KA v R

The Crown case

1. A brief outline of the Crown case follows. It will be necessary to examine more closely the evidence of the complainant, of various Crown witnesses, and of the appellant and of a witness called on his behalf.
2. From about 7.15pm on 5 May 2012, the complainant, who was then 14 years of age, was with two friends of the same age at a park near Coogee Beach. There they consumed pizza, and tequila mixed with soft drink. The complainant became intoxicated. The three then joined another group of teenagers (older than they) at a nearby location on the beach. The appellant and EZ were among that group. The complainant stumbled and fell, and EZ assisted her to her feet and then steered her away from the group and up a hill. After a time, EZ was joined by the appellant. The complainant was sufficiently intoxicated as to need assistance in walking up the hill. The appellant gave that assistance. The complainant fell. The appellant pulled her up so that she was on her knees. EZ then, with the assistance of the appellant, forced his penis into the complainant's mouth. This was the act that, the Crown alleged, constituted the sexual intercourse without consent the subject of the first count on the indictment. Although the appellant was not responsible for the act of intercourse, his presence and participation was, on the Crown case, sufficient to render him liable on the principles of joint criminal enterprise.
3. Very soon after, another act of intercourse took place, this time penile/vaginal. Although in her evidence the complainant attributed this act to EZ, it was, on the Crown case, the appellant who penetrated the complainant. The Crown called DNA evidence to support that assertion. This was the act that gave rise to the second count on the indictment.
4. Police were notified of the events in the park. A little before 10.00pm various police officers arrived at the scene. EZ and the appellant were arrested and taken to the Maroubra Police Station. Their clothing was taken for the purposes of DNA testing. A doctor (Dr Clifford) attended for the purpose of taking swabs, also for the purposes of DNA testing. I will refer to the results of DNA testing below.
5. The complainant was taken to the Royal Prince Alfred Hospital. At about 4.00am Constable Danielle Roger took a statement from her. At about 9.00am the following day, 6 May, the complainant was examined by Dr Sumethri Rajendran. Dr Rajendran took a history from the complainant, and also took swabs from her mouth and vagina for the purposes of DNA testing. This DNA testing produced little of assistance. No semen was detected in the swabs from the complainant's vagina.
6. The complainant made a lengthy recorded interview with police on 9 May 2012, and another on 19 April 2013.

The Crown opening

1. At the commencement of the trial the Crown prosecutor opened the case he proposed to present. He outlined the evidence he anticipated to be given concerning Count 1, the alleged act of oral intercourse by EZ. The transcript records that he said: "As well as that the Crown challenged [sic - ? charged] [the appellant] re the sexual intercourse without consent. What we say is that [the appellant] was present at the time and present through an agreement, perhaps even moments before with [EZ] to commit sexual intercourse upon [the complainant] in circumstances where both men knew she was not consenting and it was obvious that she was not …"
2. He proceeded to outline the Crown allegations with respect to Count 2, the penile/vaginal intercourse with the complainant, and is recorded as saying the following: "She will then I anticipate tell you that she felt somebody, a person who we say was one of the accused, on top of her. Her description of who this person is, is of less detail than her description of the person who put his penis in her mouth, she is able to say that it was a slimmer person who put his penis in her mouth. Her description of who it was, was on top of her, is I anticipate based on the smell or a feeling of clothes or a feeling of weight … She says she felt, she would say that she felt someone holding her wrists, was heavy pressing down on her and her wrists were being held by hands … Now, whatever he [sic - her] description is, those few descriptions of heaviness or clothing, the Crown's first position is that this was [the appellant] who was on top of her and penetrating her vagina with his penis. At this point in time the Crown says that [EZ] remained nearby but exactly where, is unable to say …" (italics added)
3. A little later, the Crown prosecutor said: "Let me take you back then to count 2 on the indictment. I described to you what we say was an act of sexual intercourse. That is the penetration in [the complainant's] vagina by the penis of the person we say primarily, or in our first position, is [the appellant]. Now this is quite clearly sexual intercourse, again the Crown needs to prove that it occurred without her consent and in the same way relying on what I've already explained to you, we need to prove that it was without consent and that [the appellant] knew that she was not consenting and we rely on the same things that we relied on … that he was reckless as to her not consenting. And similarly we say that the two of them were in company in the same way that I have already explained to you and similarly we say that [EZ] is also responsible because of the joint criminal enterprise that had been entered into between them …" (italics added)
4. A little later the Crown prosecutor is recorded as follows: "Now we're at a point in time where I've explained to you [the complainant's] intoxication and I've indicated to you point in time where we've discussed the forensic examination and results of that examination particularly of the two accused. The Crown has put to you a case in which it says [EZ] had sexual intercourse with [the complainant] and did so by putting his penis in her mouth and that [the appellant] was present and is also guilty of that because of an agreement joint criminal enterprise and what the Crown then says is because of the forensic results, forensic results from the sampling of the penises of the two men if it be the case that [EZ] put his penis in [the complainant's] mouth, [the appellant] has results that suggest he sexually penetrated [the complainant] as well and it must have been him who sexually penetrated her vagina and it is upon that basis that we say [the appellant] was the person, regardless of how [the complainant] might explain the person with heaviness of clothing of the smell regardless of what she says there we say it was [the appellant] who had sexual intercourse with [the complainant] because of the results particularly of the results from testing his penis and of [EZ]." (italics added)
5. Towards the conclusion of his opening, he said: "I want to finish this topic by saying this, if it in fact be the case that [the complainant] for reasons that perhaps have something to do with intoxication, lateness of the night or the lack of light, is confused about who put the penis in her mouth and it was in fact [the appellant], we say for the same reasons that I have been outlining to you, joint criminal enterprise, an agreement between the two to have sex with her in circumstances where she was not consenting then regardless of who did that act and regardless of who might have put their penis in her vagina, each is guilty of the first charge on the indictment and each is guilty of the second charge on the indictment. Again that is something perhaps that I need to say to you at the beginning of this trial to say look clearly what exist [sic], might be something that is further enlarged upon." (italics added)

The defence opening

1. Senior counsel who represented EZ made a brief opening. He said that the case for EZ acknowledged that he had had oral sex with the complainant, but that he believed that it was with her consent, and that he had every reason to believe that she was consenting.
2. Counsel who represented the appellant also opened briefly. With respect to Count 1, he said that the appellant's case was that he did not see any act of fellatio between EZ and the complainant, and that it would be put to the jury that they could not be satisfied that any such act was part of a joint criminal enterprise. With respect to Count 2, he said that the appellant's case was that the penile/vaginal intercourse the subject of that count simply did not occur.

The evidence in the trial

1. I turn now to an outline of the evidence so far as it is relevant to the various grounds of appeal pleaded. I preface that by noting that it was common ground in the trial that EZ was of a smaller, slighter build and stature than the appellant, and that the appellant was larger and bulkier. It was common for witnesses to differentiate between them using such terms. Where it is clear from the descriptions used by witnesses that the reference is to EZ or the appellant, I will use those terms rather than the clumsier descriptions.

The evidence in chief of the complainant

1. The complainant's evidence in chief was as follows. In May 2012 she was 14 years of age. On the evening of 5 May she had arranged a "sleep over" at the home of a friend (to whom I will refer as "S") who lived in Coogee. Another friend (to whom I will refer as "N") was also to stay overnight. The complainant was wearing denim shorts, a shirt and a jumper, and flat heeled shoes. The three had a pizza delivered, which they took to eat on the beach. The complainant was carrying a bag in which she had placed a bottle of tequila, taken from her home. S bought a bottle of cola, which the girls mixed with the tequila. They sat on a pavement near the beach and ate the pizza and shared the tequila. After they had finished the pizza they walked up some stairs to a nearby park. The complainant felt as though she was "pretty drunk".
2. On at least one occasion the complainant fell over. A male came to help her. (It was common ground that this was EZ.) The complainant described him as "kind of slim, muscular, like athletic build", with a Lebanese, or "western Sydney" accent. EZ helped the complainant to her feet, put one arm around her, and walked away with her at a "fast, really fast" pace. With the other arm he held her wrist.
3. The complainant was quite affected by alcohol. EZ started to walk her up a hill. The complainant protested. She told him that she wanted to stay with her friends, and "kept screaming out" for her friends, calling them by name. EZ put his hand over her mouth. S began to walk along with them, asking EZ where he was taking the complainant, and telling him to leave her alone. EZ told S to go away. Another boy (not the appellant) approached and told S that she had dropped her bottle. EZ engaged the complainant in conversation, telling her she was pretty and that he liked her. She joined in the conversation, and told him that she liked him too. They walked up the hill, EZ supporting her.
4. At this point, another man joined them. The complainant described him as "a big guy" and said that, because she could not really walk, "he was pretty much carrying me up the hill now". It was accepted that this evidence related to the appellant.
5. The following evidence is recorded in the transcript: "Q. Had you seen this heavier built guy earlier on in the park for example by the pavement? A. Yeah when I looked back when the first guy was taking me away, he was - the big guy was talking to my friend [N]. Q. At this point in time where did you believe you were going? A. I had no idea, I kept asking. I was like where are we going and then the first guy [EZ] said 'Your friends are not here' because I kept asking about where they were and he said they're up here, they're up here and then they send the second guy [the appellant], he said 'They're down there with my friends' and then I started getting really concerned and the second guy starting putting his hand, like just kept touching me like here across my shoulders and I just was getting worried and my friends - my friend - my phone was calling and they turned my phone off so I started walking back down the hill to go back down to my friends--" The complainant was not sure, but thought it was "the second person" (that is, the appellant) who turned off her telephone.
6. After they reached the top of the hill, she started walking down the hill, but she tripped over and fell to the ground. Both EZ and the appellant were still present. The complainant told EZ and the appellant that she wanted to remain on the ground. However "the big guy" (that is, the appellant) was grabbing her arm, attempting to pull her up and urging her to keep going. He pulled her to her knees. EZ was standing in front of her. The appellant was to one side, but: "… eventually he had to stand behind me to keep me like - keep my head there, you know."
7. EZ pulled down his pants and exposed his penis, which he attempted to insert in the complainant's mouth, eventually succeeding in doing so. The complainant said that she kept trying to pull her head away and telling him that she did not want to engage in the conduct. When he eventually did succeed in inserting his penis into her mouth, she bit it. He said: "Come on just do it and watch your teeth." She pulled her head away again; EZ put his hand on the back of her head and pushed his penis into her mouth. This went on for about a minute.
8. While this was happening the appellant was standing to one side. As she turned her head: "… he was standing right behind me and was trying to like keep me there and keep me up." The complainant fell back to the ground. Up to this point she was still clothed. At some point, her clothes were removed. She was unable to say by whom, but she did not remove them herself.
9. The transcript then records the following evidence: "Q. Now when you were on the ground did you notice somebody close to you? A. Yes. Q. What did you notice of that person when you were on the ground at this point in time? A. That they got on top of me. Q. Did you notice where their hands were? A. Yep. His hands were holding my wrists down because I was trying to push his just away from mine. Q. Where was his chest compared to your chest? A. The way he was positioned he was just trying to put his pressure on my hands, on my arms, so he was, his chest was probably a bit below mine. Q. And when this was happening did you feel something? A. Yes. Q. What did you feel? A. I just felt this really, really, strong pain. Q. Where did you feel the strong pain? A. Everywhere, I mean it was just like, like I knew what it was but it was just really, really painful and I can't describe it but it was just so painful. Q. Was there any particular place where you felt it? A. Yeah I knew that it was his penis going inside of me but I don't know I just felt it everywhere. Q. When you say going inside of you what do you mean? A. Like his penis going in my vagina."
10. The complainant was then asked what she remembered of the male who was doing this, to which she replied: "I mean I know it was the first guy [EZ] because I remember I just, I just know you know, and I remembered his smell and his voice." She said the other male (that is, the appellant) was "just standing just a bit away from us".
11. In answer to a question from the trial judge, the complainant confirmed that the male who had penile/vaginal intercourse with her was "the boy that took me away", that is, EZ.

Cross-examination of the complainant

1. In cross-examination by senior counsel representing EZ, the complainant acknowledged that notes made by Constable Roger of the conversation with her at the hospital included the following: "[victim] recalls male on top of her to feel heavy and that is why believes POI 2 [that is, the appellant]."
2. It was put to the complainant that she had told the police officers at the hospital that she believed that the male who penetrated her vaginally was "the heavier male" (that is, the appellant) because of his weight. She replied: "I wasn't sure. I remember telling them that I wasn't sure."
3. In cross-examination on behalf of the appellant, the complainant acknowledged that, in the first interview with police (9 May 2012), she had been asked what the "bigger guy" (that is, the appellant) was doing (during the first incident), to which she replied: "He was just standing, like he was just standing there on the side. Maybe he kept on like turning his head like both ways." She acknowledged that she had not then made any mention of the appellant pulling her up (to her knees), saying that there was "a lot of information" in the first interview and that this was something that she had forgotten to mention.
4. Later in the cross-examination on behalf of the appellant, she gave the following evidence: "Q. You talked about the act of sexual intercourse before the normal act of sexual intercourse, and it's penile vaginal intercourse and you say the person who did that to you is the skinny guy [EZ], right? A. Yes. Q. Do you say that the other guy [the appellant] was there when this act of sex occurred? A. Yes. Q. But he wasn't doing anything was he? A. Not that I remember. Q. So you do not remember him doing anything, is that correct? A. I don't remember him having intercourse with me, no. Q. No, no, no, my question is that he was not doing anything? A. At that point in time. Q. I'm not asking you if he was performing some sort of sexual act, what I'm saying is that he was not doing anything, is that correct? A. I don't understand what you're asking me. [His Honour intervened to ask if the questioning related to the time of the penile/vaginal intercourse] Q. Did you hear what his Honour says, I am talking about the time you were being subject to sexual intercourse in the normal way, the penis in your vagina. Do you say that at that point in time, the other person was not doing anything? A. Yes."
5. The cross-examiner went on to put to the complainant that no such act of intercourse had ever been performed upon her on that day, and that "for your own reasons you are making that up?". She answered both questions by saying that the proposition contained therein was not true.

Other evidence in the Crown case

1. Evidence was also given by the complainant's two friends who had accompanied her to the park, and by two other young women who were also present but not part of the complainant's group, or the appellant's group.
2. One witness to whom I will refer as "KL" was a 16 year old female present at the park with friends (one of whom was "LW"). They were sitting on the roof of a small building. KL saw two boys (who, it was not disputed, were EZ and the appellant). A female (the complainant) was lying on the ground. One of the males was standing on top of (over) the complainant, with a leg on either side of her body. This was the smaller of the two males (EZ). The larger ("chubbier") man (the appellant) was standing nearby, looking towards where KL and her group were. The complainant attempted to get up; EZ pushed her back to the ground.
3. KL was concerned about the welfare of the complainant, and approached the appellant, and asked if the complainant was "okay". He replied that she was, and said "that's his girlfriend". KL asked if the complainant needed help, or needed to be taken to the security guards; the appellant said that she did not, but asked if KL had any water. KL then saw the three move on; the males each had an arm around the complainant, helping her up the hill.
4. In cross-examination KL said that the appellant was about 5 metres away from the complainant and EZ.
5. LW gave evidence similar to that of KL, and agreed that the appellant was about 5 metres away from the complainant and EZ.
6. As mentioned above, the complainant was examined by Dr Rajendran at the hospital, beginning at 9.00am on 6 May 2012. The history taken by Dr Rajendran was given in her evidence in chief, and includes: "[The complainant] remembered being separated from her friends and then being 'pulled' by a male, uphill. She recalled stumbling and falling over, then being pulled up by this male and 'navigated further'. [The complainant] then noticed a second male. She was talking to both males who were supporting her from falling. She stumbled for a second time, fell, then couldn't get up. The first male pulled her up and forced his penis into her mouth. His hands were on either side of her head as he was forcing his penis into her mouth. [The complainant] reported she kept trying to turn and pull away and the male would force her head back again. She recalled saying, 'No, I am not ready' … [The complainant] fell to the ground then felt a person on top of her. She thinks it was the second male as he was heavy and was clothed differently. [The complainant] then felt pressure and pain in the vagina. Then she screamed …"
7. Dr Rajendran conducted a physical examination of the complainant. She observed light bruising to the complainant's knees. She found that the complainant did not have a very prominent hymen, and that it was unbroken. That did not necessarily exclude vaginal penetration, because the hymen is an "extensile" organ, capable of stretching and expanding to admit a penis or digit without injury. She did not see any semen in the complainant's vagina.
8. In cross-examination Dr Rajendran agreed that in most cases of vaginal penetration, some rupture to the hymen would be expected.
9. Dr Rajendran then took samples of the complainant's bodily fluids which were sent for DNA testing.

DNA evidence

1. At some time after 9.00am on 6 May, at the Maroubra Police Station, Dr Clifford took swabs from the shaft and the head of the penises of both EZ and the appellant. "Tape lifts" were taken from the underwear that they were wearing when arrested. The swabs and the tape lifts were sent to Forensic Analysis and Science Services, where they were analysed by Ms Sandra Trabuio, a scientist employed at that laboratory.
2. Also at some time after 9.00am on 6 May, Dr Rajendran took swabs from the mouth and vagina of the complainant. These were also sent to Forensic Analysis and Science Services for analysis by Ms Trabuio.
3. Ms Trabuio gave the results of her analysis as follows. I note here that, in the case of each sample that yielded positive results, there was (as is usual) a major contributor and a minor contributor. In two of the results is this of any significance.
4. The results were as follows:

• the swab from the shaft of EZ's penis revealed DNA consistent with that of the complainant (this was the DNA of the minor contributor). DNA of that profile could be expected to occur in 1 in 310,000 individuals in the general population;
• swabs from the head of EZ's penis also revealed DNA consistent with that of the complainant (again that of the minor contributor), and of a profile that could be expected to occur in 1 in 18,000 of the general population;
• tape lifts taken from the underpants of EZ revealed DNA consistent with that of the complainant (again that of the major contributor) and of a profile that could be expected to occur in 1 in 6.9 billion individuals in the general population;
• swabs from the shaft of the appellant's penis revealed DNA consistent with that of the complainant (that of the minor contributor), the profile of which could be expected to occur in 1 in 100,000 of the general population;
• swabs taken from the head of the appellant's penis revealed DNA consistent with that of the complainant (that of the minor contributor), the profile of which could be expected to occur in 1 in 1.9 million of the general population;
• tape lifts from taken from the underpants of the appellant revealed DNA consistent with that of the complainant (in this instance, the complainant's DNA was again that of the major contributor), with a profile that could be expected to occur in 1 in 6.9 billion of the general population. It was accepted that this evidence established that it was, in fact, the complainant's DNA on the various sites.

1. Examination by Dr Rajendran of the complainant's vagina, and DNA testing of the swabs taken from her vagina detected no deposits of semen. Examination of swabs taken from her mouth revealed one sperm head, which was inadequate for the purposes of DNA identification.
2. The one area in which the relative contribution was significant was in the results from the underpants of the appellant and EZ. There the DNA consistent with that of the complainant was the DNA of the major contributor. Ms Trabuoi gave an explanation for that. She said that if the DNA of the major contributor was not the DNA of the person who wore the underpants, that was an indication that the DNA probably came from "a rich source of DNA, something like saliva, vaginal secretions". Ordinarily, she would expect that where the penis was rubbing on the underpants, large amounts of that DNA (that is, of the person wearing the underpants) would be present. She said: "… if there's DNA that's deposited onto the penis, then a pair of underpants is put on while that DNA is still wet, you'd expect it to transfer onto the underpants. It generally tends to last longer on the underpants because it dries onto that area."
3. She said that the results from the shaft and head of the appellant's penis, and from his underpants, were consistent with the appellant having put his penis inside the complainant's vagina and then putting on his underpants. That was because if the penis were inside the vagina it would be expected that when removed it would be "quite moist", and when the underpants were put back on, a transfer from the penis to the underpants would be effected. That could explain why the major contributor to the DNA in the appellant's underpants was not the appellant, but could have been the complainant.
4. With respect to the absence of semen in the complainant's vagina, Ms Trabuio said that it was unlikely that skin cells from a person who had inserted his penis into a female vagina would be still present after six hours since that occurrence, and "very impossible" after 12 hours. It will be recalled that the complainant's examination by Dr Rajendran commenced at some time after 9.00am. The evidence does not disclose with precision when the events the subject of the charges occurred, but police were called at about 9.45pm.
5. In cross-examination on behalf of the appellant, Ms Trabuio agreed that DNA could be transmitted to a person's hand by the mechanism of that person touching an item of clothing (particularly if the item of clothing was moist). It is best to set out the evidence as it is recorded in the transcript: "Q. … If it be the case that you picked up [the complainant's] shorts could you put her DNA on your hand? A. You could. Q. … If it be the case that you picked up [the complainant's] underpants I understand the answer you just gave in respect to the shorts it happen in respect to the underpants? A. To transfer to the person picking it up? Q. Transfer to the person's hands? A. It could. You would not expect a lot to be transferred that way. Q. What if it be the case when you were picking up the underpants you unwittingly actually touched the crutch of the underpants with the, how do you put it, feminine secretions in it? A. If you touch the crutch? Q. Crutch of the underpants with the feminine secretions in it? A. Yes. Q. That would be a good surface to pick up DNA? A. If you directly touched that area, yes. … Q. If you did a DNA analysis of the crutch of the lady's underpants it is likely that the DNA you would get from the feminine secretions would be a major component? A. Yes. Q. Because of the nature of feminine secretions? A. Vaginal secretions are very rich in DNA. Q. Very, very rich in DNA? A. Yes. … Q. If it be the case you picked up the underpants, you touched this very good area for DNA and it is on your hand and then you went and urinated, as you have already talked about, and you took your penis out of your pants in that process could you put the DNA on your penis if you have touched the area? A. More than likely if you touched the area and it is still moist -- [At this point the cross-examiner interrupted and was directed to allow Ms Trabuio to answer.] HIS HONOUR Q. More than likely if you touch the area and it is still moist? A. If it is still moist you would expect more to be transferred to the hand and if that hand is then with the moist secretion still on the hand almost immediately touched the other area then you could transfer it. [COUNSEL FOR THE APPELLANT] Q. Let's say if you went for a wee a couple of minutes later could you transfer it? A. You could. Q. It is not pie in the sky is it? A. No as long as you touch that area and more likely if the area was moist. … Q. A person touches a person's underpants in such circumstances may have touched or let's say a person touches a person's underpants and did, albeit unwittingly, touches the crutch area of the underpants and then some minutes later touched the penis it is possible you would have transfer of DNA from A to B to C isn't it? A. You can."

The defence cases

1. The responses made by or on behalf of the appellant and EZ were markedly different.

The appellant

1. The appellant gave evidence. His evidence was to the following effect.
2. The appellant first saw the complainant when "my mate [EZ] was picking her up". She hugged EZ. He hugged her. They then walked off in a northerly direction. The appellant joined the complainant's friends. He and a friend of the complainant (N) followed EZ and the complainant, until they disappeared from view. N asked the appellant to go and get the complainant. He told N to sit next to a nearby hut, while he walked in a northerly direction to find EZ and the complainant. He saw them a distance up the hill and jogged and walked towards them. He lost sight of them for 3 to 5 (or a little over) minutes. He did not see them again until he reached the top of the hill. He started to walk towards them, and was approached by another woman, who asked about the welfare of the complainant (this was KL). The appellant replied that she was all right, she was EZ's friend, and EZ was taking care of her. He began walking towards EZ and the complainant, and saw them walking off. He shouted to them, but they did not reply. He continued to call after them, and eventually caught up with them at the top of the hill. He shook EZ's hand, and said hello to the complainant. She was very friendly. She asked if she could hold his hand and did so. She started to talk about N. She seemed excited and was very talkative. He suggested that they return to the group, and she said that she did not want to because it was boring. He suggested that she telephone her friends, and she produced her mobile phone. She was unable to remember her passcode. She then dropped the phone. They looked for it but the complainant said not to worry about it.
3. The complainant was being flirtatious with EZ, holding him, whispering to him, and, the appellant thought, kissing him.
4. EZ and the complainant walked on. The appellant remained where he was, and called another friend. He saw EZ and the complainant walk away. The appellant telephoned two other friends. He again lost sight of EZ and the complainant. EZ returned, alone, and joined the appellant. One of the friends to whom he had spoken called the appellant. He said that they were trying to find the complainant, and to return to the group. He walked further, and saw the complainant. She was naked from the waist down. He asked her what she was doing. She did not reply. Her clothes and bag were nearby. He picked up her shorts and pants. One of the items (he did not know which) was wet. He told her to put them on. She did not take them. She began to sway, and leaned towards him, and put all of her weight on him. He dropped the clothes and held her, so that she would not fall down. She was near some rocks. He found a suitable location on a flat rock and laid her down. He retrieved her shorts and handed them to her and asked her to put her shorts on, but she did not. He put the shorts down next to her. He could not recall if he also picked up her underwear. At this point she appeared intoxicated. He told her not to move, that he was going to get her friends. EZ was still present. The appellant told EZ that they had to get the complainant's friends. He told EZ to wait because he (the appellant) was going to urinate. In his evidence in chief, he did not say that he had in fact urinated. Shortly after that, the police came and arrested him.
5. In cross-examination the appellant expressly denied having seen EZ undo his jeans, expose his penis, insert his penis into the complainant's mouth, or having seen the complainant move her head away. He denied holding her head in front of EZ, or seeing the complainant fall to the ground. He also expressly denied lying on top of the complainant or putting his penis in her vagina, or having intercourse with her. He said that he had a very vague recollection of urinating after he had left the scene.
6. The appellant also called expert evidence with respect to DNA, from Professor Boettcher.
7. Professor Boettcher, who was accepted as an expert in the field, gave evidence concerning the transfer of DNA. He said, for example, that DNA cells can be transferred from one person to another by handshaking. It is best to reproduce his subsequent evidence as it appears in the transcript: "Q. I want to put another scenario to you. I want to put to you this scenario; a person touches the shorts and the underpants of the female person, if that was to happen would that person be likely to get the female's DNA on his hand? A. Yes. Q. If the person in touching the female's underpants inadvertently touched the crutch area of the underpants would that increase the chances of there being the female's DNA on his hand? A. Yes. Q. Why would it increase the chances? A. Because in the crutch area of a female's underpants, there will be vaginal mucous that lubricates the vagina and inside the vagina there are very soft cells that rub off very readily and that would be there on the crutch area of the underpants. Q. Now, if under such circumstances, I was to then touch my penis for whatever reason, such as urination or whatever, what are the prospects that I would transfer the female DNA from A to B to C? When I say 'from A to B to C', from the underpants to my hands to my penis; what are the chances? A. If the mucousy material in the underpants was, if you like, dampened, then I guess - and not dry - then there would be a very high likelihood of picking up the mucous that contained numerous cells shed from the female reproductive tract, and mucous being sticky is likely to be transferred elsewhere. And if the next thing that was touched was your penis, there is - under such a scenario, it would be likely that there would then be mucous with the cells on the penis. Q. When you say 'likely', are you saying more likely than not; like 51/49%, just tipping the balance or? A. No, I would say very likely, far higher than 50%. Much more likely than 'not likely' under the scenario I described. Q. I know it is hard to give us a precise figure, but can you give us like a range, 50%, 60%, 70%, 80%, 90% or whatever? A. I would give it in the higher range up, 80% or more. … HIS HONOUR Q. Would it depend, professor, on when you touched the penis, how long after you touched the mucous or that wouldn't matter or it would matter? A. It depends on the amount of moisture, your Honour, in that mucous is extremely sticky and it will stick to your hand and dry there, but then become moist again if it touches a damp area."
8. Professor Boettcher was asked to assume penile/vaginal intercourse with no ejaculation and no condom use, and was asked what were the chances of the male DNA being left in the vagina. He said that he considered it would be certain that there would be some cells left there, and would be detectable. However, when asked how long that DNA would be detectable, he was unable to answer. It depended, in part, from where in the vagina the swab was taken. He agreed that urination might wash away the cells from the lower vagina, but that would not occur in respect of the upper vagina.
9. In cross-examination Professor Boettcher was asked about his examination of the DNA results provided by Ms Trabuio. What emerged from that cross-examination was that, it appeared from Ms Trabuio's report, once the complainant's physical examination revealed no semen, no further testing was undertaken for DNA from a male source other than semen.

EZ

1. EZ did not give or call evidence. He relied on cross-examination of the Crown witnesses. Senior counsel who represented him opened and closed to the jury on the basis that he had engaged in oral intercourse with the complainant, but that he believed that the intercourse was consensual.

The issues in the trial

1. The issues for the jury therefore were: In respect of Count 1: EZ:

• was the admitted act of oral intercourse with the complainant non-consensual?; Appellant:
• was there an understanding or arrangement between EZ and the appellant that they (or one of them) would have non-consensual sexual intercourse with the complainant?
• if so, was there an act of non-consensual sexual intercourse between EZ and the complainant (on the evidence, an act of forced fellatio)?;
• if so, did the appellant participate in that act? In respect of Count 2: Appellant:
• did the appellant engage in penile/vaginal intercourse with the complainant? (The issues relating to Count 2 so far as EZ is concerned are not relevant to the appeal.) It was also necessary that the Crown prove that if there had been such an act, that it was non-consensual, and that the appellant knew that the complainant was not consenting, but these were not issues in the trial. It was inevitable, if the jury accepted the Crown case as to the act of intercourse, that it would also find it to have been non-consensual, and non-consensual to the knowledge of the appellant.

1. In relation to Count 2, the appellant was charged as the principal perpetrator. This meant that, so far as he was concerned, the doctrine of joint criminal enterprise was immaterial. (It was relevant to the liability of EZ in respect of that offence, but that is not in issue in this appeal.) The doctrine was immaterial so far as the appellant was concerned because of the manner in which the Crown went to the jury. There were hints in the opening address of the Crown (see the extracts in [33] to [36] above) that it might have sought to retain an alternative position, that EZ was the actual perpetrator of that offence, and the appellant was present as a secondary party. That was never developed.
2. The Crown position was made quite clear in his final address. He said: "… and we also know in [the appellant's] case as a result we have what we say is a substantial amount of her DNA on the inside of his underpants in circumstances where the conclusion can be readily drawn that we say his penis was in her vagina, the secretion from skin cells inside of the vagina are on his penis and therefore left on the inside of his underpants as the tape lift indicates. It is that evidence we say, together with what [the complainant] says, and what is know [sic] as to how she was clothed, to say indeed her vagina was penetrated by a penis and it was the penis of [the appellant] … … It is a combination of those things that amounts to the Crown evidence in the case. It is a conclusion but we say again the only reasonable conclusion that can be drawn from this evidence is [the appellant] put his penis in [the complainant's] vagina …"
3. This position, adopted by the Crown, left no room for the alternative hypothesis, that EZ was the offender who vaginally penetrated the complainant, and that the appellant was liable by reason of his participation in a joint criminal enterprise. The vague hint given at the end of the Crown opening, extracted above, that the Crown might seek to put such an alternative position, was not pursued. On appeal, the Crown did not contend that the appellant could have been convicted if the jury were in doubt that he was the perpetrator of the act, but was present pursuant to a joint criminal enterprise. The conviction must stand or fall on that basis.

The grounds of appeal

1. The grounds of appeal were formulated as follows: "1. That the verdict in relation to Count 1 is unreasonable, and/or cannot be supported having regard to the evidence. 2. That the Learned Trial Judge failed to properly direct the jury as to a 'joint criminal enterprise' in relation to Count 1. 3. That the verdict in relation to Count 2 is unreasonable, and/or cannot be supported having regard to the evidence. 4. That the Learned Trial Judge failed to properly direct the jury as to 'circumstantial evidence' in relation to Count 2. 5. The sentence is manifestly excessive in that the appellant has a justifiable sense of grievance when his penalty is compared to the co-offender."
2. It is convenient to deal first with Ground 2.

Ground 2: joint criminal enterprise

1. The principles relating to joint criminal enterprise were stated by Hunt CJ at CL (McInerney and Sully JJ agreeing) in R v Tangye (1997) 92 A Crim R 545 at 556-557, in a passage which has received endorsement on many occasions, including in Osland v The Queen [1998] HCA 75; 197 CLR 316 at [73] per McHugh J; R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa [2010] NSWCCA 228 and Huynh v The Queen [2013] HCA 6; 295 ALR 624. The principles are stated as follows: "(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission."
2. The essentials are, therefore: 1. an understanding or arrangement between two or more persons that they will commit a crime. (The acts constituting the crime may be committed by either or both.); 2. the commission of the crime by one or other of the parties to the agreement or understanding; 3. participation by the other party to the agreement or understanding. (Participation may be effected by mere presence at the time when the crime is committed.)
3. Applying those principles to the present case, the following observations may be made. The crime the subject of Count 1 was sexual intercourse without consent, with knowledge that the complainant was not consenting. The act constituting the crime was forcing the complainant to perform fellatio on EZ.
4. Notwithstanding the age of the complainant (which would have rendered the act criminal in any event, and which was relied on by the Crown as a statutory alternative to the count on the indictment), as the case was presented by the Crown, an essential element of the crime was the actual absence of consent to the intercourse (to the knowledge of both EZ and the appellant) by the complainant. Proof that an act of intercourse is non-consensual and that an accused person knows that the act is non-consensual is not the same as proof that two accused persons agree to participate in a non-consensual act of intercourse. The agreement and the actuality are not coextensive.
5. On the Crown case, the participation by the appellant was constituted not merely by his presence, but by his actively holding the complainant while EZ inserted his penis into her mouth.

The directions

1. The relevant directions given to the jury were recorded as follows: "The Crown relies on something called joint criminal enterprise. It is not so complicated when you think about it. The law is that where two or more persons participate in a joint criminal enterprise, namely an agreement to carry out a particular criminal activity, each party is responsible for the acts of the others in carrying out the criminal enterprise. The Crown must establish beyond reasonable doubt, the existence of the joint criminal enterprise, and that the accused was a party to the joint criminal enterprise and that the crime was committed pursuant to the joint criminal enterprise. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement, amounting to an agreement, to commit a crime. The agreement need not be expressed and may be inferred from all the circumstances. It need not be reached at any particular time before the commission of the offence. The circumstances in which two or more persons participate in a crime may establish the existence of an understanding amounting to an agreement to commit the crime. It does not matter if one of the participants does all the things necessary to make up the crime, or whether they all played an active part or one did and the other one did not, all participants are guilty regardless of the part played. Now, the Crown must establish that the offence was committed by one of them, and that the other accused - [the appellant] - was a party to a joint criminal enterprise to commit the offence, and that the offence that was committed was committed pursuant to that joint criminal enterprise. Now, clearly for the Crown to establish the guilt of [the appellant] in relation to this first count, the Crown would have to prove the requisite state of mind of [the appellant] namely the Crown would have to prove a shared intention with the other accused, [EZ], for [EZ] to have sexual intercourse with the complainant without her consent or regardless of her consent, that is realising that she may not be consenting, and that the events be committed in company. … Now, when I say 'intention to commit the crime' I have mentioned to you that on this question of joint criminal enterprise you need to be satisfied that the crime was committed; you may be satisfied that the crime was committed by going back to the elements of the offence I gave you in relation to [EZ] for count 1. You have to be satisfied that [the appellant] was part of the joint criminal enterprise to commit that crime, and the crime was committed pursuant to the joint criminal enterprise.' These directions were not the subject of complainant by the appellant's counsel.

the appeal

1. Two separate written submissions were filed on behalf of the appellant in respect of Ground 2. In the first, the specific complaint made was relatively simple. It was that an essential element of proof of an offence on the basis of joint criminal enterprise is proof of participation. So much can be accepted. The complaint was that the trial judge failed to explain to the jury what was meant by "participation". This omission meant, it was submitted, that the directions "failed to capture a crucial part of what it means to participate in a joint criminal enterprise".
2. The submissions, while complaining of the absence of any direction as to the meaning of "participation", did not identify the content of the direction it was contended ought to have been given.
3. In the second written submission (prepared by different, senior, counsel), a different approach was taken. On these submissions, the complaint was that the directions failed to make clear that, for the appellant to be guilty as a participant in a joint criminal enterprise (specifically, to commit the crime of having sexual intercourse without consent, knowing the complainant was not consenting), it was necessary that the jury be directed that the Crown had to prove (to the requisite standard) that the appellant knew that the complainant was not consenting to the sexual intercourse. The directions, it was contended, failed to do this. That was because the directions concerning the appellant's knowledge of lack of consent were incorporated in the directions concerning intention, and did not separately address the question of the appellant's knowledge as what might be called a secondary participant. In other words, as I understand the argument (as it is developed in the second written submission) the direction conflated the question of the intention to have intercourse without consent (as to which recklessness would be sufficient) with the appellant's knowledge of the fact of the complainant's lack of consent (as to which, it was submitted, recklessness would not be sufficient).
4. In support of this submission reliance was placed upon a short passage in Giorgianni v The Queen [1985] HCA 29; 156 CLR 473 at pp 504-505. That case concerned an allegation of aiding and abetting the commission of an offence, a different way of establishing liability. However, in the joint judgment of Wilson, Deane and Dawson JJ, the following relevant passage appears: "Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of a criminal intent …"

Resolution of Ground 2

1. This complaint as to the directions on participation ought to be rejected. Participation may be proved, where the relevant arrangement or agreement is proved, by evidence of an accused's mere presence at the scene of the crime: Tangye, in the principle numbered (3). The complainant's evidence, if accepted, was ample to prove participation to that extent. However, the evidence went further than that, and asserted much more actual participation by the appellant.
2. No disputed issue arose in the trial as to participation by the appellant. His case (which the jury clearly rejected) was that he was not present when EZ had sexual intercourse with the complainant, and therefore did not participate, either by his presence or otherwise.
3. The complaint has echoes of the complaint made in Huynh (on appeal from the Full Court of the Supreme Court of South Australia): see [7]. Of that, the High Court said: "7 … The significance of that omission is the first issue raised by the appeals. Its resolution requires consideration of the real issues in the trial and of the sufficiency of the directions to guide the jury to their decision on those issues. That consideration requires analysis of the separate case of each appellant … 31 The contention that it is an error of law for a trial judge to omit to instruct a jury on all of the elements of liability for an offence cannot stand with the many decisions of this Court affirming the statement of the responsibility of the trial judge in Alford v Magee [[1952] HCA 3; 85 CLR 437]. The duty is to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues … 32 Whether the omission to specify the requirement of proof of participation in the directions on joint enterprise liability was an error depends upon whether the Full Court was right to conclude that proof of that fact was not an issue at the trial … … 35 The Full Court identified the real issue in each case as whether the jury were satisfied that the prosecution had proved the agreement specified in par (1) of the direction … Proof of such an agreement relied on drawing an inference from the appellant's conduct. If the conduct proved the agreement, it necessarily proved the appellant's participation in that agreement …" (internal citations omitted) See also Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at [20].
4. Similarly, in the present case, proof of both agreement and participation depended upon the jury drawing an inference from the conduct of the appellant, as alleged by the Crown. Proof of the conduct was sufficient to prove participation. That depended upon the jury's acceptance of the complainant's account. If the jury accepted that account, it was entitled to draw the twin inferences as to the agreement and participation. It clearly did accept the complainant's account, and drew the inferences.
5. That brings me to an additional reason why this complaint ought to be rejected. The direct evidence in respect of the appellant's participation in this offence is that of the complainant, and that of the appellant. On the appellant's case, he was not present and knew nothing of EZ's act of sexual intercourse with the complainant. On the Crown case, the appellant was not only present (which would be sufficient) but actively assisted by deflecting the attention of KL, (possibly) turning off the complainant's mobile phone, attempting to pull her up from the ground after she fell, urging her to keep going, and holding her head so that EZ could commit the act. Had the trial judge directed the jury more explicitly on the meaning of participation, it would also have been necessary to refer the jury to the evidence of the conduct alleged against the appellant that constituted participation. Drawing attention to these matters could hardly have assisted him.
6. The complaint as to the absence of direction on the appellant's knowledge of lack of consent ought also to be rejected. The reference to "shared intention" in the extracted passage from the summing up makes it quite clear that the words that follow apply to both accused.
7. Again, the state of the complainant's mind was not an issue as between the Crown and the appellant. It was not the appellant's case that he was aware that EZ was having sexual intercourse with the complainant, but believed that she was consenting. The appellant's case was that he was unaware of the sexual intercourse between EZ and the complainant. I repeat, the task of the trial judge is to direct the jury in respect of the issues as they are fought in the trial.
8. Further, as is the case with respect to the previous complaint, a direction in the terms for which the appellant now contends could not have helped him. It would, again, have been necessary for the trial judge to direct the jury with respect to the specific evidence of the complainant relevant to this issue. It will be recalled that her evidence was that the appellant was present while she was telling EZ that she did not want to engage in sexual activity, and was holding her up as she kept turning her head.
9. In my opinion, on a fair reading of the directions given, it was perfectly plain that it was an essential part of the Crown case to prove that the complainant was, in fact, not consenting. Any additional direction would have been adverse to the interests of the appellant.
10. I would reject Ground 2.

Ground 4: circumstantial evidence

1. The preliminary contention on behalf of the appellant under this ground of appeal was that "in truth" the case against the appellant in respect of Count 2 was circumstantial. That is not entirely correct. There was evidence from Dr Rajendran, to which there was no objection, that the complainant had given to her a description of the perpetrator consistent with the appellant and not with EZ. Dr Rajendran noted that the complainant said that she thought it was "the second male" who committed the second offence. She thought this because "he was heavy and was clothed differently". That was direct evidence: Evidence Act 1995 (NSW), s 66(2).
2. The direction given in this respect by the trial judge is recorded in the transcript as: "In a sense the case against [the appellant] in relation to count 2 is circumstantial and it comes about this way because the complainant says there were two acts. It seems to be common ground that the first act of fellatio is performed by [EZ]. The Crown points to other circumstances, in particular the DNA evidence. The Crown says the only reasonable explanation is that the other act was performed by [the appellant]. The complainant cannot say who it was really. So the case is put on the basis of circumstantial evidence. Part of your function is to draw conclusions extends [sic] to drawing reasonable inferences or conclusions from facts you find established. Circumstantial evidence is no better or worse than direct evidence. Direct evidence is when you have the direct observation of what a witness saw or heard. Circumstantial evidence is no better or worse, you just need to consider each case on its own facts and circumstances, on its own merits. But what you need to be aware of is this. Where the Crown asks you to draw an inference from the circumstance or circumstantial evidence, namely that it was [the appellant] who had the penile/vaginal intercourse, if I can use that expression, that must be the only reasonable explanation of the evidence and that is because the identity of the perpetrator, has to be proved beyond reasonable doubt."
3. Although, in the first set of written submissions filed on behalf of the appellant, specific arguments were directed to this ground, on the hearing of the appeal, senior counsel elected to address Ground 4 in conjunction with Ground 3 (that the verdict in respect of Count 2 is unreasonable).
4. The submission was: "4.3 The jury should have been told in light of the appellant's case, that if his version of the DNA on his penis and underwear were a reasonable 'possibility', then the jury were bound to acquit him on Count 2." "[The appellant's] version" of how the complainant's DNA found its way onto his penis is the scientific evidence that it could, as a result of his picking up the complainant's clothing, have been transferred to his hand, then to his penis (both shaft and head) in the course of urinating.
5. It was proposed that the following direction ought to have been given: "If, having considered the evidence of the accused as to how the complainants [sic] DNA got on his penis, you accept it, then of course you must acquit the accused and bring in a verdict of 'not guilty', because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter which it must prove. If, after having given consideration to the evidence of the accused and any evidence which the Crown asks you to take into consideration, you do not positively accept the evidence of the accused, but that evidence leaves you nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then you are bound, in law, to bring in a verdict of 'not guilty'. In other words, it is not the position that you have to believe that the accused is telling the truth before the accused is entitled to be acquitted. As I have previously emphasized to you throughout the whole of this case, it remains the position that the Crown must establish beyond reasonable doubt the charge which it brings against the accused, and it is never for the accused to prove that he or she is not guilty." Both paragraphs are correct. The second is merely a different way of expressing what the jury was told.
6. What was proposed in para 4.3 of the submissions was that, on the principles stated in Shepherd v The Queen [1990] HCA 56; 170 CLR 573, there was an "indispensable intermediate fact" upon which the Crown case depended, and which, therefore, it was necessary that the Crown prove beyond reasonable doubt. That that was the import of the submission was recognised by senior counsel in his oral argument. The "indispensable intermediate fact" was not specifically identified in the written submissions. However, in oral argument senior counsel identified it as "that DNA as a result of penile/vaginal intercourse was found on the appellant's penis" (italics added). (It is the words "as a result of penile/vaginal intercourse" that are the key to this submission. There was no dispute that the complainant's DNA was located on the appellant's penis.) Senior counsel argued that, if there was some (reasonable) possibility that the complainant's DNA had found its way onto the appellant's penis by some means other than penile/vaginal intercourse, (such as the transfer mechanism) then the appellant was entitled to acquittal. Senior counsel put that in conjunction with the proposition, as recorded in the transcript "… if there was any [reasonable] possibility that the complainant was [sic - ? not] accurate in the evidence that she gave before the jury", the appellant was also entitled to acquittal.

Resolution of Ground 4

1. Given that the complainant's unequivocal evidence in chief was that the perpetrator of the second act of intercourse was EZ, and that the Crown sought to displace that certainty by (inter alia) the DNA evidence, the manner in which the complainant's DNA came to be deposited on the appellant's penis - and in his underpants - was of considerable significance. The only other item of evidence that inculpated the appellant as the perpetrator of this act was that of Dr Rajendran, who recorded the complainant in her history (taken within hours of the events) as having described the perpetrator of this act in terms that clearly identified the appellant.
2. Shepherd is authority for the proposition that: "…if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt." A "conclusion of fact as an indispensable intermediate step" is a fact without proof of which the Crown case would fail.
3. Dawson J, with whom Mason CJ, Toohey and Gaudron JJ agreed, said: "… it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence … - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." (italics added)
4. In the circumstances of this case, it was, to a very significant extent, the DNA evidence that was relied upon to prove that the appellant was the person who had penile/vaginal intercourse with the complainant; that proposition was in direct contradiction of the oral evidence given by the complainant. But that does not compel the conclusion that a Shepherd direction was called for.
5. The submission quietly ignores the much more potent evidence concerning the complainant's DNA in the appellant's underpants (where she was the major contributor).
6. The inferences available to be drawn from the evidence in the trial were the subject of the usual directions, specifically in respect of circumstantial evidence, as set out above.
7. In the words of Dawson J, it would have been unnecessary and confusing to give a separate direction as is now contended ought to have been given.
8. Further, as was the case with respect to the directions the subject of Ground 2, any additional direction would have required attention to be drawn to the relevant evidence. For reasons that will appear when I deal with Ground 3, that would not have benefitted the appellant.
9. I would reject Ground 4 of the appeal.

Rule 4

1. Rule 4 of the Criminal Appeal Rules provides as follows: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
2. The application of r 4 has been the occasion of much discussion in this Court. It must be seen in the light of s 5 and s 6(1) of the Criminal Appeal Act 1912 (NSW). Section 5 and s 6(1) relevantly provide as follows: "5(1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone …" "6(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside … on the ground of the wrong decision of any question of law …"
3. In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [72], McHugh J pointed out that, where objection has not been taken to a ruling or direction (or omission to direct in the terms contended for on appeal) no "wrong decision of law" for the purposes of s 6(1) has been identified or made. The obligation on this Court to set aside a conviction is not engaged, unless, under r 4, the Court gives leave to argue the ground notwithstanding the absence of objection.
4. The issues raised by Grounds 2 and 4, not having been raised at trial, require leave under r 4. When regard is had to the manner in which the trial was conducted, and the real issues in the trial, it is quite apparent, for the reasons that have been given at length, that there was no call for either of the directions the subject of Grounds 2 and 4.
5. Accordingly, on that basis, I would refuse leave under r 4 to argue those grounds.

Grounds 1 and 3: unreasonable verdicts (Count 1 and Count 2)

1. The authorities concerning the role of this Court in determining a ground that a verdict is unreasonable and cannot be supported by the evidence are legion: see, for example: Whitehorn v The Queen [1983] HCA 42; 152 CLR 657; Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521; M v The Queen [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326. "The Court is to make an independent assessment of the evidence, both as to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this court is satisfied that the Appellant is guilty of the offence charged …" (Raumakita at [31])
2. I turn then to apply those statements of principle to the issues raised on behalf of the appellant in the present case.

Count 1

1. In written submissions essentially two points were made in support of this ground. The first was that inconsistencies in the evidence of the complainant were such as to demonstrate that the verdict was unreasonable. Reference was made to the complainant's evidence that, when she was on her knees, the appellant was "standing to the side and then eventually he had to stand behind me like - keep my head there, you know". This was contrasted with what the complainant had said in her interview of 9 May. In cross-examination she acknowledged that, in that interview, she had not said that the appellant was pulling her up before or when EZ was forcing his penis into her mouth.
2. The second point made concerned the evidence of KL and LW, placing the appellant five metres away from the complainant and EZ. The submission was that it could not be said that the appellant was "actively participating in a joint criminal enterprise to sexually assault".

Count 2

1. In support of the unreasonable verdict ground in relation to Count 2, four points were made on behalf of the appellant. They were:

• the complainant's evidence that it was EZ who performed penile/vaginal intercourse upon her;
• the DNA evidence, indicating, at the least, a reasonable possibility that the complainant's DNA on the appellant's penis had been transferred by innocent means;
• the absence of any male DNA in the vagina of the complainant;
• that the complainant's hymen was unruptured, suggesting at least the possibility that there had been no penile/vaginal intercourse.

1. Counsel argued that the complainant's evidence alone provided a sufficient basis for the success of this ground of appeal. He then turned to the DNA evidence, and submitted: "The appellant acknowledges that this evidence supports the proposition that there was the transfer of DNA of the complainant to the penis of the appellant, and that this DNA evidence is consistent with the Crown case that it was the appellant who vaginally penetrated her with his penis." He then argued, however, that other evidence in the trial "strongly support[ed] another, equally plausible explanation for this DNA evidence".
2. That explanation arose from the appellant's evidence that he had picked up the complainant's shorts and underwear, that one of those items was wet, that he then dropped the clothes so that he could prevent the complainant from falling over, that he lay her flat on the rocks and again picked up her shorts and possibly her underwear. He said that he then told EZ to wait with the complainant because he (the appellant) was going to urinate. In cross-examination he said he some "very vague" recollection of urinating on the hill.
3. Reference was made to the evidence of Ms Trabuio and Professor Boettcher, who agreed that DNA can be transferred from an item of clothing (particularly one that is moist) to the hand of a person who touches that item, and then from the hand to a body part (for example, a penis) if that body part is then touched with the hand.

Count 1

1. There are no material inconsistencies in the complainant's accounts. The fact that, in her 9 May interview, she did not expressly mention that the appellant was "pulling her up" is of little significance.
2. The record of the interview of 9 May was not in evidence. However, cross-examination revealed that it was a lengthy interview - at least 265 questions, 26 pages. It was made four days after the events in question; events which must, (even if the intercourse with EZ had been consensual) have been the cause of some trauma.
3. The major inconsistency, if it were found, in the complainant's accounts was that relating to the identification of the perpetrator of the second act of sexual intercourse. Not surprisingly, no reliance was placed upon that inconsistency.
4. As to the second point, concerning the evidence of KL and LW, it seems to me that this evidence has been misunderstood. Clearly, what KL and LW observed took place before the complainant, EZ and the appellant went up the hill, where the two instances of sexual intercourse were said to have taken place. The evidence of KL and LW throws no light on what there happened.
5. In my opinion, it was amply open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt in relation to Count 1. For my part, having read the whole of the evidence, I am satisfied to the requisite standard that the appellant was present and participating in the offence committed by EZ, pursuant to an arrangement or agreement between them to commit such an offence.

Count 2

1. In this context, the DNA evidence needs to be subjected to more stringent examination than it has in the appellant's submission. It will be recalled that, in contrast to other deposits of DNA, the evidence showed that the complainant was the major contributor to the DNA located in the appellant's underpants. Even bearing in mind the evidence of the manner in which DNA can be transferred from one surface to another, it must be unlikely to a high degree that merely picking up an item of clothing, even if that item of clothing had DNA of the complainant on it, could transfer to the hand of the appellant, then to his penis, and then to his underpants, sufficient of the complainant's DNA to constitute the major contribution of the DNA on the underpants.
2. The DNA evidence is a powerful item of evidence in the Crown case. The absence of male DNA from the complainant's vagina is explained by the evidence of Professor Boettcher that, once no sperm was detected, no further relevant investigations were undertaken, and by the evidence of Dr Rajendran concerning the lifespan of DNA in the vagina. Finally, although Dr Rajendran accepted that, ordinarily, it would be expected that a hymen would be ruptured by penile/vaginal intercourse, the complainant's physiology was such that her hymen was thin, not prominent, and it was possible for penetration to take place without rupture.
3. Having considered all of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence the subject of Count 2. I am, for my own part, also satisfied of that fact.
4. I would therefore reject this ground of appeal. It follows that the appeal against conviction must be dismissed.

Ground 5: the application for leave to appeal against sentence

1. Notwithstanding the language in which this ground is framed, the sole issue raised was parity with the sentences imposed on the co-offender, EZ. In Lowe v The Queen [1984] HCA 46; 154 CLR 606, Mason J (as he then was) stated the "correct principle" to be applied in cases of discrepancy in sentencing as follows: "It is that a Court of Appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."
2. The principle was further explained by the High Court in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 by Dawson and Gaudron JJ, as follows: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them … In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error … Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe … recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance' … If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (internal citations omitted)
3. As mentioned above, the appellant was sentenced to a total term of imprisonment for 4 years and 3 months, with a non-parole period of 2 years and 3 months. EZ was sentenced to a total term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 5 months. The difference in the head sentence is 21 months, in the non-parole period 10 months.
4. In sentencing, Frearson DCJ, as he was obliged to do, had regard to s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), and the ages of the two offenders.
5. It is quite apparent that the sentencing judge was conscious of the question of parity in sentencing. The sole reason for the disparity was the difference in the ages of the two offenders. EZ was 15 years and almost 2 months at the time of the offending. The appellant was 17 years and almost 8 months - close to legal adulthood, as his Honour observed. Frearson DCJ recognised that EZ had been the initiator of the offences, and that the applicant "joined in".
6. He rejected a Crown submission that, given his age, the appellant ought to serve his sentence in an adult prison: see Children (Criminal Proceedings) Act, s 19.
7. The submission made on behalf of the appellant is that it was not open to the sentencing judge to differentiate as he did on the basis of age. There was, it was submitted, "no considerable age difference"; such difference as there was, was "not so marked as to justify a significant disparity in sentence".
8. In response, the Crown relied upon the decision of McClellan CJ at CL (with whom Hall and Price JJ agreed) in KT v R [2008] NSWCCA 51; 182 A Crim R 571, and particularly the following: "26 The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age … However, the younger the offender, the greater the weight to be afforded to the element of youth …" (some internal citations omitted)

Resolution of Ground 5

1. I would reject this ground. The age difference between the two offenders is considerable. It is true that EZ played the major role in the lead up to the commission of the offences, but once the offending behaviour was underway, the two were equal participants.
2. While, in my opinion, it would have been open to the sentencing judge to have imposed on the appellant sentences more closely aligned with those imposed on EZ, the weight to be attributed to factors such as age was a matter for him: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]. The disparity is not such as to warrant the intervention of this Court.
3. I would grant leave to appeal against the sentences, but would dismiss the appeal.
4. WILSON J: I have read in draft the comprehensive judgment of Simpson J. I agree with her Honour's conclusions and the orders that she proposes.
5. The factual circumstances and relevant law have been set out in detail by her Honour and there is no need for any further dissertation on those aspects of the matter. I wish only to add the following in relation to grounds 1 - 4.
6. The arguments advanced in support of grounds 2 and 4 were not matters raised before the trial judge. There was no complaint made by trial counsel about the directions that his Honour gave, and no request for any further or other directions to be given. This suggests that trial counsel saw no need for any other directions in the context of the trial as it was conducted before the jury. Rule 4 applies.
7. Whilst this Court will always be alert to correct injustice regardless of the application of the rule, such is not the case here. The directions given by the trial judge were appropriate in the circumstances of the case; those given to the jury concerning joint criminal enterprise were in accordance with well settled law: McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 and Tangye v R (1997) 92 A Crim R 545.
8. In common with Simpson J. I would reject these grounds.
9. As to grounds 1 and 3 they are, in my view, entirely without merit.
10. The nature of the task of an appellate court in determining a claim that a verdict is unreasonable has been set out in the judgment of Simpson J. The court must independently assess the sufficiency and quality of the whole of the evidence and determine whether the evidence is such that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.
11. That task should be undertaken bearing in mind the advantage the jury had of seeing and assessing witnesses, an advantage not available to a court reviewing the evidence through the more opaque medium of a transcript. In a case such as this, where there were live issues of credit, not excluding the credibility of the appellant, the jury's advantage was a significant one. Implicit in the jury's verdict is an acceptance of the complainant's evidence of essential matters to the requisite standard, and a rejection of the evidence given by the appellant.
12. Having carefully reviewed the evidence before the Court, I consider the jury's assessment of the evidence, and the verdicts that it returned, were well open to it.

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