Kumar v R

Court of Criminal Appeal (NSW)|2023-06-19|Before: Adamson JA, Price J, Dhanji J

The applicant's Electronically Recorded Interview with Suspected Person (ERISP)

The applicant participated in an ERISP at 6.30am on 4 September 2020 at Parramatta Police Station. He said that the complainant "gave her consent and everything". He also said "I, I was, uh, wasted. I have no idea of anything, like, like, when it was done or anything. I have no clue of that. I was, like, wasted.". He said he had met the complainant on Facebook after she posted on a group page for Colombians in Sydney indicating that she was looking for work.
The applicant said that 3 September 2020 was the third time they had met in person and that they had gone for a few drinks that afternoon. The complainant was going to go to an English class but they continued to drink. He said that he and the complainant both had one vodka shot and one vodka orange juice at Hooters. He said that they booked the hotel room together on the phone so that she could teach him dancing and that they wanted to drink and party.

The police investigation

Detective Senior Constable McGee gave evidence that she observed stains consistent with the appearance of vomit in the front passenger area of the applicant's car.

The applicant's evidence

The applicant admitted that he had sexual intercourse with the complainant on 3 September 2020. At that time he worked for Bendigo and Adelaide Bank as a mortgage broker. He confirmed that he employed the complainant on a casual basis to distribute flyers.
The applicant said of his text message exchanges with the complainant on WhatsApp that he was "over flirtatious" and "flirtatious a lot" in his messages.
The applicant said that on 3 September 2020 he left the complainant at around lunchtime to attend a meeting after which he met with the complainant. When he said he was stressed, she suggested that he might need a drink. The applicant agreed that they had around five drinks each at Hooters.
The applicant said that while at Hooters, he spoke to the complainant about her accommodation (as she needed to find rental accommodation). He then had the idea of going to the Holiday Inn. The complainant then suggested that, as they were both stressed, they should just keep drinking. He responded by telling her that he had a "half bottle, three quarter bottle" of vodka that he could give to her. He spoke to the complainant about a pool in the context of a conversation about organising a party for his uncle to which he invited her.
At 3.23pm, as they drove from Hooters to the Holiday Inn, he rang the hotel and told the operator that he wanted a room for two guests for one night and that they were on the way and wanted to check in when they arrived. He also asked the operator whether there was a pool at the hotel. The telephone call lasted for a period of 10 minutes and 3 seconds. During the call, the complainant took out the applicant's credit card and read out the numbers for the booking.
When they arrived, the applicant gave his credit card to the complainant, asked her to check in and told her that she was staying for the night. After he parked his car, he took the complainant's bag, his work bag and "the drink" to the hotel room.
After they entered Room 431, he and the complainant each had two shots of vodka. The complainant went into the bathroom and when she came out, she removed her sweater because she was feeling hot. They danced the salsa while she taught him the moves and continued to drink. They finished the bottle of vodka. The complainant was making the drinks.
The applicant started to feel sick and decided to leave to go home. He said he intended to go home. The complainant said that she would not stay and he agreed to drop her at the train station.
The applicant said that they did not have sexual intercourse before leaving the hotel at 5.08pm. He had no recollection of driving his car after leaving the hotel at 5.08pm and did not notice any damage on his car until the following morning although he accepted that the damage was caused by his driving in the car park. The complainant told him that he was not capable of driving and suggested that they go back to the room and rest.
The applicant and the complainant were both heavily intoxicated when they returned to the hotel at 5:36pm. The applicant said he did not drink any more alcohol after that time and that when they got to the hotel room the complainant went and sat on the bed.
The complainant vomited after they returned to Room 431 and, according to the applicant, told him that she felt much better after vomiting. He said she then laid on the bed and he provided her with tissues to clean vomit from her clothes and face. The applicant said the complainant tried to pull down her jeans after she saw vomit on them and he helped her remove the jeans after they got stuck on her knees. According to the applicant, he lay next to her on the bed. She started to massage his thighs, moved her hands to massage his penis and put her hand inside his shorts, which he removed. He got an erection and he rolled on top of her, penetrated her and ejaculated straight away. While this was occurring, the complainant was hugging him. He was embarrassed by his premature ejaculation. He went to the bathroom to urinate and used toilet tissues to wipe himself clean. He then said he fell asleep next to the complainant.
When he woke up, he panicked because he could not find his belongings. He could not recall leaving the hotel at 5.08pm. After he discovered his belongings in his car, he changed clothes and left for home. He briefly returned to Room 431 but did not say anything to the complainant. He drove home, messaged the complainant, had a shower and then slept.
He said that he had tried to contact the complainant from 2.08am on 4 September 2020 because he was concerned about her as she had not replied to his earlier messages and he had noticed vomit stains inside his car. He returned to the hotel in the early morning to see if she was all right, by which time she had left.
He agreed that he had not told police the version of events he had provided in evidence but explained that he had not told them because he was scared as he was married and had a baby. He did not know that the complainant would accuse him of sexual assault.
He said that he only remembered the complainant massaging and touching him after he had been interviewed by police.
The applicant accepted that he had not discussed the topic of having sexual intercourse with the complainant during their meetings, including at Westfield Parramatta or at Hooters. He accepted it was his idea to attend Hooters with the complainant.
The applicant said the complainant was also aware she was staying overnight at the Holiday Inn because they had done the phone booking together.
The applicant could not recall helping the complainant lie on the bench outside the hotel entry when they returned at around 5.36pm. He said they were helping each other when they entered the hotel foyer and accepted that she could not stand up without his assistance. However, he said that she was able to walk properly after standing up.
The applicant said he did not tell police what happened because he was in shock and was scared that his wife would discover what happened. He denied having a sexual interest in the complainant although he agreed that she was a "beautiful girl".

Discussion about the elements direction

On 13 May 2020, before closing addresses, the trial judge discussed with counsel the directions which would be given about the elements of the offence of aggravated sexual assault. The prosecutor confirmed that the Crown case was that the complainant did not consent to sexual intercourse because she was asleep or unconscious. However, the prosecutor raised the question of including in the direction something which addressed the prospect that the jury would accept the applicant's evidence as a reasonable possibility. The prosecutor said: "But if they accept as a reasonable possibility, what is suggested by the accused in his evidence that and it would now in my submission be only by her actions given his evidence this afternoon saying that there was no consent, that by actions on the bed and massaging his penis, the complainant was consenting. Then it would have to be clearly delineated then in considering and only if you would accept the reasonable possibility of that argument would you then consider this aspect of intoxication because that only arises if you accept there was consent."
The trial judge also obtained the prosecutor's confirmation that the Crown did not put an alternative case that if the complainant was neither asleep nor unconscious, she nonetheless did not consent because she was intoxicated.
On the following Monday, 16 May 2022, the trial judge returned to the content of the elements directions and observed that the Crown case and the accused's case were "two diametrically opposed" cases. The applicant's trial counsel did not wish to be heard against the elements direction which was, in fact, given to the jury in the course of the summing up (extracted below).

The Crown closing

In the Crown closing, the prosecutor said: "If you are satisfied beyond reasonable doubt that [the complainant] did not consent to the act of sexual intercourse because she was asleep or unconscious, then element 2, that [the complainant] was not consenting to sexual intercourse, would be established. You'll receive further directions from his Honour in respect of this. Additionally, if you find that she was asleep, then he would have to have known that she was not consenting to the sexual intercourse, being element 3. If you find that the accused version of events to be a reasonable possibility, then you must go on to consider whether the accused might have believed that she was consenting to intercourse with him, and whether that belief amounts to the guilty state of mind depends on whether the accused honestly held that belief, and whether the Crown has proved beyond reasonable doubt that there was no reasonable grounds for that belief that she consented. If you accept the accused's versions of events, in those circumstances the Crown must prove beyond reasonable doubt one of two things; either that the accused did not honestly [believe] that or that even if you did honestly hold it, there are no reasonable grounds for believing that she consented."
This portion of the Crown closing appears to be an expansion of the Crown case which, as opened, was that the complainant could not consent because she was asleep or unconscious. It expressly contemplates the possibility that the jury will find that the complainant was conscious at the time of the intercourse. No objection was taken by the applicant's trial counsel to this portion of the Crown closing. Nor was there any challenge to the Crown closing in the grounds of appeal.
In the defence closing, the applicant's trial counsel said, of present relevance: "There are only two people in the world that could know whether consent was given in that hotel room immediately prior to the sexual intercourse that took place and that's the complainant and the accused. The complainant can't remember hardly anything at all. A couple of flashbacks she says. The complainant can't remember anything at all, honestly or purposefully, that's for you to decide. The only one that can remember is the accused and you know what he said. They came back to the hotel about 5.40 after he couldn't get out of the hotel car park and at the suggestion of the complainant to come back into the room. She was sick. Came back to bed feeling better. He laid next to her. He helped pull the jeans off because she had some vomit on it. She massaged his thighs and penis, undies off, sex. She was conscious and encouraging. That's what he said. He's one of only two people in the world that know what happened in that hotel room and that's what he tells you. There's no one or anything to contradict that description of what happened. I make these points. The complainant could not remember leaving the hotel at 5.08, carrying her bags but she did. The CCTV showed that. The complainant can't remember being in a car as the police officer said she was, when it had two collisions and got stuck at the boom gate, but she did. The CCTV shows that. The complainant can't remember vomiting in the car but she did. The vomit evidence shows that, plus the knowledge of being in the car. The complainant can't remember holding the hands of Mr Kumar but she did. The CCTV shows that. The complainant can't remember re-entering the hotel, but she did. The CCTV shows that. Now, there's CCTV in the king bed corner suite, whatever it is, of the Holiday Inn. But if there was, the CCTV would show exactly what my client, Mr Kumar, has said. Slight change of the topic. As far as consent goes, and the thoughts in Mr Kumar's head, the complainant had already agreed to get a hotel room to drink and dance. And they got a hotel room, and they drank and danced. The complainant suggested future sex as a threesome, this time with her girlfriend included. And I've been over this, but I'll do it again. She was bisexual, how would Mr Kumar know otherwise, and why would she tell him she was bisexual, unless it was leading into a possibility in the future of having a threesome. When did the sexual intercourse happen? And I think you'd be comfortable that it happened after they returned to the hotel." [Emphasis added.]
The applicant's trial counsel made no express submission that the complainant honestly believed that she was asleep but that she had in fact engaged in consensual sex with the applicant when she was awake but could not remember it because she was intoxicated. The gist of his submission was that the complainant was feigning memory loss (because she did not want to admit that she had had consensual sex with the applicant).

The summing up

In the course of the summing up, the trial judge arranged for the elements direction to be distributed to the jury. As referred to above, the primary judge had previously consulted the parties about the elements direction. It was common ground that the parties had agreed to the elements direction and that it ought be provided to the jury in that form.
The trial judge gave oral directions which were in substance the same as the written directions. His Honour correctly identified the four elements of aggravated sexual assault as follows: 1. the applicant had sexual intercourse with the complainant; 2. the complainant did not consent to the sexual intercourse; 3. the applicant knew that the complainant did not consent to the sexual intercourse; and 4. the complainant was under his authority at the time.
As to (2), the primary judge's written directions were as follows: "This element relates to the state of mind of the complainant … at the time of the sexual intercourse alleged. Consent means that the complainant … freely and voluntarily agreed to have sexual intercourse with the accused. Consent can be given verbally or communicated by actions. Similarly, absence of consent can be given verbally or communicated in other ways such as by offering resistance. The offering of resistance is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as having consented to the sexual intercourse. In relation to this count, the Crown case is that [the complainant] was asleep or unconscious at the time of the act of sexual intercourse alleged. If the Crown establishes that fact, the law states that a person does not consent to sexual intercourse if the person does not have the opportunity to consent because that person is asleep or unconscious. If you are satisfied beyond reasonable doubt that [the complainant] was asleep or unconscious at the time the accused had sexual intercourse with her, you then turn to consider the next element. The accused's case is that, by her earlier words that day, and by her actions on the bed in massaging his penis, the complainant was consenting. He bears no onus of proof in this regard. If you accept what the accused says about the complainant's actions in this regard as a reasonable possibility then you may have regard to the fact that she had sexual intercourse while substantially intoxicated by alcohol, if you have found that fact proved on the evidence before you. It does not follow that simply because you find proven that the complainant was intoxicated at the time, she had sexual intercourse that you should be satisfied beyond reasonable doubt that the complainant did not consent. The Crown must satisfy you beyond reasonable doubt that the act of sexual intercourse occurred without the consent of [the complainant]. If the Crown has satisfied you beyond reasonable doubt that [the complainant] did not consent to the act of sexual intercourse because she was asleep or unconscious, you will then find this element proven and turn to consider element three. If you are not satisfied beyond reasonable doubt that the Crown has established that [the complainant] did not consent to the act of sexual intercourse because she was asleep or unconscious, you must find the accused not guilty." [Bold emphasis in original. The portion emphasised in italics is the subject of ground 3.]

Ground 1: alleged unreasonable verdict

When faced with an unreasonable verdict ground, this Court is to determine for itself, by making its own independent assessment of the evidence, whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offence for which he has been convicted: Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]-[8]. In making that determination, the Court must neither disregard nor discount the fact that the jury is the body which is primarily responsible for determining guilt and that the jury had the benefit of seeing and hearing the witnesses: M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66].
Sexual intercourse was not disputed. Proof of the element that the complainant was under the applicant's authority was not challenged in this Court. The single issue germane to ground 1 was whether element 2 (lack of consent) had been established beyond reasonable doubt. Because of the way the Crown case had been put, this required the Crown to prove that the complainant did not consent because she was asleep or unconscious at the time of the sexual intercourse. It was accepted that if the jury was satisfied of this element, it was open to them to be satisfied that the applicant knew that the complainant did not consent.
Mr Odgers SC, who appeared on behalf of the applicant, submitted that the evidence was insufficient to establish that the complainant was asleep or unconscious at the time of sexual intercourse and that the Crown had put no other case to the jury. He argued that the complainant's evidence, "after [being thrown onto the bed] I don't remember so I think I fell asleep" was wholly insufficient to establish that she was actually asleep or unconscious at the time the sexual intercourse occurred because it was, at best, unreliable lay opinion evidence. He also relied on the fact that the complainant had no recollection of several events on the afternoon and evening of 3 September 2020, the occurrence of which had been proved by incontrovertible evidence, during which she was conscious but of which she had no recollection (such as the collision between the applicant's car and the pylon in the hotel car park).
The evidence of the complainant to the effect that she could not remember and therefore must have been asleep constituted only a small part of the overall Crown case that she was actually asleep or unconscious at the time of the sexual intercourse. The Crown case was that the complainant did not consent and would not (under any circumstances) have consented to sexual intercourse with the applicant. She not only had a female partner but had informed the applicant of that fact precisely because she wanted him to know that she was not interested in him in that way. She had told her aunt in a text message and in person that she was nervous about the meeting with the applicant. She needed work and the money that it would bring which was why she accompanied him to the hotel room, believing that he was investigating the location for a work event.
It was open to the jury to infer that the complainant drank with the applicant in order to retain her employment with him (so that she could stay in Australia), it was necessary for her to be on good terms with him and humour him, where necessary, even when to do so made her nervous or uncomfortable. However, she expressed her concern to the applicant about the time he was taking and her need to be in town for an English lesson (a matter which she raised more than once with him). It was open to the jury to consider that the applicant had brought a bottle of vodka with him in order to disable the complainant from resisting his sexual advances because he knew that, if she were conscious, she would refuse consent and resist.
The evidence of hotel employees was that the complainant, before returning to the room for the period during which it was accepted by the applicant's trial counsel that the sexual intercourse occurred, was seriously disabled by alcohol. When left unattended by the applicant at the hotel entrance, she immediately lay on the bench outside. She vomited at various points and needed the applicant's help to stand and walk, as was evident to the hotel staff. In these circumstances, it was open to the jury to reason that as soon as the applicant threw the complainant onto the bed she passed out.
It is also of significance that the complainant did remember that she felt dizzy when she got to the hotel room and had thrown up in the bathroom of the hotel room. She recalled, as set out above, that the applicant had thrown her to the bed. The only other events she remembered in this period was that he was pulling off her pants (which would not have been necessary, had she consented or been conscious). She also recalled being face down and feeling that there was somebody (the applicant) sitting on her legs. This evidence, together with her realisation that she was wearing different jeans when she left the hotel (which had been in her backpack) and that her underwear was on the wrong way around, was also significant since it tended to show that the complainant was unconscious or could not be roused immediately before, during or after intercourse. This Court must act on the basis that this evidence was accepted by the jury as both credible and reliable: Pell v The Queen at [37].
It can be inferred that the jury rejected the applicant's evidence or at least those parts of it which were self-serving. The complainant's evidence was, however, corroborated by the following aspects of the applicant's evidence, which fortified the inference that she did not consent because she was unconscious due to alcohol intoxication: 1. the applicant's admission that he did not have sexual intercourse with the complainant prior to leaving the hotel at around 5.08pm (thereby making her evident intoxication and resultant disability on her return germane to her state at the time of the sexual intercourse); 2. the applicant's acceptance that she could not stand up (on her return to the hotel) without his assistance; 3. the fact that when they returned to the hotel room at about 5.45pm, the first thing the complainant did was go to the bathroom and vomit; 4. the sexual intercourse had occurred immediately after her having vomited; 5. the applicant's evidence that when he left the hotel room alone and returned with Mr Prasad, and ultimately when the applicant left the room for the last time, the complainant was asleep; 6. the applicant's admission that he had not discussed the topic of having sexual intercourse with the complainant at any time on 3 September 2020; and 7. the applicant's evidence that he appreciated that although his text messages to the complainant were flirtatious, her responses were not.
No alternative hypothesis (other than a fanciful one) that the complainant had consensual sexual intercourse with the applicant while awake can accommodate her evidence of what she did recall (being thrown onto the bed, the applicant pulling her jeans off and her lying face down with the applicant sitting on her legs). Further, the applicant's evidence was inconsistent with these three matters (he said that she had lain down on the bed, initiated sexual contact, taken off her jeans and he had not given any evidence of sitting on her legs or putting his body weight on her).
Having reviewed all of the evidence, I consider that it was open to the jury to be satisfied beyond reasonable doubt that the complainant was asleep or unconscious when the applicant had sexual intercourse with her and that she, accordingly, did not consent and that the applicant knew that she was not consenting. I do not have any doubt that the applicant is guilty of count 1 on the indictment.
For these reasons, ground 1 has not been made out.

Ground 3: alleged miscarriage of justice from the directions regarding the elements of the offence

Mr Odgers argued that the written directions set out above (and the corresponding oral directions which it was accepted were to the same effect) were erroneous because they tended to indicate to the jury that, even if they were not satisfied that the complainant was asleep or unconscious at the time of sexual intercourse, it was still open to them to convict the applicant.
As referred to above, r 4.15 applies to ground 3 as the applicant's trial counsel, having been extensively consulted by the trial judge about the elements direction, failed to make any relevant objection. This circumstance is important for two reasons: first, it provides an indication that he did not regard the elements direction as either erroneous or prejudicial: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]. Secondly, it can provide a basis for this Court to infer that it was neither erroneous nor prejudicial in the circumstances of the trial, having regard to the way it was conducted.
When one reviews the elements direction, it is apparent that the trial judge correctly directed the jury that if the Crown proved beyond reasonable doubt that the complainant did not consent to the act of sexual intercourse because she was asleep or unconscious, element (2) (that she did not consent) had been established and they should move to element (3) (the applicant's state of mind) but that if they were not satisfied of that matter they were required to find the applicant not guilty.
The issue raised by ground 3 is whether the trial judge distracted the jury from the force of this direction by directing them that if they accepted what the applicant said about the complainant's actions, then they could have regard to the reasonable possibility that she had sexual intercourse with him while she was substantially intoxicated but that it did not follow from the fact that she was intoxicated that she did not consent.
At this remove, it is plain that it would have been better for the trial judge not to raise the reasonable possibility that the applicant's version was true, except for the purposes of saying that, in that event, the jury was bound to return a verdict of not guilty. However, in the circumstances of the trial the applicant's trial counsel was content for this part of the direction (emphasised in italics in the extract above) to be given.
The prosecution case depended on the Crown establishing that the complainant was asleep or unconscious. This raised s 61HE(5)(b) of the Crimes Act, which then relevantly provided that a person does not consent to a sexual activity "if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep".
Mr Odgers read an affidavit from the applicant's trial counsel. The Crown in this Court objected to the evidence on the grounds of relevance but accepted that this Court could address the relevance in its reasons. As to ground 3, the applicant's trial counsel said: "There was overwhelming evidence that the complainant and the offender were substantially intoxicated by alcohol at the time of the incident. I did not want the jury to be given the 'formal direction' as to 'negation of consent' pursuant to section 61HE(8) Crimes Act 1900 (NSW). The direction given by the Judge did not amount to the formal direction required by 61HE(8). I did not make a forensic decision not to seek further directions. It did not occur to me that the direction was inconsistent with the direction that the jury would acquit Mr Kumar if they were not satisfied beyond reasonable doubt that the complainant was asleep or unconscious at the time of the alleged sexual assault. I didn't perceive the judge's direction to be a 'formal direction' necessary when substantial intoxication arises and the direction given did not alarm me at the time."
I consider that this portion of the affidavit is relevant because it serves to illuminate the assessment of whether, viewed objectively, there was a basis for a forensic decision not to object to the direction.
It is plain from his affidavit that the applicant's trial counsel's principal concern was that, if the applicant's evidence was accepted, the trial judge might be obliged to give a direction in accordance with s 61HE(8) of the Crimes Act, which then relevantly provided: "The grounds on which it may be established that a person does not consent to a sexual activity include - (a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or … (c) if the person consents to the sexual activity because of the abuse of a position of authority or trust."
This risk might have been regarded as remote, since the Crown did not put its case on the basis that the complainant consented while substantially intoxicated (as it might have done). However, the applicant's trial counsel was concerned to protect his client from the effect of s 61HE(8)(a) of the Crimes Act and also, potentially, (c) since, had the Crown put its case on that alternative basis and had such a direction been given, the applicant would almost certainly have been convicted. It was in these circumstances that the applicant's trial counsel did not object to the direction regarding reasonable possibility. Further, the direction was, in substance, protective of the applicant's position because it directed the jury that it did not follow from the complainant's (putative) intoxication that she did not consent. Thus, the direction was, in fact, the opposite of s 61HE(8)(a). In these circumstances, I consider that, judging the matter objectively, the applicant's trial counsel could have made a sound forensic decision to accede to the direction in the form ultimately proposed by the trial judge because of this protective effect on the applicant.
Further, when one considers the directions as a whole, including the elements direction, I consider that the jury would have been left in no doubt that they could only convict the applicant if they were satisfied beyond reasonable doubt that the complainant was asleep or unconscious when the sexual intercourse occurred.
In these circumstances, I am not persuaded that there has been a miscarriage of justice, much less a substantial one, occasioned by the giving of the direction which is the subject of ground 3. For the same reasons, I would decline leave under r 4.15 in respect of ground 3.
Even had leave pursuant to r 4.15 been granted and the ground made out, I consider that this would be an appropriate case for the operation of the proviso in s 6(1) of the Criminal Appeal Act. It is this Court's responsibility to consider the nature and effect of the particular error: Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, at [15]. For the reasons given above, I consider that "no substantial miscarriage of justice has actually occurred", which is the relevant test in s 6(1) of the Criminal Appeal Act.

Proposed orders

For the reasons given above, I propose the following orders: 1. Refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of ground 3. 2. Grant leave to appeal in respect of ground 1. 3. Dismiss the appeal.
PRICE J: Having independently reviewed the whole of the evidence, I agree with Adamson JA that ground 1 has not been made out. As to ground 3, I agree for the reasons given by her Honour that leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal Rules) 2021 (NSW) be refused. I also agree that even if leave had been granted, this would be an appropriate case for the proviso. For the reasons discussed by her Honour, I do not consider that the direction by the trial judge, the subject of ground 3, had a "real chance" of affecting the jury's verdict (Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [47] per Kiefel CJ, Keane and Gleeson JJ) or "realistically [could] have affected the verdict of guilt" (at [123] per Gageler J). It follows that there was no substantial miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). I agree with the orders proposed by her Honour.
DHANJI J: I agree with the orders proposed by Adamson JA.
In relation to ground 1, I agree with what Adamson JA has said and would only add the following. It is true, as the applicant stressed, that there was evidence that the complainant was conscious and active during (at least part of) a period of time prior to the alleged act of intercourse, and in relation to which she had no memory. On this basis, there is a superficial attraction to the argument that her lack of memory as to what occurred when she later returned to the hotel room and was, on her version, thrown onto the bed by the applicant, did not establish she was asleep. There was, however, a significant difference with respect to the evidence of the complainant's condition during those two periods of time.
In relation to the first period of time, it appears that the complainant was able to accompany the applicant from the hotel room to the car and back to the hotel. The Closed Circuit Television Footage (CCTV) captured her walking away from the hotel lobby at 5:08pm to 5:09pm. However, by 5:36pm, the time the complainant returned to the hotel, it appears that her condition had deteriorated. The CCTV footage at that point shows that the applicant and the complainant returned to the hotel, and while the applicant entered the lobby, the complainant lay down on a bench outside the hotel entryway. At 5:44pm to 5:45pm, the footage shows the applicant then assisting the complainant off the bench and inside the hotel foyer towards the lifts. The next relevant footage is of the applicant approaching the reception desk at 7:28pm. A relatively short time after this, Mr Prasad, an employee of the hotel, entered the room and saw the complainant to be asleep. It would appear that the undisputed act of intercourse occurred during the interval between the complainant being, on her version, thrown onto the bed after being helped off the bench on which she was lying at 5:45pm and 7:28pm when the applicant returned to the lobby.
As Adamson JA reasons, the combination of the complainant needing to lie down on the bench outside the hotel before re-entering the room and her position on the bed prior to the act of intercourse by the accused, is evidence from which the jury could reason she fell asleep when on the bed. Unlike the first stages of the earlier period of time, the complainant could not be described as active. The complainant's act in lying on the bench outside the hotel, in the context of her intoxication, was suggestive of a desire to sleep. Additionally, unlike the earlier period during which the complainant was awake but had no memory, the complainant gave evidence of two flashbacks during the relevant time. Whether this evidence was suggestive of the complainant having regained consciousness for a brief time before again lapsing into sleep or unconsciousness does not need to be decided. While I would hesitate before drawing inferences as to the working of human memory in the absence of expert evidence, this evidence at least distinguished the later critical period from the earlier period.
In relation to ground 3, the directions had the potential to cause confusion. As Adamson JA points out, the Crown committed itself to a case that the complainant was not consenting because she was asleep or unconscious. If there was any reasonable possibility, on the complainant's evidence or otherwise, that the complainant was not asleep or unconscious, lack of consent was not proved and the applicant was entitled to an acquittal.
The difficulties arose as a result of the portion of the Crown's closing address set out by Adamson JA at [72]. That aspect of the address did not deal with the complainant's state of mind (that is the element of non-consent), but rather dealt with the applicant's state of mind (element 3). That aspect of the address, however, introduced the possibility that the complainant was awake, implicitly not consenting, and that the accused either did not honestly believe she was consenting, or had no reasonable grounds for believing she was consenting.
The time for the applicant's counsel to take issue with this submission was after the Crown address. However, taking issue at that point carried with it the risk that the basis on which the Crown case was put would be adjusted to accommodate what was implicit in the Crown's address, that is, if the complainant was awake, she was not capable of consenting due to an extreme level of intoxication. Having not raised the issue at this point, counsel took no issue with the trial judge's directions framed, as they were to incorporate the manner in which the Crown had put its case in address.
As Adamson JA points out, the applicant's counsel was concerned to avoid a Crown case based on an absence of consent based on the complainant's intoxication being available to the jury. Even in the absence of counsel's affidavit, having regard to the evidence of the quantity of alcohol consumed, the vomiting, and the condition of the complainant immediately prior to returning to the hotel room, I would have drawn the inference that counsel would have been extremely concerned to avoid a case of non-consent based on intoxication being put before the jury. From counsel's perspective, this potentiality, had it eventuated, would likely have closed off any faint glimmer of hope he may have had in securing an acquittal. In short, there was sound forensic reason for counsel's decision not to object either to the Crown prosecutor's address or the directions that followed it.
In Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22, I said, with the agreement of Bathurst CJ and Rothman J, (at [69]-[71]): "[69] … Rule 4.15 directs attention to the manner in which the case was conducted at trial and the issues in dispute. Even in the absence of r 4.15 the approach at first instance would be relevant to whether the applicant can establish a miscarriage of justice. As Gaudron J said in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26], quoting from the judgment of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59: '[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on [the] basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.' (footnotes omitted) [70] Her Honour in support of this proposition referred to Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 at [55] (Gaudron and Callinan JJ); and Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23 at [6] (Gaudron and Gummow JJ). [71] Gaudron J's observations echo the earlier observations of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685, where his Honour referred to this Court having "a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates." His Honour later said, in Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [9]: "[9] … A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. … It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function."
In the present case, the failure to take issue with the directions was the result of a rational forensic decision by the applicant's counsel. There was, accordingly, no miscarriage of justice.

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HEADNOTE [This headnote is not to be read as part of the judgment] Vishant Kumar (the applicant) was found guilty of aggravated sexual assault without consent contrary to s 61J of the Crimes Act 1900 (NSW) by a jury. In February 2020, the complainant travelled to Australia from Columbia. By about June or July 2020, she needed to find work to support herself and posted a message on Facebook saying that she was 21 years old and had experience in customer service. The applicant responded and, after meeting in person twice, the applicant and complainant arranged to meet in Parramatta for the purposes of work. On 3 September 2020, the complainant performed work for the applicant by cutting up flyers for distribution. The applicant took the complainant to Hooters Restaurant where they consumed vodka which the applicant ordered and paid for. The applicant then drove to the Holiday Inn, Parramatta and told the complainant this was for the purposes of investigating potential venues for a work event. He checked into a room for two at around 3.47pm and brought a bottle of vodka up to the room. At about 5.33pm, the applicant, with the complainant as passenger, attempted to drive out of the car park but, after causing his car to collide with the boom gate, another vehicle and a pylon, he returned to the hotel with the complainant. At the hotel entrance, the complainant laid down on a bench while the applicant went into the hotel. When he returned for her, he had to help her up because she was unable to walk independently. Hotel staff observed that she looked as if she had been vomiting. The applicant and complainant returned to the hotel room, where the complainant recalled vomiting. Her evidence was that the applicant threw her onto the bed and she fell asleep. The complainant had no memory of the subsequent events except flashbacks of the applicant pulling off her pants and of being face down and feeling that the applicant was sitting on her legs. She woke up alone in the hotel room. She had no recollection of having sexual intercourse. When she left the hotel, she realised that she was wearing different jeans to the ones she was wearing earlier (she had a spare pair in her backpack). At the hospital, where scientific evidence confirmed the presence of semen in her vagina, she discovered that her underwear was on the wrong way around. The Crown case at trial was that the complainant was unable to consent because she was asleep or unconscious. The Crown did not put an alternative case that if the complainant was neither asleep nor unconscious, she nonetheless did not consent because she was intoxicated. The applicant argued at trial that the complainant had in fact engaged in consensual sex with the applicant when she was awake but could not remember it because she was intoxicated. A direction by the trial judge, which had been agreed by both parties, was distributed to the jury. It directed the jury that if they accepted what the applicant had said about the complainant's actions, then they could have regard to the reasonable possibility that she had sexual intercourse with him while she was substantially intoxicated, but that it did not follow from this that she did not consent. The applicant sought leave to appeal against his conviction on two grounds. First, that the verdict of guilty was unreasonable, on the basis that the evidence was insufficient to establish that the complainant was asleep or unconscious at the time of the sexual intercourse because her evidence to that effect was, at best, unreliable lay opinion of someone who had no recollection of several events of that afternoon due to intoxication. Secondly, that a miscarriage of justice resulted from the directions given by the trial judge with respect to the elements of the offence. The Court held (Adamson JA, Price and Dhanji JJ agreeing), dismissing the appeal: Ground 1 Per Adamson JA (Price J agreeing, Dhanji J agreeing with additional reasons): (1) The Court must act on the basis that the complainant's evidence of what she did remember was accepted by the jury as both credible and reliable. The complainant's evidence was also corroborated by aspects of the applicant's evidence, whereas the hypothesis that the complainant had consensual sexual intercourse with the applicant while awake cannot accommodate the evidence of what she did recall. The applicant's evidence was also inconsistent with these matters: [85]-[87] (Adamson JA). Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37], applied. (2) It was open to the jury to be satisfied beyond reasonable doubt that the complainant was asleep or unconscious when the applicant had sexual intercourse with her and that she did not consent and the applicant knew that she was not consenting: [88] (Adamson JA); [104] (Price J); [106] (Dhanji J). Per Dhanji J (3) The complainant's evidence distinguished the later critical period, during which the intercourse occurred, from the earlier period during which she was awake but later had no memory. The complainant could not be described as active in the period before the intercourse occurred: [107]-[108]. Ground 3 Per Adamson JA (Price J agreeing, Dhanji J agreeing with additional reasons): (4) The applicant's trial counsel could have made a sound forensic decision to accede to the direction proposed by the trial judge in order to protect his client from the Crown putting its case on the alternative basis that the complainant did not consent because of her intoxication: [99] (Adamson JA). (5) When one considers the directions as a whole, the jury would have been left in no doubt that they could only convict the applicant if they were satisfied beyond reasonable doubt that the complainant was asleep or unconscious when the sexual intercourse occurred. Leave to appeal ought be refused: [100]-[101] (Adamson JA); [104] (Price J). (6) Even if leave to appeal had been granted and the ground made out, this would be an appropriate case for the operation of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) because no substantial miscarriage of justice had actually occurred: [102] (Adamson JA); [104] (Price J). Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [47] (Kiefel CJ, Keane and Gleeson JJ); at [123] (Gageler J); Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [15], applied. Per Dhanji J (7) The failure by the applicant's trial counsel to take issue with the directions was the result of a rational forensic decision in order to avoid a case of non-consent based on intoxication being put before the jury. Accordingly, in light of principles that parties are bound by the conduct of their counsel (subject to exceptions), there was no miscarriage of justice: [114]. Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22 at [67]-[71] (Dhanji J, Bathurst CJ and Rothman J agreeing), applied.

(2022) 107 NSWLR 301

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