later, the trial judge set out the passage in the complainant's evidence where she recounted returning to consciousness and finding that the applicant was trying to penetrate her anus. In that passage, the complainant said that when she told the applicant to stop he did so and they then resumed penile-vaginal intercourse. She gave evidence that it was at that point when she started visibly crying, pulled her knees towards her chest and said "Stop" a number of times. She said the applicant continued with the intercourse for around two minutes.
The trial judge then said to the jury: So that is the evidence, transcript p 28 and 29, where the complainant alleges penile vaginal penetration that continued after she had said "Stop". So that is the precise act relied upon for count 1 on the indictment and each counsel have said to you that there is no allegation in relation to attempted anal intercourse or any earlier intercourse that night. The allegation relates to the point in time where, on the Crown case, the complainant was saying, "No, stop". So the sexual act is the continuation of penile vaginal intercourse after she said, "Stop".
After setting out the mother's evidence from the 4am conversation (set out at [31] above), the trial judge said: So the Crown relies upon what she told her mother at approximately 4am that morning, particularly that she said when she became aware what was happening, that he was having sex with her, she asked him to stop and she asked him multiple times and he would not stop. So that is the complaint about the allegation before the court.
After the luncheon adjournment, the trial judge, when summarising the complainant's evidence, said: She was asked whether she told her mother that the accused had penetrated her anus. She said, "I don't recall what I said". It was suggested to her, "That was not accurate, was it?" "No, he did not, did not, correct".
The Crown also made it clear both in opening and closing addresses, that the offence was alleged to have occurred by the failure of the applicant to heed the complainant's "No" and "Stop" after the penile-vaginal intercourse recommenced. The case never changed. Moreover, in his closing address, counsel for the applicant, in endeavouring to persuade the jury not to believe the complainant, said: I'd suggest that there are two important features of the evidence which also do not support the Crown case. First, on her own account, Mr Goundar stopped when she said no to him placing his penis against her anus. He stopped. She said no, he didn't go ahead.
The jury could have had no doubt what the act was that was said to constitute the offence. Nothing in Exhibit C changed what the case was. The jury asked a number of questions after the tender of Exhibit C, but none of them suggested any confusion or doubt about what the alleged act was that constituted the offence, nor did any of the questions concern Exhibit C.
Secondly, it was clear from what the mother asserted the complainant said to her that penetrative anal sex had occurred the night before in another motel. There was no error by her Honour on the facts. Her Honour accurately set out the evidence of the complainant's mother about what she said the complainant told her. Nor is there anything that suggests the trial judge got the complaint "muddled up" when Exhibit C was tendered.
The complainant, on the other hand, gave no evidence about what she told her mother because she could not remember. Counsel for the applicant said on two occasions in his closing address that the complainant had told her mother that the applicant penetrated her anus on the night in question. That seems to have been because he mistakenly believed that the evidence was to that effect, as the debate at the conclusion of the summing-up demonstrates (see above at [40]-[41]). Prior to the tender of Exhibit C, there was no such evidence. However, in the light of those statements to the jury , it is even more difficult to see where there is prejudice to the applicant as a result of the trial judge simply reminding the jury of the mother's complaint evidence, and not giving any further direction that anal sex was not the relevant act.
There was certainly an inconsistency raised as a result of what appeared in par 24 of the complainant's mother's statement. The evidence from the complainant in court and to Dr Dean, and the evidence from the complainant's mother of what the complainant told her was that there was only attempted anal intercourse on the night in question. The admission of paragraph 24 into evidence, particularly at a late stage, was forensically helpful to the applicant as demonstrating another inconsistency in the accounts provided by the complainant about what occurred on the night in question (on the assumption that the mother correctly remembered what the complainant told her), although it was not directly referable to the offence charged. Further, when summarising the complainant's evidence, the trial judge reminded the jury (as noted above at [49]) of the complainant's agreement with the cross-examiner that it was not accurate to say the applicant had penetrated her anus on the night in question.
The inconsistency that par 24 introduced generally reflected only on the credibility of the complainant's mother, despite what appeared in the direction the applicant said should have been given by the trial judge. The complainant's evidence was always that actual anal sex had occurred the night before and that when the applicant attempted it on the night in question, he ceased the attempt at the complainant's request. The evidence in par 24 was weak evidence of inconsistency in the complainant's evidence because it was hearsay evidence, albeit, admissible hearsay evidence. But the applicant's counsel had effectively used it against the complainant by having told the jury, in advance of par 24 being tendered, that the complainant had said that the applicant penetrated her anus on the night in question.
The trial judge can hardly be criticised for not highlighting the particular inconsistency in the mother's complaint evidence when par 24 of her statement was not in evidence at the time of the summing up. However, relevant to what the applicant now complains of in this ground, the trial judge said this: You should have regard to all the circumstances relevant to the making of complaints. In considering using the evidence for that purpose, you should consider how consistent the complaint to each witness is, with the evidence she gave in court. If there are discrepancies, you should consider what that may be so and whether that has a bearing upon whether you should treat the complaint evidence as additional evidence of the complainant, having been subjected to the conduct of the accused, as she describes.
In circumstances where it was the applicant who had sought to tender Exhibit C after the judge had concluded her summing up, and sought no further direction about that evidence or more generally about the question of anal penetration, that is strong evidence in the atmosphere of the trial that counsel saw no injustice in what had occurred at his instigation: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]; Greenhalgh v R [2017] NSWCCA 94 at [42]; Latu v R [2023] NSWCCA 19 at [76]-[77]. Further, the failure of counsel to seek any further direction can provide a basis for the Court to infer that the omission was not prejudicial in the circumstances of the trial: Kumar v R [2023] NSWCCA 156 at [91]. No miscarriage of justice was occasioned by the tender of Exhibit C and no further direction being given with respect to it.
Leave should not be granted under r 4.15.

Ground 2: The verdict is unreasonable or cannot be supported having regard to the evidence

Submissions

The applicant submitted that there were a large number of inconsistencies and inaccuracies in the complainant's different accounts of what occurred, and that those matters adversely affected her reliability as a witness. Since proof of the offence was dependent upon her evidence, the applicant submitted that the verdict was unreasonable and could not be supported.
The applicant submitted that her evidence was inconsistent about the time that she was falling in and out of consciousness. She gave evidence that it was for about an hour but, when challenged, said it could have been half an hour to one hour.
The applicant submitted that in her DVEC she said that she did not have all her thoughts collected. She said that the applicant grabbed her by the throat and started penetrating her, but later said that that statement wasn't accurate and that she could not tell the officer exactly how the matter played out.
The applicant submitted that she also said in that interview that she remembered the applicant grabbing the microwave and thrashing it, but her evidence in court was that she did not see him pick up the microwave. Further, in the triple 0 call, the complainant was confused as to when the microwave oven was damaged.
The applicant submitted that in the triple 0 call, when the complainant was asked if the applicant sexually assaulted her and whether he penetrated her, she said, "Yeah…, so I couldn't take control", and then said that she was in and out of consciousness so she didn't really know. The applicant submitted that in cross-examination the complainant did not have any recollection of speaking to the triple 0 operator and she did not have any recollection when speaking to the triple 0 operator of what happened in the motel room.
The applicant submitted that the complainant agreed that she did not recall what she told the police in the DVEC interview.
The complainant also agreed in cross-examination that her level of intoxication on the day of the offence affected her memory of the events of that night and that that continued to the time she was in the witness box.
The applicant pointed out the inconsistency in the complainant's evidence about using her hands to push the applicant off her with what she said in her statement that he continued having sex with her for about two minutes before he stopped and stood up, with no mention of being pushed.
The applicant drew attention to the ten point summary that the trial judge gave in her summing up of inconsistencies in the complainant's evidence that had been raised by the defence.
The applicant also relied on a note that Senior Constable Spencer made in his notebook that the complainant said, "We were having sex consensual. I just passed out". The applicant also relies on the fact that there was evidence from the officer in charge that he, the applicant, had no criminal convictions.

Determination

The approach to be taken by an appellate court in relation to assessing whether a verdict is unreasonable was summarised by the High Court in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [7]-[8]: [7] … The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence. [8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is "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 being "one of fact which the court must decide by making its own independent assessment of the evidence". (footnotes omitted)
In Hanna v R [2023] NSWCCA 182, Leeming JA (with whom Yehia and Weinstein JJ agreed) said: [20] Broadly speaking, the "independent assessment" required to be undertaken by the appellate court involves asking whether the appellate court having reviewed the whole of the evidence considers there is doubt. But that is not the end of the matter; otherwise no deference would be given to the role of the jury and the advantages it enjoyed in seeing the trial unfold. The joint judgment said in M v The Queen at 494 that: It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. (Footnotes omitted.) [21] However, the joint judgment confirmed that "the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". [22] Some further points applicable to the present appeal may be made immediately. First, consistently with those statements of principle, the applicant's written and oral submissions focussed upon the discrepancies, inadequacies and other defects in the evidence at trial. [23] Secondly, also consistently with those statements of principle, there are aspects of the evidence (for example, the complainant's initial inability to describe the events giving rise to count 3) which are poorly conveyed by the written record of the trial, in relation to which the jury enjoyed a significant advantage over this Court reviewing the record (which is almost wholly written). In those respects, the qualifying words "making full allowance for the advantages enjoyed by the jury" have a deal of weight. However, in other aspects (for example, the significance of the complainant's evidence of the applicant's birthmark) this Court is in substantially the same position as the jury. The different nature of the conflicts in the evidence needs to be borne in mind in applying the principles in M v The Queen. As the High Court indicated in Dansie v The Queen at [17], the scope of the advantage enjoyed by the tribunal of fact (in that case, a judge) over an appellate court "by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial". Indeed, the scope of the jury's advantage is apt to vary depending upon the particular discrepancy or inconsistency to which the appellate court is directed. The dependency of the scope of the jury's advantage being "witness and trial dependent" was explained by Beech-Jones CJ at CL in AJ v R [2022] NSWCCA 136 at [104]. [24] Thirdly, the mere existence of discrepancies and inconsistencies does not suffice to establish this ground. The point was made by McHugh, Gummow and Kirby JJ in MFA v The Queen at [96]: There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention. (Footnotes omitted.) [25] Finally, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] the High Court said: The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (Footnotes omitted.) [26] That passage is applicable to the present case, where the Crown case depended in very large measure upon the complainant's evidence (that is the force of the words "in a case such as the present"). It is trite that the jury must have found her to be credible and reliable in respect of counts 1-3. Where as in the present case, the accused gives evidence denying the offending, it is likewise trite that the jury found him not to be credible or reliable. Appropriately, the submissions in this Court were directed to whether the inconsistencies, discrepancies or other inadequacies, seen in the light of other evidence, were such that the jury ought to have entertained reasonable doubt as to the applicant's guilt.
In Rubinstein v R [2023] NSWCCA 288, Adamson JA (Button J and RA Hulme AJ agreeing) said: [94] The credibility of a complainant may, as here, be significant in a criminal trial. A verdict of guilty may be reasonable even if the complainant's evidence is not corroborated: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact (The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)). For this reason, it will not generally be appropriate for this Court to review pre-recorded or recorded evidence to form its own view of the credibility of particular witnesses on the basis of their presentation: Pell at [36]-[38]. This Court must proceed on the basis that the complainant's evidence was accepted by the jury as credible and reliable: Pell at [39]. [95] The extent to which this Court is entitled to disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which he or she has been convicted, is constrained. In Z (a pseudonym) v R [2022] NSWCCA 8, this Court (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing) said at [29]: "… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant's credibility has been so damaged that it was not open to the jury to accept his or her evidence."
The starting point is that the evidence of the complainant was assessed by the jury to be credible and reliable. In examining all of the evidence it is necessary to assess whether by reason of inconsistencies, discrepancies, other inadequacy or in the light of other evidence, the jury acting rationally should have had a doubt about the applicant's guilt. In the present case, there was no other evidence, not even an ERISP from the applicant. Nor is there any inadequacy touching the evidence. The principal enquiry in this case is whether, by reason of inconsistencies and discrepancies, the jury ought to have had a doubt.
At the outset, there were issues in relation to what the complainant was reporting. She had been drinking heavily all day, and that had resulted in her drifting in and out of consciousness while she and the applicant were having sex. Certainly, the differences in what she reported as time went on, and during the trial itself, were the product of the high ingestion of alcohol.
However, from the time of her first complaint, her account going to the central allegation has largely been consistent. The first person the complainant spoke to was her mother, who said that the complainant was distressed and crying. The complainant said that something had happened to her, and she would tell her later. Then the complainant spoke to the receptionist, Ms Kaihaui who described how upset the complainant was.
When the complainant spoke to her mother a second time from the motel reception, she was still upset and crying. She said they were having sex in the room, that she asked the applicant to stop and he wouldn't stop. He became angry, called her names and put her hand around her throat. That description was the basis for the greater detail which emerged in later complaints.
She also told Ms Kaihaui that the applicant had been throwing things around the motel room and calling her names. When pressed at the trial about whether she saw the applicant smashing the microwave and throwing other things around the room as she had asserted, she said that she did not. However, there was no doubt from the evidence of Ms Kaihaui that those events had occurred and that the complainant was not responsible for them. The trial judge found the offence on the Form 1 of destroying or damaging property proved, and there is no challenge to that determination.
Lay people, whose lives and manner of recounting things are not governed by the laws of evidence, frequently assert that a person has done something although they did not observe it because it is the only rational conclusion to be drawn from the circumstances. It was only while giving evidence that the complainant in the present matter could not admissibly say that the applicant had smashed the microwave and broken the glass, although that was the only rational conclusion that could have been reached. The complainant's credibility was scarcely impacted by her statements made to Ms Kaihaui and her mother when still severely intoxicated that she had seen the applicant doing those things. He had in fact done them, as Ms Kaihau's evidence made clear.
What the complainant next said was to the triple 0 operator, set out at [26]-[27] above. The statement, sparse as it is, is not inconsistent with what she had told her mother or Ms Kaihaui, or subsequently to Senior Constable Spencer and Dr Dean.
She next disclosed what happened in her DVEC at 10:46pm that night. The detail is set out at [28] above, but the essence of it was this: Then towards the end I woke up crying in tears because I didn't fully understand the grasp of what was going on but once I realised what was happening I told him no. I said this is like I'm not okay, this is not okay with me um and that is when he started to get a little bit aggressive…that I was not wanting to continue what we were doing.
She referred to the names that he called her, to the fact that he grabbed her by the throat and that he started to penetrate her but she was crying out telling him to stop, to which he said she was overreacting. During the course of that interview she told Senior Constable Spencer that she was still intoxicated, that she was still under the influence and she did not have all her thoughts gathered.
Her next report was to Dr Dean at Gosford Hospital at 12:15am on the following day. What she said is set out at [29] above. The account she gave Dr Dean was consistent, but with a few more details, with what she had earlier reported both to her mother and in her DVEC.
Finally, she went home and had a conversation with her mother at 4:00am, about which her mother gave evidence. That conversation is set out at [31] above and was read to the jury by the trial judge in her summing up.
A comparison of those accounts, with more detail being provided successively, is scarcely surprising in the circumstances of the complainant's level of intoxication by the time the offending took place. What is very clear from her mother's and Ms Kaihau's perceptions of the complainant's distress is that, from the time she first rang her mother, something bad had happened to the complainant. Within a very short time, that bad thing was said to be that the applicant had not stopped having intercourse with her when she asked him to do so. That appears from the second conversation with her mother and then, immediately afterwards, her answer to Ms Kaihau's very leading question, that she had been raped.
The first complaint was, therefore, as immediate as was possible. That, and her obvious distress, was powerful support for the more detailed complaint she later expounded.
Certainly, there were inconsistencies and discrepancies which could be discerned from her various reports, and there were others that were brought out in cross-examination. That there were some discrepancies in the accounts and inconsistencies in cross-examination was scarcely surprising or unusual, as was made clear in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [96].
It must be said, first, that all of the inconsistencies now put forward by the applicant to cast doubt on the complainant and, ultimately, the jury's verdict, were put before the jury to suggest, as her trial counsel put it, that the jury would have concerns about her credibility, "and whether you can accept her account of the series of events and accuracy of it in what happened in that hotel room". The jury accepted the complainant's evidence and must have done so partly relying on seeing her in the witness box. Assessing witnesses' credibility forms part of the jury's constitutional role. It follows that, to avoid this Court usurping the jury's constitutional role, care must be taken in concluding that the inconsistencies and discrepancies in the complainant's evidence were such that the jury ought to have had a reasonable doubt about the applicant's guilt.
Most of the matters relied upon by the applicant are entirely explicable by the fact that she was very intoxicated at the time of the offending, and that she remained intoxicated, although on an ever-decreasing basis over the following seven to eight hours. The matter of her not being able to remember whether she was lapsing in and out of consciousness for an hour or half an hour was a good example of that. Such a detail in the circumstances says almost nothing about the complainant's credibility or reliability, especially when there is no issue about consent during that period.
Her intoxication certainly affected the way she reported on matters to the triple 0 operator and to the police in her DVEC, and explains why she reversed the order of the intercourse and the applicant grabbing her around the throat, at least in the DVEC. The matter is not so clear in the triple-0 call. As she said to both of them, she was still under the influence, things were a bit of a blur and she didn't have all her thoughts collected. By the time she spoke to Dr Dean, she was clear that she was not asserting that the applicant held her by the throat and then had intercourse with her; the holding by the throat, pushing her onto the bed and calling her names came after the sexual assault of which she complained.
Her intoxication certainly affected other memories, for example, speaking to the triple 0 operator and what she said to her mother, but what she said was evidenced from those other sources, and bore out the complaint that she had made from the outset.
Her intoxication was not such, however, that she had no memory of the events; indeed, as noted earlier, from the moment the act about which she complained occurred, she knew it had happened and said so.
The assertion in the applicant's written submissions that "at T 54.37 she agreed in cross-examination she didn't really have a recollection of what happened in the hotel room" mis-states the evidence. The evidence was: Q. When you spoke to triple-0, you didn't really have a recollection of what had happened in the hotel room. That's right? A. Yes. (emphasis added)
The applicant also relies on an entry in Senior Constable Spencer's notebook where the complainant said, "We were having sex consensual. I just passed out." If that is supposed to suggest an inconsistent account of what occurred, it is very misleading. The whole passage reads: "We were having sex consensual. I passed out. I woke up. I was telling him to stop but he wasn't stopping." That was consistent with what the complainant said elsewhere.
A great deal was made by the applicant of the complainant's evidence in her statement that after two minutes of non-consensual penile-vaginal intercourse the applicant stood up, whereas her evidence in court was that she pushed him off her. She agreed that her statement said nothing about her pushing him off her, but she disagreed that the pushing off did not happen. That was no doubt a matter the jury had to consider when assessing her evidence overall. It is an inconsistency which I must take into account in assessing her evidence to consider whether the jury ought to have had a reasonable doubt about the applicant's guilt. The complainant's failure to remember precisely how the offending came to an end is scarcely surprising, given the trauma she had experienced for the two minutes when he refused to heed her words and her distress. In my opinion, it is not a significant discrepancy.
In my opinion, bearing in mind the immediacy of the complaint and the fundamental consistency of the complainant's accounts, I do not consider that the matters put forward by the applicant, whether separately or as a whole, give rise to any doubt about the applicant's guilt. This is not a case where it can be said that the complainant's credibility has been so damaged that it was not open to the jury to accept her evidence: Z (a pseudonym) v R [2022] NSWCCA 8 at [29]. The jury had the advantage of seeing the complainant give her evidence. The whole defence case was concerned with the inconsistencies and discrepancies in the complainant's evidence. They were all put to her in cross-examination, they were pointed out to the jury by her counsel in his final address, and they were summarised by the trial judge in her summing-up. They are not sufficient to cast doubt on the jury's verdict which was certainly open to it.
I would grant leave to raise this ground but dismiss the ground.

Ground 3: A miscarriage of justice occurred by the failure to give a complete direction to the jury on being satisfied beyond a reasonable doubt that the complainant was an honest and reliable witness whose evidence was accurate in vital respects (Williams v R [2021] NSWCCA 25)

The summing up

Having summarised the complaint evidence, the trial judge said this: So taking into account those matters, the question for you is whether the evidence of the complaint to each of those witnesses supports the credibility of the complainant. The defence case is that there were differences and inconsistencies between the various accounts given by the complainant, which would meant (sic) that you would not be satisfied beyond reasonable doubt that the Crown has established its case and I will, after lunch, summarise Mr Brash's (sic) closing address to you but you will recall that he identified a number of inconsistencies between when the complainant spoke to police, when she spoke to her mother and when she spoke to Dr Dean. And as I said, I will fully detail those. In relation to those differences, experience shows that people may not remember all the details of an event, including a sexual offence, and may also not describe a sexual offence in the same way each time they tell someone about it. Trauma may affect people differently and may affect how they recall events. And it is common for there to be differences in accounts of a sexual offence and both truthful and untruthful accounts of a sexual offence may contain differences. It follows that any differences you find in the accounts given by the complainant do not necessarily mean that you should reject the evidence of the complainant. It is your job and entirely a matter for you, members of the jury, as the judges of the facts, to decide whether or not any differences in the complainant's account are important in assessing her truthfulness and reliability. In making that assessment you should take into account the evidence the complainant gave when asked about those differences and you will recall when she was re-examined about those differences, she gave evidence about what her emotional state was at that time, which the Crown relied upon, as an explanation, potentially, for why there were differences in her account.

Submissions

The applicant accepted that the trial judge gave a direction in accordance with s 293A of the Criminal Procedure Act 1986 (NSW) but submitted that her Honour failed to direct on the accuracy and reliability aspect.
The applicant pointed to the direction that was given in Williams v R [2021] NSWCCA 25 at [130], noting that this Court had said it was a Murray direction and had not contravened s 294AA of the Criminal Procedure Act. However, the applicant submitted in the present case that the complainant's evidence was largely uncorroborated and inaccurate. He submitted that given the number of inconsistencies in her evidence, her poor memory or recollection of the events and her level of intoxication, the jury ought to have been directed specifically on how to assess reliability, that is, to carefully examine the complainant's evidence and be satisfied that she was a reliable witness, that is, honest and accurate in vital respects, and therefore could be relied upon.
Senior Counsel, subsequent to the hearing of the appeal, provided a copy of the direction he said ought to have been given as follows: The Crown seeks to prove the guilt of the accused with a case based largely or exclusively on the evidence of [RS]. Accordingly, unless you are satisfied beyond reasonable doubt that the complainant is an honest and reliable witness whose evidence is accurate in vital respects you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of [RS] very carefully to satisfy yourselves you can safely act upon that evidence to the high standard required in a criminal trial. I am not suggesting that you are not entitled to convict the accused upon the evidence of [RS]. Clearly you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt.

Determination

Shortly after the trial judge gave the direction set out at [97] above in relation to the complainant's evidence, the trial was adjourned for lunch and her Honour asked counsel was there anything they wished to say at that stage. Neither counsel raised any matter, except in relation to an irrelevant question from the jury asking what they were entitled to disclose after completion of the trial. At the conclusion of the summing-up her Honour again asked counsel if they required anything further. The only matter raised was the matter discussed in ground 1. In the circumstances, r 4.15 applies.
Prior to dealing with the complainant's evidence and the complaint evidence, her Honour had given standard directions to the jury about the need for the Crown to prove beyond a reasonable doubt the three elements which made up the offence. The judge said: It is not for the accused to prove his innocence but for the Crown to prove his guilt beyond reasonable doubt. It is and always has been a critical part of our system of justice that persons tried in this Court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. … Before you can find the accused guilty, you must consider all the evidence placed before you and ask yourself whether you are satisfied beyond reasonable doubt that the Crown has made out its case. The accused is entitled by law to the benefit of any reasonable doubt that is left in your mind at the end of your deliberations. If at the end of your deliberations, having taken into account the evidence from the Crown witnesses and after also taking into account the submissions made by the parties, you are not satisfied that the Crown established any one of the essential facts beyond reasonable doubt, then it is your duty to bring in a verdict of not guilty, … It is vitally important that you clearly understand that the accused must be found not guilty if his guilt has not been proved to your satisfaction beyond reasonable doubt…. In a criminal trial there is only one ultimate issue: Has the Crown proved the guilt of the accused beyond reasonable doubt?... Elements: To prove the accused is guilty, the Crown must proved beyond reasonable doubt each of the following three elements which make up the offence: 1. At the time and place specified in the indictment, the accused had sexual intercourse with the complainant. 2. Without the complainant's consent to that act of intercourse. 3. The accused knew the complainant did not consent. You can only find the accused guilty if the Crown proves each element beyond reasonable doubt.
The trial judge then made clear that for the first two elements, the matter turned on the evidence of the complainant. When the jury sought clarification of the third element, the judge again stressed that each element needed to be proved beyond reasonable doubt, and then said: You have to be satisfied beyond reasonable doubt that she was first saying, "No, stop" because that's what the Crown relies upon to prove his knowledge of her lack of consent.
When summarising the defence case, the trial judge said: He [counsel] reminded you the Crown relies on the evidence of a single witness, that is the complainant. So the issue is whether you accept her beyond reasonable doubt.
The only evidence at the trial concerning what occurred on the day in question was that of the complainant, together with her complaint evidence to the motel receptionist, her mother, the police in the DVEC, and Dr Dean. The applicant had not provided an interview to the police, so no ERISP was available for consideration by the jury.
The trial judge had given standard directions about the jury needing to assess the truthfulness and reliability of the evidence. Having identified the defence case concerning the differences and inconsistencies between the various accounts given by the complainant, the trial judge told the jury it was entirely a matter for them whether the differences in the complainant's account were important "in assessing her truthfulness and reliability".
A reading of the summing up as a whole, having regard to what evidence was led, leads me to conclude that there was nothing more that the trial judge needed to say about the complainant's evidence. The direction now proposed by the applicant adds nothing to what the trial judge said.
It is significant that counsel for the applicant at the trial sought no further direction, notwithstanding that the trial judge reminded them of his submission that the case depended on the evidence of a single witness, and notwithstanding the judge's further summing up after the jury's enquiry that focused on the complainant's evidence of saying "No, stop". As with ground 1, that provides a basis for this Court to infer that there was no injustice or prejudice to the applicant by the omission to seek a further direction. No miscarriage of justice is demonstrated.
Leave should be refused under r 4.15.

Conclusion

I propose the following orders:
Refuse leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021(NSW) in relation to grounds 1 and 3.
Grant leave to appeal ground 2.
Dismiss the appeal.
HAMILL J: I enjoy the great advantage of having considered in draft the reasons of Davies J. I agree with the orders his Honour proposes and generally with his reasons. His Honour's judgment relieves me of the need to canvass the facts and issues at any length. I will deal first with the grounds asserting misdirection in the summing up before analysing the ground that the verdict was unreasonable and unable to be supported having regard to the evidence.

Ground 1: The complaint evidence and the complainant's distress

As to ground 1, the trial Judge reminded the jury at some length of the various things said by the complainant in the immediate aftermath of the incident that gave rise to the single charge of sexual intercourse without consent. Those directions included taking the jury to the inconsistencies in the complaint evidence. The jury would have been left in no doubt that it needed to consider the consistency in the accounts provided by the complainant in assessing her credibility. As the presiding Judge's reasons demonstrate, the inconsistencies in the versions were emphasised in the summing up, albeit by reference to cogent arguments made by defence counsel at the trial.
When the issue surrounding the inconsistency in what the complainant said to her mother about penetrative anal intercourse emerged, the trial Judge permitted the evidence to be re-opened so that the patent inconsistency in the evidence could be highlighted. It is clear that counsel for the accused at that stage was alert to the content of the Judge's direction on the "complaint" evidence and was satisfied with the directions as a matter of law and fairness.
I agree with Davies J that the jury would clearly have understood that the sexual intercourse alleged in the indictment was the penile vaginal intercourse that occurred after the complainant realised what was happening. The evidence was clear that when she asked him to stop attempting to engage in anal intercourse, the accused did so. I found little substance in the arguments made to the contrary under ground 1.
Speaking more generally, had her Honour been requested to do so, it would have been open to the trial Judge to provide the jury with warnings about the complaint (hearsay) evidence: Evidence Act 1995 (NSW), s 165(1)(a). In fact, unless there were good reasons not to do so, her Honour would have been obliged to provide such warnings. Appropriate warnings might have emphasised that all of the evidence came from the same source, that there were inconsistencies in her account, that the versions were not given on oath or able to be tested by the accused who was not present.
However, counsel made no such request and there were very sound forensic or tactical reasons why defence counsel may have elected not to seek further directions or a warning about this evidence. One of the strengths in the prosecution case was the immediacy of the complaint and the distress evinced by the complainant in the hours after the incident.
I agree that leave to argue this ground should be refused.

Ground 3: Failure to direct the jury that it needed to be satisfied of the complainant's evidence beyond reasonable doubt.

I accept the applicant's contention that it would have been preferable for the trial Judge to direct the jury to the effect that the prosecution case was dependent on the evidence of one witness and that, accordingly, the jury had to be satisfied of that witness's evidence (as to the essential elements) beyond reasonable doubt.
However so much would have been obvious to the jury from the way in which the evidence emerged, the addresses of both counsel and from her Honour's summing up. Even so, had such a direction been sought at the trial, it should have been given.
It is clear from the fact that defence counsel did not seek such a direction that he was satisfied that the jury was well aware that this was a single witness case, supported by the circumstances and immediacy of the complaint.
I agree with Davies J that there was no injustice or prejudice arising from the failure to give such a direction. The failure did not give rise to a risk of, or an actual, miscarriage of justice. In the atmosphere of the trial, and in the context of the evidence and issues, neither counsel thought such a direction was necessary.
I agree that leave to argue this ground should also be refused.

Ground 2: Unreasonable verdict unable to be supported on the evidence

I have undertaken a close examination of the transcript of the evidence given at the trial. I have watched the video of the DVEC, listened to the 000 call and examined the exhibits tendered at the trial. I have considered closely the inconsistencies in the complainant's account, the changes in her complaints and have done so in the context of the presumption of innocence and the requirement that the elements of the offence - and in particular the issue of consent and the accused's knowledge of lack of consent - had to be established beyond reasonable doubt. I have scrutinised the evidence with care and in the knowledge that the sole source of the allegation was a single witness.
That scrutiny has not raised in my mind a reasonable doubt as to the applicant's guilt. The jury's verdict of guilty does not leave me with the kind of unease or anxiety described by Sully J which led to the High Court's consideration of the appeal in the case of M v The Queen (1994) 181 CLR 487; [1994] HCA 63.
In view of the analysis of the facts in the judgment of Davies J, I am able to state my reasons in very short form and focus on the critical aspects of the evidence which leave me in no doubt that the jury were correct to be satisfied beyond reasonable doubt of the applicant's guilt.
The conduct of the complainant in wanting to leave, calling her parents, exhibiting distress and confusion, and making an almost immediate complaint of "rape" - even in the context of a very leading question - is consistent with her evidence that she did not consent to the sexual intercourse particularised in the indictment.
Further, there were aspects of the complainant's account that suggest that she was telling the truth and not exaggerating what happened.
For example, her evidence that she told the applicant the night before that he could engage in sexual acts with her even if she passed out was the account of somebody telling the truth even where it was potentially embarrassing and possibly adverse to the prosecution case. In a similar vein, her frank acknowledgment that she consented to anal intercourse - despite her lack of experience and the fact that it hurt - was indicative of a witness who was providing honest and unfiltered testimony.
Again, her evidence that the applicant stopped attempting to penetrate her anus when she asked him to stop is not the evidence of a witness exaggerating her experience or falsely asserting that she did not consent. That evidence is quite to the contrary and suggests truthfulness.
I have considered the inconsistencies such as they were but, as Davies J says in the leading judgment, when it came to the vital details of the actual sexual assault alleged, the complainant's evidence was quite consistent and firm. Neither those inconsistencies nor the complainant's intoxication cause me to doubt the reliability or accuracy of the complainant's account either in the things she said to the police, her mother and the employees of the hotel shortly after the incident, or in her evidence before the District Court.
The description given by the complainant of crying and telling the accused to stop along with the applicant doing so when she complained about his attempt to penetrate her anus, leaves no doubt as to the applicant's knowledge that the complainant was not consenting during the relevant two minutes or so.
When one adds to these matters the advantages enjoyed by a jury in seeing and hearing the evidence unfold and its constitutional role in fact finding in serious criminal cases, I am comfortably satisfied that ground 2 must be rejected.
Like Davies J I would grant leave to appeal under ground 2 but dismiss the appeal.
For those reasons, I agree with the orders proposed by Davies J at [109].
SWEENEY J: I have had the benefit of considering in draft the reasons of Davies J and of Hamill J.
I gratefully acknowledge Davies J's thorough analysis of the facts and issues. I agree with the orders his Honour proposes and his reasons for those orders.
I also agree with the reasons of Hamill J.
Having closely considered the evidence, how the complainant's accounts emerged, and the inconsistencies in them, I am of the view that the complainant's evidence and the evidence of her immediate distressed complaint was sufficient in nature and quality to satisfy the jury beyond reasonable doubt of the applicant's guilt of the offence charged.
Therefore I agree with the orders proposed by Davies J.

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Crimes Act 1900(NSW)s 61I

Criminal Procedure Act 1986(NSW)ss 293A, 294AA

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