Inia v R

The Crown case at trial

1. It was the Crown case at trial that at around 9am on 25 March 2018 the complainant woke in a sunlit bedroom of a granny flat she had been visiting to find the applicant straddling her with his penis in her vagina and his face 5 to 10 centimetres from her face. She was unable to say whether or not he ejaculated. She did not believe he was wearing a condom. The complainant immediately recognised the applicant as the person sexually assaulting her by his distinctive physical appearance, in particular his dentition, and by the red and white football jersey that he was wearing when she met him for the first time some hours earlier. She provided that description in a statement she gave to police at 6.30pm on 25 March 2018. The complainant had earlier been taken by police to Blacktown Hospital where she was examined in accordance with sexual assault protocols.
2. The Crown also relied upon the immediate complaint to at least one of the complainant's friends who had entered the bedroom in response to her screams that the applicant had come into the bedroom and "jumped on top of her". The Crown also relied upon the fact that the complainant's friend confronted the applicant in the lounge room and slapped him, to which he made no response.
3. On 4 April 2018, the complainant identified the applicant as the person who sexually assaulted her from a photographic array. The photograph included in the array did not show the applicant's teeth.

The applicant's case at trial

1. It was the applicant's case at trial that the complainant was mistaken in claiming to have recognised him as the man who she woke to find sexually assaulting her, and that she was also mistaken when she identified him from among a photographic array. It was not in dispute that the applicant was wearing the red and white football jersey when he was visiting the granny flat and that his dentition was as described by the complainant. Rather, it was the applicant's case that the complainant's comprehension and cognition was affected by the extent of her intoxication at the time she said she was assaulted and, further, that her perception was compromised because she only realised she was being assaulted when she was roused from sleep. It was the applicant's case that although he was visiting at the granny flat at the time the complainant was also visiting, he did not engage with her at all whilst socialising with a group of people and did not enter the bedroom where the complainant said she was assaulted at any time during his visit. The applicant gave that account to police in an ERISP on his arrest on 26 March 2018.
2. It was also the applicant's case that, accepting that the complainant was sexually assaulted in the circumstances she complained of, it must have been another man who entered the bedroom at the granny flat and assaulted her. In support of that submission the applicant relied upon unidentified seminal fluid and an unidentified DNA profile in the vaginal and vulval swabs taken from the complainant at Blacktown Hospital. In his closing address, defence counsel submitted that given the complainant's categorical evidence that she did not have sexual intercourse with anyone else at the granny flat or in the days preceding that day, the DNA evidence, coupled with the complainant's likely blood alcohol reading of 0.176g/100ml at the time of the assault, further undermined the reliability of her evidence that it was the applicant who sexually assaulted her. Defence counsel also relied upon the fact that the penile swabs the applicant supplied on his arrest did not identify any DNA other than the applicant's own and that the complainant's DNA was not recovered from his red and white coloured football jersey.

The first ground of appeal in summary

1. In support of the first ground of appeal, the applicant submitted that upon an independent review of the evidence at trial the Court would be satisfied that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt in light of the compromised quality of the evidence of identification and recognition, the absence of any forensic evidence linking him with the assault and where the DNA evidence positively supported his denials. The applicant also relied upon the fact that a man named Tonga Tauheango, the only other man in the granny flat at the time of the assault, was not called by the Crown and that this should also have caused the jury to have a reasonable doubt as to guilt.
2. The Crown submitted it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt given the probative force of the complainant's evidence of recognition and identification, coupled with her immediate complaint to others in the granny flat that the applicant had sexually assaulted her. The Crown further submitted that although the Crown at trial was not permitted, over the objections of defence counsel, to invite the jury to infer that Tonga Tauheango also had non-consensual sexual intercourse with the complainant, albeit without her knowledge because she was asleep, and that it was that man's DNA and semen which was recovered from the swabs taken from the complainant at Blacktown Hospital, that was a process of reasoning open to the jury in returning a verdict of guilty.

The second ground of appeal - the fresh evidence ground

1. The fresh evidence ground was raised in direct response to an email of 10 June 2020 forwarded to the applicant's solicitor by the solicitor who had carriage of the matter on behalf of the Crown at trial that Tonga Tauheango had been arrested. Although police had apparently suspected that Mr Tauheango had non-consensual sexual intercourse with the complainant and that it was his DNA that was profiled from the vaginal and other swabs, he was unable to be located by police during the course of the investigation and his whereabouts remained unknown at the time of the applicant's trial. The applicant's solicitor was also notified that the male DNA recovered from swabs taken from the complainant's vagina had been "matched" with Mr Tauheango. A Forensic Link Summary was formally served, together with a copy of the charge sheet and the facts sheet in relation to the arrest of Mr Tauheango, who is to be prosecuted on the same charge upon which the applicant was convicted.
2. The applicant contends that were this evidence available at his trial, there is a significant possibility that the jury, acting reasonably, would have had a reasonable doubt as to his guilt and, for that reason, in accordance with the principled approach of this Court in R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, this Court would be satisfied that his trial miscarried and a retrial should be ordered.
3. The Crown accepted that the DNA evidence is "fresh" since it was not available to the applicant at his trial. The Crown submitted, however, that this Court would not be persuaded that there is a significant possibility that the fresh evidence would have changed the outcome of the trial. In the Crown's submission, while the fresh evidence establishes that the DNA recovered from the complainant's vulval and vaginal swabs and from her underwear (evidence which was relied upon by the applicant at his trial as raising a reasonable doubt as to the reliability of the complainant's identification of him as the man who assaulted her) is a "match" with the only other male who was with the complainant and the applicant in the granny flat at the time she said she was sexually assaulted, that evidence, viewed in the context of the issues at the trial, does not impact upon the reliability of the complainant's identification of the applicant as the person who she woke to find sexually assaulting her. The Crown emphasised that the complainant identified the applicant by his distinctive physical appearance and the clothes he was wearing, an identification which was supported by her immediate complaint to others at the time of the assault that he was the assailant. In the Crown's submission, while the fresh evidence is clearly probative of the extent of the effects of the complainant's blood alcohol reading whilst she was asleep in the granny flat (in the sense that it can now be positively asserted that she was not roused to wakefulness at the time that Mr Tauheango had intercourse with her), it does not detract, in any meaningful way, from the Crown case that she did wake when the applicant was sexually assaulting her.
4. After I have undertaken a more detailed review of the evidence and a closer review of the way the trial was conducted, I will return to counsel's submissions on the fresh evidence ground later in greater detail.

The evidence at trial

1. On Saturday 24 March 2018 at around 10.30pm, the complainant, her sister and her sister's friend, Esse Wilkinson went to PJ Gallagher's, an Irish pub at Parramatta. The three women had been drinking before they arrived.
2. Whilst at PJ Gallagher's, the three women went to the bathroom where they met and befriended a woman named Mistery Castle. Ms Castle gave evidence that she went to PJ Gallagher's with her boyfriend, Ikuna Uasi, and that whilst there her boyfriend met his friend, Mr Tauheango. Ms Castle introduced her boyfriend and Mr Tauheango to the complainant, her sister and Ms Wilkinson. Mr Tauheango was introduced as "Tonga". The complainant gave evidence that she engaged in conversation with Mr Tauheango who she described as "a tall muscly man" wearing a pink shirt. She also gave evidence of "making out with him" later in the evening which she explained meant she was kissing him. Ms Wilkinson also met another man named David. He was described as wearing a white shirt.
3. PJ Gallagher's closed at around 4am on Sunday 25 March 2018. The complainant's sister had already left the pub before closing time. The complainant, Ms Wilkinson, Ms Castle, Mr Uasi, David and Mr Tauheango all left the pub together. They travelled to a granny flat in Regents Park in two taxis. Stills created from one of the taxi's CCTV cameras showed the group getting into two taxis. The first taxi conveyed Ms Castle and Mr Uasi. In the second taxi, David sat in the front seat with the complainant; Ms Wilkinson and Mr Tauheango sat in the back seat. Mr Tauheango was giving directions to the driver.
4. The group only remained at the granny flat in Regents Park for a short time. The complainant said that they left quickly because Ms Castle wanted to go to a granny flat she resided at with Mr Uasi in Berala. It was the Crown case that the flat at Regents Park was occupied by the applicant and Mr Tauheango and that Mr Tauheango invited the applicant to join with the others and travel to the granny flat in Berala. Still images from the CCTV camera in a taxi which conveyed the now seven people to Berala showed that the complainant was in one taxi with Ms Wilkinson, Ms Castle and David, while Mr Tauheango, Mr Uasi and the applicant travelled together in a second taxi. Both taxis left the granny flat in Regents Park at about 5.18am.

The complainant's evidence

1. The complainant gave evidence that the first time she noticed the applicant was after she arrived at the granny flat in Berala. She described him as wearing a red and white Tongan rugby jersey. She told police she noticed at that time that he had a missing top middle tooth and chips in his teeth. As I have already noted, there was no issue at the trial that this description fitted the applicant. A photograph of the applicant was tendered at trial showing the noticeable gap in his front teeth and a broken front tooth.
2. The complainant gave evidence that for some indefinite time the people she was with were all sitting and drinking in the lounge room of the granny flat. She said that she drank two beers and smoked "half a cone" of marijuana and that she was kissing Mr Tauheango "on and off". She said that she was in the lounge room for about an hour before she asked Ms Castle whether there was a room where she could go to sleep. Ms Castle showed her to the bedroom.
3. The complainant gave evidence that she woke up to find someone on top of her with his penis inside her vagina. She was still wearing her jumpsuit which had been moved to one side, as had her underpants. She said she was lying on her back, the person was facing her and was about 5 to 10 centimetres away from her face. She gave evidence that this person was "the guy in the white and red jersey". She did not give any evidence, either in chief or in cross-examination, about noting his distinctive dentition when he was on top of her in the account she had given to police at 6:30pm that day. The complainant said that the applicant's hands were near her shoulders and he was thrusting up and down. She said the window blind was open and there was a lot of daylight coming through the window. The complainant gave evidence that she did not consent to intercourse with the applicant.
4. The complainant gave evidence that she told the applicant to get off her and screamed. She said that after she kicked him off, the applicant sat at the end of the bed and told her to "shh". The complainant said that Ms Castle, Mr Uasi and Mr Tauheango came running into the bedroom and asked what happened. She said she told them, "He raped me". The complainant said that Ms Castle then hit the applicant and was swearing at him. Neither Ms Castle nor Mr Uasi gave evidence supporting that aspect of the complainant's evidence.
5. The complainant said that she stayed in the bedroom for about an hour crying. She said that Mr Tauheango stayed with her, comforting her, before walking her to the train station. Once on the train, en route to her sister's house, the complainant contacted her sister and her mother who called the police.
6. In cross-examination the complainant denied having sexual intercourse with anyone in the days preceding 25 March 2018 and denied having sexual intercourse with anyone on 24 or 25 March. She denied spending any time in a room at the granny flat alone with Mr Tauheango. She reaffirmed her evidence in chief that it was the applicant who sexually assaulted her. She denied being mistaken about the identity of the person who she woke to find on top of her penetrating her vagina.

Ms Wilkinson's evidence

1. Ms Wilkinson gave evidence that when she arrived at the granny flat in Berala one person was already there. She described him as "not nice looking" and "scruffy". She also gave evidence that he was missing some teeth. This seems clearly enough to be a reference to the applicant, although Ms Wilkinson must be mistaken that he was the only person at the granny flat when she arrived given the objective evidence available from the CCTV camera in the taxi that the applicant arrived with Mr Tauheango. Apart from the applicant, Ms Wilkinson also nominated David, the complainant, Mr Tauheango, Ms Castle and Mr Uasi as together in the lounge room of the granny flat. After about an hour she said she went outside to receive or make a phone call. After the phone call, David joined her outside as he wanted to go for a walk. Ms Wilkinson gave evidence that they went for a walk for around 20 minutes before she called a friend to come and pick her up. She said that by this time the sun was rising. She did not re-enter the granny flat. She said that she last saw David on the street outside the granny flat.
2. Whilst waiting for her friend to pick her up, Ms Wilkinson gave evidence that she exchanged a number of Snapchat messages with the complainant enquiring as to whether she wanted to come home with her. Ms Wilkinson said the complainant told her she wanted to stay. The complainant gave evidence that before she fell asleep in the bedroom with the door shut she received a Snapchat message from Ms Wilkinson saying that she was going home. She said this was around 7am.

Ms Castle and Mr Uasi's evidence

1. Both Ms Castle and Mr Uasi gave evidence that after drinking with the others for a time they left the granny flat at around 8am to walk to a nearby bottle shop. They confirmed that when they left the granny flat the only people in the premises were the complainant, who was by that time in the bedroom, and the applicant and Mr Tauheango who were in the living room. Ms Castle knew the applicant as "Siliva". Ms Castle said that when she and Mr Uasi returned from the bottle shop she could hear the complainant crying quite loudly in the bedroom. She said Mr Tauheango and the applicant were in the lounge room. She went into the bedroom to find out what the problem was. She said the complainant told her that "Siliva had come into the room while she was sleeping and had jumped on top of her". Ms Castle said the complainant provided no other details because she was angry and sobbing. Ms Castle said her instant reaction was to walk out of the room and hit the applicant (using her hand to slap his face). She said the applicant gave her a blank stare. She said the complainant screamed from behind her, "Tonga, why aren't you doing anything?".
2. Mr Uasi gave evidence that he was friends with Mr Tauheango and that Mr Tauheango lived with the applicant. Mr Uasi said the applicant was his best friend. He gave evidence consistent with Ms Castle's evidence. He said, however, that he did not know why his girlfriend slapped the applicant after she came out of the bedroom where she had gone in response to the complainant crying.

The applicant's arrest and ERISP

1. The applicant was arrested at his home at approximately 7am on Monday 26 March 2018. He dressed himself in a red and white football jersey and accompanied police. He voluntarily participated in an interview with police with the assistance of a Tongan interpreter.
2. The applicant told police that he was out drinking kava all Saturday night (24 March 2018) and got home at around 5am on Sunday 25 March 2018. He explained that when he got home to the granny flat he lived in at Regents Park, he was invited by "the other guys" to go for a drink, so he went with them in a taxi to another granny flat. He said the only person he knew by name was Mr Uasi who he knew by his given name, "Ikuna". He told police there were three girls in the group but he only knew one, being Ikuna's girlfriend (Ms Castle). He said he did not know the other two "boys" (that is, he said he did not know Mr Tauheango).
3. He said that whilst at the granny flat the group was happy and drinking and talking. He said he left to go to the bathroom but did not go to any other rooms but stayed in the lounge room the entire time. He told police he was just talking to Mr Uasi and another man whose name he did not know. He said that man was Tongan. He said the "girls" were also in the room at that time. He said he did not speak to the girls he did not know; he just said "hi". He later described them as Caucasian. He said the girls were talking to their boyfriends. He said when he left the granny flat to go home the only people there were "Ikuna and his girlfriend" (that is, Ms Castle and Mr Uasi). He said he did not see the other two girls leave (that is, Ms Wilkinson and the complainant).
4. When police put to the applicant the circumstances in which he was alleged to have assaulted the complainant he gave a series of categorical denials. The applicant also denied being slapped by Ms Castle. He said there was no disagreement of any kind whilst he was at the granny flat. He agreed that he was wearing the red and white football jersey whilst at the granny flat.
5. He said that he did not know if anyone sexually assaulted one of the "white girls" in the bedroom: Q283: Did you rape one of the girls? A (Int): No. Q284: Because there's a reason why you're here, we're speaking to you here? A (Int): Yes. But I didn't do anything. I didn't do anything to anybody. Q285: Do you know if anyone else raped that girl in that room? A (Int): I don't know. Maybe her boyfriend. I don't know.

Detective Ford's evidence

1. Detective Ford gave evidence that they were unable to identify or locate the person "David", but that the person "Tonga" had been identified as Tonga Tauheango. He confirmed that Mr Tauheango had been residing with the applicant at a number of different addresses but police had been unable to locate him. Detective Ford also gave evidence, under cross-examination, that on the basis of the DNA results, police continued to make enquiries as to Mr Tauheango's whereabouts as a person suspected of having had non-consensual sexual intercourse with the complainant. Those enquiries included a police publicity campaign. As at the time of the applicant's trial, Mr Tauheango had not been located by police.
2. Under cross-examination, Detective Ford gave evidence that he had been informed by the complainant of the results of the DNA analysis. He confirmed that the complainant told him she did not have intercourse in the days preceding 25 March 2018 and when he asked her whether she had intercourse with anyone else on the night of 25 March 2018, he gave the following evidence: Q. You also asked her whether or not she had sexual intercourse with any other person that night? A. Yes. Q. And she informed you that she didn't? A. Yes. I should probably clarify that, and I apologise, she informed me, when she said that she didn't have sexual intercourse with anyone else that night, it wasn't an unequivocal, "That was the only person I had sex with that night". It was, "I do not recall having sex with anyone else that night". Yep. Q. So essentially, "All I can remember is this one incident"? A. Yes.

Forensic evidence

1. The following is a summary of the results of the examination by the forensic nurse at Blacktown Hospital on 25 March 2018:

• The complainant was still wearing the clothing she wore when she was assaulted.
• The complainant had not showered or bathed. She had eaten food but had neither an alcoholic drink nor a non-alcoholic drink since the assault.
• The complainant said there may be additional DNA as a result of consenting intercourse in the previous five days (although this was inconsistent with the complainant's evidence, she was not cross-examined about it).
• The complainant had pre-existing bruises on the right side of her neck but on the inner left forearm there was a row of five to six brown bruises the complainant could not explain (these had the appearance and typical features of fingertip bruising). The complainant had four linear fine red abrasions or scratches on the front of her right thigh but was unsure how she sustained them.
• The complainant had tenderness to her lower back but no visible injury was noted. The complainant was unsure why she had that tenderness.
• The complainant underwent a genital examination which was found to be normal. She did complain of lower vaginal tenderness.
• At 4.10pm she provided a urine sample and at 4.30pm she provided a blood sample.
• Mouth swabs and genital swabs were collected and all the swabs and samples were sent for forensic analysis.

The DNA evidence

1. The Crown adduced evidence from a forensic analyst concerning the results of the DNA analysis of the profiles generated from the genital swabs taken from the complainant and samples from her underwear.
2. The analyst said that if a man has sexual intercourse with a woman but does not ejaculate there is the possibility of recovering male DNA from his skin cells from within the vaginal cavity, however they would not be expected to be found after the passage of 24 hours. Further, she said that if one man has sex with a woman and ejaculates and then another man has sex with the same woman and does not ejaculate it is unlikely that the second male's skin cells would be able to be detected because the first male's semen would "facilitate the dilution and the drainage of the second male's skin cells out of the vagina", such that the first male's rich source of DNA would be competing with the "not-so-rich source of the second male's DNA". Accordingly, it would not be surprising if, in those circumstances, the second male's DNA was not recovered. The analyst also gave evidence that semen can survive in a woman's vagina for up to five days, or even longer if the woman is immobile.
3. As to the likelihood of recovering a woman's DNA from the penis of a man who she had sex with 24 hours earlier, the analyst said that recovery was possible but it would depend on a range of variables, including if the male was wearing underpants after sexual intercourse which would diminish the possibility of recovery due to the friction between the skin and material.

The results of toxicology

1. It was not in issue at the trial that the complainant was intoxicated before she arrived at PJ Gallagher's on 24 March 2018 and that her level of intoxication increased over the course of the night and into the early hours of the following day. At the trial, expert evidence from a toxicologist was adduced by way of an agreed statement of facts. From the complainant's blood samples provided at 4.30pm on 25 March 2018, the toxicologist estimated that at 8am on that day she would have had a blood alcohol concentration (BAC) of 0.176g/100ml of blood. To reach that BAC, the complainant would have had to consume between 11 and 20 (most likely 16) "standard" drinks. The toxicologist was of the opinion that with a BAC of 0.176g/100ml of blood the complainant would have been "affected by alcohol significantly to the extent that her cognition [of the sexual intercourse] was compromised". The toxicologist opined that "[w]hen combined with alcohol even a small amount of marijuana use can affect a person's cognition and memory". There was no cannabis detected in the complainant's blood sample.

The closing submissions of counsel

1. As I have observed earlier, the issue that confronted the Crown at trial in seeking to prove the applicant's guilt beyond reasonable doubt, and the issue which confronted the defence in seeking to raise a doubt about his guilt, was whether or not the jury would accept as reliable the complainant's identification of the applicant as the man she woke to find sexually assaulting her, inter alia, in circumstances where another man's DNA had been found in her vagina and where she was intoxicated.
2. The Crown advanced the following submission in closing: So the only real question for you is if you think it's reasonably possible - to put it that way - that she's made a mistake [about the identity of the assailant], then that's something that you will need to discuss and talk about in the jury room. But we know a couple of things. We know that at the time she says she was sexually assaulted, that Tonga and the accused were in the house with her. We know someone has ejaculated inside of her and we know that that person was not the accused, Mr Inia. Now, I can't say to you whose DNA it is because ultimately we have no evidence one way or the other, and clearly her evidence was that she was drunk and she went to sleep and she clearly has no recollection of having intercourse with anyone other than Mr Inia. It seems when she goes to sleep, she's obviously been drinking and it seems she goes into a fairly deep sleep because she says that when she wakes up, the accused's penis is already inside of her. So on her version, her pants and underpants have been pulled to one side when she wakes up and that must have happened when she was asleep because by the time she wakes, up he's already inside of her and I guess it goes without saying, fairly obviously, that whatever happened when she was asleep, between the time of when she went to sleep and the time she woke up, she doesn't know what happened then, clearly, for obvious reasons; she's asleep, she has no recollection. I can't submit to you why she woke up when she did but, nevertheless, she does wake up and the Crown would say that from that point in time, her evidence was very clear and very unequivocal. She comes to and she is adamant from the get-go that it is the accused. So there doesn't seem to be any uncertainty about it. She recognises him from before, she tells it to Mistery. There's two men in the house and she says that one of them is the one that raped her.
3. The Crown submitted that the jury would be satisfied the complainant was both a credible and reliable witness and, despite there being some obvious mistakes in her recollection of events of the night (for example, who was in which taxi after leaving PJ Gallagher's and after leaving the first granny flat and en route to the second granny flat) and even taking into account her likely blood alcohol concentration at the time of the assault, she was unshaken in her evidence that it was the applicant she woke to find on top of her penetrating her vagina with his penis.
4. The Crown submitted: I suggest to you no matter how much you drink and you could be mistaken about some things, and while you may be mistaken about some things, you're not going to be mistaken about the face of the man who you wake up and say that he has sexually assaulted you. That is not a mistake that you could reasonably find she has made.
5. Defence counsel raised for the jury's consideration what he contended were aspects of the complainant's evidence which would cause them to question the reliability of her identification of the applicant as the person she woke to find sexually assaulting her.
6. So far as the DNA was concerned, defence counsel submitted that it was open to the jury to infer that the person whose seminal fluid was deposited in the complainant's vagina was the only person who had sexual intercourse with her without her consent at the granny flat and that, despite her genuine belief that it was the applicant who she woke to find penetrating her vagina, she must be mistaken.
7. The jury were invited by defence counsel to find the level of the complainant's intoxication, compounded by the fact that she gave evidence that she was not an experienced drinker, coupled with the effects of the trauma she obviously experienced because of the assault, have caused her to hold the genuine but mistaken belief that the applicant assaulted her. Counsel also submitted that the photo board identification ten days later was based upon that same mistaken belief. Counsel also reminded the jury that the only evidence that it was the applicant who was in the bedroom with the complainant at any time on 25 March 2018 was the evidence of the complainant herself, and that her evidence that Ms Castle and Mr Uasi came into the room whilst the applicant was sitting on the end of the bed was contradicted by their evidence.
8. Finally, defence counsel also focused his submissions on the fact that neither Mr Tauheango nor the person called David had been called by the Crown, with Mr Tauheango being the more important missing witness given that the complainant gave evidence she was kissing him at various times during the course of the early morning hours of 25 March 2018 and that he was also in the granny flat at the time of the sexual assault. Defence counsel then advanced the following submission: Tonga is also placed at the house at the time of the alleged sexual assault and is being treated by police, essentially, as a person who is wanted in connection with the offences, that is, police want to speak to him about the offence. You would recall the exchange I had with the OIC in cross-examination as that he gave an opinion as to how he saw Tonga's role. The fact that the police, ladies and gentlemen, think that Tonga is possibly a person who they need to speak to in connection with these offences and there being the presence of someone else's semen that belongs to an unidentified third party, that of itself, just the fact that they are seeking someone else, ladies and gentlemen, would be another source of doubt for you.

Ground 2: The fresh evidence ground

1. In written submissions, the applicant's counsel did not limit the fresh evidence upon which he relied for an order for a retrial to the forensic evidence. He also relied upon the facts sheet, prepared by police at the time of Mr Tauheango's arrest, in which it is alleged that both Mr Tauheango and the applicant had non-consensual sexual intercourse with the complainant while she was unconscious, a case which counsel submitted was different to the case advanced by the Crown at the applicant's trial. He also submitted that because the facts sheet alludes to the likelihood that evidence of flight will be adduced by the Crown as evidence of Mr Tauheango's consciousness of guilt, that also meets the test for fresh evidence. He submitted that because the applicant is now in a position to invite a jury to contrast his behaviour in co-operating with police, including voluntarily participating in an ERISP, with the behaviour of Mr Tauheango who actively evaded police, his case at any retrial that Mr Tauheango is the person the complainant says sexually assaulted her is further strengthened.
2. I am unable to accept that either the facts sheet or Mr Tauheango's actions in avoiding or evading police constitutes fresh evidence.
3. Dealing first with the issue of flight: whether the Crown will seek to adduce evidence of flight as a circumstance supporting an inference of Mr Tauheango's guilt is a matter quintessentially for the judgment of prosecuting counsel in the conduct of the Crown case at trial. It is not, in my view, fresh evidence as that concept is understood in the authorities, if for no other reason than the evidence was not only constructively available to the applicant at his trial, but it was forensically exploited by his counsel. Through cross-examination of the officer in charge, the jury were informed that Mr Tauheango was regarded by police as a suspect and that he could not be located, the relevance of which could only have been to raise for the jury's consideration that Mr Tauheango was deliberately avoiding police because he was the person who assaulted the complainant. The extract from defence counsel's closing address at [52] above seeks to make that case.
4. Neither, in my view, does the predicted change in the Crown case theory qualify as fresh evidence. On the assumption that the evidence the complainant gave at the applicant's trial will be consistent with the evidence that she would give at Mr Tauheango's trial (or at any joint trial with the applicant if he is to be retried), the Crown case against the applicant must inevitably be that the complainant was sexually assaulted by Mr Tauheango in the bedroom of the granny flat whilst she was asleep and that she was only roused to wakefulness or consciousness when she was being sexually assaulted by the applicant.
5. The fact that the Crown will now advance the positive case that both men sexually assaulted the complainant is clearly relevant to the question whether, in the view of this Court, there is a significant possibility that were the jury at the applicant's trial aware that the unidentified DNA was that of Mr Tauheango he would have been acquitted. But that is not because the change in the Crown case per se constitutes fresh evidence. The Crown case as it will be advanced at Mr Tauheango's trial (and at any joint trial with the applicant if he is to be retried) is simply the inevitable consequence of the fresh DNA evidence which establishes Mr Tauheango had sexual intercourse with the complainant. The question still remains whether that evidence is such as to give rise to a significant possibility that the jury at the applicant's trial would have had a reasonable doubt as to his guilt.
6. That question needs to be answered in the context of the way in which the Crown and the defence cases at trial were conducted.
7. The applicant submitted that at his trial he could do no more than allude to the possibility that the man who had sexual intercourse with the complainant was Mr Tauheango, without being in a position to positively assert that fact. In contrast, the fresh evidence provides an evidential basis for him to positively assert that he has in fact been misidentified by the complainant.
8. The Crown submitted that the Court should refuse to allow the applicant the opportunity to take forensic advantage of the fact of the DNA "match" with Mr Tauheango, when at his trial counsel made the forensic decision to prevent the Crown, in closing submissions, from inviting the jury to draw the inference that Mr Tauheango had also assaulted the complainant.
9. At the hearing of the appeal the Crown read, without objection, an affidavit from Ms Boulous, solicitor, which annexes the written submissions from both the Crown and defence counsel directed to the question whether the Crown should be permitted to go to the jury on that basis.
10. In those submissions defence counsel complained that the so-called "two man theory" was neither opened upon by the Crown nor was the complainant questioned on the basis that another person might have had sexual intercourse with her without her knowledge before the applicant assaulted her. In those circumstances, defence counsel agreed that it would be productive of unfairness to the accused to allow the Crown to change its case in closing submissions. Defence counsel also submitted that the Crown's approach was to invite the jury to speculate as to the circumstances in which the unidentified DNA was deposited in the complainant's vagina, there being insufficient evidence in the Crown case to support the "two man theory" for which the Crown contended.
11. In its submissions before the trial judge, the Crown emphasised that it was only on the application of defence counsel that the unidentified semen and the evidence that the complainant was kissing Mr Tauheango from time to time, both in the taxi and at the granny flat, was adduced at all. The Crown had taken the view that this evidence implied that the complainant had prior sexual experience and to adduce it would be in breach of the prohibition in s 293 of the Criminal Procedure Act 1986 (NSW). The Crown further submitted that, in any event, it was not obliged to have opened to the jury on the "two man theory" given the way in which the evidence emerged during the course of the trial, citing the judgment of Wilson J in R v Fantakis [2018] NSWSC 749 as support for that proposition. The Crown submitted it was entitled in its closing address to meet what the Crown anticipated would be defence counsel's closing submissions, to the effect that because the complainant had only given evidence of having sexual intercourse with one man at any relevant time on 25 March 2018 she must be mistaken as to the identity of the man who assaulted her given the unidentified male DNA.
12. It seems the trial judge did not ultimately need to decide the question, the Crown having apparently resolved that it would not invite the jury to infer that the unidentified DNA was probably Mr Tauheango's and that he had sexual intercourse when the complainant was asleep before the applicant assaulted her, electing instead to focus its submissions on the reliability of the complainant's evidence that she recognised the applicant as the man who she woke to find sexually assaulting her, and the evidence supporting her evidence in the actions and reactions of others in the granny flat to whom she made immediate complaint.
13. On the hearing of the appeal, the Crown submitted that because defence counsel at trial actively sought to prevent the Crown from advancing the argument in closing submissions that the DNA was probably Mr Tauheango's (a tactical decision understandably taken by defence counsel in order to afford the applicant the optimum prospect of raising a doubt as to his guilt), it cannot now be put against the Crown that because the Crown case against Mr Tauheango will be positively grounded on the "two man theory", that the Crown has somehow changed its case to the prejudice of the applicant; neither can the applicant contend that a miscarriage of justice has been occasioned by the availability of evidence confirming a DNA match with Mr Tauheango.
14. In support of that the submission, the Crown referred the Court to R v Abou-Chabake at [63] where Kirby J (with whom Mason P and Levine J agreed) identified a number of questions that arise in circumstances where the fresh evidence is not said to be of such cogency that innocence is shown such that the Court is invited to enter a verdict of acquittal, but where, as here, the evidence is said to raise a significant possibility that a jury would have acquitted the accused and an order for a retrial is sought. His Honour said: Sixth, where the evidence does not have that quality [of cogency], or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: - Is the evidence fresh? - If it is, is it "credible" or at least capable of belief (Gallagher v The Queen [(1986) 160 CLR 392] per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen [(1989) 167 CLR 259] per Toohey and Gaudron JJ at 301)? -·If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen [(1974) 131 CLR 510] at 517).
15. In the Crown's submission, the way the Crown will put its case at any retrial of the applicant, a case in which the fresh DNA evidence will feature dominantly, and logically so, is in essence no different from the way the Crown put its case at the applicant's trial in which the complainant's evidence of recognition and identification and in the context of her immediate complaint was the essence of the Crown case.
16. In that sense, it is the Crown's submission that the fresh evidence does not support the fundamental proposition the applicant must establish if he is to be granted a retrial, namely, that were the jury aware of the DNA match with Mr Tauheango there is a significant possibility they would have been left with a reasonable doubt as to the applicant's guilt and returned a verdict of not guilty. In the Crown's submission, there is nothing in the fresh evidence that has the necessary effect, or might have the effect, of undermining the probative force of the complainant's evidence of both recognition and identification given the issues at trial and defence counsel's tactical and forensic decisions made in the adversarial atmosphere of the trial.
17. The Crown submitted that it is the reliability of the complainant's evidence of recognition and identification that is in issue and the fresh evidence does not change that. Furthermore, since Mr Tauheango and the applicant are utterly unlike in appearance and since the complainant identified the applicant by his distinctive facial features, at 5 to 10 centimetres above her face, as he was penetrating her and, further, where the complainant had been in Mr Tauheango's intimate company both earlier on in the evening and en route to the train station, the case of the applicant's mistaken identity is seriously weakened. In the Crown's submission, the fresh DNA evidence simply does not address the applicant's case of mistaken identity such as might persuade this Court that, were it available at the applicant's trial, there is a significant possibility he would have been acquitted.
18. Analysed in that way, it is the Crown's submission that the fresh evidence is not productive of a miscarriage of justice entitling the applicant to a retrial. In short, the case he advanced at his trial and the case he will seek to make on his retrial where the fresh evidence will be adduced (this time by the Crown as a positive aspect of its case) are essentially the same.
19. I accept that submission. To the extent that the fresh evidence does allow for the complainant to be cross-examined on the basis that she is mistaken as to the identity of this applicant as the person who she woke to find sexually assaulting her, I am not persuaded there is a significant possibility that the jury would regard it as reasonably possible that the complainant was so affected by alcohol that she mistakenly identified the applicant when she woke in the process of being sexually penetrated. I do accept, however, that it would appear that she must have been heavily intoxicated, to the extent that she did not wake when she was sexually assaulted by Mr Tauheango in what must have been a sexual assault which preceded the applicant's sexual assault. Since there was no suggestion at the applicant's trial that the complainant gave deliberately untruthful evidence as to the circumstances in which she was assaulted, or that she gave deliberately untruthful evidence about not having had consensual sexual intercourse with another man at the granny flat, including Mr Tauheango, it seems to me that it follows that she must have been mistaken in thinking that no one else other than the applicant had sexual intercourse with her whilst she was asleep in the bedroom.
20. I would dismiss the second ground of appeal.

Ground 1: The verdict of the jury was unreasonable and cannot be supported by the evidence

1. This ground of appeal is to be assessed in the context of the evidence that was adduced at trial, notably absent any evidence that the DNA that was profiled from the seminal fluid recovered from the complainant's vagina was a match with Mr Tauheango.
2. The question for this Court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13).
3. In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, the High Court considered the test to be whether it was "open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt". As this Court observed recently in Hamilton v R [2020] NSWCCA 80, the High Court has confirmed in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 that "these formulations are both authoritative and consistent with each other" (at [66]).
4. It is also clear that this Court must undertake its own independent assessment of the evidence (M v The Queen; SKA v The Queen) whilst having regard to "the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence" and the consideration that the jury had the benefit of seeing and hearing the witnesses give evidence (M v The Queen at [7]; MFA v The Queen at [49]).
5. The High Court has emphasised the deference that must be accorded to the jury's verdict, not only because the jury were in a better position than an appellate court to assess the credibility of witnesses, but because of the constitutional authority of the jury. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court said (at [65]): It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
6. Counsel for the applicant submitted that the DNA evidence, as it stood at the time of trial, was not only entirely consistent with the applicant's account in the record of interview in which he denied having any physical contact with the complainant, much less any sexual contact with her, but it should have generated in the jury's analysis of the evidence a reasonable doubt as to the complainant's identification of the applicant as the man who she woke to find sexually assaulting her. Counsel also emphasised that in addition to the seminal fluid recovered from the complainant's vagina sourcing from a person other than the applicant, there was none of the complainant's DNA recovered from the swabs taken from the applicant's penis, or from his football jersey, and none of the unidentified male DNA was identified in the swabs taken from the applicant's penis.
7. Having reviewed the evidence from the forensic analyst in detail, the fact that there was no forensic evidence capable of corroborating the complainant's account of having been sexually penetrated by the applicant's penis in the way the complainant described is not, in my view, so overwhelmingly an exculpatory feature of the evidence that the jury should have been left with a reasonable doubt as to the applicant's guilt, whether on the basis of the DNA evidence alone or as adding weight to the proposition, advanced by defence counsel, that it is reasonably possible that the complainant was mistaken as to the identity of the man who was assaulting her. The analyst offered a range of scenarios which the jury were entitled to regard as capable of accounting for the results of the DNA analysis, consistently with the Crown case.
8. A second body of evidence relied upon by the applicant in support of the proposition that it was not open to the jury to convict the applicant was evidence of the extent of the complainant's intoxication. Counsel submitted that, taken together with the DNA evidence, this evidence ought to have generated a reasonable doubt as to the identity of the person who assaulted the complainant. I note that it was no part of the applicant's case at trial, nor on the appeal, that the extent of the complainant's intoxication impacted on her capacity to accurately and reliably describe what the assailant was doing when she woke to find him straddling her, in the sense that she may have been mistaken as to the fact or extent of sexual intercourse. Reliance was also placed on the applicant's cooperation with police and his denials in his ERISP.
9. In summary, the applicant's counsel submitted that when the evidence at the applicant's trial is viewed as a whole, there were a series of compounding improbabilities such that this Court would conclude that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt
10. In my view, that submission does not sufficiently account for the evidence that was adduced by the Crown at the applicant's trial probative of the applicant's guilt, which I have set out in detail above and which has been comprehensively addressed in the Crown's written submissions. On my review of the evidence, the probative force of the complainant's evidence identifying the applicant as the assailant, in the context of her evidence of immediate complaint and her nomination to at least Ms Castle that the applicant was the person who assaulted her, an identification which she confirmed by selecting the applicant from a photographic array, is compelling and open to the jury to accept.
11. I am also of the view that although the Crown did not invite the jury to infer that the unidentified DNA was Mr Tauheango's and that he also had non-consensual intercourse with the complainant (albeit when she was asleep) that was a process of reasoning open to them. I do not regard the foreign DNA as the obstacle to conviction contended for by the applicant on the appeal.
12. Finally, in my view, the submissions of the applicant's counsel fail to address what the jury were entitled to regard as an untruthful account given by the applicant to police in which he denies any knowledge or association with Mr Tauheango given the evidence in the Crown case that they lived together and that he was likely to have been at the granny flat at Mr Tauheango's invitation. The jury were entitled to take that into account when considering the truthfulness of the applicant's account to police that he had no sexual contact with the applicant. His denials to police of any knowledge that there was any confrontation in the granny flat is also contradicted by the complainant's evidence and the evidence of Ms Castle and Mr Uasi. This was also available to the jury as further undermining reliance on the denials in his ERISP as capable of raising a reasonable doubt as to his guilt.
13. I would dismiss the first ground of appeal.

Orders

1. The orders which I propose are: 1. Leave to appeal against conviction is granted. 2. The appeal against conviction is dismissed.
2. WILSON J: I have had the considerable advantage of reading the judgment of Fullerton J in draft. Like her Honour, I would dismiss ground 2. I also share her Honour's conclusion with respect to ground 1. The complainant's evidence was compelling, and the verdict returned by the jury was well open to it. Nothing advanced by the applicant has caused me to doubt the correctness of the verdict.
3. I agree with the orders proposed by the Presiding Judge, and gratefully adopt her reasons for them.
4. IERACE J: I also agree with Fullerton J.

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